# Vijai & Anr. (In Jail) v. State of U.P. 432 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 6 ILRA 431
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-02-21
- **Case number:** Criminal Appeal No. 1427 of 1981
- **Bench:** Ramesh Sinha, Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-anr-in-jail-v-state-of-u-p-432-indian-law-reports-allahabad-series-45334
- **Pages:** 32

## Headnote

Settled position of law that the testimony of a
witness cannot be discarded in toto merely due
to
the
presence
of
embellishments
or
exaggerations. The doctrine of falsus in uno
falsus in omnibus has been held inapplicable in
Indian
scenario,
where
the
tendency
to
exaggerate is common. It is the duty of the
court to separate the chaff from the grain.
Moreover, minor variations in the evidence will
not affect the root of the matter, inasmuch as
minor variations need not be given major
importance and they would not materially alter
the evidence/credibility of the eye-witness as a
whole- The testimony of the eye-witnesses,
though they are family members, does stand
corroborated by the medical evidence and are
also in consonance with the site plan which has
been made by the investigating officer-It is not
necessary that if an accused has been acquitted
on particular evidence, the other co-accused
also deserve to be acquitted on the same
evidence-According to the correct position of
law if abscondance of the appellants was the
only ground for the trial court to hold them
guilty by distinguishing their case from the other
co-accused Genda Singh, the said evidence
ought to have been clearly put to the accused
appellants at the time of recording their
statements under sections 313 Cr. P.C., hence
that not being done would certainly make the
finding in this regard of the lower court to be
questionable, but simultaneously we are of the
view that even if that piece of evidence be
excluded, we find that there is sufficient
evidence both ocular, supported by medical
evidence and the circumstantial evidence to
hold the appellants guilty.- Case in which
prompt FIR has been lodged and the eyewitnesses of incident have actually seen the
appellants along with co-accused Genda Singh
assaulting the deceased by the weapons and
the injuries received by the deceased are also
corroborated by the post-mortem report of the
deceased. The testimonies of the three eyewitnesses are found partly believable regarding
their having seen the deceased being assaulted
by the appellants as well as Genda Singh. It is
also noteworthy that the Kotha in which the
dead body of the deceased was found belonged
to the co-accused Genda Singh, although the
defence version was that the said house
belonged to sister of Genda Singh, but the
i

## Text

_Characters 0–39,934 of 115,198. This is a partial read: ask again with offset=39934 for what follows._

6 All. Vijai & Anr. Vs. State of U.P.
431
record which puts a big question mark
against their claim of being eye-witnesses
of the occurrence. Moreover, all the three
witnesses of fact, two of them namely P.
W. 1 Abdul Kalam and P. W. 2 Ashahad
being the real brothers of the deceased
while P. W. 5 Javed Khan his cousin
brother, are highly interested witnesses. It
is true that the evidence of a witness cannot
be discarded merely on account of his
being a relative of the deceased if upon a
cautious appraisal of his evidence, the
Court comes to the conclusion that he has
given correct and cogent description of the
incident but considering the material
contradictions in their testimonies inter alia
on the point of time and the identity of the
person who had lodged the FIR of the
occurrence and the irreconcilable conflict
between the ocular version and the medical
evidence with regard to the number of shots
fired at the deceased by the accusedappellants, it cannot be said that the three
witnesses of fact have given cogent and
correct description of the occurrence and
that their evidence is wholly reliable and
trustworthy. The previous enmity between
the parties could be a very strong reason for
them to falsely implicate the appellants
after the dead body of the deceased was
found.

25. The motive for the accused-appellants
to commit the murder of the deceased as spelt
out in the FIR and as deposed by P. W. 1 Abdul
Kalam and P. W. 2 Ashahad in their evidence
tendered before the trial court is that on the date
of occurrence while Zakariya, the maternal
grand-father of the deceased was going to lodge
the FIR with regard to an occurrence which had
taken place one day before the date of
occurrence in which two persons Naushad and
Seraj had dealt a lathi blow to Zakariya, the
accused had shot the deceased in reaction.
There is no evidence on record showing that the
appellants had also participated in the earlier
incident or they were either relatives of
Naushad and Seraj or they had committed the
offence at their behest. No reason is
forthcoming as to why the appellants would
have shot the deceased Imamuddin @ Buggu
instead of shooting Zakariya, the maternal
grand-father of P. W. 1 Abdul Kalam and P. W.
2 Ashahd who according to the prosecution was
going to lodge the FIR of the incident which
had taken place on the date of occurrence at
about 7 A.M. if they had acted at the behest of
Naushad and Seraj.

26. The prosecution, in our opinion has
totally failed to prove the motive for the appellants
to commit the murder of the deceased.

