# Tunku Singh & Anr v. State of U.P

- **Citation:** (2025) 5 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-14
- **Case number:** Criminal Appeal No. 2625 of 1982
- **Bench:** Siddhartha Varma, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tunku-singh-anr-v-state-of-u-p-53458
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code-Section
302 -Both the eye witnesses have deposed that
several villagers arrived at the scene shortly
after the incident- but none were produced by
the prosecution- doubt on P.W.-2's credibility
and the overall reliability of the prosecution's
case-alleged murder at the residence of Mullu-
the third eye witness-prosecution failed to
produce Mullu as a witness- P.W-1 and P.W-2
are relatives of the deceased-with no additional
evidence to substantiate their St.ments -P.W-2 is
identified as a chance -prosecution has failed to
prove the guilt of the appellants beyond
reasonable doubt.

Appeal allowed. (E-9)

List of Cases cited:

## Text

864 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2025) 5 ILRA 864
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Criminal Appeal No. 2625 of 1982

Tunku Singh & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Amit Srivastava

Counsel for the Opposite Party:
D.G.A., Sri Gautam Chaudhary. Sri Harish
Chandra Yadav, Sri Pawan Kumar, Sri
Sarvanand Pandey

Criminal Law - Indian Penal Code-Section
302 -Both the eye witnesses have deposed that
several villagers arrived at the scene shortly
after the incident- but none were produced by
the prosecution- doubt on P.W.-2's credibility
and the overall reliability of the prosecution's
case-alleged murder at the residence of Mullu-
the third eye witness-prosecution failed to
produce Mullu as a witness- P.W-1 and P.W-2
are relatives of the deceased-with no additional
evidence to substantiate their St.ments -P.W-2 is
identified as a chance -prosecution has failed to
prove the guilt of the appellants beyond
reasonable doubt.

Appeal allowed. (E-9)

List of Cases cited:

1. Manoj & ors. Vs St. of M.P., (2023) 2 SCC 353

2. Harbeer Singh Vs Sheeshpal & ors., (2016) 16
SCC 418

3. Jarnail Singh & ors. Vs St. of Pun., (2009) 9
SCC 719
4. Bahal Singh Vs St. of Har., 1976 Criminal L.J.
1568

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. This criminal appeal has been filed
against the judgment and order dated
12.10.1982 passed by the 4th Additional
Sessions Judge, Fatehpur in S.T. No. 497 of
1981, whereby the learned Sessions Judge
convicted the appellants under Section
302/34 I.P.C. and sentenced them to
imprisonment for life.

2. The factual matrix of the case is
that upon the alleged incident having taken
place on 12th May 1981,wherein Ram
Saran Singh, alias Chittoo, had died, a first
information report was lodged on 12th May
1981 itself at 21:05 hours under Section
302 of I.P.C. which describes an incident of
murder that occurred on the same day i.e.
on 12th May 1981, at around 16:00 hours.
The F.I.R. was lodged by Bachan Singh,
who is the complainant and also the
husband of the sister of the deceased.

3. According to the F.I.R., Bachan
Singh and his wife had visited the residence
of the deceased, Ram Saran Singh @
Chittoo, on the occasion of the Mundan
ceremony, scheduled for 20th May 1981, in
the village of Amilihapal. On the day of the
incident, Bachan Singh and Ram Saran
Singh (deceased) had gone together to the
house
of
Mullu
(carpenter),
at
approximately 16:00 hours. Both sat on a
cot (charpai) lying on barotha at Mullu's
residence. Meanwhile, Ram Saran Singh
asked Mullu to go to the nearby Potter and
arrange for supply of hunda (earthen pot)
and parai (firewood) required for his son's
mundan ceremony on 20th May 1981.
While they were engaged in conversation,
5 All. Tunku Singh & Anr. Vs. State of U.P.
865
Bachau Singh and Tunku Singh,
both sons of Pratap Singh arrived at the
place with countrymade pistols. Bachau
Singh, from a very close range, fired a shot
at Ram Saran Singh (deceased) at his neck.
Second shot was then fired by Tunku
Singh. The complainant, Bachan Singh,
immediately ran towards the courtyard
(angan) out of fear. The witnesses Shiv
Saran Singh @ Bagga Singh and many
other persons of the village rushed to the
spot on hearing the sound of gun shot. On
their arrival, the accused persons ran away
from the spot. They could not catch the
accused persons on account of fear of the
fact that the assialants were and with
countrymade pistols. It was mentioned that
the motive behind the murder was some
property dispute. It was alleged that the
deceased Ram Saran Singh @ Chhitoo
Singh had previously done Pairvi in the
transfer of the property by Kailash Singh to
his sister's sons Hari Baran Singh and
Balwant Singh. Kailash Singh was the
cousin brother of Pratap Singh. It was on
account of this enmity,Tunku Singh and
Bachau Singh had murdered the deceased
Ram Saran Singh @ Chhitoo Singh. On
receiving gun shot injuries, Ram Saran
Singh @ Chhitoo Singh died. Bachan
Singh (complainant), leaving the deadbody
on the cot under the care of Mullu
carpenter and other persons of the village,
came to the police station to lodge the
F.I.R.

