# Vidya Sagar Dwivedi (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 1826 of 1997
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-04-30
- **Case number:** Criminal Appeal No. 1826 of 1997
- **Bench:** Mrs. Sunita Agarwal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidya-sagar-dwivedi-in-jail-v-state-of-u-p-46443
- **Pages:** 24

## Headnote

Criminal law- Indian Penal Code - Sections
302/504 - Appeal against conviction.

Held :- Relative witnesses- The testimony
cannot be disbelieved because they have enmity
with the accused. (Para 50)
Chance Witnesses- The testimony cannot be
rejected only on the ground of a chance
witness. (Para 52)
Minor Contradiction / Inconsistency In
Evidence- Cannot be ignored if does not affect
the core of the prosecution.
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Motive - Does not play important role in case
of direct evidence. (para 70)

Appeal rejected. (E-2)

List of Cases Cited:

1.MarudanalAugusti Vs. St. of Kerala 1979 CAR (
SC) 296,

2.Meharaj Singh Vs. St. of UP (1994) 5 SCC 188,

## Text

_Characters 0–39,943 of 80,665. This is a partial read: ask again with offset=39943 for what follows._

3-5 All. Vidya Sagar Dwivedi Vs. State of U.P.
581
our considered opinion in the facts and
circumstances of this case, the common
object of unlawful assembly being one of
causing grievous hurt with the deadly
weapon by hitting deceased on his vital part
(head),
would
make
the
appellant
vicariously liable for conviction of an
offence punishable under Section 304
(Part-II) IPC and a sentence of 7 years
rigorous
imprisonment
with
fine
of
Rs.10,000/- is to be awarded to him for the
said offence. The conviction of appellant
Chander for the offence under Section 147
IPC is, however, found justified. The
sentence
of
six
months
rigorous
imprisonment for the said offence awarded
by the trial court to appellant Chander is
hereby upheld. Both the above punishments
are to run concurrently.

64. We are told that the appellant
Chander has undergone some part of the
sentence awarded to him by the courts
below. He was earlier granted bail but is
languishing in jail since 05.09.2019 in
pursuance to the Non-bailable warrant
dated 30.04.2019 issued by this Court in
the present appeal. For the period of
sentence undergone by appellant Chander,
he is entitled to be given remission.

65. Computing the total period of the
sentence undergone by appellant Chander,
he be kept in the jail to serve out the
remainder of sentence, if any. He shall be
entitled to be released from jail only after
serving out the sentence of 7 years rigorous
imprisonment
(maximum
punishment
awarded to him) and also on deposit of fine
of Rs.10,000/-.

66. In case of non-deposit of fine
imposed as above, the appellant Chander
would be liable to serve further six months
rigorous imprisonment.

67. With the above, the Appeal
No.1768 of 1996 is partly allowed.

68. Certify this judgement to the court
below for compliance.

69. Compliance report be submitted
through the Registrar General, High Court,
Allahabad.
----------
(2020)03-05ILR A581
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1826 of 1997

Vidya Sagar Dwivedi ...Applicant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri M.C. Chaturvedi, Sri V.P. Srivastava, Sri
Vikas Tiwari

Counsel for the Opposite Party:
D.G.A., Sri I.K. Chaturvedi, Sri J.S. Sengar,
Sri Vinod Kumar Sahu, Sri Virendra Singh
Parmar, Sri Hari Om Singh

Criminal law- Indian Penal Code - Sections
302/504 - Appeal against conviction.

Held :- Relative witnesses- The testimony
cannot be disbelieved because they have enmity
with the accused. (Para 50)
Chance Witnesses- The testimony cannot be
rejected only on the ground of a chance
witness. (Para 52)
Minor Contradiction / Inconsistency In
Evidence- Cannot be ignored if does not affect
the core of the prosecution.
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Motive - Does not play important role in case
of direct evidence. (para 70)

Appeal rejected. (E-2)

List of Cases Cited:

1.MarudanalAugusti Vs. St. of Kerala 1979 CAR (
SC) 296,

2.Meharaj Singh Vs. St. of UP (1994) 5 SCC 188,

3. St. of HP Vs. Gian Chand (2001) 6
SCC 71,

4.Dilawar Singh VsSt.of Delhi (2007) 12 SCC 64
1,

5. Ashok Kumar Chaudhary Vs. St. of Bihar,
2008 (61) ACC 972 (SC),

6. Mukesh Vs. St. for NCT of Delhi, AIR 2017 SC
2161,

7. Mallikarjun Vs. St. of Karnataka, 2019 (4)
Crimes 468 (SC),

8. Ravi Kumar Vs. St. of Punj., AIR 2005 SC
1929,

9.Kalika Tewari Vs.St.of Bihar, JT 1997(4) SC 405,

10.Ram Gulam Chowdhary Vs.St.of Bihar, 2001(
2) JIC 986 (SC),

11. Sheoraj Bapuray Jadhav Vs.St. of Karnataka,
(2003) 6 SCC 392,

12. St. of UP Vs. Sheo Lal, AIR 2009 SC 1912,

13. Durbal Vs. St. of UP, 2011 CrLJ 1106 (SC),

14. Hari Singh Vs. St. of UP, AIR 2011 SC 360,

15. Dalip Singh Vs.St. of Punj. (1954) SCR 145,

16. Masalti Vs. St. of UP AIR 1965 SC 202,

17. Darya Singh Vs. St. of Punj. AIR 1965 SC 328,

18. St. of UP Vs.Kishanpal (2008) 16 SCC 73,

19. Appa Vs. St.of Guj., AIR 1988 SC 698,

20. St. of AP Vs. S. Rayappa (2006) 4 SCC 512,

21. Pulicherla Nagaraju @ Nagaraja Reddy Vs.
St. of AP (2007) 1 SCC (Cri) 500,

22. Satbir Singh Vs. St. of UP, (2009) 13 SCC
790,

23. M.C. Ali Vs. St. of Kerala AIR 2010 SC 1639,

24. Himanshu Vs. St. (NCT of Delhis, (2011) 2
SCC 36,

25. Bhajan Singh & ors. Vs. St. of Haryana;
(2011) 7 SCC 421,

26. Jayabalan Vs. U.T. of Pondicherry, 2010(68)
ACC 308 (SC),

27. Dharnidhar Vs. St. of UP, (2010) 7 SCC 759,

28. Ram Bharosey Vs. St. of UP AIR 2010 SC
917,

29. Balraje @ Trimbak Vs.St. of Maharashtra,
(2010) 6 SCC 673,

30. Jalpat Rai Vs. St. of Haryana AIR 2011 SC
2719,

31. Waman Vs. St. of Maharashtra AIR 2011 SC
3327,

32. Shyam Babu Vs. St. of UP, AIR 2012 SC
3311,

33. Dhari & Others Vs. St.of UP, AIR 2013 SC
308,

34. Ganapathi Vs. St. of T.N., AIR 2018 SC
1635,

35. Rupinder Singh Sandhu Vs. St.of Punj.,
(2018) 16 SCC 475,

36. Jarnail Singh Vs. St.of Punj., 2009 (6)
Supreme 526,

37. Bhagwan Jagannath Markad Vs. St. of
Maharashtra, (2016) 10 SCC 537,
3-5 All. Vidya Sagar Dwivedi Vs. State of U.P.
583
38. Ramji Singh Vs. St. of UP, 2019 (4) Crimes
585 (SC),

39. Raj Kishore Jha Vs. St. of Bihar, 2003(47)
ACC 1068 (SC),

40. Chittarlal Vs. St. of Rajasthan, (2003) 6 SCC
397,

41. Ramesh Vs.St. of UP, 2010 (68) ACC 219
(SC),

42. Kallu Vs.St. of Haryana, AIR 2012 SC 3212,

43. St. of UP Vs. Naresh; 2011 (75) ACC 215)
(SC),

44. Gosu Jayarami Reddy and another Vs.St. of
A.P.; (2011) 3 SCC(Cri) 630,

45. Parsu Ram Pandey Vs. St. of Bihar AIR 2004
SC 5068,

46. Shivappa Vs. St. of Karnataka; AIR 2682,

47. Ramchandaran Vs. St. of Kerala AIR 2011
SC 3581,

48. Mukesh Vs. St. for NCT of Delhi, AIR 2017
SC 2161,

49. Bhagwan Jagannath Markad vs St. of
Maharashtra, (2016) 10 SCC 53,

50. Bijoy Das Vs. St. of W.B., (2008) 4 SCC 511,

51.Jayabalan Vs.U.T. of Pondicherry, 2010 (68) ACC
308 (S)

52.
Narain

Singh

Vs.
St.
of
Haryana, (2004) 13 SCC 264,

53.St.of Guj. Vs. Jayrajbhai Punjabhai Varu, AIR
2016 SC 3218,

54.Laxman Vs. St.of Maharashtra, (2002) 6 SCC 710,

55.St.of Karnataka Vs. Sheriff; AIR 2003 SC 1074,

56.Gulam Hussain Vs. St.of Delhi, AIR 2000 SC 2480,

57. Abu Thakir Vs.St. AIR 2010 SC 2119,

58. St. of UP Vs.Nawab Singh AIR 2010 SC 3638,

59. Bipin Kumar Mondal Vs. St. of W.B. 2005 SCC
(Crl) 33,

60. Shivraj Bapuray Jadhav Vs. St.of Karnataka
(2003) 6 SCC 392,

61. Thaman Kumar Vs. St.of Union Territory of
Chandigarh (2003) 6 SCC 380,

62. St. of HP Vs. Jeet Singh; (1999) 4 SCC 370,

63. Gopi Ram v St. Of UP, 2006 (55) ACC 673 SC,

64. R.R. Reddy v St. of AP, AIR 2006 SC 1656,

65. Sucha Singh v St. of Punj.; AIR 2003 SC 1471,

66. St. of Rajasthan v Arjun Singh AIR 2011 SC 3380,

67. Varun Chaudhry v St. of Rajasthan AIR 2011 SC
72,

68. Saddik Vs. St. of Guj., (2016) 10 SCC 663,

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri V.P. Srivastava, learned
Senior Advocate, assisted by Sri Vikas Tiwari
learned Advocate for the appellant, Sri V.S.
Parmar and Sri Hari Om Singh learned
Advocates for the complainant and Sri L.D.
Rajbhar and Sri Prem Shankar Mishra learned
AGA for the State-respondents.