27. Thus, upon a holistic view of the facts of
the case and a careful appraisal and evaluation of
the evidence on record, both oral as well as
documentary, we find that the prosecution has
miserably failed to prove its case against the
appellants beyond all reasonable doubts. Hence
neither the recorded conviction of the appellants
nor the sentences awarded to them can be
sustained and are liable to be set aside.

28. These are the reasons for which we had
allowed this criminal appeal.
----------

(2020)06ILR A431
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 1427 of 1981

Vijai & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent
432 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Krishna Capoor, Sri Bhuvnesh Kumar
Singh, Sri Dileep Kumar, Sri Ghan Shyam
Joshi, Sri Rajrshi Gupta

Counsel for the Respondent:
D.G.A.

Settled position of law that the testimony of a
witness cannot be discarded in toto merely due
to
the
presence
of
embellishments
or
exaggerations. The doctrine of falsus in uno
falsus in omnibus has been held inapplicable in
Indian
scenario,
where
the
tendency
to
exaggerate is common. It is the duty of the
court to separate the chaff from the grain.
Moreover, minor variations in the evidence will
not affect the root of the matter, inasmuch as
minor variations need not be given major
importance and they would not materially alter
the evidence/credibility of the eye-witness as a
whole- The testimony of the eye-witnesses,
though they are family members, does stand
corroborated by the medical evidence and are
also in consonance with the site plan which has
been made by the investigating officer-It is not
necessary that if an accused has been acquitted
on particular evidence, the other co-accused
also deserve to be acquitted on the same
evidence-According to the correct position of
law if abscondance of the appellants was the
only ground for the trial court to hold them
guilty by distinguishing their case from the other
co-accused Genda Singh, the said evidence
ought to have been clearly put to the accused
appellants at the time of recording their
statements under sections 313 Cr. P.C., hence
that not being done would certainly make the
finding in this regard of the lower court to be
questionable, but simultaneously we are of the
view that even if that piece of evidence be
excluded, we find that there is sufficient
evidence both ocular, supported by medical
evidence and the circumstantial evidence to
hold the appellants guilty.- Case in which
prompt FIR has been lodged and the eyewitnesses of incident have actually seen the
appellants along with co-accused Genda Singh
assaulting the deceased by the weapons and
the injuries received by the deceased are also
corroborated by the post-mortem report of the
deceased. The testimonies of the three eyewitnesses are found partly believable regarding
their having seen the deceased being assaulted
by the appellants as well as Genda Singh. It is
also noteworthy that the Kotha in which the
dead body of the deceased was found belonged
to the co-accused Genda Singh, although the
defence version was that the said house
belonged to sister of Genda Singh, but the
investigating officer had stated that the same
belonged to Genda Singh. In view of this the
burden also stood shifted to the accused to
prove as to how the deceased was found dead
in Kotha belonging to them which could not be
discharged by them.

Evidence Law - Indian Evidence Act-
Section 5-"falsus in uno, falsus in omnibus"
(false in one thing, false in everything) - The
doctrine of falsus in uno falsus in omnibus has
been held inapplicable in Indian scenario, where
the tendency to exaggerate is common - It is
the duty of the court to separate the grain from
the chaff but minor variations cannot be given
much importance as the same do not materially
alter the evidence of the witnesses taken as a
whole.

Evidence Law - Indian Evidence Act, 1872
- Section 3- Interested/ Related witnesses-
The testimony of the eye-witnesses, though
they
are
family
members,
does
stand
corroborated by the medical evidence and are
also in consonance with the site plan- Where
the evidence of the witnesses is corroborated
from the medical evidence and site plan then
the same cannot be discarded only on the
ground that the witnesses are related to the
deceased.

Evidence Law - Indian Evidence Act, 1872
- Section 3- Appreciation of Evidence- It is not
necessary that if an accused has been acquitted
on particular evidence, the other co-accused
also deserve to be acquitted on the same
evidence- Where chaff can be separated from
grain, it would be open to the Court to convict
an accused notwithstanding the fact that
evidence has been found to be deficient to
prove guilt of other accused persons.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 313, Indian
Evidence
Act,
1872- Section
3
-
If
6 All. Vijai & Anr. Vs. State of U.P.
433
abscondance of the appellants was the only
ground for the trial court to hold them guilty by
distinguishing their case from the other coaccused, the said evidence ought to have been
clearly put to the accused appellants at the time
of recording their statements under sections 313
Cr. P.C., hence that not being done would
certainly make the finding in this regard of the
lower
court
to
be
questionable,
but
simultaneously even if that piece of evidence be
excluded ,there is sufficient evidence both
ocular, supported by medical evidence and the
circumstantial evidence to hold the appellants
guilty.
Even if the question relating to the absconding
of the Appellants was not put to them u/s 313
Cr.Pc, the Court can convict the accused on the
basis of other evidence which is credible and
trustworthy.