4. The FIR was scribed by Angad
on the dictation of first informant Bachan
Singh. Head Moharrir Dwarika, on the
basis of above written report Ext. Ka-1
recorded the F.I.R. Ext. Ka-3 on 12.5.1981
at 21.05 hours. He then registered the case
in the G.D. Ext. Ka-4 at its serial no. 30, on
the same day. He also prepared special
report Ext. Ka-5 and sent it to the
authorities, through constable shamshuddin
on
13.5.1981
at
6:10
A.M.
The
Investigating officer Sri Balikaran Singh,
P.W. 4 was not at the police station at that
time. He had gone for search on that date.
He reached police out post Chhivlaha in the
night of 12/13.5.1981 at 2.00 A.M, where
constable Mohd Arif and Jai Narain
brought copy of the F.I.R and form of
inquest. He thereupon proceeded to the spot
and reached there on 13.5.1981 at 4.00
A.M. It was dark at that time, and the light
of the lantern was inadequate so he
postponed the inquest proceeding upto 6.00
A.M. In the meantime i.e. from 4.00 A.M.
to 6.00 A.M. he recorded the statements of
the complainant Bachan Singh, Mullu and
Shiv Saran Singh alias Bagga Singh. Then
in the light of the day, he started inquest
proceeding, took into custody the deadbody
of Ram Saran Singh alias Chhitoo and
appointed
witnesses
of
inquest.
He
recorded injuries in the inquest report and
obtained signatures of witnesses of inquest
on the inquest report Ext.Ka-6. He then
prepared photolash Ext. Ka-7 and marked
the places of injuries on the dead body
where injuries were visible. Thereafter, he
got the dead body sealed, Ext. Ka. 8. He
then prepared letter to the Chief Medical
Officer and challan lash, which was marked
as Ext. Ka- 9 and 10 respectively. Copies
of the F.I.R. and the G.D which were given
to him by the constables at Chhivlaha
police out post were marked as Ext Ka-11
and
12
respectively.
Thereafter,
the
Investigating Officer handed over the dead
body to Constable Sitaram and Chaukidar
Huddi for carrying it for postmortem. The
said Constable Sitaram obtained police
form no. 33 from the R.I. Shri Rana Ext.
Ka-13. The Investigating Officer recorded
the statements of the witnesses of inquest,
inspected the place of occurrence and
prepared site-plan Ext. Ka-14. He collected
866 INDIAN LAW REPORTS ALLAHABAD SERIES
bloodstained earth and plain earth from the
spot, sealed them and marked them as Ext.1
and Ext. 2. He also found blood on the cot
(Charpai).
He
cut
down
pieces
of
bloodstained "Ban" of that Charpai and
prepared Fard Ext. Ka-15. He sent all these
articles to the police station through the
Constable Jai Narain Singh, where an entry
was made in the G.D Ext.Ka-16 at its serial
no. 15 at 12:05 PM on 13.5.1981. He
raided the house of the accused for their
arrest, but they were not not present. As
they could not be arrested, he submitted
report on 17.5.1981 for initiating process
under Section 82/83 Cr.P.C.

5. On the other hand the Constable
Sitaram brought the deadbody in sealed
cover to the mortuary and handed it over to
the Chief Medical Officer. Dr. Swatantra
Singh, P.W-3, who was posted as Medical
Officer,
Sadar
Hospital,
Fatehpur
conducted post-mortem examination on
the body of the deceased on 13.5.1981 at
4:15 PM. Upon the external examination
of the deadbody, he found that the
deceased was a man of average built, rigor
mortis had passed off from the upper
portion and was present in the lower part
of the body, abdomen mild distended by
greenish discolouration in both illiac fosa.
He found the following two ante-mortem
injuries.

