1

A.F.R.

Reserved

Court No. - 46

Case :- CRIMINAL APPEAL No. - 2959 of 1984

Appellant :- Karan Singh

Respondent :- State of U.P.

Counsel for Appellant :- N.K. Saxena,A.N. Misra,G.S.Haela,Zafar

Abbas

Counsel for Respondent :- A.G.A.

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Kunvar Srivastav,J.

(As per Hon’ble Vikas Kunvar Srivastav,J.)

1. The instant criminal appeal is directed against the judgment of

conviction and order of sentence dated 27.09.1984 passed by the

Additional District and Sessions Judge, Lalitpur in Session Trial No.47 of

1983 (State Vs. Karan Singh), convicting and sentencing the appellant

under Section 302, 148, 149 of the Indian Penal Code, 1860 to undergo

life imprisonment and rigorous imprisonment for one year respectively

(Life imprisonment under Section 302/149 I.P.C. and rigorous

imprisonment under Section 148 I.P.C.). From the same Case Crime

No.53 of 1979, under Section 396 I.P.C., Police Station Saujana, District

Lalitpur, three sessions trial were instituted i.e. Sessions Trial No.15 of

1980 (State Vs. Aman Singh & Others), Sessions Trial No.23 of 1980

(State Vs. Kishora) and Sessions Trial No.47 of 1983 (State Vs. Karan

Singh)

Factual Matrix

2. The prosecution case as emerged from the written information

given by the first informant, Kashiram on 22.11.1979 in the Police

Station- Saujana, District Lalitpur, the evidence on record both the

documentary and oral, are stated briefly as follows:-

The first informant Kashiram alongwith his real brother Ramphal

both S/o Motilal R/o Village Agodi, Police Station Saujana, District

Lalitpur went to their agricultural field of 'jowar’ to take care and

2

protection of the crops. The first informant (Kashiram) handed over his

licensed gun no.1516 of 12 bore with 25 cartridges to his brother

‘Ramphal’ and went himself into the field to cut grass. After cutting the

grass at about 5:00 p.m. in the evening, when the day light was still

existing, the first informant lift the bundle of grass and moved on the way

to his house with his brother ‘Ramphal’ ahead of him. About ten paces

away from their field on the way to their home, when they reached near

the agricultural field of Baldu Lodhi, the accused persons Karan Singh S/o

Majboot Singh Thakur armed with axe (kulhari), Aman Singh S/o

Majboot Singh Thakur armed with sickle (hasiya), Kishora S/o Kamatua

Nai armed with axe (Kulhari), Hallu S/o Kamatua Nai armed with axe, all

residents of Agodi Police Station Saujana, District Lalitpur with brother-

in-law of Kishora namely ‘Bhaiyan Nai’ R/o Village Rangaon, Police

Station Mandwara, District Lalitpur, came out from the crops of 'jowar' in

aforesaid field of Baldu Lodhi. They caught hold the informant’s brother

Ramphal and tossed him on the earth. They inflicted blows of axe

(Kulhari) and sickle (Hasiya) on him. Informant’s brother Ramphal began

to scream and the informant was also raising alarm for help, upon which

Pooran, Pragi, Jagan, Sunnu, all residents of Village Agodi rushed to the

spot, but after killing Ramphal, all the five assailants fled from the spot

snatching the licensed gun, cartridges and the wrist watch from the hands

of the deceased. When the witnesses began to gather near the spot of the

incident, Kishora Nai made a fire from the licensed gun of the informant.

It was stated that the dead body of Ramphal (deceased) i.e. the

informant’s brother was lying in the agricultural field of Baldu Lodhi and

some of the villagers stayed near the dead body.

This written information dated 22.11.1979 was given by the

informant in the police station Saujana at about 8:00 a.m. The first

information report was lodged accordingly, on the basis of written

information under Section 396 I.P.C. The distance of the spot of the

incident from the Police Station Saujana is shown as about 13 k.m. in the

F.I.R. towards South-West from the police station.

After registering the F.I.R., police reached at the spot of the incident

and started the proceeding of inquest, prepared site map on the orientation

of witnesses, collected the blood stained soil and plain earth soil from the

spot of the incident, prepared memo thereof and sent the body for post-

mortem. After getting the post mortem report, charge sheet was submitted

before the court.

3. All the five accused were charged with the offence under Section

147 I.P.C. for having formed an unlawful assembly alongwith another

3

associates on 21.11.1979 at about 5:00 p.m. near the agricultural field of

one Baldu Lodhi having crops of 'jowar', situated in village Agodi, Police

Station- Saujana, District Lalitpur, with a common object whereof to

commit the murder of Ramphal (brother of the first informant Kashiram)

and in furtherance of their common object of that unlawful assembly, the

accused persons allegedly had committed the offence of rioting. They

were further charged under Section 302/149 I.P.C. as they committed the

murder of Ramphal intentionally causing his death on the relevant date

and time of the incident on the spot of the incident in furtherance of the

common object of their unlawful assembly. The accused persons were

also charged under Section 307/149 I.P.C. for having attempted to commit

the murder of Kashiram by firing at him in pursuance of their common

object on the relevant date and time on the spot of incident. They were

also charged under Section 396 I.P.C. for having committed dacoity as

they allegedly snatched the licensed gun alongwith 25 cartridges and

automatic wrist watch and in the course of commission of the dacoity,

murder of ‘Ramphal’ was committed by one or some of them. Further,

three accused Aman Singh, Hallu and Kishora were charged under

Section 148 I.P.C. also for being armed with deadly weapons namley axes

and sickle at the time of committing the offence of rioting.

4.Kishora, the accused in Sessions Trial No.23 of 1980 was charged

under Section 379 I.P.C. for having committed theft of the gun bearing no.

1516 alongwith 25 cartridges and automatic wrist watch by taking out

from the hadns of the deceased Ramphal on the relevant date and time at

the spot of incident.

5. The prosecution proposed the following witnesses for oral

examination and documents to prove the case before the trial court and

documents given herein below in a table for the purpose of easy

reference:-

P.W.-1, Chutti

P.W.-2, Pooran Ex. Ka-12- Statement of Pooran

P.W.-3, Sunu Ex. Ka-11- Statement of Sunu

P.W.-4, Bichitra Kumar

Gupta

Proved Ex. Ka-23- Extract Statement of

Jagan

Proved Ex. Ka-24- Extract Statement of

Puran

Proved Ex. Ka-25- Extract Statement of

4

Pragi

Proved Ex. Ka-26- Extract Statement of

Sunnu

P.W.-5, Kashiram Proved the written report Ex. Ka.-1

Ex. Ka.-30, Statement of Kashiram

P.W.-6, Surjan SinghProved Ex. Ka-14/8- Panchayatnama

Proved Ex. Ka-20- Site plan

P.W.-7, Lal Singh

P.W.-8, Devi Charan

Shukla

P.W.-9, Jai Narain Dubey

P.W.-10, Jagram Singh

P.W.-11, P.L. Vishwakarma

P.W.-12, Suresh SakalyaProved the post mortem report, Ex. Ka-25/3

Ex. Ka-8- Recovery memo of blood stained

and plain earth.

Ex. Ka-9- Recovery memo of plastic shoes.

Ex. Ka-10- Recovery memo of ‘Kanthi-

Mala’ & Pen

Ex. Ka-13- Statement of Pragi

Ex. Ka-21- Search memo of house

Ex. Ka-22- Search memo of house

Ex. Ka-28/20- Charge Sheet ‘Mool’

Ex. Ka-29/19- Charge Sheet ‘Mool’

Ex. Ka-31- Statement of Jagan

Ex. Ka-32/26-Report of Chemical Examiner

Ex. Ka-33/27 – Report of Chemical

Examiner and Serologist

6. As per the report of the Chief Judicial Magistrate, Lalitpur dated

28.03.2022, the sole appellant Karan Singh is absconding.

7. Learned counsel Sri Satyendra Kumar Mishra holding brief of Sri

A.N. Misra Advocate appeared on behalf of the appellant. Sri Patanjali

Mishra learned A.G.A. for the State respondents argued the prosecution

case.

5

Arguments of the learned counsels.