Evidence Law - Indian Evidence Act, 1872
- Section 106- Burden of proving the fact
especially within the knowledge of the accused-
the burden also stood shifted to the accused to
prove as to how the deceased was found dead
in Kotha belonging to them which could not be
discharged by them.
Where the accused failed to discharge the
burden as to how the body of the deceased was
found in their home then a presumption is
created against them for having committed the
offence in question. ( Para 63,67,69,76,79)

Criminal Appeal dismissed. (E-3)

Case law cited:-

1. Motiram Pandu Joshi & ors.Vs St. of
Maha, (2018) 9 SCC 429

2. Criminal Appeal No. 1198 of 2006
Menoka Mallik & ors. Vs St. of W.B & ors.

3. Gangadhar Bahera & ors .Vs St. of
Orissa Cr. Appeal No.1282 of 2001 decided
on Oct.10.2002

4. Naushad @ Naura (2015) 2 SCC 513

5. Vadivelu Thevar Vs St.of Madras (1957) SCR
1981

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Sri Dileep Kumar, Advocate
assisted by Sri Bhuvnesh Kumar Singh,
learned counsel for the appellants and Sri
Jai Narayan, learned AGA for the State and
perused the record.

2. This criminal appeal has been
preferred against the judgment and order
dated 19.6.1981 passed in S.T. No.236 of
1979 State Vs. Genda and four others u/s
147, 148, 302 read with 149 IPC, Police
Station Sheohara, district Bijnore whereby
the appellant Vijay and Udai have been
convicted and sentenced u/s 302 read with
34 IPC with life imprisonment each while
rest of the accused have been acquitted.

3. In brief the prosecution case is that
the informant Layak Singh (P.W.6) and his
maternal uncle Genda Singh (accused) used
to live in the same house separately and
had a common Sehan. Till about four years
ago, his uncle used to plough the whole
land and also used to keep the crop and
when he separated from him, he started
causing harm due to enmity at several
times. Yesterday the son of Genda Singh
namely Vijay had taken away rassi (rope)
regarding which at about 8 p.m., his son
Veer Singh told him as to why he had taken
away the rope without permission and why
he had been causing harm to agriculture
almost everyday and how long they should
tolerate this. At this Vijay and Udai and
their father Genda Singh (co-accused) (all
the three accused) started abusing his son
Veer Singh (deceased) and told him that
they would certainly return the entire loss
caused to him. Thereafter both the sides got
into an altercation which was settled by the
relative Bishan Kumar (Mama of the
deceased) but Genda Lal told him that he
434 INDIAN LAW REPORTS ALLAHABAD SERIES
had rehabilitated him and he only would
ruin him. Thereafter in the night informant
Layak Singh, his wife Smt. Dulari, his
daughter Smt. Kusum Kumari and their
other small children were sleeping in the
courtyard and his son Veer Singh was
sleeping nearby on a separate cot under a
Chappar in which a lantern was burning as
usual. The accused Genda, his sons Vijay
and Udai, his wife Smt. Shanti, wife of
Vijay, Chandrakala and Munni were
talking to each other and in their Kotha also
lantern was burning. At about 1 a.m. in the
night, his son Veer Singh raised alarm,
hearing which he, his wife and daughter got
up and they saw that Shanti wife of Genda
Singh, Chandrakala wife of Vijay had
caught hold of Veer Singh while Vijay,
Udai and Genda Singh out of whom Vijay
was armed with Barchi and Genda and
Udai
were
armed
with
knife
were
assaulting his son and when they raised
alarm, one Raj Kumar S/o Harswaroop
Singh, Suresh S/o Maharaj Singh and
Khem Singh, S/o Banwari Singh along with
various other persons came there with their
torches towards main door of their house.
Right then Genda Singh and others after
having seen the said persons coming there,
had dragged away his son Veer Singh in
their Kotha where he was murdered. None
of them (complainant side) could have
courage to come forward because the
accused-appellant
Vijay
and
Udai
threatened them if anyone would try to
intervene, he would have to face the same
consequences and thereafter after having
killed his son, the accused-appellant fled
from there from the main door. The Chik
FIR was prepared as Ext. Ka-2. The written
report (Ext. Ka-6) (containing the above
facts) having been given by the informant
at police station Sheohara Case Crime
No.126 of 1979 was registered u/s 147,
148, 302 IPC on 1.7.1979 at 7 a.m. against
Vijay, S/o Genda Singh, Udai S/o Genda
Singh, Genda Singh S/o Jhandu, Smt.
Shanti wife of Genda Singh, Chandrakala
wife of Vijay and entry of the case was
made in G.D. at report no.8 at 7 a.m. on
1.7.79 which is marked as Ext. Ka-3.