 1. Gun shot wound of entry
infront of upper part of neck Just below
the chin obliquely placed 3-1/2" 1-1/2"
margins inverted. Blackening tattooing
present with frameture of mandible,
laceration
of
larynx
and
trachea
Fracture of theorld cartilage.

 2.
Lacerated
wound
right
fronto-parietal region 1/2" A 1/4" &
muscle deep 2" above right ear.
6. The prosecution to prove its
case, produced the following four (4)
witnesses:-

 1 Bachan Singh as P.W.1

 2. Shiv Saran alias Vanga as
P.W.2

 3 Dr. Savtantra Singh as P.W.3

 4.Balikaran Singh SI as P.W.4

7. 17 exhibits were also produced
by the prosecution side to prove its case.
PW-1 (informant Bachan Singh ) in his
testimony before the court has stated that
both Bachau Singh and Tunku Singh are
the sons of Pratap Singh and are real
brothers. They reside in Amilihapal. The
deceased, Ram Saran alias Chhittu was his
real brother-in-law. Four or five days prior
to the incident, Ram Saran (deceased)
visited his home to invite his wife for his
son's
mundan
ceremony,
which
was
scheduled for 20.05.1981. On account of
engagement in another function which had
to take place at the house of complainant,
he did not send his wife with the deceased
to the sasural and gave assurance that 4-6
days afterwards he would bring his wife
(i.e.
the
sister
of
the
decesead).
Subsequently, after 4-5 days, he went to
Amilihapal with his wife and arrived at
around 2:30 p.m. At that time, Ram Saran
alias Chhittu was busy with his work. After
sitting for a while, he went to the place of
Mullu Carpenter alongwith Ram Saran
alias Chhittu at around 4:00 pm and sat on
a cot in his barn. Mullu was to go home for
taking his meal. During the course of
conversation with Mullu, the accused
persons Tunku and Bachau arrived there,
both were holding pistols with them. The
accused Bachau fired at Ram Saran from
5 All. Tunku Singh & Anr. Vs. State of U.P.
867
approximately four steps away, hitting him
in the neck. Immediately thereafter, Tunku
fired another shot at Ram Saran. This
witness further states that he got scared and
ran inside Mullu's house, raising an alarm.
Hearing his cries and the sound of gunfire,
several witnesses arrived. Both accused
fled eastwards. They did not attempt to
apprehend them out of fear of their
firearms.

8. P.W.-1 further submits that the
cousin brother of his father -Kailash was
issueless. Kailash had transferred his
property to his nephews and Ram Saran
alias Chhittu facilitated this arrangement,
which led to enmity between the accused
and Ram Saran. This deed was executed
two months prior to the incident. Driven by
this enmity, the accused killed Ram Saran.

9. P.W.-1 states that at the time of
the incident, Mullu, the carpenter lived in a
house owned by Pratap Singh. The house
has a door that opens northward onto the
street, leading into a long hall and
verandah. He was sitting on a cot in the
verandah, with Ram Saran sitting nearby.
As soon as Tunku and Bachau entered
there, they started firing without any prior
conversation.
Only
Ram
Saran
alias
Chhittu was hit by the bullets. This witness
ran away immediately after the first shot
was fired and did not see the second shot
being fired. After the accused fled, he
returned to the barn. He remained there for
two to four minutes as several villagers
arrived. He then went to Ram Saran alias
Chhittu's house, where Angad wrote a
report. He left Amilihapal at 6:00 p.m,
heading on foot to the police station with
Ram Shankar Sonar Dhane. He further
submits that the accused are real brothers
and live together in a house located east
of Mullu's house. Their house has a gate
just a few steps away from Mullu's door.

10. P.W.-1 further submits that
after the murder, Shivcharan Singh alias
Bagga moved from Amilihapal to Mauja
Semrahara out of fear and in the crossexamination he affirmed that he was
present in Amilihapal at the time of the
incident and reached there soon after
hearing about Ram Saran's murder. The
allegations that the family members of
Mullu and Maharaj were responsible for
Ram Saran's death are false. Shivcharan
alias Bagga started living at Mauja
Semarhara due to fear.

11. P.W.-2 Shiv Saran alias
Bagga in his evidence has stated that
about 15-1/2 months back he had gone to
purchase articles from the shop of Sudin
Teli. At about 4.00 P.M. he heard cries
and noise of gun shot from the side of the
house of Mullu carpenter. He rushed to
that place and saw Tunku Singh and
Bachau Singh, accused persons coming
out of the house of Mullu and running
away towards east. Both of them were,
having countrymade pistols (Tamancha)
in their hand.

