Rajendra vs State Of U.P. on 19 May, 2025

Allahabad High Court

Rajendra vs State Of U.P. on 19 May, 2025

Author: Vivek Kumar Birla

Bench: Vivek Kumar Birla

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:82910-DB
 
Reserved on 12.5.2025
 
Delivered on 19.05.2025
 

 
Court No. 43
 

 
Case :- CRIMINAL APPEAL No. - 2118 of 1983
 

 
Appellant :- Rajendra
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Digvijay Singh,Radhey Shyam Yadav,Sudhir Kumar Singh
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Vivek Kumar Birla,J.
 

Hon’ble Jitendra Kumar Sinha,J.

1. This criminal appeal has been preferred assailing the judgement and order dated 26.8.1983 passed by the Special Judge, Dacoity Affected Area, Etah in Special Sessions Trial No. 68 of 1982 convicting the appellant under Section 396 IPC and sentencing him to undergo life imprisonment under Section 396 I.P.C.

2. As per office report, non-bailable warrant could not be served on the sole appellant-Rajendra, son of Raghubir as he is absconding and sureties have been served. It can safely be presumed that sole appellant is absconding.

3. It is pertinent to mention here that the connected criminal appeal being Criminal Appeal No. 2066 of 1983 (Ram Prakash and others vs. State of UP and others) filed by the co-accused persons has already been dismissed as abated by a coordinate Bench of this Court vide order dated 29.8.2022. The said order is quoted as under:

“Case called out. No one appears on behalf of the appellants to press this appeal. However, learned A.G.A. for the State is present.

Heard.

By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 26.08.1983, passed by Special Judge, Dacoity Affected Area, Etah in Special Sessions Trial No. 68 of 1982, (State versus Ram Prakash and others), Police Station – Patiyali, District – Etah, whereby, appellant no. 1, Ram Prakash, appellant no.2, Ram Naresh, appellant no.3, Ram Shanker and appellant no.4, Amar Singh have been convicted and sentenced to undergo life imprisonment under Section – 396 I.P.C.

From perusal of the order-sheet, it transpires that previously this appeal has already dismissed as abated by this Court in respect of appellants no.1- Ram Prakash, appellant no.2- Ram Naresh and appellant no.3- Ram Shanker.

As per the report of Chief Judicial Magistrate, Etah dated 02.12.2021, appellant no.4- Amar Singh had died on 27.11.2018.

In view of above, this appeal is liable to be dismissed as abated.

The present appeal is, accordingly, dismissed.”

4. In Surya Baksh Singh vs. State of Uttar Pradesh, (2014) 14 SCC 222, the Hon’ble Apex Court has held that it is always not necessary to adjourn the matter in case both, the appellant or his counsel/lawyer are absent and that the Court can decide the appeal on merits after perusal of the record and the judgement of the trial Court. It has further been observed that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. It has also been observed that appointment of Amicus Curiae is also on the discretion of the court. In paragraph 26 of the said judgement, it was held that it is always not essential for the High Court to an appoint Amicus Curiae, paragraphs 24 and 26 of the said judgement whereof are quoted as under:

“24. It seems to us that it is necessary for the Appellate Court which is confronted with the absence of the convict as well as his Counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in Court. If even this exercise fails to locate and bring forth the convict, the Appellate Court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions:

“19.1. that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;

19.2. that the Court is not bound to adjourn the matter if both the Appellant or his Counsel/lawyer are absent;

19.3. that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;

19.4. that it can dispose of the appeal after perusing the record and judgment of the trial court.

19.5. that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and

19.6. that if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation.

25…..