4. The investigation was handed over
to S.I. Vijai Pal Singh (P.W.8) in whose
presence the case was registered at the
police station. He recorded the statement of
the informant Layak Singh at police station
and also of Chaukidar Ameer Hussain and
thereafter proceeded towards place of
occurrence i.e. village Raini and reached
the house of the informant where he found
dead-body of Veer Singh in the Kotha of
Genda Singh on the floor where lot of
blood was spread. After having taken the
dead-body into possession, he appointed
the Panchas and got the inquest report
prepared in his handwriting which is Ext.
Ka-7. He prepared Chalan Lash, Photo
Lash, Chitthi for post-mortem which were
written in his handwriting which are
marked as Ext. Ka-6, Ka-9 and Ka-10
respectively. After sealing the dead-body,
the same was dispatched for post-mortem
and handed over to Constable 78 Jagdish
Chandra, Constable No.112 Govind Singh
along with connected papers. He recorded
the statements of Smt. Dulari wife of Layak
Singh, Kusum Kumari daughter of Layak
Singh and Khem Singh etc. on the spot and
thereafter at the instance of informant made
inspection of the place of occurrence and
prepared site plan which is marked as Ext.
Ka-11. One Sari was found tied around the
neck of deceased Veer Singh which was
blood-stained which was taken in his
possession and was sealed on the spot and
it's memorandum was prepared in his
handwriting which is marked as Ext.Ka-12
and the said Sari is marked as material
Ext.-1. From the cot of the deceased, the
6 All. Vijai & Anr. Vs. State of U.P.
435
blood-stained Khes (bed sheet) was also
taken into possession which was lying on
the floor and it's memo was also prepared
and was sealed which is marked as Ext.Ka13 and Khes is material Ext.-2.

5. In the Kotha of Genda Singh, a
lantern was hanging by the latch of the
door which was also taken in possession
and memorandum was prepared which is
marked as Ext.Ka-14 and the lantern as
material Ext. 3. Another lantern was also
taken from Osara of informant Layak Singh
which was hanging by the peg on Southern
wall and it's memorandum was prepared
which is marked as Ext.Ka-15 and lantern
was marked asmaterial Ext.-4. He had also
found trail of the drops of blood from the
Osara where the informant Layak Singh's
son Veer Singh was sleeping up to the
Kotha of Genda Singh where the cot of
Veer Singh was placed. He had taken
blood-stained and plain soil from the place
of occurrence and sealed in separate
containers and prepared it's memorandum
which is marked as Ext.Ka-16 and both the
containers containing blood-stained and
plain soil are material Ext.5 and 6
respectively. The blood which was found
on the ground near the dead-body in Kotha
of Genda Singh, from there also the bloodstained as well as plain soil was taken and
kept in two separate containers, the
memorandum of which was prepared as
Ext. Ka-17 and both containers were
marked
as
material
Ext.
7
and
8
respectively. Both the lantern which were
marked as material Ext.-3 and 4 were found
in running condition which were full of
kerosene oil. The witness Raj Kumar,
Suresh and Khem Singh also presented
their batteries (torches) which were in
running condition and were taken in the
possession and thereafter were handed over
in their supurdagi. The supurdaginama of
the said torches is Ext. Ka.18. Thereafter he
recorded the statements of witnesses of
recovery and panchas. None of the accused
were found in his house nor in the village
and their search was made but could not be
traced. Further it is stated by this witness in
examination-in-chief
that
on
the
information given by the informer, accused
Genda Singh, Chandrakala, Shanti were
arrested on the road which was going from
Nawada towards East to Hiranpura and
after their arrest, their statements were
recorded and they were brought back to the
police station around 10 p.m. He also made
entry about it at report no.32 in his
handwriting and on 3.7.1979, 4.3.1979 he
made search of other accused Vijay and
Udai who could not be found, hence report
u/s 82-83 Cr.P.C was submitted and
thereafter on 11.7.1979 both Vijay and
Udai appeared in Court and on 10.8.1979
he submitted charge sheet against them
which is marked as Ext. Ka-19.

6. Against the accused-appellants and
three other co-accused charges were framed
u/s 147, 148, 302 read with 149 IPC on
21.12.1979 to which they pleaded not
guilty and claimed to be tried.

7. Thereafter to prove the prosecution
case, Smt. Kusum (P.W.1), Dr. R.P. Saxena
(P.W.2), Smt. Dulari (P.W.3), Khem Singh
(P.W.4),
C.P.
Ram
Krishan
Pandey
(P.W.5), Layak Singh (P.W.6), H.C. Nadir
Ali (P.W.7), S.I. Vijaipal Singh (P.W.8),
C.P. Jagdish Chand (P.W.9) and C.P.
Jagdish Saran (P.W.10), Abaran Singh
(P.W.11), Gendan Lal (P.W.12) have been
examined. Thereafter prosecution evidence
was closed and statement of accused were
recorded u/s 313 Cr.P.C.