2. This criminal appeal has been preferred
against the judgment and order dated
23.10.1997, passed by District and Sessions
Judge, Hamirpur, in Sessions Trial No. 299 of
1994 (State vs. Vidya Sagar Dwivedi), arising
out of Case Crime No. 126 of 1994, under
Sections 302/504 IPC, Police Station Kotwali,
District Hamirpur, whereby the accusedappellant has been convicted and sentenced to
rigorous imprisonment for life under Section
302 IPC.
584 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Brief facts of the case is that the
incident took place on 08.06.1994 at about
10:00 PM in the night at Village Tikrauli,
Police Station Kotwali, District Hamirpur
near the house of Ram Das Pal. The
informant Jagjeet and the accused-appellant
Vidya Sagar Dwivedi are residents of that
village. On the date of incident, there was
Tilak Ceremony of Tula Ram (son of
informant), wherein his guests had come.
His elder son namely Babu Lal (deceased)
went to invite the guests for dinner who
were staying in the neighbor house of
Ramdas
Pal
and
Rambharose.
The
informant
Jagjeet
and
his
brother
Raghuveer were sitting on the Chabutara in
front of their house. There was light of
petromax and electricity. When Babu Lal
reached to the electric pole near the house
of Ram Das Pal, accused Vidya Sagar
Dwivedi came with his licensee double
barrel gun and said to Babu Lal using
abusive language that "have you gone mad
as you have not invited us in the Tilak".
Saying this, the accused-appellant Vidya
Sagar Dwivedi fired on Babu Lal by his
licensee double barrel gun in order to cause
death of Babu Lal. The fire hit Babu Lal in
his armpit and he fell down. Thereafter, the
informant and his brother reached there and
they challenged the accused, whereupon, he
ran away. The condition of Babu Lal was
serious and he was immediately taken to
Government Hospital, Hamirpur by a
tractor. In the hospital, Babu Lal was
examined and he was referred to Halat
Hospital, Kanpur and from Halat Hospital,
Kanpur, the injured was referred to
Lucknow. On 22.06.1994 at about 08:40
PM, Babu Lal died because of the injuries
caused by the accused Vidya Sagar.

4. Prior to the death of the injured, the
informant Jagjeet after admitting the
injured in Halat Hospital Kanpur, came
back to Hamirpur on 11.06.1994 and got
the written report inscribed by Kamlesh
and gave the same to Kotwali, Hamirpur at
2:10 PM in the noon and on that basis, the
offence was registered and chik FIR was
prepared for the offence under Sections
307, 504 IPC. The Statement of Babu Lal
was also recorded on 15.06.1994 in the
Halat Hospital, Kanpur. On 23.06.1994, in
the night at about 12:30 AM, the police
prepared the inquest report of the deceased
before
the
Panches
along
with
the
necessary letters and papers and the dead
body was sealed and sent for postmortem.
The
postmortem
was
conducted
in
Lucknow on 24.06.19. The informant sent
the death report of Babu Lal to the police
through one Shyam Lal Sahu of the village
and on that basis, the offence was
converted under Sections 302 and 504 IPC.
The Investigating Officer prepared the site
map of the place of occurrence, took over
possession of petromax and prepared memo
thereof and delivered it back in the
presence of the witnesses. The statement of
Jagjeet, Ram Kishore, Prem Narayan were
recorded by the Investigating Officer.
Thereafter, the charge sheet was submitted
against accused for the offence under
Section 302 IPC. The charge was framed
against the accused for the offence under
Section 302 IPC who denied charge and
claimed trial.

5. The prosecution examined as many
as 13 witnesses in support of the
prosecution case. PW-1 is Jagjeet, who is
informant and eye witness. PW-2 Prem
Narain, PW-3 Kamlesh, PW-4 Raghuvir are
the witnesses of fact. PW-5 Tula Ram Sahu
is a witness of inquest and memo of
petromax delivered to police by him. PW-6
Dr. U.C. Sinha has proved the injury report
of deceased. PW-7 Dr. T.N. Agarwal has
conducted the postmortem of the deceased.
3-5 All. Vidya Sagar Dwivedi Vs. State of U.P.
585
PW-8 SI Tulsi Ram Dohre, PW-9 SI Shri
Krishna Vidyarthi, PW-10 Constable Ram
Jeevan Bind, PW-11 Head Constable Ram
Sanehi Pal, PW-12 Constable Brijesh
Kumar Singh and PW-13 SI Tribhuwan are
the formal witnesses and have proved the
police papers.