8. Learned counsel for the appellant contended that the incident as

stated by the prosecution witnesses is not as such and the deceased was

killed somewhere else by some anonymous enemies earlier to the alleged

date of incident i.e. 21.11.1979. He further submitted that even the

presence of P.W.-5 (first informant, Kashiram) is doubtful because the

first information report had been lodged with extraordinary delay without

any plausible explanation. He contended that as alleged in the First

Information Report, the incident of killing the deceased ‘Ramphal’

occurred at 5:00 p.m. on 21.11.1979, the spot of incident was 13 k.m. far

away from the Police Station but the First Information Report was lodged

at 8:00 a.m. on the next day i.e. 22.11.1979.

9.The next argument of the learned counsel for the appellant is with

regard to impossibility of hiding of accused-appellant allegedly in the

field of ‘'jowar'’, the crops whereof were more or less two feet in height.

He further drew the attention towards the statement of P.W.-5 who stated

that the accused appeared out from the field when the deceased reached

near the ‘med’ (boundary) of that field of ‘'jowar'’, and submits that the

informant could see them pouncing on the deceased. According to the

learned counsel for the appellant, hiding of the accused between the crops

of approximately 2 feet in height was quite impossible.

10.Learned counsel for the appellant further contended that evidence

on record reveals that the deceased ‘Ramphal’ was member of a gang of

dacoits and he might have been killed in a bit to commit dacoity at some

other place or by some other rival gangs or by the villagers. For the reason

of enmity, the first informant has taken undue advantage to make false

implication against the accused-appellant. It is further argued that when

the deceased was having gun with 25 cartridges, no one could muster

courage to attack him in the manner as alleged in the F.I.R.

11.The motive is stated by the informant himself in the written

information and the First Information Report establishes the enmity

between the parties to the incident. Learned counsel for the appellant

emphasises that the conviction is only based on suspicion, raised by the

informant against the accused-appellant that the accused were suspecting

the hands of the deceased in the killing of their family members in an

earlier incident. It is argued that the suspicion, however, strong it may be

can not take place of the facts established on the evidences.

12. Learned counsel for the appellant lastly argued that the prosecution

evidence itself raised doubt as to the killing of deceased on some earlier

6

date from the alleged date of incident 21.11.1979, somewhere else and,

thereafter, the dead body was planted on the alleged spot of the incident.

The medical evidence (post-mortem report) also corroborates the oldness

of the dead body of the deceased alleged to have been killed on

21.11.1979 at about 5:00 p.m. Learned counsel submitted that since the

prosecution remained unsuccessful in proving its case beyond all

reasonable doubts, therefore, the conviction recorded by the trial judge

and the sentence awarded can not be sustained in the eye of law.

13. Learned counsel for the appellant added that the eye witnesses were

planted in the case falsely and for this reason which they had turned

hostile and did not support the case of the prosecution. As such, the

evidence on record was not sufficient and material for recording the

conviction of the the present accused-appellant.

14. In rebuttal, it is argued by the learned A.G.A. that the contention of

learned counsel for the appellant as to the doubt about the presence of

P.W.-5 (first informant) is not correct because his presence is admitted by

all other prosecution witnesses consistently and without any contradiction.

The prosecution case which finds support from the oral evidences of P.W.-

5 which is un-haken. Further, he argued that the arguments of the learned

counsel with regard to the false implication and concocting a case by the

prosecution, is baseless. P.W.-5 in his statement has explained

satisfactorily about the delay in lodging the F.I.R. He further argued that

the entire prosecution case is well supported with the direct evidences of

eye witnesses and also the motive set forth in the written information and

the prompt F.I.R. is well established.

15. Learned A.G.A. lastly drew the attention towards the statement of

the prosecution witnesses who turned hostile and contended that they

were not under any coercion, fear or terror while their statement under

Section 164 Cr.P.C. was recorded, as such, the statement of such

witnesses in the course of their examination in the Court shall not be read

as wholly unworthy. The statement of such witnesses to the extent of

lagging support to the prosecution shall be read being reliable as

corroboratory evidence. He further submits that the principle of “falsus in

uno falsus in omnibus” does not apply in India. He referred on the case

laws Prabhash Kumar Vs. State of Haryana

1

, Iyappa & Ors. Vs. State of

Tamil Nadu

2

and Zahira Habibullah Sheikh & Anr. Vs. state of

Gujarat

3

.

1 (2013) 82 ACC (SC) 401

2 (2011) 72 ACC (SC) 988

3 (2006) 3 SCC 374

7

On the basis of above arguments, learned A.GA. submitted that the

impugned judgment of conviction and order of sentence is good in law

and deserves to be confirmed, no interference is required in the impugned

judgment under appeal, as such, the appeal is liable to be dismissed.

Discussion

Motive

16. In Sheo Shankar Singh Vs. State of Jharkhand and Anr.

4

, the

principles for the proof and relevance of motive in establishing the guilt of

the accused and its varying importance in cases based on circumstantial

evidence and in those which are based on the testimony of eye witnesses

has been discussed. Para ‘15’ of the said judgment is being quoted

hereunder:-

“15. The legal position regarding proof of motive as an essential

requirement for bringing home the guilt of the accused is fairly well

settled by a long line of decisions of this Court. These decisions have

made a clear distinction between cases where prosecution relies upon

circumstantial evidence on the one hand and those where it relies upon

the testimony of eye witnesses on the other. In the former category of

cases proof of motive is given the importance it deserves, for proof of a

motive itself constitutes a link in the chain of circumstances upon which

the prosecution may rely. Proof of motive, however, recedes into the

background in cases where the prosecution relies upon an eye-witness

account of the occurrence. That is because if the court upon a proper

appraisal of the deposition of the eye-witnesses comes to the conclusion

that the version given by them is credible, absence of evidence to prove

the motive is rendered inconsequential. Conversely even if prosecution

succeeds in establishing a strong motive for the commission of the

offence, but the evidence of the eye-witnesses is found unreliable or

unworthy of credit, existence of a motive does not by itself provide a safe

basis for convicting the accused. That does not, however, mean that proof

of motive even in a case which rests on an eye-witness account does not

lend strength to the prosecution case or fortify the court in its ultimate

conclusion. Proof of motive in such a situation certainly helps the

prosecution and supports the eye- witnesses.”

17.The suspicion of the accused persons over Ramphal (deceased) of

having killed their family members is, however, proved by the witness

P.W.-5. In his cross-examination by the defence, he stated that the

criminal case with regard to the incident of killing of the family members

of the accused appellant instituted against the brother of the informant

(Ramphal), the deceased and his father. Police was searching his brother

(Ramphal) but he could not be traced by them. Ramphal ultimately

4(2011) 3 SCC 654

8

surrendered alongwith other ‘baghis’ (dacoits) in District Chatarpur. He

also stated that he does not know about the gang of dacoits to which the

deceased Ramphal belonged, however, in the murder case, he was

acquitted by the court concerned.

Witness Jagan has also stated in the cross examination that the

parents of the accused appellant Karan Singh were murdered and father of

the accused Hallu and Kishora was also murdered. He further stated that

deceased Ramphal was prosecuted for the above three murders wherein he

was acquitted. He further stated that the said criminal case was running in

District Sagar.

Witness Pooran has also stated in the cross-examination about the

murder of parents of accused Karan Singh, Aman Singh and father of

Kishora and Hallu in village. He admitted that the accused persons had a

strong suspicion over the deceased ‘Ramphal’ of having committed their

murder. This witness then stated that he heard that the Ramphal

(deceased) had joined the gang of dacoit of ‘Moni Ram Sahai’ and the

people from the village were witnesses in the murder case against

deceased Ramphal.

Pragi stated that when the murder of the parents of the accused

appellants had occurred, they were very young. He himself also young

age. As such, all witnesses Kashiram (P.W.5) Sunnu (P.W.3), Jagan,

Pooran (P.W.2) and Pragi, even those who did not support the case of the

prosecution in toto and had supported the fact constituting the motive

behind the killing of Ramphal. The motive has set forth in the written

information and thus first information report, is, thus, proved and is a

relevant fact under Section 8 of the Indian Evidence Act, 1872.

Relevant date and time of the incident.