8.

The
accused-appellant
Udai
admitted that the evidence on record was
436 INDIAN LAW REPORTS ALLAHABAD SERIES
correct to the effect that the informant
Layak Singh was earlier resident of village
Himayupur whose parents had died earlier
leaving him behind and thereafter father of
Genda Singh S/o Jhandu Singh had brought
him to village Raini under police station
Sheohara and had kept in his haweli and
had given him one Kotha for his residential
purpose and after the death of Jhandu
Singh, Genda Singh had brought him up
and got him married also. He denied the
evidence that Genda Singh used to look
after 150 bigha of land of Layak Singh and
out of the income earned, he used to give
him only some money which was sufficient
for his survival. He also denied the
evidence that the son of Layak Singh i.e.
deceased Veer Singh when he got married
and his expenses increased, pursuant to
which he had taken the land back from
Genda Singh and started cultivating the
same because of which Genda Singh
started harboring enmity towards him and
time to time used to cause harm to his
agricultural land. He also denied the
evidence that on 30.6.1979, Vijay had
taken the rope (Barahi) from his house in
village Raini on which at about 7-8 p.m.
Veer Singh had protested thereafter Genda
Singh told him that he would be ruined and
their whole loss would be made good. He
further denied the evidence that at the time
of quarrel with respect to Barahi, informant
Layak Singh and his brother-in-law Bishan
Kumar, wife of Layak Singh (Smt. Dulari)
and his daughter were present and that
Bishan Kumar had mediated the dispute.
Further he denied the evidence that in the
intervening
night
of
30.6.1979
and
1.7.1979, the deceased Veer Singh was
sleeping on his cot in village Raini under
the police station Sheohara in the Eastern
Kotha in front of Osara where lantern was
burning and informant Layak Singh, his
wife Dulari, daughter Kusum etc. were
lying on four cots in front of Osara in their
Sehan. He further denied the evidence that
on the date and time of the incident at about
1 a.m. in the night, informant Layak Singh,
wife Dulari, daughter Kusum and others
had woken up at the alarm raised by Veer
Singh and had seen in the light of lantern
that she along with other accused persons
Smt. Shanti, Chandrakala had pinned down
the deceased on his cot while accusedappellant Vijay armed with barchi and Udai
and Genda Singh armed with knife were
assaulting the deceased. Thereafter they
raised alarm on which the accusedappellants dragged away the deceased from
his cot towards their Kotha. He also denied
the evidence that on the date and time of
the incident on the alarm being raised by
the informant and his family persons
mentioned above, the witness Raj Kumar,
Suresh and Khemi came there with torches
from Eastern door of their house and had
seen him along with co-accused dragging
the deceased towards the Kotha of Genda
Singh and when they tried to rescue him, he
along with other co-accused had threatened
that if anyone would come forward, he
would also meet the same consequences
and thereafter Veer Singh had been
murdered in the same Kotha and when the
witness challenged them, he along with coaccused had run away from the Northern
door. He also denied the evidence that on
the report of the informant, S.O of police
station Sheohara Vijay Pal had visited the
village Raini on 1.7.1979 on the place of
incident at about 8.30 p.m. and found the
dead-body of the deceased in the Kotha of
Genda Singh where lot of blood was found
and in Sehan drops of blood were found
and on the cot on which the deceased was
lying, the 'Khes' (bed-sheet) was also found
blood-stained which were taken into
possession. Further he denied the evidence
that he had assaulted the deceased by knife
6 All. Vijai & Anr. Vs. State of U.P.
437
or barchi and stated that he was falsely
implicated in the present case because of
enmity. Further he stated that in the
evening when the occurrence happened, he
had gone to Sheohara hospital and stayed
there only in the night because his bhabhi
(sister-in-law) had suffered an attack and
he abstained from saying anything with
regard to blood which was found in the
chemical
examination
report
on
the
aforementioned clothes and soil.

9. The other appellant Vijay has also
repeated the same reply as given by the coappellant and nothing additional has been
stated by him.

10. In defence, Bhoj Singh (D.W.1),
Dr. A.P. Gupta (D.W.2), record keeper
(D.W.3), Ashok Kumar Goyal (D.W.4),
K.N. Verma medical practitioner (D.W.5)
have been examined.

11. After having considered the entire
evidence led by the prosecution and having
heard the arguments of both the sides,
learned trial court has held the accusedappellants guilty having believed the
statements of the prosecution witnesses.