12. P.W.-2 further states that
Kailash, father of the accused, had
transferred his property to his nephews.
His brother Chhitu used to support
Kailash in legal matters related to transfer
of proverty. Due to his involvement, the
accused started harbouring enmity with
his brother. He was unaware of any legal
dispute involving Kailash or his nephews
against Pratap Singh or the accused
concerning the land or sale deed. He
further clarified that it is not true that he
has been living in Marhara for 4-5 years.
868 INDIAN LAW REPORTS ALLAHABAD SERIES
13. P.W.-2 further states that
Sudin's shop is located in his house, with
the entrance facing east. The accused's
house is situated at the southeastern corner of
Sudin's house, with no other house in
between. Bachan Teli's house is across the
road, to the east of Sudin's residence. The
other houses are located to the north of
Sudin's house. Approximately 5-6 minutes
after he arrived at the scene, other people
began to gather. By that time, the accused
had already fled away. He states that there
were no other customers at Sudin's shop, nor
was Sudin present at the time of the incident.
His wife was managing the shop when he
heard the gunshots and shoutings. He further
informed the police Inspector that he had
witnessed Tunku and Bachau running away
after committing the murder.

14.
P.W.-3,
statement
of
Dr.
Swatantra Singh and PW-4 , statements of
Bali Karan Singh were also recoreded.

15. Thereafter, the statements of the
accused, Bachau Singh and Tunku Singh
were recorded under section 313 Cr.P.C and
both have denied the allegation made against
them.

16. Upon the conclusion of the Trial,
the Additional Sessions Judge, Fathepur on
12.10.1982 convicted the accused persons
under section 302 read with 34 of I.P.C. and
senteced them for imprisonment for life.
Hence, this appeal.

17.
Heard
Sri
Amit
Kumar
Srivastava, learned counsel for the appellants
and Sri Amit Sinha, learned Additional
Government Advocate representing the State
and perused the record of the case.

18.
Learned
counsel
for
the
appellants argued that the prosecution's
case heavily relies upon the occurrence of the
alleged murder at the residence of Mullu, the
carpenter. Mullu was present with the
deceased (Ram Saran alias Chhittu,) and PW1 at his home just before the incident. Mullu
was the third eye witness of the alleged
occurrence. However, the prosecution failed
to produce Mullu as a witness. Mullu's
testimony could have provided critical
evidence regarding the actual events and
sequence that led to the murder. The absence
of Mullu's testimony, particularly as the
incident occurred at his residence, creates a
significant gap in the prosecution's case. The
failure to include this primary witness raises
serious doubts about the authenticity and
completeness of the evidence presented by
the prosecution.

19.
Learned
counsel
for
the
appellants further argued that PW-2,
Shivcharan Singh alias Bagga, is produced
as a chance witness, who claims to have
been in the vicinity of the crime scene by
coincidence. However, the reliability of his
testimony is questionable. His presence at
the scene appears unsubstantiated, as there
is no clear reason why he would be at the
shop near the scene of the murder.

20.
Learned
counsel
for
the
appellants relied heavily on paragraphs
102, 103 and 104 of the judgment reported
in (2023) 2 SCC 353: Manoj & Ors. vs.
State of Madhya Pradesh, the same are
being reproduced herein under :-

 "102. A chance witness is one,
who appears on the scene suddenly. This
species of witness was described in Puran
v. State of Punjab (AIR 1953 SC 459), in
the following terms:

 "Such witnesses have the habit of
appearing suddenly on the scene when
5 All. Tunku Singh & Anr. Vs. State of U.P.
869
something is happening and then of
disappearing after noticing the occurrence
about which they are called later on to give
evidence."

 103. This court has sounded a
note of caution about dealing with the
testimony of chance witnesses. In Darya
Singh v. State of Punjab (AIR 1965 SC
328), it was observed that:

 "...where the witness is a close
relation of the victim and is shown to share
the victim's hostility to his assailant, that
naturally makes it necessary for the
criminal courts examine the evidence given
by such witness very carefully and
scrutinise all the infirmities in that
evidence before deciding to act upon it. In
dealing
with
such
evidence,
Courts
naturally begin with the enquiry as to
whether the said witnesses were chance
witnesses or whether they were really
present on the scene of the offence......If the
criminal Court is satisfied that the witness
who is related to the victim was not a
chance-witness, then his evidence has to be
examined from the point of view of
probabilities and the account given by him
as to the assault has to be carefully
scrutinised."