18. Though it is argued by the learned counsel for the appellant that the

evidence on record shows that the deceased might have been killed

somewhere else prior to the alleged date of incident dated 21.11.1979 and

the dead body was planted maliciously by the first informant by reason of

enmity with the accused appellant. We have gone through the evidences

of P.W.-5 and as discussed above, it may be recorded that there was no

enmity between the first informant Kashiram (P.W.-5) and the accused

appellant. Kashiram (P.W.-5), the first informant himself stated that being

the villager of the same village, the accused appellant and he were on

normal terms of visiting each other houses and talking to each other. None

of the witnesses of the prosecution stated about the ‘enmity’, if any, of

Kashiram with the accused appellant nor any suggestion of enmity had

9

been given to the first informant. So far as enmity of the accused appellant

with deceased Ramphal is concerned, it is established by evidence of

prosecution witnesses that the same was because of the deceased being

the accused in the murder case of parents of the accused, who had been

acquitted. The arguments of the learned counsel for the appellant of

planting of the dead body on the spot of the incident by the first informant

(P.W.-5) is not acceptable. Particularly, when the spot of the incident is

proved satisfactorily by all the witnesses of fact as well as the formal

witnesses also.

19. The doctor P.W.-12, Dr. Suresh Sakalya had also not been

confronted to impeach him about his assessment that the deceased might

have died on 21.11.1979 at about 5:00 p.m. in the evening. No questions

were put to him by the defence about the condition of the dead body on

the date of the post-mortem examination so as to relate the same to the

oldness of the dead body and to reach at the proximate time of death prior

to the established date and time of the incident, i.e. on 21.11.1979 at about

5:00 P.M. It is, therefore, needless to discuss on this point.

20. The accused persons, as the written information itself reveals, are

related toh each other. The accused Karan Singh and Aman Singh are real

brothers, sons of ‘Majboot Singh Thakur’, accused Kishora and Hallu are

real brothers, sons of ‘Kamatua Nai’, all residents of Village Agodi where

the incident had occurred and first informant P.W.-5 resides. The accused

Bhaiyan Nai is related to Kishora and Hallu being their brother-in-law

(sister’s husband) who is resident of Village Rangaon, Police Station

Mandwara, District Lalitpur. P.W.-5 in his examination-in-chief stated that

the father of accused Kishora and Hallu was murdered and parents of

Karan Singh and Aman Singh were also murdered. They all were

suspecting ‘Ramphal’ to be the perpetrator of the crime and, therefore,

hatched enmity with the deceased ‘Ramphal’. Due to the suspicion, out of

vengeance, the accused had killed the deceased Ramphal. In cross

examination, this witness stated at the very inception that he is residing in

village Agodi and during his lifetime the parents of the accused persons

were killed. He further stated that being local resident of same village, he

had conversation eventually with the accused persons also. Accused

persons also used to visit the first informant P.W.-5, if need be in

connection with some work. As such, P.W.-5 established that the accused-

appellant had no enmity with him (P.W.-5).

10

About witnesses

21. Kashiram, P.W.5 is brother of the deceased, Pooran (P.W.-2) and

Sunnu (P.W.3) are the eye witnesses. The first informant ‘Kashiram’ who

reported the incident dated 21.11.1979 to the Police on 22.11.1979 at

about 08:00 A.M. had been examined by the prosecution as witness of

fact and eye witness of the incident. Pooran (P.W.-2) and Sunnu (P.W.-3)

were also examined as eye witnesses by the prosecution. These three

witnesses were examined in Sessions Trial No.15 of 1980 (State Vs.

Aman Singh & Others) and Sessions Trial No.23 of 1980 (State Vs.

Kishora). A new witness namely Chutti was also examined as prosecution

witness P.W.-1 in the case. P.W.-5 is real brother of the deceased

‘Ramphal’ and, as such, related witness. P.W.-2 and P.W.-3 are the native

villagers, owners of the agriculture fields situated near and abutting the

field of Baldu, which is the place of the incident dated 21.11.1979

occurred at about 05:00 P.M. in the evening. They were agriculturist

having their field in the near vicinity of the spot of the incident (the field

of Baldu).

22. We have gone through the statement of P.W.-5 ‘Kashiram’ and do

not find any prior enmity of Kashiram himself with any of the accused

persons. Even Kashiram stated that the accused persons were on the

normal terms of visiting and conversing with him, if needed, in

connection with any work, as they were residing since a long time in the

same village.

23.Learned counsel for the defence has could not carve out any fact of

complaint of enmity of Kashiram with any of the accused persons prior to

the date of the incident or any civil or criminal litigation pending between

them. No question was put to the witness ‘Kashiram’ so as to elicit his

interestedness in falsely implicating the accused persons for putting them

behind the bars.

24.Witness P.W.-1, P.W.-2, P.W.-3 and P.W.-5 undoubtedly, as evidence

came out from the record, are rustic villager and living in a milieu of a

remote village namely Agodi in District Lalitpur. They are not highly

educated, simply literate or even illiterate.

25. So far as the delay of more than 12 hours in lodging the F.I.R. is

concerned, it is reasonably explained by the P.W.-5, Kashiram that he did

not go in the night to lodge the report because of the fear of the accused

persons. The evidence of his fear can be gathered from the evidence on

record.

11

26.The milieu of the village Agodi and the life of the villagers there,

may be gathered from the evidences coming out from the record. We can

carved out the same as below.

(i) the spot of the incident in the village Agodi was within the territorial

limit of District Lalitpur which was declared and notified as a dacoit

affected area by the Government,

(ii) carrying a licensed gun even during the agricultural work in the

evening in itself is an indication of fear of life to the brother namely

Kashiram and Ramphal (deceased),

(iii) in cross examination of the witnesses, it has come that the deceased

‘Ramphal’ was arraigned with the charge of murders of parents of accused

persons. A criminal case was also lodged.

(iv) the deceased ‘Ramphal’ alongwith some other ‘baghis’ (dacoits)

surrendered in District Chhatarpur. He was known to be an active member

of the gang of the dacoits, identified as ‘Moniram Sahai Gang’,

(v) One of the accused ‘Karan Singh’ was himself suspected to be an

active member of dacoits gang identified as ‘Gabbar Singh’s Gang’,

(vi) The way to the police station from the spot of the incident is shown to

be about 13 k.m. which was in the outskirts of area not urbanized and

populated, it was not easy to travel in the night,

(vii) the mode and manner adopted by the accused persons was not only

violent but also brutal and gruesome,

(viii) The assailants after killing the deceased ‘Ramphal’, fled away from

the spot of the incident and were roaming free.

27. Before going through the statements of aforesaid witnesses of fact

we would like to refer para ‘5’ of the judgment of Apex Court in the case

of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat

5

where Apex

Court observed that:-

(1) By and large a witness cannot be expected to possess a photographic

memory and to recall the details of an incident. It is not as if a video tape

is replayed on the mental screen.

(2) ordinarily it so happens that a witness is overtaken by events. The

witness could not have anticipated the occurrence which so often has an

element of surprise. The mental faculties therefore cannot be expected to

be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one

may notice, another may not. An object or movement might emboss its

5 (1983) 3 Supreme Court Cases 217

12

image on one person's mind whereas it might go unnoticed on the part of

another.

(4) By and large people cannot accurately recall a conversation and

reproduce the very words used by them or heard by them. They can only

recall the main purport of the conversation. It is unrealistic to expect a

witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an

occurrence, usually, people make their estimates by guess work on the

spur of the moment 1.1 at the time of interrogation. And one cannot

expect people to make very precise or reliable estimates in such matters.

Again, it depends on the time- sense of individuals which varies from

person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the

sequence of events which take place in rapid succession or in a short

time span. A witness is liable to get confused, or mixed up when

interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the

court atmosphere and the piercing cross examination made by counsel

and out of nervousness mix up facts, get confused regarding sequence of

events, or fill up details from imagination on the spur of the moment. The

sub-conscious mind of the witness sometimes so operates on account of

the fear of looking foolish or being disbelieved though the witness is

giving a truthful and honest account of the occurrence witnessed by him-

Perhaps it is a sort of a psychological defence mechanism activated on

the spur of the moment.