12. The learned counsel for the
appellants before initiating his arguments
had given pedigree of the family of accused
so as to facilitate the appreciation of
evidence on record and thereafter argued
that the petty dispute with respect to rope
(barhi) being taken away by the accused
without
permission,
alleged
by
the
prosecution to be reason which led to
quarrel between the two sides was not
believable because for such a petty dispute,
murder could be committed. It was further
argued that in fact the father of Genda
Singh, Jhandu Singh was instrumental in
rehabilitation of the father of the deceased,
in the said village as he had got him
married and thereafter also looked after his
agricultural land. Therefore, he always
wanted well being of the deceased and his
father and there was no reason as to why he
would murder the deceased for such a
petty/frivolous dispute. The learned trial
court has acquitted the co-accused Genda
Singh who is the father of the appellant
although he is alleged to be involved in the
occurrence and has been assigned the role
of assaulting the deceased with knife. The
case of the appellants is at par with the case
of co-accused Genda Singh. Hence the trial
court ought to have acquitted the appellants
also. It is further argued that after
appreciation of evidence the co-accused
Smt. Chandrakala, Smt. Shanti were
acquitted because there was no possibility
that these ladies would catch hold the
deceased because all the other three
accused were armed and were capable of
assaulting the deceased. Hence it was held
by the trial court that there was no occasion
for these ladies to pin down the accused so
that the other accused could assault them
easily. It was further argued that a lot of
improvement in the prosecution version
was made because one sari was found tied
around the neck of the deceased at the time
of inquest as well as post-mortem.
Therefore, to meet out the said fact, it was
developed that the accused Chandrakala
had taken off her sari and was reduced to
be just in the petticoat and blouse and her
sari was used for dragging the deceased
from the place where he was sleeping to the
Kotha where he was found dead. Further it
is argued that three witnesses were named
in the FIR namely, Raj Kumar, Suresh and
Khem Singh out of whom Khem Singh has
been examined as P.W.4. Other witness Raj
Kumar and Suresh were not examined who
were material witnesses. Further it was
argued that Guddi and Vipin who were in
438 INDIAN LAW REPORTS ALLAHABAD SERIES
the house and are stated to have seen the
incident, have also not been examined. It
was also emphasized by learned counsel for
the appellants during the argument that the
accused were not in the house when the
incident happened as Smt. Chandrakala had
fallen sick and she was taken to the hospital
in the night in question and none was
present there and to substantiate the same
four defence witnesses named above have
been examined. Apart from this a large
number of discrepancies have been pointed
out to have been noticed in the statement of
witnesses so as to emphasize that the said
witnesses had not witnessed the incident
and on that count, it was argued that the
testimony of all of them so called eyewitnesses ought to be disbelieved. He further
argued that even P.W.4 Khem Singh cannot
be held to be wholly believable witness as
was the case with other witnesses and that
even his testimony deserves to be discarded.
It was also argued emphatically that learned
trial court has held the accused-appellant
guilty solely on the ground that they were
absconding after the incident for about 11-12
days and had against them warrants u/s 82
and 83 Cr.P.C issued and because of their
such conduct, they were held guilty. It was
further argued that the circumstance that they
were absconding immediately after the
incident, was not put to the accusedappellants u/s 313 Cr.P.C, hence on that
count they could not have been convicted by
the trial court. It was also argued that in all
there were eight persons in the family of the
accused, therefore, even if the principle as
laid down u/s 106 of the Evidence Act be
taken into consideration, by that yard-shick
also only two appellants could not have been
held guilty and lastly it was argued that it was
not a case in which there was any eyewitnesses, in fact the dead-body was found of
the deceased lying in Kotha of the accused
Genda Singh which was actually the Kotha of
sister of Genda Singh namely Swarupiya. It
was only after having found dead-body of the
deceased that the prosecution has tried to
fabricate the entire false story implicating the
accused. These points which have been raised
by learned counsel for the appellant would be
dealt with by us at the relevant time when we
would discuss the evidence of the eyewitnesses and other witnesses.

13. On the other hand learned AGA
vehemently argued that there was no
infirmity in the impugned judgment because
the same has been passed on the basis of
credible evidence which comprises not only
the statement of eye-witnesses namely Smt.
Kusum
Kumari
(P.W.1),
Smt.
Dulari
(P.W.3), Khem Singh (P.W.4), Layak Singh
(P.W.6) who all have clearly stated that they
had seen the incident and the same stands
corroborated by the medical evidence as
deceased was found to have suffered as many
as nine injuries which included incised
wound, punctured wound and other kind of
injuries which could have easily been caused
by the knife as well as barchi. He further
argued that the present appeal deserves to be
dismissed out-rightly.