 104. In Jarnail Singh v. State of
Punjab [(2009) 9 SCC 719] again, this
Court held that:

 "22. The evidence of a chance
witness requires a very cautious and close
scrutiny and a chance witness must
adequately explain his presence at the
place of occurrence (Satbir v. Surat Singh
(1997) 4 SCC 192 30, Harjinder Singh v.
State of Punjab (2004) 11 SCC 253,
Acharaparambath Pradeepan and Anr. v.
State of Kerala (2006) 13 SCC 643 and
Sarvesh Narain Shukla v. Daroga Singh
(2007) 13 SCC 360). Deposition of a
chance witness whose presence at the place
of incident remains doubtful should be
discarded 14 (vide Shankarlal v. State of
Rajasthan (2004) 10 SCC 632)."

21. The learned counsel for the
appellants also relied upon paragraphs 22
to 24 of the judgment reported in (2016) 16
SCC 418 : Harbeer Singh vs. Sheeshpal
& Ors., the same are being reproduced
herein under :-

 "22. The High Court has further
noted that there were chance witnesses
whose statements should not have been
relied upon. Learned counsel for the
respondents has specifically submitted that
PW5 and PW6 are chance witnesses whose
presence at the place of occurrence was not
natural.

 23. The defining attributes of a
"chance
witness"
were
explained
by
Mahajan, J., in Puran v. State of Punjab,
AIR 1953 SC 459. It was held that such
witnesses have the habit of appearing
suddenly on the scene when something is
happening and then disappearing after
noticing the occurrence about which they
are called later on to give evidence.

 24. In Mousam Singha Roy v.
State of W.B., (2003) 12 SCC 377, this
Court discarded the evidence of chance
witnesses while observing that certain
glaring contradictions/omissions in the
evidence of PW 2 and PW 3 and the
absence of their names in the FIR has been
very lightly discarded by the courts below.
Similarly,
Shankarlal
v.
State
of
Rajastahan, (2004) 10 SCC 632 and
Jarnail Singh v. State of Punjab, (2009) 9
SCC
719,
are
authorities
for
the
870 INDIAN LAW REPORTS ALLAHABAD SERIES
proposition that deposition of a chance
witness, whose presence at the place of
incident remains doubtful, ought to be
discarded. Therefore, for the reasons
recorded by the High Court we hold that
PW5 and PW6 were chance witnesses and
their
statements
have
been
rightly
discarded."

 Similarly, paragraphs 20 to 23 of
the judgment of the Supreme Court in
Jarnail Singh & ors. vs. State of Punjab
reported in (2009) 9 SCC 719 are also
being reproduced here as under :-

 "20. After considering the oral as
well as documentary evidence on record, the
High Court came to the conclusion that the
statement of Gurcharan Singh (PW18) in
respect of the fact of hatching of a conspiracy
by Balbir Singh and Gurdip Singh, at the Busstand Bassi Pathana on 21-6-2000 at 7.30/8.00
p.m. was not worthy of credence. Gurcharan
Singh (PW-18), a chance witness could not
explain under what circumstances he was
present at the bus-stand at the said time.

 21. In Sachchey Lal Tiwari v. State
of U.P. (2004) 11 SCC 410, this Court while
considering the evidentiary value of the chance
witness in a case of murder which had taken
place in a street and passerby had deposed that
he had witnessed the incident, observed as
under:

 "If the offence is committed in a
street only a passer-by will be the witness. His
evidence cannot be brushed aside lightly or
viewed with suspicion on the ground that he
was a mere chance witness. However, there
must be an explanation for his presence there."

 The Court further explained that
the
expression
"chance
witness"
is
borrowed from countries where every
man's home is considered his castle and
everyone must have an explanation for his
presence elsewhere or in another man's
castle. It is quite unsuitable an expression
in a country like India where people are
less formal and more casual, at any rate in
the matter of explaining their presence. 22.
The evidence of a chance witness requires
a very cautious and close scrutiny and a
chance witness must adequately explain his
presence at the place of occurrence (Satbir
v. Surat Singh (1997) 4 SCC 192;
Harjinder Singh v. State of Punjab (2004)
11 SCC 253; Acharaparambath Pradeepan
& Anr. v. State of Kerala (2006) 13 SCC
643; and Sarvesh Narain Shukla v. Daroga
Singh and Ors. (2007) 13 SCC 360).
Deposition of a chance witness whose
presence at the place of incident remains
doubtful
should
be
discarded
(vide
Shankarlal v. State of Rajasthan (2004) 10
SCC 632).