28. In view of the aforesaid circumstances and the witnesses, status,

milieu and their normal prudence, we think it proper to observe on the

basis of evidences that the prosecution witnesses of fact are rustic

villagers, not highly educated, even illiterate or simply literate.

29. In the context of the aforesaid observation, we further refer to the

judgment of the Apex Court in Shivaji Sahab Rao Bobade Vs. State of

Maharashtra

6

which deals with an incident of murder in a rural area

where the witnesses to the case were rustic and so it was observed that

their behavioural pattern perceptive and un-perceptive habits have to be

judged as such. The relevant para from the aforesaid judgment is

reproduced hereunder:-

"8. Now to the facts. The scene of murder is rural, the witnesses to the

case are rustics and so their behavioural pattern and perceptive habits

have to be judged as such. The too sophisticated approaches familiar in

courts based on unreal assumptions about human conduct cannot

obviously be applied to those given to the lethargic ways of our villages.

When scanning the evidence of the various witnesses we have to inform

6 (1973) 2 Supreme Court Cases 793 (801)

13

ourselves that variances on the fringes, discrepancies in details,

contradictions in narrations and embellishments in inessential parts

cannot militate against the veracity of the core of the testimony provided

there is the impress of truth and conformity to probability in the

substantial fabric of testimony delivered. The learned Sessions Judge has

at some length dissected the evidence, spun out contradictions and

unnatural conduct, and tested with precision the time and sequence of the

events connected with the crime, all on the touchstone of the medical

evidence and the post-mortem certificate. Certainly, the court which has

seen the witnesses depose, has a great advantage over the appellate

Judge who reads the recorded evidence in cold print, and regard must be

had to this advantage enjoyed by the trial Judge of observing the

demeanour and delivery, of reading the straightforwardness and doubtful

candour, rustic naivete and clever equivocation, manipulated conformity

and ingenious unveracity of persons who swear to the facts before him.

Nevertheless, where a Judge draws his conclusions not so much on the

directness or dubiety of the witness while on oath but upon general

probabilities and on expert evidence, the court of appeal is in as good a

position to assess or arrive at legitimate conclusions as the Court of first

instance. Nor can we make a fetish of the trial Judge's psychic insight."

30.We think it pertinent to mention here that the witness P.W.-1

‘Chutti’ did not support the case of prosecution and declared hostile. The

witness P.W.-5 remained intact on his stand and supported the case of

prosecution. The prosecution has produced on record, two certified copies

of the extracts of the statement of witnesses Jagan, Pooran, Pragi and

Sunnu recorded by the Investigating Officer under Section 161 Cr.P.C.

and that recorded by the Judicial Magistrate under Section 164 Cr.P.C.

also. All these witnesses were examined by the trial judge in the Sessions

Trial No.15 of 1980 (State Vs. Aman Singh & Others) and Sessions Trial

No.23 of 1980 (State Vs. Kishora). The aforesaid two Sessions Trials as

well as the present Sessions Trial No.47 of 1983 (State Vs. Karan Singh)

have their origin from the same Case Crime No.53 of 1979, under Section

396 I.P.C.

31.In the trial of Sessions Trial No.15 of 1980 (State Vs. Aman Singh

& Others) and Sessions Trial No.23 of 1980 (State Vs. Kishora), the

witness did not support as to the mode and manner adopted, complicity

and identification of the accused persons in commission of the incident

dated 21.11.1979 but so far as the incident of killing of deceased

‘Ramphal’ on 21.11.1979 at about 05:00 P.M. at the spot of the incident in

the field of Baldu and their presence near the spot of the incident, was

admitted by them.

32.They had retracted from their statement made under Section 161

Cr.P.C. before the Investigating Officer with regard to the mode and

14

manner adopted by them and complicity and identity of the accused

persons in commission of the offence dated 21.11.1979 before the Court.

However, the same statement was given before the Magistrate under

Section 164 Cr.P.C. which they admitted and proved before the Court.

They also proved before the Court, identifying and verifying their

signature on the statement under Section 164 Cr.P.C. The Magistrate, Sri

Bichitra Kumar Gupta was also examined before the Court in those

sessions trials and he proved the statement recorded by him under Section

164 Cr.P.C. of the accused, as such, the statement of the accused to the

same effect under Section 164 Cr.P.C. is proved before the Court and is a

proved document. The Magistrate, Sri Bichitra Kumar Gupta is also

witnessed in the present sessions trial as P.W.-4. The extracts of the

witness under Section 161 Cr.P.C and 164 Cr.P.C. cumulatively will be

taken as the narration of the incident by the witness coupled with their

statement in the present trial.

Evidence as to the status, character and profession of the deceased,

Ramphal.

33. In the case before us there are five witnesses of fact. They are first

informant Kashiram (P.W.5), Sunnu (P.W.3), Jagan, Pooran (P.W.2), Pragi.

Along with P.W.5 (brother of the deceased), the rest of the witnesses

namely Sunnu, Jagan, Pooran and Pragi were all examined as eye

witnesses of the incident whose names have been given in the written

information also. It is stated in the written report by the first informant

that at the time of the incident, hearing the screams of the deceased and

alarm raised by the first informant P.W.5, the other witnesses came

running on the spot as they were working in the nearby agricultural fields.

On ebing challenged by them, the accused Kishora made a fire towards

them and they succeeded in fleeing away from the spot. P.W.-5 being the

brother of the deceased is a related witness. Learned counsel for the

appellant has raised objection as to his credibility and reliability for the

reason of his interestedness. Except P.W.5, rest of the witnesses turned

hostile as they denied having seen the accused appellant committing the

offence. The question, thus, would be as to the evidentiary value of the

statement of the hostile witnesses, with regard to the facts deposed by

them and the effect of the portion of their statement not supporting the

prosecution case.

34. It is well settled that in a criminal trial, evidence of a hostile

witnesses can form the basis of conviction. In the matter of appreciation

of evidence of witnesses, it is not the number of witnesses but the quality

of their evidence matters.

15

Reliance on the statement of hostile witnesses

35. In the case before us we have already noticed that prosecution

witnesses Sunnu (P.W.3) and Pooran (P.W.2) were examined as the

prosecution witnesses to prove the fact in issue as to whether the accused

persons committed the killing of the deceased ‘Ramphal’ on the relevant

date and time on the spot of the incident alleged in the written information

by inflicting blows of lethal weapons like axe, sickle, etc.

36. The Apex Court in the case of Mrinal Das Vs. State of Tripura

7

in

para ‘67’ has held as under:-

67. It is settled law that corroborated part of evidence of hostile witness

regarding commission of offence is admissible. The fact that the witness

was declared hostile at the instance of the Public Prosecutor and he was

allowed to cross-examine the witness furnishes no justification for

rejecting en bloc the evidence of the witness. However, the court has to

be very careful, as prima facie, a witness who makes different

statements at different times, has no regard for the truth. His evidence

has to be read and considered as a whole with a view to find out

whether any weight should be attached to it. The court should be slow to

act on the testimony of such a witness, normally, it should look for

corroboration with other witnesses. Merely because a witness deviates

from his statement made in the FIR, his evidence cannot be held to be

totally unreliable. To make it clear that evidence of hostile witness can

be relied upon at least up to the extent, he supported the case of the

prosecution. The evidence of a person does not become effaced from the

record merely because he has turned hostile and his deposition must be

examined more cautiously to find out as to what extent he has supported

the case of the prosecution.

37. In view of the aforesaid guidelines laid down by the Apex Court

whereupon the evidence of the prosecution witnesses (declared hostile) is

required to be evaluated. In the present case in our hand, since the learned

counsel has raised objection as to the credibility and reliability of P.W.5,

Kashiram (first informant) also and blamed him to concoct the case for

false impliacation of the accused appellant, we would discuss the

evidence of P.W.-5 later after evaluating the evidence of hostile witnesses

and finding out which part of their testimony is to be taken into reliance

and is corroborating the prosecution case.

38. In Siddharth Vashisth @ Manu Sharma Vs. State of N.C.T.,

Delhi

8

, it is held that if the prosecution witnesses turned hostile the court

7(2011) 9 SCC 479

8(2010) 69 SCC 833

16

may rely upon so much of his testimony which supports the case of

prosecution and is corroborated by other evidences.