6. After completion of the prosecution
evidence,
the
statement
of
accusedappellant
Vidya
Sagar
Dwivedi
was
recorded
under
Section
313
Cr.P.C.,
wherein he has stated that the statements of
the fact witnesses are false and they have
given the false evidence because of group
rivalry in the village and jealousy. He has
also stated that in the Tilak, a ceremonial
firing took place by the guests of the
informant and the deceased sustained
injuries and to save the guests, the
informant has falsely implicated him in the
present case. The defence examined Thakur
Das as DW-1 in defence.

7. The learned trial court after hearing
the
prosecution
and
defence
and
considering the material available on record
has
passed
the
impugned
judgment
convicting and sentencing the accused
appellant Vidya Sagar Dwivedi for the
offence under Section 302 IPC.

8. Aggrieved by the impugned
judgment,
the
accused-appellant
has
preferred this criminal appeal on the
ground that the points which were raised by
defence, were not considered by the learned
trial court. The eye witnesses produced by
the prosecution did not prove the case
beyond shadow of doubt and the learned
trial court has wrongly appreciated the
evidence. It was also not considered that
the accused was not having inimical
relations with the accused. There was no
motive for the commission of crime. The
prosecution evidence is entirely different
from the medical evidence and the
conclusion arrived at by the learned trial
court is illegal and arbitrary and the
impugned judgment is liable to be quashed
and the accused-appellant is entitled for
acquittal.

9. Learned counsel for the accusedappellant has argued that the accusedappellant was falsely implicated in the
present case and it was a case of
ceremonial firing and by the firing of the
relatives, the deceased sustained injuries
and died. Further submission is that the
incident took place on 08.06.1994 at about
10:00 PM in the night and the FIR has been
lodged on 11.06.1994 at about 02:10 PM in
the noon. Therefore, there is inordinate
delay in lodging the FIR and the delay has
not been explained by the prosecution. it
has also been submitted that there is lack of
adequate motive with the accused-appellant
to commit the offence and all the fact
witnesses who have been examined by the
prosecution are relatives and closely
associated with the complainant side and
they gave false evidence to save their
relatives. There
is discrepancies and
contradictions in the statements of the
witnesses and on that account also, the
prosecution version is doubtful.

10. On the other hand, learned AGA
and the learned counsel for the complainant
have submitted that the learned trial court
after due appreciation of the evidence on
record and finding that four eye witnesses
have
proved
the
prosecution
case,
convicted and sentenced the accusedappellant.

11. It appears necessary that the
evidence given by the prosecution before
the learned trial court may be referred in
586 INDIAN LAW REPORTS ALLAHABAD SERIES
order to appreciate the legality and
correctness of the findings of the learned
trial court.

12. PW-1 Jagjeet is the informant and
eye witness who has stated on oath that the
accused Vidya Sagar Dwivedi belongs to
his village. One year before, there was
Tilak Ceremony of his younger son Tula
Ram and the relatives from Chandpurwa
had come and they stayed in the house of
Ram Das and Ram Bharose. After the Tilak
Ceremony, the informant and his younger
brother Raghuveer were sitting on their
door. Petromax and electricity lights were
there. At about 10:00 PM in the night, his
elder son Babu Lal went to invite the guests
for dinner to the house of Ram Das Pal.
Accused Vidya Sagar Dwivedi met him on
the door with his double barrel licensee
gun. The accused used abusive language
using castist words and said Babu Lal that
"have you gone mad and not invited us in
the Tilak Ceremony." Thereafter, in order to
kill the deceased, the accused fired on him
by his gun which hit the deceased on his
armpit. Babu Lal fell down. The incident
was seen by the informant, his brother
Raghuveer, Prem Narain and Ram Kishore
in the light of electricity and petromax.
Babu Lal was taken to the District Hospital,
Hamirpur by tractor. His condition was
serious and therefore, the informant did not
go to lodge FIR. Babu Lal was taken to
Halat Hospital, Kanpur, where he was put
under treatment. Thereafter on 11.06.1994,
he lodged FIR by getting the written report
scribed by Kamlesh. The witness has
further stated that because of the injuries,
Babu Lal died in Lucknow Hospital. The
witness has proved the written report as
Ext. Ka-1.

13. PW-2 Prem Narain (eye witness)
has stated that he knows Vidya Sagar
(accused) who belongs to his village. One
year before, on 08.06.1994, there was Tilak
Ceremony of Tula Ram and the guests had
come for Tilak Ceremony and they were
staying in the house of Ram Das and Ram
Bharose. He was attending the guests. At
about 10:00 PM, in the night, Babu Lal
(deceased) reached the door of Ram Das
Pal to invite the guests. There was light of
petromax and electricity. The accused
Vidya Sagar Dwivedi came there with a
double barrel licensee gun and started using
abusive language saying why he did not
invite him in the Tilak Ceremony and
thereby insulting a "Brahmin". Thereafter,
the accused fired with intention to kill Babu
Lal and the fire hit him. The incident was
seen by Jagjeet, Raghuveer, Ram Kishore
and him. They all challenged the accused,
whereupon, he fled away. Babu Lal was
taken to District Hospital on tractor where
from he was referred to Kanpur and from
there, he was taken to Lucknow. Because of
injuries, he died in Lucknow hospital.