 23. Conduct of the chance witness,
subsequent to the incident may also be taken
into consideration particularly as to whether he
has informed anyone else in the village about
the incident. (vide Thangaiya v. State of Tamil
Nadu (2005) 9 SCC 650). Gurcharan Singh
(PW-18) met the informant Darshan Singh
(PW-4) before lodging the FIR and the fact of
conspiracy was not disclosed by Gurcharan
Singh (PW-18) and Darshan Singh (PW-4).
The fact of conspiracy has not been mentioned
in the FIR. Hakam Singh, the other witness on
this issue has not been examined by the
prosecution. Thus, the High Court was justified
in discarding the part of the prosecution case
relating to conspiracy. However, in the fact
situation of the present case, acquittal of the
said two co-accused has no bearing, so far as
the present appeal is concerned."

 Paragraph 10 of the judgment
reported in 1976 Criminal L.J. 1568 :
5 All. Tunku Singh & Anr. Vs. State of U.P.
871
Bahal Singh vs. State of Haryana is also
being reproduced herein under :-

 "10. As to the presence of P. Ws.
4 and 5 at the time and place of occurrence
the trial Court entertained grave doubts. If
by coincidence or chance a person happens
to be at the place of occurrence at the time
it is taking place, he is called a chance
witness. And if such a person happens to be
a relative or friend of the victim or
inimically disposed towards the accused
then his being a chance witness is viewed
with suspicion. Such a piece of evidence is
not necessarily incredible or unbelievable
but does require cautious and close
scrutiny. In the instant case, P.Ws. 4 & 5
were agnatic relations of the deceasedone
of them a close one. The reason given by
them for being at the place of occurrence
did not appear to be true to the trial Court.
There was not any compelling or sufficient
reason for the High Court to differ from the
evaluation of the evidence of the two
chance witnesses. It may well be as
remarked by the High Court that the
respondent was also their collateral but
they appeared to be partisan witnesses on
the side of the prosecution and hence their
testimony was viewed with suspicion by the
trial Judge."

22. The counsel for the Appellants
has argued that both PW-1 (Bachan Singh)
and PW-2 (Shivcharan Singh alias Bagga)
are close relatives of the deceased, Ram
Saran alias Chhittu. PW-1 is the brother-inlaw of the deceased, while PW-2 is his sibling. As
interested parties with direct familial ties, they
have a vested interest in securing a conviction
against the accused. Their testimonies may be
biased due to their relationship with the deceased
and their motive to seek retribution. It is a well-
established legal principle that the testimony of
related and interested witnesses should be
scrutinized closely. Here, there is a strong
possibility of bias in their statements, particularly
as the prosecution failed to produce any
independent or impartial witnesses to corroborate
their claims.

23.Counsel for the appellants has relied
upon the judgment of the Supreme Court passed
in Criminal Appeal No. 1105 of 2010 ( Md.
Jabbar Ali and Others V.State of Assam in
paragraphs 55, 56 and 57 )

 "55. It is noted that great weight has
been attached to the testimonies of the witnesses in
the instant case. Having regard to the aforesaid
fact that this Court has examined the credibility of
the witnesses to rule out any tainted evidence
given in the court of Law. It was contended by
learned counsel for the appellant that the
prosecution
has
failed
to
examine
any
independent witnesses in the present case and that
the witnesses were related to each other. This
Court in a number of cases has had the
opportunity to consider the said aspect of
related/interested/partisan witnesses and the
credibility of such witnesses. This Court is
conscious of the well-settled principle that just
because
the
witnesses
are
related/interested/partisan
witnesses,
their
testimonies cannot be disregarded, however, it is
also true that when the witnesses are
related/interested, their testimonies have to be
scrutinized with greater care and circumspection.
In the case of Gangadhar Behera v. State of
Orissa, (2002) 8 SCC 381, this Court held that the
testimony of such related witnesses should be
analysed with caution for its credibility.