39. The doctrine of “falsus in uno falsus in omnibus” is not applicable

in Indian Judicial System, the court has to separate grain from chaff and

apprise in each case as to what extent the evidence is acceptable. If

separation cannot be done, the evidence has to be rejected. The witnesses

may be speaking untruth in some respect and it has to be apprised in each

case as to what extent the evidence is worthy of acceptance. Merely

because in some respects the court considers the same to be insufficient

for placing reliance on the testimony of a witness, it does not necessarily

follow as a matter of law that it must be disregarded in all respects as

well. It is held in number of cases of Apex Court, one of such judgment is

Babu @ Balasubramaniam & Arn. Vs. State of Tamil Nadu

9

.

40. In Ashok Kumar Chaudhary Vs. State of Bihar

10

and Sucha Singh

Vs. State of Punjab

11

, it was held that, if the testimony of a witness is

otherwise found trustworthy and reliable, the same cannot be disbelieved

and rejected merely because certain insignificant, normal and natural

contradictions have appeared in his testimony. If the inconsistencies,

contradictions, exaggerations, embellishments and discrepancies in the

testimony are normal and not material in nature, then the testimony of an

eye witness has to be accepted and acted upon. The distinction between

normal discrepancies and material discrepancies are that while normal

discrepancies do not corrode the credibility of a parties case, material

discrepancies do so.

41. In view of the above legal position, we first of all would like to

remind that the spot of the incident alleged, is the field of ‘'jowar'’ in

village Agodi, belonging to Baldu Lodhi on which boundary (med), the

deceased Ramphal was about to reach when the accused appellant alleged

to have pounced on him coming out from his hiding in the crops of

‘'jowar'’. The time of the incident was about 5:00 p.m. in the evening of

21.11.1979. The field of witnesses Sunnu (P.W.3), Jagan, Pooran and

Pragi were situated nearby the spot of the incident, hearing the noise of

screaming of the deceased and alarm raised by the first informant, the

witnesses reached there. A fire from the gun was also made after killing

the deceased by the accused Kishora towards the witnesses so as to ward

off them.

9(2013) 8 SCC 60

10(2008) 12 SCC 173

11(2003) 7 SCC 643

17

42. In the context of the aforesaid fact stated in the written information,

we would go through the statements of witnesses one by one.

Witness P.W.-5

43.Since the presence of P.W.-5, Kashiram is admitted by other witness

of fact though they turned hostile and his presence is also found to be

quite natural and probable in his agricultural field, his evidence now has

to be evaluated keeping in mind that this witness was present on the spot

of the incident and had seen the entire incident as stated in the written

report filed by him.

Objection as to P.W.-5 being relative witness

44.Merely being relative of the deceased he can not be said to be

interested for any otherwise reason to get the accused persons falsely

implicated.

45.In Vijendra Singh Vs. State of Uttar Pradesh with Mahendra

Singh Vs. State of Uttar Pradesh

12

, the Apex Court has held in para 31 as

under:-

“31. In this regard reference to a passage from Hari Obula Reddy

v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 :

1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge

Bench has ruled that : (SCC pp. 683-84, para 13)

“[it cannot] be laid down as an invariable rule that

interested evidence can never form the basis of conviction

unless corroborated to a material extent in material

particulars by independent evidence. All that is necessary

is that the evidence of the interested witnesses should be

subjected to careful scrutiny and accepted with caution. If

on such scrutiny, the interested testimony is found to be

intrinsically reliable or inherently probable, it may, by

itself, be sufficient, in the circumstances of the particular

case, to base a conviction thereon.”

It is worthy to note that there is a distinction between a witness who is

related and an interested witness. A relative is a natural witness. The

Court in Kartik Malhar v. State of Bihar [Kartik Malhar v. State of Bihar,

(1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative

who is a natural witness cannot be regarded as an interested witness, for

the term “interested” postulates that the witness must have some interest

12(2017) 11 Supreme Court Cases 129

18

in having the accused, somehow or the other, convicted for some animus

or for some other reason.”

46.In Sucha Singh and Another Vs. State of Punjab (Supra), it is

held that relationship is not a factor to effect the credibility of a witness. It

is more often than not that a relation would not conceal the actual culprit

and make allegations against an innocent person. Foundation has to be

laid if plea of false implication is made. In such cases, the court has to

adopt a careful approach and analyse evidence to find out whether it is

cogent and credible. Para 13 of the said judgment is quoted under:-

13. We shall first deal with the contention regarding interestedness

of the witnesses for furthering the prosecution version. Relationship

is not a factor to affect the credibility of a witness. It is more often

than not that a relation would not conceal the actual culprit and

make allegations against an innocent person. Foundation has to be

laid if plea of false implication is made. In such cases, the court has

to adopt a careful approach and analyse evidence to find out

whether it is cogent and credible.

47.In the context of evidences on record, we are of considered opinion

that the argument of the learned counsel for the appellant about the

witness (P.W.-5) being a close relative a partisan witness and his evidence

should not be relied upon, has no substance. This impression in the mind

of any person that relatives are not independent is not correct. In para ‘14’

of the Sucha Singh and Another Vs. State of Punjab (Supra), the Apex

Court has considered it as under:-

“14. In Dalip Singh v. State of Punjab [AIR 1953 SC 364 : 1953

Cri LJ 1465] it has been laid down as under : (AIR p. 366, para 26)

“26. 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 relation 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

generalization. Each case must be judged on its own facts.

19

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.”

48.In this regard, para ‘22’ from the judgment of the Apex Court in the

case of Shyam Babu Vs. State of U.P.

13

, is reproduced hereunder:-

“This Court has repeatedly held that the version of an eye-

witness cannot be discarded by the Court merely on the ground that

such eye-witness happened to be a relative or friend of the deceased. It

is also stated that where the presence of the eye-witnesses is proved to

be natural and their statements are nothing but truthful disclosure of

actual facts leading to the occurrence, it will not be permissible for the

Court to discard the statement of such related or friendly witnesses. To

put it clear, there is no bar in law on examining family members or any

other person as witnesses. In fact, in cases involving family members of

both sides, it is a member of the family or a friend who comes to rescue

the injured. If the statement of witnesses, who are relatives or known to

the parties affected is credible, reliable, trustworthy and corroborated

by other witnesses, there would hardly be any reason for the court to

reject such evidence merely on the ground that the witness was a family

member or an interested witness or a person known to the affected

party or friend etc. These principles have been reiterated in Mano Dutt

and Another vs. State of Uttar Pradesh, (2012) 4 SCC 79 and Dayal

Singh and Others vs. State of Uttaranchal, 2012 (7) Scale 165.”

Enmity

49. We have gone through the statement of P.W.-5 ‘Kashiram’ and do

not find any prior enmity of Kashiram himself with any of the accused

persons. Even Kashiram stated that the accused persons were on the

normal terms of visiting and conversing with him, if needed in connection

with any work, as they were residing since a long time in the same

village.

50.Learned counsel for the defence could not carve out any fact of

complaint of any enmity of Kashiram with any of the accused persons

prior to the date of the incident or any civil or criminal litigation pending

between them. No question was put to the witness (P.W.-5) ‘Kashiram’ so

as to elicit his interestedness in falsely implicating the accused persons for

putting them being the bars.

13(2012) 8 Supreme Court Cases 651

20

Witness P.W.-3

51.P.W.-3, Sunnu –S/o Sultan resident of village Agodi, who by

profession is an agriculturist, when produced before the court on

16.7.1982 [in Sessions Trial No.15 of 1980 (State Vs. Aman Singh &

Others)], this witness [Sunnu (P.W.-3)] in unequivocal, explicit and

assertively admitted in his examination-in-chief his presence near the spot

of the incident at the relevant date and time of incident and that he went to

his field for cutting grass. He also affirmed the presence of other

witnesses Jagan, Pooran and Pragi who alongwith him ran towards the

spot of incident in the field of Baldu hearing the screaming of Ramphal

and alarm raised by the Kashiram. He had further admitted that accused

Karan Singh was armed with axe (kulhadi), Hallu alongwith sickle and

Kishora with kulhadi, accused Bhaiyan caught hold the deceased

‘Ramphal’. All the five accused named by him intended to kill the

deceased ‘Ramphal’, were inflicting blows of their arms on him, when the

accused Kishora made a fire from the gun on the deceased ‘Ramphal’, all

the witnesses fled from the spot being under fear.