14. PW-3 Kamlesh (inscriber of the
written report) has stated that at about one
year before, he had come to village Tikrauli
to see his grandfather Ram Aadhar, who
was seriously ill. There, guests had come
for Tilak Ceremony of Tula Ram, the
brother of Babu Lal. The guests were
staying in the house of Ram Das. At about
10:00 PM, when Babu Lal reached on the
door of Ram Das Pal. There was light of
electricity and petromax. On the way,
accused Vidya Sagar Dwivedi fired by his
gun on Babu Lal on his stomach who
sustained injury and fell down. Because of
the injuries, after 14-15 days, Babu Lal
died in the hospital. Babu Lal was first
taken to District Hospital, Hamirpur. The
FIR was lodged by Jagjeet. He scribed the
report and after hearing the same, Jagjeet
put his thumb impression on the report. The
3-5 All. Vidya Sagar Dwivedi Vs. State of U.P.
587
witness has stated that the name of the son
of Ram Aadhar is Ram Prasad and he saw
the incident from the house of Ram Aadhar
and when Babu Lal sustained fire arm
injury, he was near the house of Ram Das
Pal.

15. PW-4 Raghuveer is also an eye
witness. He has stated that on the date of
incident, there was Tilak Ceremony of his
nephew Tula Ram and for that the guests
from Chandpurva had come and were
staying in the house of Ram Das and Ram
Bharose Sahu. He and his brother Jagjeet
and other relatives were sitting on the
Chabutara of his house. After the Tilak
Ceremony, Babu Lal went to invite the
guests for dinner. At that time, it was 10:00
PM in the night. There was electric light on
the pole and patromax was also lightening.
Babu Lal hardly reached to the door of
Ram Das Pal, the accused Vidya Sagar
Dwivedi, who was coming from the side of
his house started abusing him by castist
words and said, "have you gone mad and
not called me, a "Brahaman," in the Tilak
Ceremony." The accused was carrying a
double barrel licensee gun and saying that
Babu Lal had insulted a Brahamin, with the
intention to kill, fired on Babu Lal. Babu
Lal sustained injuries on his armpit. On
hearing the sound of fire, he and his brother
Jagjeet reached on the spot. The incident
was seen by Prem Narain, Kamlesh and
Binda also. On being challenged, accused
Vidya Sagar Dwivedi ran away from there.
Babu Lal was taken to District Hospital,
Hamirpur by tractor, from where he was
referred to Kanpur Halat Hospital. After
three days, finding some improvement in
the condition of the deceased, the report
was lodged.

16. PW-5 Tula Ram has proved the
inquest report and has stated that the
inquest report was prepared before him on
which he signed and thereafter the dead
body was sent for postmortem. He gave
two petromax to the SO as he asked for the
same and the memo was prepared and he
also signed on it. Thereafter the petromax
was delivered back to him. At the time of
evidence, petromax was placed before the
trial court and the same was proved.

17. PW-6 Dr. U.C. Sinha, Surgeon,
U.H.M. Hospital, Kanpur has stated that on
08.06.1994, he was posted as EMO,
District Hospital, Hamirpur. In the night, at
about 11:30 PM, Babu Lal Sahu aged about
25 years son of Jagjeet Sahu of village
Tikrauli was brought to the hospital by
Raghuveer Sahu and he was examined by
him. He found following injury on the body
of Babu Lal :

(1) Fire arm entry wound 2cm. x
1.5 cm. x cavity deep in stomach in oval
shape on the front side and below the left
ribs margin, 3 cm away from the middle
line. The margin of the injury was torn and
bending
towards
inside.
There
was
blackening and tattooing. The nearby hairs
were scorched. The injury was bleeding. Xray was advised and the injured was
admitted in the hospital.

18. The doctor has stated that the
injury was fresh and was caused by fire
arm which was kept under observation. The
police was informed. He proved the
medical report and stated that the injury
was possibly caused on 08.06.1994 at
10:00 PM in the night. The injury must
have been caused from the distance of 2 to
3 feet.

19. PW-7 Dr. T.N. Agarwal conducted
postmortem of the dead body of Babu Lal
on 23.06.1994. The dead body was sent by
588 INDIAN LAW REPORTS ALLAHABAD SERIES
SO, Police Station Cant, Lucknow. Babu
Lal had died in the Command Hospital,
Lucknow on 22.06.1994 at about 08:40
PM. Rigor Mortis was not found in the
upper extremity and it was present in the
lower
extremity.
Four
pellets
were
recovered during postmortem which were
put in an envelope and sealed. Following
ante-mortem injuries were found on the
body of deceased Babu Lal:

(1) 10 cm long wound with nine
stitches on the upper left part of the
abdomen.