 56. In Raju alias Balachandran
v. State of Tamil Nadu, (2012) 12 SCC
701, this Court observed:

 "29. The sum and substance is
that the evidence of a related or interested
witness
should
be
meticulously
and
872 INDIAN LAW REPORTS ALLAHABAD SERIES
carefully examined. In a case where the
related and interested witness may have
some enmity with the assailant, the bar
would need to be raised and the evidence of
the witness would have to be examined by
applying a standard of discerning scrutiny.
However, this is only a rule of prudence
and not one of law, as held in Dalip Singh
((1953) 2 SCC 36: AIR 1953 SC 364] and
pithily reiterated in Sarwan Singh [(1976)
4 SCC 369] in the following words:
(Sarwan Singh case [(1976) 4 SCC 369, p.
376, para 10)

 "10....
The
evidence
of
an
interested witness does not suffer from any
infirmity as such, but the courts require as
a rule of prudence, not as a rule of law,
that the evidence of such witnesses should
be scrutinised with a little care. Once that
approach is made and the court is satisfied
that the evidence of interested witnesses
have a ring of truth such evidence could be
relied upon even without corroboration."

 57. Further delving on the same
issue, it is noted that in the case of
Ganapathi v. State of Tamil Nadu, (2018)
5 SCC 549, this Court held that in several
cases when only family members are
present at the time of the incident and the
case of the prosecution is based only on
their evidence, Courts have to be cautious
and meticulously evaluate the evidence in
the process of trial.

24.
Learned
counsel
for
the
appellants also argued that in a criminal
trial, it is the duty of the prosecution to
prove the guilt of the accused beyond a
reasonable
doubt.
In
this
case,
the
prosecution's
case
is
marred
by
inconsistencies and the absence of critical
witnesses. The trial court relied heavily on
the testimonies of PW-1 and PW-2, both of
whom are close relatives of the deceased.
The lack of corroborative evidence from
impartial witnesses and the failure to
include a primary witness (Mullu) casts
significant doubt on the prosecution's
version of events. That the testimony from
interested or partisan witnesses must be
corroborated by independent witnesses to
establish guilt beyond reasonable doubt.

25. The prosecution claims that the
murder was motivated by a property
dispute. According to the prosecution, Ram
Saran Singh had helped Kailash Singh,
cousin
of
the
appellants'
father,
in
transferring property to Kailash's nephews,
which allegedly led to animosity between
the appellants and the deceased. However,
there is no direct evidence of a property
dispute between Kailash and the appellants
and no credible testimony was presented to
confirm the existence of any conflict over
the property. Bachan Singh (PW-1), while
mentioning
the
property
transaction,
admitted that he was unaware of any
litigation or dispute between Kailash and
Pratap Singh (the appellants' father).
Furthermore, there was no independent
corroboration or documentary evidence
regarding the property dispute, thus failing
to establish a clear and compelling motive
also two gunshots were allegedly fired as
per
the
prosecution.
However,
the
postmortem report evidences only one
injury and the story of the second shot is
not at all evidenced by any collection of
empty cartridges etc. This makes the
witnesses unbelieable.

26. Per contra, learned Additional
Government Advocate has argued that as
many as two eye-witnesses have supported
the prosecution story. The testimony of
these witnesses is without any blemish.
Minor discrepancies are not sufficient to
5 All. Tunku Singh & Anr. Vs. State of U.P.
873
erode credibility of the eye-witnesses.
Testimony of all eye-witnesses is natural,
trustworthy and inter se coherent and
consistent with the normal human conduct.
There is no contradiction in the medical
and
ocular
evidence
placed
by
the
prosecution. Regarding the delay in lodging
the FIR and other police and medical
proceedings, cogent explanation has been
furnished by the side of the prosecution at
the stage of the FIR itself, which cannot be
disbelieved. Evidence of the eye-witnesses
cannot be brushed aside only on the ground
of chance witness or relationship not
corroborated by the evidence of any other
independent witness; the only requirement
is that their evidence should have been
examined with due care and caution.

27. We are definitely of the view
that when both the eye-witnesses have
deposed that several villagers arrived at the
scene shortly after the incident, but none of
these
other
potential
witnesses
was
produced by the prosecution, raising doubts
as to why only P.W.-2 was brought forward
as a witness. The selective choice of
witnesses,
excluding
other
neutral
individuals
who
could
have
offered
unbiased testimony, suggests an attempt by
the prosecution to construct a narrative
favorable to its case. This casts significant
doubt on P.W.-2's credibility and the
overall reliability of the prosecution's case.