14. Now we would consider the
evidence of the witness one by one and
proceed towards the evidence of P.W.1
Kusum.

15. The P.W.1 Smt. Kusum Kumari
has stated in her examination-in-chief that
Genda Singh (accused) son of Jhandu
Singh is the father of accused-appellant
Vijay and Udai. Smt. Shanti is the wife of
accused
Genda
Singh
and
Smt.
Chandrakala is the wife of accused Vijay.
Her father Layak Singh was actually
resident of village Himayunpur which was
about 1 km. away from village Rainipur.
Her father was brought by her maternal
6 All. Vijai & Anr. Vs. State of U.P.
439
grand-father Jhandu Singh to village Raini
after
nothing
was
left
in
village
Himayunpur. After the death of Jhandu
Singh, her father was being looked after by
accused Genda Singh. Her father had 150
bigha of land in village Himayunpur which
was being looked after by Genda Singh
who got her father married also. The
accused Genda Singh and his haveli had
common sehan near which there was kotha,
in front of which there was chappar. Genda
Singh had two kotha which were towards
North of her kotha and in front of them,
there was also chappar. All the three kothas
were towards East and in-front of them,
there was sehan and the main door was
towards East. Outside of this main door
towards East, there was her gher as well as
gher of Genda Singh and towards Southern
side of the said gher, there was her baithak,
the main door of which used to open in the
Sehan. The baithak is towards North and
it's door would open towards North in the
osara of Genda Singh and towards North of
osara, there was boundary-wall.

16. About four years prior to the
incident, his brother had started cultivating
the land and only 11 bigha of land was left
with the accused to be taken back. Her
brother had started cultivation because of
feeling financial crunch and he had started
doing very well and one year prior to that
he had also purchased a tractor and all this
progress was being disliked by Genda
Singh who started harbouring enmity, as a
result of which he started causing harm to
him in various ways. About one year back
at about 1 a.m. in the night, she, her sister
and her parents were sleeping in the
courtyard in front of kotha and her brother
Veer Singh (deceased) was sleeping in the
haveli under neath the chappar in osara
towards South. There was a lantern
burning, the light of which was extending
towards the cot of her brother. She woke up
at the alarm being raised by her brother. All
of them had woken up because Vijay, Udai
and Genda Singh were assaulting her
brother Veer Singh. Vijay was armed with
barchi, Udai and Genda Singh were armed
with knife and Smt. Shanti and Smt.
Chandrakala were also present there and
had caught her brother pressing him. When
all of them raised alarm, Suresh, Raj
Kumar and Khem Singh came there with
torches in their hands who also raised
alarm, hearing which the accused persons
started taking away Veer Singh to their
kotha. All of them tried to get her brother
freed from them but accused stated that if
anyone intervened, then he would also be
dealt in the same way as was Veer Singh
and therefore because of fear, they did not
proceed further, as a result of which the
accused had dragged Veer Singh in their
kotha where also lantern was burning and
after taking him there, he was murdered.
When the villagers raised alarm, the
accused fled away from the door towards
Northern side and thereafter when she
along with others went inside the kotha,
they saw her brother had died and lot of
blood was lying around in kotha. The cot
on which her brother was lying, there was
khes (bed-sheet) on the same, which was
also blood-stained. She further stated that
when the accused had taken away Veer
Singh from osara to kotha, a trail of blood
drops was found between the two places
i.e. from osara to kotha. She further stated
that her father had gone to lodge report
about the incident.

17. She has further stated that on the
date of incident at about 9-10 a.m. accused
Vijay had come to her house and took the
rassi (rope) which he did not return because
of which his brother had told him as to why
he used to cause harm in this manner and
440 INDIAN LAW REPORTS ALLAHABAD SERIES
till when he would be tolerated like this, on
which altercation had happened at 7-8 p.m.
On this Vijay had told him that whatever
damage was caused to him, all would be
paid back and Genda Singh and Udai were
also present and Genda Singh stated that he
had rehabilitated him and he only would
ruin him and 16-17 days prior to the
incident, these people had put sugar in their
tractor because of which tractor had
become
dis-functional.
In
crossexamination, this witness has stated that
prior to this incident, Veer Singh, S/o Gori
(not deceased) had received gunshot wound
but she does not know whether the said
Veer Singh had lodged any report against
her brother and the two witnesses of this
case i.e. Khem Singh and Raj Kumar. No
case had been initiated against her brother.
He has further stated that prior to this
incident, a quarrel had happened between
Shera and her brother but she has no
knowledge whether Shera had lodged
report against her brother or not. The police
had not launched any case against him. She
also denied that Shera had renounced his
resolve to settle the said quarrel and she
also denied that Shera got himself shaved
only after the murder of her brother.