(2)
incised
wound
stitched
internally
with
imprints
of
stitching
externally 18 cm long extending from ..... to
cm below ebulliences.

(3) Stitched wounds of 1.5 cm
long with three stitches present on lateral
aspect of chest 15 cm. below the left axilla.

(4) Five stitched wounds, 5 cm
long present on lateral aspect of left side
chest 8 cm below left axilla.

(5) Two incised wounds each with
two stitches with indwelling of connected
drainage flag present one on left side and
other on right side of abdomen 3 cm above
iliac on either side.

(6) Stitched wound with stitching
of protrude intestine 3 cm in diameter
present one on left side and other on right
side of abdomen.

(7) septic wound 1.5 x 1.5 cm
.......(not readable paper being torn)

The doctor has stated that the
injuries found on the body of the deceased
were sufficient to cause death.

20. PW-8 SI Tulsi Ram has stated that on
23.06.1994, he was posted as Sub Inspector,
Police Station Cant. With reference to Report
No. 15 of 10:30 AM of that date, he went to
Command Hospital mortuary with Constable
Brijest Kumar Singh for preparing the inquest
report. The people and relatives of family who
were present in the mortuary were made Panch
witnesses of the inquest. He prepared the
inquest report and sealed the dead body and
prepared the other papers proved as Exts. Ka-7
to Ka-9 and sent the dead body for postmortem.

21. PW-9 IO Shri Krishna Vidyarthi has
stated that on 13.06.1994, he got the
investigation of the case, went to the place of
occurrence on 13.06.1994 and recorded the
statements of Jagjeet, Ramkishore, Prem Narain
and inspected the place of occurrence. On
15.06.1994, he recorded the statement of the
injured Babu Lal and of witness Reghuveer. On
22.06.1994, the accused Vidya Sagar Dwivedi
had surrendered before the court. Thereafter the
investigation was taken over by Sri T.P.
Banaudha, SHO. He has further stated that he
went to the place of occurrence but he did not
get any blood there as it was a public way and
the blood was already destroyed. He prepared
the site map of the place of occurrence on the
identification of the informant Jagjeet. The
witness has also proved the chik FIR as
secondary witness.

22. PW-10 Constable Ram Jeevan
Bind has stated that on 11.06.1994 at about
02:10 PM in the noon, the informant
Jagjeet gave a written report on the basis of
which the offence was registered and chik
FIR was prepared.

23. PW-11 Head Constable Ram
Sanehi has proved the written report
regarding the death of Babu Lal in the
Hospital which was entered into the GD
Report No.14 at 11:00 AM on 24.06.1994
and the offence was converted into that of
Section 302 IPC.

24. PW-12 Constable Brijesh Kumar
Singh has stated that he took the dead body
with relevant papers and letter of CMO and
3-5 All. Vidya Sagar Dwivedi Vs. State of U.P.
589
delivered
the
same
for
postmortem.
Thereafter he submitted postmortem report
in the police station.

25. PW-13 Inspector Tribhuan has
stated that in the year 1994, he was Incharge Inspector of PS Kotwali, Hamirpur.
On 11.06.1994, the case was registered in
his presence. Initially it was investigated by
SI R.K. Vidyarthi. On 24.06.1994, the
death report of Babu Lal was given by
Shyam Pal Shahu and the offence was
converted into Section 302 IPC. On
26.06.1994, he took over the investigation
and recorded the statements of some of the
witnesses, obtained the injury report of
Babu Lal from Jagjeet Sahu and inner wear
of the deceased and memo was prepared
and was sealed before the witnesses. The
clothes of the deceased were also sealed.
The witness has proved the clothes and has
stated that he recorded the statement of
witnesses of inquest report and other
witnesses and thereafter submitted charge
sheet. He has been recalled and reexamined as CW-1 and he stated that on
15.06.1994, he recorded the statement of
injured Babu Lal in the Halat Hospital. At
that time the injured was conscious. The
witness has submitted a copy of his
statement which was recorded by him in
the case diary and the same was proved by
the witness as Ext. Ka-14.

26. After the statement recorded under
Section 313 Cr.P.C. of the accused
appellant Vidya Sagar Dwivedi, DW-1
Constable Thakur Das was was examined
who
proved
the
GD
report
dated
09.06.1994
which
he
brought
and
submitted on being summoned by the court.

27. The first argument of the learned
counsel to the accused-appellant is that the
FIR has been lodged on the fourth day from
the date of incident and as such, it is
grossly delayed. From the perusal of the
written report on the basis of which offence
has been registered and chick FIR has been
prepared, we find that the incident took
place on 8.6.1994 at 10 PM and the FIR has
been lodged on 11.6.1994 at 2.10 PM. In
the FIR, it has been stated that in the
incident, Babu Lal sustained firearm
injuries and his condition was critical and
serious. He was taken to District Hospital,
Hammirpur and finding his conditions to be
serious, he was referred to Helat Hospital,
Kanpur where he was kept under treatment.
PW-1 informant Jagjeet has stated that he
was referred to Military Hospital, Lucknow
on the fourth day. He has stated that he
came back on the fourth day to his village
and and got the written report scribed by
Kamlesh and lodged FIR by giving the
report to the Police. He has stated that
because the condition of Babu Lal was
serious, he could not go to lodge FIR
earlier. It is pertinent to mention that the
injured remained in treatment and on
22.6.1994, he died during treatment. His
death and his being under treatment
continuously till he died further shows his
serious condition after he got injured in the
incident.