52.This witness has further explained in his cross-examination, the

reason and the circumstance under which he turned hostile while

produced before the Court in Sessions Trial No.15 of 1980 (State Vs.

Aman Singh & Others). He stated that the statement given by him in the

present Sessions Trial No.47 of 1983 (State Vs. Karan Singh) is correct.

When he was read over the earlier statement given by him in the Sessions

Trial No.15 of 1980 (State Vs. Aman Singh & Others), wherein he did not

support the prosecution case about the role, mode and manner adopted by

the five accused persons. On both the occasions, he stated on his own that

he was scared of the Investigating Officer (Daroga Ji) and was given two

suggestions by the the defence:-

(i) He was not making correct statement under the pressure of the police,

which was denied by him saying it was incorrect.

(ii) P.W.-3 was given suggestion that he did not see anything on the spot

of the incident. He further denied and stated that it was incorrect that he

did not see anything.

53.This witness, during his cross-examination, has further confirmed

the location of the spot of the incident being the field of Baldu, the

occurrence of violent fracas running about 4-6 minutes before him. He

also stated firmly about the injuries on the person of the deceased. He

further stated that the blows of the arms (axes and sickles) were made on

the neck, shoulder and abdomen of the deceased ‘Ramphal’. He lastly

21

stated that when the fire from the gun was made on them, they all fled

from the spot and that the gun was fired for the purpose of warding them

off from the dead body of the deceased. As such, the witness P.W-3

remained versatile in his statement but it could not be said that he did not

see the incident on the spot as his presence on the spot of the incident

constantly remained same in both the cases un-retracted, un-contradicted

and consistent, as such, the statement of this witness as to the presence of

the accused persons on the spot of the incident, their role, the mode and

manner adopted by them in committing the offence with the help of the

arms held by them is to be taken into account in favour of the prosecution.

Witness P.W.-1

54.P.W.-1 Chutti – This witness was not named in the written

information and the first information report. His name was not given by

other witnesses namely Pooran, Jagan, Pragi, Kashiram and etc. of being

present near or on the spot and that might have seen the incident. He

claimed himself the witness of the inquest and, therefore, he proved his

signature over the inquest report. In his cross-examination, Chutti (P.W.-1)

stated about the location, dimension and position of the dead body lying

on the earth of the spot of the incident near the boundary (med) in the

field of Baldu. He stated about the injuries on the dead body only on the

leg and near the eyes of the deceased and denied other injuries. The

statement of this witness is irrelevant as to the role of the accused persons,

mode and manner adopted by them in killing of the deceased and arms

used by them in the course of incident because he has not claimed him

being present on the spot at the time of the incident.

55.However, the witness P.W.-1 has proved the relevant date of the

incident as he stated without any contradiction that the dead body was

lying on the earth of the spot of the incident on the relevant date and time

of the incident.

Witness P.W.-2

56. P.W.2 Pooran by profession is an agriculturist resident of village

Agodi who was earlier been examined in the Sessions Trial No.15 of 1980

(State Vs. Aman Singh & Others) on 04.08.1982 and did not support the

case of prosecution about the role of, mode and manner adopted, the arms

held by the accused persons and killing of the deceased ‘Ramphal’. He

denied seeing the accused appellant committing the murder of the

deceased ‘Ramphal’ on 21.11.1979 and also seeing the accused Kishora

taking away the licensed gun and cartridges of the informant Kashiram

and wrist watch of the deceased. In cross examination, he admitted that

22

the investigating officer had interrogated him but denied from giving any

such statement with regard to seeing the accused persons committing the

offence. He admitted, however, that Ramphal was killed in the field of

Baldu Lodhi abutting to the field of informant Kashiram but when like the

other witness P.W. 3, he was asked about his statement made to the

Magistrate under Section 164 Cr.P.C. and read over the statement dated

15.12.1979, he admitted the same having been given by him recorded by

the Magistrate and his thumb impression thereon. This witness also has

not been confronted by the defence in the cross examination about the

presence of this witness alongwith other witnesses on the spot of the

incident particularly the statement of the witness P.W.-3 in this regard,

therefore, the presence of this witness with P.W.-3 on the spot on the

relevant date at the relvant time of the commission of offence, his conduct

of retracting from his statement under Section 161 Cr.P.C. and that

recorded by the Magistrate under Section 164 Cr.P.C. will be treated as an

afterthought by reason of some vested interest and, therefore, a false

statement before the court which cannot be read in favour of the defence.

However, this witness has proved the motive set up by the prosecution by

saying that the parents of accused Karan and Aman Singh (real brothers)

as well as parents of Kishora and Hallu (real brothers) were murdered in

the village and the deceased Ramphal was a suspect for committing

murder and a criminal case was also lodged against him wherein he was

acquitted.

57.In the present matter (in Sessions Trial No.47 of 1983; State Vs.

Karan Singh), when he was produced before the Court for examination-

in-chief on 14.06.1984, P.W.-2 in explicit and unequivocal words,

supported the case of prosecution on above aspects. In his cross-

examination, P.W.-2 explained about his earlier statement in Sessions

Trial No.15 of 1980 (State Vs. Aman Singh & Others). He said his

statement in the present matter true and denied the suggestion that he was

making a false statement under the pressure of the police. He also denied

the suggestion that nothing was seen by him.

Witness P.W.-4

58.P.W.-4, Bichitra Kumar Gupta- the then Munsif Magistrate was

examined in earlier Sessions Trial No.15 of 1980 (State Vs. Aman Singh

& Others) where the witnesses turned hostile and proved the statements of

the witnesses recorded under Section 164 Cr.P.C. which the hostile

witnesses also admitted to have been recorded. Sri Bichitra Kumar Gupta

in the present case also proved recording of the statement of witnesses

under Section 164 Cr.P.C. on 15.12.1979. He stated that the statements of

23

witnesses Kashiram and Pooran were recorded by him under Section 164

Cr.P.C. on 15.12.1979. Whatever they said, was recorded and after having

the same reduced into writing by him, it was read over to them and they

put their thumb impression prved as Ex. Ka-12 and Ex.Ka-30. He further

stated that on 17.12.1979 and 15.12.1979, he recorded the statements of

witnesses Pragi, Sunnu and Jagan under Section 164 Cr.P.C., proved as

Ex.Ka-31 and Ex.Ka-11. As such the prosecution has successfully

established that the witnesses turned hostile retracting their statement

made before the investigating officer purposely and falsely, their

statement as to the involvement of the accused persons, their mode and

manner adopted in killing the deceased Ramphal and weapons used by

them, all were supporting the case of prosecution and they could not deny

their statement made before the Magistrate under Section 164 Cr.P.C.

In view of the above discussion, the statement of the witnesses, who

were declared hostile in earlier Sessions Trial No.15 of 1980 (State Vs.

Aman Singh), instituted on the same case crime number relating to the

same incident, are held in the present sessions trial, correctly stating about

the identity of accused appellant and his complicity in the offence, killing

the deceased ‘Ramphal’ in the mode and manner and with the help of

weapons assigned to them in the written information, the prosecution in

this case has been successful in establishing the case against the accused

appellant.

Spot of the incident

59. As already discussed above, from the evidence of prosecution

witnesses Sunnu (P.W.3) and Pooran (P.W.2) that they admitted the place

of the incident near the agricultural field of Baldu Lodhi and that their

own fields were situated nearby. They have consistently and without any

contradiction proved that the dead body was lying on the spot of the

incident when they reached there hearing the gunshot. The blood stained

soil and plain earth soil were collected by the Investigating Officer from

the spot and was proved in the court. The prosecution witnesses had also

admitted the collection of aforesaid samples from the spot of the incident

by the Investigating Officer. The inquest proceeding was done and proved

by the witnesses which also establishes the spot of the incident being the

same place. The Investigating Officer, P.W.6, Sub Inspector, Surjan Singh

in his examination-in-chief before the trial court proved that the dead

body of the deceased ‘Ramphal’ was lying on the spot of incident, where

he made the inquest proceeding. He also proved preparation of site plan

on the orientation of witnesses Kashiram (P.W.5) and Jagan. The site plan,

Ex. Ka.20, shows the place where the dead body of the deceased was

24

lying as ‘D’. There is a remark that “at its South nearby the vicinity, the

crops of 'jowar' was found broken and the dead body of the deceased was

lying”. It also shows that the blood stained soil and plain earth soil was

collected from the same place. The agriculture field of informant

Kashiram has been shown by letter ‘C’ at about ten paces away from the

boundary (med) of the field of Baldu Lodhi where the incident occurred.