28.When the prosecution's case
heavily relies on the occurrence of the alleged
murder at the residence of Mullu, the
carpenter. Mullu was present with the
deceased, (Ram Saran alias Chhittu,) and
P.W.-1 at his home just before the incident.
Mullu was the third eye witness of the
alleged occurence, However, the prosecution
failed to produce Mullu as a witness. Mullu's
testimony could have provided critical
evidence regarding the actual events and
sequence that led to the murder. The absence
of Mullu's testimony, particularly as the
incident occurred at his residence, creates a
significant gap in the prosecution's case. The
failure to include this primary witness raises
serious doubt about the authenticity and
completeness of the evidence presented by
the prosecution.

29. Upon consideration of arguments
of learned counsel for the parties and
scrutinizing the record of the case, this Court
is of the opinion that the lower court failed to
properly assess the material and relevant
evidence. Notably, the main eyewitness,
Mullu Carpenter, whose testimony was
crucial for the interests of justice, was not
presented
as
a
prosecution
witness.
Furthermore, P.W-1 and P.W-2 are relatives
of the deceased, with no additional evidence
to substantiate their statements and P.W-2 is
identified as a chance witness. On these
grounds, this Court finds sufficient reason to
overturn the decision of the court below.

30. In view of what has been
indicated herein above, we are of the view
that the prosecution has failed to prove the
guilt of the appellants beyond reasonable
doubt.

31. The appeal therefore, stands
allowed. The impugned judgment and order
dated 12.10.1982, passed by the 4th
Additional Sessions Judge, Fatehpur in S.T.
No. 497 of 1981 is set-aside. The
appellants, Tunku Singh and Bachau Singh
are on bail. They need not to surrender. The
sureties and the bail bonds are discharged.

32.
Learned
counsel
for
the
appellants is directed to comply with the
provisions of Section 437-A of Code of
Criminal Procedure.
874 INDIAN LAW REPORTS ALLAHABAD SERIES
33. Office is directed to transmit a
copy of this order to the court concerned
for compliance.
----------
(2025) 5 ILRA 874
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 2781 of 1982

Lakhan & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.L. Agarwal, Sri A.P. Singh, Sri Lalit
Kumar Mishra, Sri Man Mohan Mishra, Sri
R.C. Kandpal

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 374(2) & 437-A -
Indian Penal Code,1860 - Sections 34,
302, 304, 307, 308 & 323- Criminal Appeal -
filed u/s 374(2) CrPC - conviction and sentence
- conviction u/s 302/34 and 307/34 IPC -
Initially four appellants, later continued against
two appellant due to deaths of two others
convicts - FIR - assault - fatal injuries - death
as a result of injuries - FIR lodged with delay
due to fear - Defence claimed right of private
defence - Injuries on accused medically
confirmed - No cross FIR filed, but medical
reports validated by government doctor - Court
noted prosecution failed to prove genesis of
incident - Only interested witnesses examined -
Injuries on accused unexplained - Longstanding
family feud acknowledged - court emphasized
importance of explaining injuries on accused -
Suppression of origin weakens prosecution case
- court finds that, the trial court failed to
properly scrutinize the prosecution's evidence,
particularly the testimonies of key witnesses,
and overlooked significant gaps such as the
unexplained genesis of the incident and
injuries sustained by the accused - These
omissions cast doubt on the prosecution's
version and supported the defence's claim of
private defence - court held that, the
prosecution's case unreliable and granted the
benefit
of
doubt
to
the
accused
-
consequently, the appeal was allowed, the
conviction and sentence were set aside and
appellants were ordered to be released or
discharged
from
bail,
subject
to
legal
compliance. (Para - 10, 11, 12, 13)

Application Allowed. (E-11)

List of Cases cited:

1. St. of Rajasthan Vs Madho & ors., AIR 1991
SC 1065,

2. Lakshmi Singh & ors. Vs St. of Bihar, (1976) 4
SCC 349,

3. Nand Lal & ors. Vs St. of Chhatisgarh,
(2023)2 SCR 276,
(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Shri Man Mohan Mishra,
learned Amicus Curiae for the surviving
appellants, Ms. Mayuri Malhotra, learned
State Law Officer for the State-respondents
and perused the records.

2. The present Criminal Appeal
under Section 374(2) of the Criminal
Procedure Code was preferred by four
convicts against the judgment and order of
conviction dated 02.11.1982 passed by
learned Additional Sessions Judge IV,
Allahabad in Sessions Trial No.162 of
1980, whereby all the appellants were
convicted
and
sentenced
to
undergo
imprisonment for life under Section 302/34
IPC and four years rigorous imprisonment
under Section 307/34 IPC. Both the
sentences
shall
run
concurrently.