18. The above statement was pointed
out by learned counsel for the appellant
with a view to emphasizing that the
deceased had enmity with others also and
therefore it was possible that he may have
been killed in some other manner by some
other persons and not as alleged in the FIR.

19. In cross-examination she has stated
that Genda Singh was the eldest in the family
and it was wrong to say that when Veer
Singh received fire-arm injury, then her
brother was advised not to sit with Khem
Singh, Raj Kumar and Hasveer Singh. She
has further stated that since last about four
years, her cultivation was being done separate
from Genda Singh but she has no knowledge
as to where her fields were located but there
was a dispute with respect to 11 bigha of land
about which her father told her. She has not
seen that the land of younger brother of
Genda Singh namely Chotey Singh was
adjoining to the said land. The fact that
accused were not returning 11 bigha of land
used to be disliked by them. She had denied
that on the said land, Genda Singh had built
any wall. She has also denied that Genda
Singh had taken debt about ten to eleven
thousand for construction of the said wall but
there was dispute between her father and
Genda Singh with respect to this wall also but
denied that Genda Singh used to claim that
wall
as
his
own.
During
chakbandi
(consolidation proceedings), Genda Singh
had got 40 bigha of land of his father in his
name and it was promised by him that in-lieu
of that he would be given share in his haveli,
but instead of that since last two years, he had
started saying that he should go away leaving
haveli and thus 6-7 months after that her
father had constructed another haveli and till
the said haveli was constructed, she had lived
at the house of Raj Kumar. There was no
enmity between them for last two years
except the incident which happened of lifting
the rassi when the said rope was taken away
by Vijay. She had seen with her own eyes the
same being taken away by all of them but
none of them had told anything to him
because of fear and the said rope was not
returned. At that time, there were only ladies
in the house and her brother and father were
not there, who had come after some time as
they were in the jungle and when they
returned at about 5-6 p.m in the evening and
about one hour thereafter, they talked in
respect of it. During that time, there was no
one else there except the family members of
both the sides, but also thereafter stated that
her maternal uncle Bishan Kumar was also
6 All. Vijai & Anr. Vs. State of U.P.
441
there who had come there, who did not live at
the place of Khem Singh, rather stayed there
only and after quarrel, he had gone to
Ameenabad which was about 1-1.5 miles
away from her village. She denied that on the
said date Bishan Kumar had stayed at the
house of Khem Singh and returned next day
in the morning at about 11 a.m. His maternal
uncle continued to remain at home. She also
denied that her maternal uncle immediately
after the murder had gone to the house of
Khem Singh. She further stated that at the
time of incident, about 50 persons had
assembled there but none of them told as to
who had killed her brother. She had sent
information for chaukidar who had come in
the morning as he had gone to nearby village.
Nobody had given advise that she should go
for lodging the FIR after taking 10-15
persons to the police station rather everyone
told her that she should call chaukidar who
would inform the police. The said chaukidar
came at about 5-6 a.m. in the morning. His
father became unconscious. The police was
called by her father and chaukidar. Her
brother stayed in the house only, after Vijay
had taken away the rope. She does not
recollect as to who had taken meals at what
time, although she used to cook the food at
that time and used to also serve the same. In
the said night, they had taken meals some
time before the incident of quarrel. Veer
Singh had not eaten anything. She does not
recollect whether Veer Singh had eaten
anything prior to the incident. In the said
night she stayed at home. She had not seen
the deceased having food after the incident.
All of them had gone to their cots for
sleeping at 10-11 p.m. and Veer Singh had
gone to sleep at the same time. All of them
slept after having taken meals.

20. Learned counsel for the appellants
had drawn attention of this Court towards
above piece of evidence and argued that in
the post-mortem, stomach was found empty
hence it was argued that it indicated that
death did not take place at the time when it
is being alleged to have happened by the
prosecution side.

21. It is further stated that the cots of
the accused were situated about 12-13
paces away from their cots and that there
was a screen (parda) between the cot of the
father-in-law and daughter-in-law, but
when the S.I visited the spot he did not find
the said screen (parda) hanging there nor
any rope. She could not tell as to who had
removed the rope and the said parda from
the said place although she continued to
remain at home till the I.O had reached
there.

22. The learned counsel for the
appellants had drawn the attention of the
court towards the evidence and argued that
the I.O did not find on the spot any cot of
the accused side nor the same has been
shown in site-plan which belies the
statement of the said witness.

23. She further stated that there are
three kothas in her haveli in the Eastern
side. The real sister of Genda Singh namely
Swarupiya is widow lady who is still alive.
The Southern most kotha was in her
possession. Swarupiya used to live at the
place of her Samadhi since the time her son
was married. It was wrong to say that in the
Northern most, kotha Swarupiya used to
live.