28. The Supreme Court has time and
again expressed the view that delay in
lodging FIR is not relevant if the
prosecution has explained the delay by
giving
reasonable
explanation.
Thus,
Marudanal Augusti v State of Kerala
1979 CAR (SC) 296 , the Supreme Court
has observed:

"The
entire
fabric
of
the
prosecution case would collapse if the FIR
is held to be fabricated or brought into
existence long after the occurrence and any
number of witnesses could be added
590 INDIAN LAW REPORTS ALLAHABAD SERIES
without there being anything to check the
authenticity of their evidence."

29. In Meharaj Singh v State of UP
(1994) 5 SCC 188, it was laid down by the
Court:

"FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eyewitnesses,
if any. Delay in lodging the FIR often
results in embellishment, which is a
creature of an afterthought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story."

30. Again, in State of HP v Gian
Chand (2001) 6 SCC 71 followed by
Dilawar Singh v State of Delhi
(2007) 12 SCC 641, the Supreme
Court expressed the view as under:

"Delay
sometimes
affords
opportunity to the complainant to
make deliberation upon the complaint
and to make embellishment or even
make fabrications. Delay defeats the
chance
of
the
unsoiled
and
untarnished version of the case to be
presented before the court at the
earliest instance. That is why if there
is delay in either coming before the
police or before the court, the courts
always view the allegations with
suspicion and look for satisfactory
explanation. If no such satisfaction is
formed, the delay is treated as fatal to
the prosecution case."

31. In Ashok Kumar Chaudhary
v State of Bihar, 2008 (61) ACC 972
(SC) and Mukesh v State for NCT of
Delhi, AIR
2017
SC
2161
and
Mallikarjun v State of Karnataka,
2019 (4) Crimes 468 (SC), it has been
held that in lodging of FIR, if causes
are not attributable to any effort to
concoct a version and the delay is
satisfactorily
explained
by
prosecution, no consequence shall be
attached to mere delay in lodging FIR
and the delay would not adversely
affect the case of the prosecution.

32. In the case in hand, it is clear
that the son of the informant sustained
firearm injury and was taken to
District Hospital and from there he
was
referred
to
Halat
Hospital,
Kanpur. In such situation, the primary
consideration of the family was to
first ensure best available treatment to
the injured. The Supreme Court has
laid down in Ravi Kumar v State of
Punjab, AIR 2005 SC 1929 that the
concern of the relatives of the victim
of deadly assault is first to save life of
the victim. PW-1 has stated that the
condition of the deceased was serious
and therefore, he could not go to
lodge FIR. We find that in the facts
and circumstances of the case, there is
no delay in lodging the FIR and, for
the sake of argument, if it is assumed
that there is delay in lodging FIR, the
prosecution
has
adequately
and
reasonably explained the delay.

33. It has been further argued by the
learned counsel that the incident took place
3-5 All. Vidya Sagar Dwivedi Vs. State of U.P.
591
in the night at 10 PM and there was not
enough light to identify the assailant. The
Supreme Court has clarified the law on this
point in various judgments and has laid
down that a witness, who is accustomed to
live in darkness, poor light or no light, and
acquainted with the accused, can identify
the accused even in darkness. In Kalika
Tewari v State of Bihar, JT 1997(4) SC
405, the Supreme Court held,

"The visible capacity of urban
people who are acclimatized to fluorescent
light is not the standard to be applied to
villagers whose optical potency is attuned
to country made lamps. Visibility of
villagers is conditioned to such lights and
hence it would be quite possible for them to
identify men and matters in such lights."

34. In Ram Gulam Chowdhary v
State of Bihar, 2001(2) JIC 986 (SC), it
was argued that it was not possible for the
eye witnesses to have identified the
accused persons in poor light of lantern in
the night. The Supreme Court rejected the
argument and remarked that "as the
incident took place in village and the
visibility of villagers are conditioned to
such lights and it would be quite possible
for the eye witnesses to identify men and
matters in such light."

35. In Sheoraj Bapuray Jadhav v
State of Karnataka, (2003) 6 SCC 392, in
a trial u/s 302/34 IPC, accused persons
were known to prosecution witnesses.
Occurrence had taken place at about 11.00
PM, two days prior to the new moon day.
Parties were used to live in the midst of
nature and accustomed to live without light.
Further, they were close relatives and living
in the neighboring huts. Similarly, in State
of UP v Sheo Lal, AIR 2009 SC 1912, the
murder had taken place at night and the
source of light was not indicated in the FIR
and the accused and the eye witnesses were
closely related. It has been held by the
Supreme Court in both the cases that the
evidence of eye witnesses cannot be
discarded on the basis of non-disclosure of
source of light or insufficiency of light as
well-acquainted persons can be well
identified in darkness. In Durbal v State of
UP, 2011 CrLJ 1106 (SC) and Hari Singh
v State of UP, AIR 2011 SC 360, Where
the parties belonged to the same village and
were well known to each other, it has been
held that merely because torch not taken
into possession by the IO would not mean
that witnesses were not credible and
conviction under Section 302 IPC was held
proper.