In the vicinity, the witnesses Jagan and Pooran are shown near the place

“C”. As such, the spot of the incident as stated by the first informant,

Kashiram in the written report submitted to the police, was proved to be

the boundary (med) of the 'jowar' field of Baldu Lodhi.

Written information and delayed First Information Report

60. The witness P.W.-5 (first informant, Kashiram) submitted the

information in writing to the police on 22.11.1979 stating the date of

incident 21.11.1979 and time at about 5:00 P.M. and also his presence in

connection with the agricultural work of removing grass from his field of

'jowar' situated near the spot of the incident in village Agodi. He further

stated the presence of deceased ‘Ramphal’ with him at the time of the

incident, who was carrying the bundle of grass also carrying licnsed gun

of the informant and that he was leading to the way to their home. The

name of the accused-appellants are, respectively Aman Singh, Kishora

and Hallu, all residents of village Agodi and accused Bhaiyan, the

brother-in-law of the Kishora and Hallu resident of village Rangao Police

Station Mandwara, District Lalitpur. P.W.-5 has also stated that the

aforesaid accused persons were hidden in the field of Baldu Lodhi in the

crops of 'jowar', which were about two feet in height and they became

visible when they suddenly came out on the spot of the incident and

pounced with their respective arms like axe and sickle, the deceased was

caught hold by them and the accused persons injured him seriously by

inflicting the blows of their lethal weapons and done him to death on the

spot. In the course of the incident, the accused Kishora snatched the

licensed gun of Kashiram from the hands of deceased ‘Ramphal’ and

Kishora, made a fire on the witnesses who came running towards the spot

of the incident on hearing the scream of deceased and alarm raised by the

first informal Kashiram (P.W.5) so as to ward off them. The motive is also

stated by the first informant that the accused persons were suspecting that

the deceased ‘Ramphal’ had killed their parents much earlier to the

present incident.

61. The incident as stated in the written information occurred on

21.11.1979 at about 5:00 P.M. before the sunset, but the first information

report was lodged on 22.11.1979 at about 8:00 A.M., on the next morning

25

of the incident. The distance of the spot of the incident from the police

station is shown in the F.I.R. 13 Km.

62.Learned counsel for the appellant vehemently argued that the first

information report was lodged with an unreasonable delay which is

sufficient to cast a doubt as to the genuineness of the F.I.R. To deal with

this objection, we have gone through the evidence of P.W.5 (the first

informant) and the Investigating Officer (P.W.6). The first informant

(P.W.-5) stated the time of the incident about 4:45 P.M. in the evening

before sunset on 21.11.1979. He further stated in the examination-in-chief

that on the very evening of the day of incident he did not go to the police

station for lodging the F.I.R. due to the falling of the night and fear of

accused persons, he went in the morning on the next day i.e. 22.11.1979

to the police station for lodging the report. He further stated that the

written report of the incident was given in the police station who reduced

the same into writing and gave him a copy, getting his signature for

receiving. The written report given by him in the police station was

proved as Ex. Ka.1.

63. In the cross examination, this witness stated about the proximate

period of the violent fracas committed by the accused persons from 15-20

minutes to half an hour and that after the incident he stayed along with the

native villagers near the dead body of his brother throughout the night. He

further stated that he left the spot of the incident to go to the police station

when dawn fell and came back with the Investigating Officer to the

village at about 11 A.M. He clarified that for the whole day just from the

dawn upto the sunset, the dead body was lying on the spot. He further

stated that the inquest proceeding was started at about 11:00 a.m. on the

date of the information of the incident.

64. P.W.-6, the Investigating Officer Surjan Singh, Sub Inspector stated

that on 22.11.1979 he was present in the police station when P.W.5,

Kashiram came to him. No question was put to this witness with regard to

information of incident, if any, is received by him on the same evening

nor any wilful delay on his part. Even question is not put nor suggestion

given to him as to his interestedness or consultation prior to the lodging of

F.I.R. on the basis of the written report submitted by P.W.-5 to alter the

contents of the same. In cross examination, in answer to the question put

by the defence, this witness (P.W.-6) assertingly stated that the first

informant came to him at about 8:00 a.m. in the morning of 22.11.1979 to

lodge the report. The report was lodged in the presence of P.W.-6

(Investigating Officer) in the police station and he proceeded for the spot

of the incident.

26

65. So far as the delay of more than 12 hours in lodging the F.I.R. is

concerned, it is reasonably explained by the P.W.-5, Kashiram that he did

not go in the night to lodge the report because of the fear of the accused

persons. The evidence of his fear, which has already been discussed, are

arrayed again on the cost of the repetition herein below;

(i) the spot of incident in the village Agodi was within the territorial limit

of District Lalitpur which was declared and notified as a dacoit affected

area by the government,

(ii) carrying a licensed gun even during the agricultural work in the

evening in itself is indication of fear of life to the brothers namely

Kashiram and Ramphal (deceased),

(iii) in cross examination of the witnesses, it has come that the deceased

‘Ramphal’ was arraigned with the charge of murders of parents of the

accused persons, a criminal case was also lodged.

(iv) the deceased ‘Ramphal’ alongwith the some other ‘baghis’ (dacoits)

surrender in district Chhatarpur. He was known to be an active member of

the gang of the dacoits, identified as ‘Moniram Sahai Gang’,

(v) One of the accused Karan Singh was himself suspected to be an active

member of dacoits gang identified as ‘Gabbar Singh’s Gang’,

(vi) The way to the police station from the spot of the incident is shown to

be about 13 k.m. which in the outskirts of the area not urbanized and

populated, it was not easy to travel in the night,

(vii) the brutal mode and manner adopted by the accused persons was not

only violent but also brutal and gruesome,

(viii)The assailants after killing the deceased fled away from the spot of

the incident and were roaming free.

66. In view of the above, the fear of the first informant (P.W.-5) was

quite natural and probable and not adverse influence can be drawn of his

act of not moving instantly after the incident to the police station by

travelling 13 km on rough and unpopulated way. This witness P.W.-5,

Kashiram was also not confronted about availability of the means of

transport, the nature and condition of the way causing obstruction, the

risks in the night, the presence of the villagers and company of the

Chaukidar or anyone else to go to the police station in the night for

lodging the F.I.R. The witness P.W.5 himself has stated that before the

sunrise, he left the village for going to the police station, he travelled

about 13 Km. on foot, the statement of P.W.-6, Investigating Officer

27

proves arrival of the P.W.5 in the police station at about 8:00 a.m. As such,

the reason for not lodging the F.I.R. instantly in the evening and reaching

the police station on the next morning stood explained and is beleivable.

The arguments of the learned counsel as to the ingenuineness of the

written information and the F.I.R. have no logical footing and, thus, liable

to be rejected. The written information of the incident is given to the

police station with reasonably promptness and there is no extraordinary

delay so as to raise any doubt as to the genuineness of the F.I.R.

Mode and manner of the commission of offence

67.The fact of killing of the deceased ‘Ramphal’ on 21.11.1979 at

about 5:00 p.m. before sunset is proved by the witnesses Kashiram

(P.W.5), Sunnu (P.W.3), Jagan, Pooran (P.W.2) and Pragi inconsistently

without any contradiction. The spot of the incident is also proved on the

evidences of the witnesses consistent with the testimony of P.W.-5 and the

corroborative evidence of the inquest proceedings, the collection of the

blood stained soil and plain earth soil, the recovery of the shoes of the

deceased near the spot of the incident. It is noteworthy here that none of

the witnesses amongst Sunnu (P.W.3), Jagan, Pooran (P.W.2) and Pragi

contradicted the statement of P.W.-5, the first informant as to the

involvement of the accused-appellant in the offence. The mode and

manner adopted by the accused appellant, his involvement in the

commission of offence and the weapon used by him though stated by the

aforesaid witnesses Sunnu (P.W.3), Jagan, Pooran (P.W.2) and Pragi to

the Investigating Officer in the course of the investigation and, thereafter,

before the Magistrate under Section 164 Cr.P.C. but they did not stand on

their aforesaid pre-trial statements when produced before the trial court.