36. In this case, it has been mentioned
in FIR that there was Tilak Ceremony of
the younger brother of the deceased. All the
fact witnesses have stated during trial that
because of the Tilak Ceremony, there was
enough light all around of electric and
petromax and they saw the accused causing
fire on deceased by his double barrel gun
by which the deceased sustained serious
injury. The fact of Tilak Ceremony of the
younger brother of the deceased has not
been denied by the defence. On the
contrary, it has been defence version that in
ceremonial firing on the occasion of Tilak,
the deceased sustained injury of firearm.
Two petromax was taken into possession
during investigation by IO and delivered
back to the younger brother Tularam and it
also supports the version of prosecution
regarding the source and availability of
light on the place of occurrence at the time
of incident. We find no contradiction in the
statements of fact witnesses on this point.
As such, there is no force in the submission
of the learned counsel to the accusedappellant.
592 INDIAN LAW REPORTS ALLAHABAD SERIES

37. Other argument is regarding
presence and credibility of the eyewitnesses. The submission of the learned
counsel for the accused-appellant is that out
of four witnesses of fact examined by the
prosecution, PW-1 Jagjit is informant who
is father of deceased and PW-4 Raghuveer
is his real brother and he is the only
witness, besides informant, whose name
finds mention in the FIR. They are related
and highly interested witnesses and their
testimony requires strict scrutiny before
placing reliance. The name of PW-2 Prem
Narain is not named in FIR whereas, PW-4
Kamlesh is scriber of written report and he
belongs to other village, not mentioned in
FIR as eyewitness, whose presence at the
time of incident is doubtful, and in any case
he is only a chance witness and cannot be
relied.

38. So far as the argument in respect
of related witness is concerned, in the fact
and circumstances of the case, they are the
most natural witnesses. They are brothers
and they live together. The Tilak of the son
of informant had taken place and the guest
and relatives were gathered there in whose
presence the incident took place. It was
month of June also and the time of incident
being 10 PM, it cannot be said that the
people must have gone to sleep or their
presence out side the house is any how
unnatural.

39. The law in respect of the
testimony of related witnesses has been
time and again reiterated by the Supreme
Court that the testimony of related
witnesses cannot be discarded merely on
the
basis
of
relationship. The
only
requirement is that the testimony of such
witness should be scrutinized cautiously
and carefully. In Dalip Singh v State of
Punjab (1954) SCR 145, while rejecting
the argument that witnesses who are closerelatives of the victim should not be relied
upon, the Court held as under:

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely. Ordinarily, a close relative would
be the last to screen the real culprit and
falsely implicate an innocent person. It is
true, when feelings run high and there is
personal cause for enmity, that there is a
tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth. However,
we are not attempting any sweeping
generalisation. Each case must be judged
on its own facts. Our observations are only
made to combat what is so often put
forward in cases before us as a general rule
of prudence. There is no such general rule.
Each case must be limited to and be
governed by its own facts."

40. In Masalti v State of UP AIR
1965 SC 202, the Supreme Court observed:

"But it would, we think, be
unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. ... The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice."

41. The Supreme Court has also taken
the view that related witness does not
necessarily mean or is equivalent to an
3-5 All. Vidya Sagar Dwivedi Vs. State of U.P.
593
interested witness. A witness may be called
interested only when he or she derives
some benefit from the result of litigation; a
decree in a civil case, or in seeing a person
punished in a criminal trial. In Darya
Singh v State of Punjab, AIR 1965 SC
328, followed by State of UP v Kishanpal
(2008) 16 SCC 73, the Court held as under:

"On principle, however, it is
difficult to accept the plea that if a witness
is shown to be a relative of the deceased
and it is also shown that he shared the
hostility of the victim towards the assailant,
his evidence can never be accepted unless
it is corroborated on material particulars."

42. Again, in Appa v State of Gujarat,
AIR 1988 SC 698, the Court has observed:

"Experience reminds us that civilized
people are generally insensitive when crime is
committed even in their presence. They
withdraw from both, victim and vigilant. They
keep themselves away from the Court. They
take crime as a civil dispute. This kind of apathy
of general public is indeed unfortunate but it is
everywhere whether in village life or town and
city. One cannot ignore this handicap. Evidence
of witnesses has to be appreciated keeping in
view such ground realities. Therefore, the Court
instead of doubting the prosecution case where
no independent witness has been examined
must consider the broad spectrum of the
prosecution version and then search for the
nugget of truth with due regard to probability, if
any suggested by the accused."

43. Similar view has been taken in State
of AP v S.