As discussed at length the fear under which the aforesaid witnesses turned

hostile, as it is held, they have retracted and nor truthful. As such, the only

witness (P.W.5) as eye witness of the incident remains before us as to the

mode and manner of the commission of the offence.

68. It is well known principle of law that reliance can be based on the

solitary statement of a witness, if the court comes to the conclusion that

his statement is the true and correct version of the case of the prosecution.

69. Section 134 of the Indian Evidence Act, 1872 for ready reference is

quoted hereunder:-

“134. Number of witnesses.—No particular number of witnesses shall

in any case be required for the proof of any fact.”

70. It is settled that the courts are concerned with the merit of the

statement of a particular witness and they are not concerned with the

28

number of witnesses examined by the prosecution. The time honored rule

of appreciation of evidence is that it has to be weighed and not counted;

the law of evidence does not require any particular number of witness to

be examined to prove any fact. As a rule of caution, based on the

testimony of a single witness, the court may classify the oral testimony of

a single witness, into three categories namely (i) wholly reliable, (ii)

wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. In

the third category of cases, the court has to be circumscribed and has to

look for corroboration in material particulars by reliable testimony, direct

or circumstantial, before acting upon the testimony of a single witness;

Lallu Manjhi Vs. State of Jharkhand

14

.

71. In Veer Singh Vs. State of U.P.

15

, it is held that conviction can be

based on the evidence of sole witness in a criminal trial as quality of

evidence matters not the quantity.

72. Keeping in mind the above, we proceed with the P.W.-5, Kashiram,

it is stated by him that on 21.11.1979 at about 4:45 P.M. in the evening

when there was enough day light, he alongwith his brother ‘Ramphal’ was

returning to home. Deceased ‘Ramphal’ was carrying his licensed gun and

25 cartridges of the informant, Kashiram and Kashiram was about 20

paces behind him carrying the bundle of grass, accused Kishora, Karan

Singh, Hallu and Bhaiyan pouncing out from the fields of 'jowar' of Baldu

Lodhi with axe (Kulhari), sickle (hasiya), they embraced the deceased

from his behind, tossed him on the ground and began inflicting the blows

of sickle and axe and, thus, the deceased died of the injuries.

Medical Evidence of the mode and manner adopted by the accused

73. The post-mortem report of the body is evidence of the aforesaid

injuries which are noted as under:-

Ante mortem injuries:-

(i) Incised wound 14 c.mx4c.m. brain deep on left side face and

forehead with under ear of temporal parital and frontal bone of skull

and the brain meetter is came at left eye is displaced in socket.

(ii) Incised wound 7 cm. X 2 c.m. bone deep on left side of head with

under left ear of parital bone.

(iii) Incised wound 10 cm x 2 cm bone deep on right side of the face

from the root of nose to right angle of mouth.

(iv) Incised wound 12 cm x 5 cm vertebral column deep under byers of

3, 4 and 5.

14AIR 2003 SC 254

15(2014) 2 SCC 455

29

(v) Multiple incised wound (five in number) ranging for 2 c.m. x 0.5 cm

to 2 cm x 1 cm muscle deep in the area of 15 cm x 16 cm on the front of

chest.

(vi) Incised wound 2 cm x 1 cm skin deep on the middle of abdon 8 cm

above the umbila

(vii) Incised wound 3 cm x 2 cm muscle deep the left infernal region.

(viii) Incised wound of 3.5 cm x 2 cm muscle deep on lateral side of left

thigh on upper 1/3.

(ix) Incised wound on 3 cm x 2 cm muscle deep 1.5 cm late to no.8.

(x) Incised wound of 6 cm x 2 cm middle deep on right anterol as per

upper 1/9 of right thigh.

(xi) Incised wound 3 cm x 28 muscle on anten aipet right thigh 8 cm

below of no.10.

74.P.W.12, Dr. Suresh Sakalya the doctor posted in Lalitpur District

Hospital who conducted the autopsy of the body proved his report that the

deceased died of the Ante mortem injuries. He assessed the approximate

time of death being 21.11.1979 at 5:00 p.m. No question was put to thim

as to the timing of the death. Thus, the death was proved by the ante

mortem injuries, the nature of the injuries undoubtedly show that they are

caused by some sharp edged and pointed weapons, most of the injuries are

incised wounds except injury no.1 i.e. lacerated over the head bone deep.

The depth of the injuries upto muscle deep or bone deep confirms the

weapon assigned to the accused namely axe (Kulhari) and sickle (hasiya).

75.In this way, in the absence of any contradiction in the statement of

the sole witness as to the mode and manner adopted by the accused with

the weapons used by them which stood proved with further corroboration

from the post-mortem report and the evidence of the medical witness

P.W.12, Dr. Suresh Sakalya it has to be accepted. Nothing carved out from

both the witnesses against this proved state of things in the cross

examination. It is further reinforced by circumstances coupled with the

motive of the accused persons to commit the crime which is indicative of

conclusions that the accused persons are the real offenders who had

committed the alleged crime, however, such occurrence had taken place in

broad day light and Kashiram (the first informant) had witnessed the

entire occurrence from a short distance of about 15-20 paces. There is no

possibility of committing any mistake by him, moreover, it will be indeed

perverse against the ordinary course of human nature and conduct for

Kashiram to permit the real assailants of deceased ‘Ramphal’ to go

unpunished and instead of implicating the accused persons just with a

view to satisfy his own ego.

30

76. In the present case, the evidence as to the presence on the spot of

incident at the relevant time and date of the incident proved to be probable

and natural, free from contradictions, exaggeration or embellishment.

Some minor contradictions or inconsistency are immaterial, irrelevant

details which are not in the capacity in anyway corrode the credibility of

witness cannot be labelled as omission or contradictions. This settled legal

principle is reiterated in various decision of the Apex Court. It is held by

the Apex Court in Brahm Swaroop and Another Vs. State of Uttar

Pradesh

16

as under :-

“It is a settled legal proposition that while appreciating the evidence of a

witness, minor discrepancies on trivial matters, which do not affect the

core of the prosecution case, may not prompt the court to reject the

evidence in its entirety. “Irrelevant details which do not in any way

corrode the credibility of a witness cannot be labelled as omissions or

contradictions.” Difference in some minor details, which does not

otherwise affect the core of the prosecution case, even if present, would

not itself prompt the court to reject the evidence on minor variations and

discrepancies. After exercising care and caution and shifting through the

evidence to separate truth from untruth, exaggeration and improvements,

the court comes to a conclusion as to whether the residuary evidence is

sufficient to convict the accused. Thus, an undue importance should not

be attached to omissions, contradictions and discrepancies which do not

go to the heart of the matter and shake the basis version of the

prosecution witness. As the mental capabilities of a human being cannot

be expected to be attuned to absorb all the details, minor discrepancies

are bound to occur in the statements of witnesses.”

77. On the basis of above discussion and perusal of the impugned

judgement in the appeal, we do not find any error in the judgment of

conviction and order of sentence passed by the trial Court. No interference

is required. The appeal deserves to be dismissed.

78.Consequently, the appeal against the judgment of conviction and

order of sentence dated 27.09.1984 passed by the Additional District and

Sessions Judge, Lalitpur in Session Trial No.47 of 1983 (State Vs. Karan

Singh), convicting and sentencing the appellant under Section 302, 148

and 149 of the Indian Penal Code, 1860 is hereby dismissed.

16(2011) 6 Supreme Court Cases 288

31

79.Certify this judgment to the court below for further necessary action

and compliance. The lower court record be sent back to the District

Judgeship, Lalitpur immediately for further action.

Order Date :- 25.05.2022

Saurabh

(Vikas Kunvar Srivastav,J.) (Mrs. Sunita Agarwal,J.)