26. Reverting back to the facts of the present case a perusal of the impugned order makes it abundantly evident that the High Court has considered the case in all its complexities. The argument that the High Court was duty-bound to appoint an amicus curiae is not legally sound. Panduranga correctly considers Mohd. Sukur Ali v. State of Assam (1996) 4 SCC 729 as per incuriam, inasmuch as the latter mandates the appointment of an amicus curiae and is thus irreconcilable with Bani Singh vs. State of U.P. (1996) 4 SCC 720. In the case in hand the High Court has manifestly discussed the evidence that have been led, and finding it of probative value, has come to the conclusion that the conviction is above Appellate reproach correction and interference. In view of the analysis of the law the contention raised before us that it was essential for the High Court to have appointed an amicus curiae is wholly untenable. The High Court has duly undertaken the curial responsibility that fastens upon the Appellate Court, and cannot be faulted on the approach adopted by it. In this respect, we find no error.”

(Emphasis supplied)

5. The aforesaid view has been followed by the Hon’ble Full Bench in Criminal Reference No.1 of 2024, In Re-Procedure To Be Followed In Hearing Of Criminal Appeals vs. State of U.P., decided on 22.01.2025, paragraph Nos. 151 and 152 whereof are quoted as under:

“151. The crux of the aforesaid observations of the three celebrated judgments rendered by the Hon’ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13, thus, covers the entire length and breadth of Question No. 5 formulated by the Division Bench at Lucknow for consideration by this Bench and no fresh exercise, in our considered opinion, is required to be undertaken by this Bench, including on one point which has been highlighted by the Division Bench at Lucknow i.e. whether the amicus curiae may be appointed even when the presence of the convict, appellant or accused-respondent may be secured and without his consent.

152. The aforesaid legal precedents would evidently canvass that the emphasis of the Apex Court has been on providing opportunity of being heard to the appellant who is willing to cooperate with the appellate court or his counsel and in this regard a process to cause his presence for the purpose of giving opportunity of being heard is required to be issued to him and when the court is satisfied that such appellant is deliberately avoiding his presence before the court, in such a situation, the court may dispose of the appeal in the manner approved by the Hon’ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13 (i.e. after perusing the record/evidence vis-a-vis judgment of the trial court with the assistance of prosecutor and Amicus, if appointed) and we do not have any reason to deviate from the settled proposition laid down by the Apex Court in the above mentioned cases, moreover, the appointment of amicus is only for the purpose to provide fair trail to the appellant and also for rendering the assistance to the Court.”

6. We, therefore, proceed to hear the appeal on merits with the help of Sri Anuj Kumar Mishra, learned AGA appearing for the State respondents.

7. Prosecution story, in brief, is that in the intervening night of 15th and 16th August, 1982 the informant Smt. Munni Devi (PW-1) was sleeping along with her husband Subhash in the courtyard of their house in village Shri Nagla, Police Station Patiyali, District Etah. Her two sisters-in-law Guddo and Manjoo were also sleeping on a cot in the courtyard while her mother-in-law Smt. Siya Devi was sleeping on a cot placed in the door of the room which is to the west of the courtyard. Her father-in-law Chunni Lal was sleeping in the hut erected on the roof of the Dahlies, which is to the east of the courtyard. As usual a lighted lantern was hanging in the courtyard while a Dibia was burning in the hut on the roof. At about 11:00 o’clock when every body was asleep, some miscreants got up on the roof and began to beat Chunni Lal. On the latter’s cries Smt. Munni Devi and her husband Subhash also woke up. Subhash took up a torch and flashing it he climbed to the roof by means of the ladder placed in the courtyard. He came to the balcony which adjoins the roof and flashed his torch from there also when the three accused Rajendra son of Raghubir, Ram Naresh and Ram Prakash, who were beating Chunni Lal and who had firearms with them, fired at Subhash. The latter was hit by a shot on the chest and tumbled down to the ground. Out of the three accused, Ram Prakash and Ram Naresh had guns with them while Rajendra son of Raghubir had a pistol with which they had fired. When Subhash fell down from the balcony, his wife Smt. Munni Devi rushed to the main gate of the house to call for help from outside. She opened the door and was not able to get out when three other miscreants, namely, Ram Shanker, Amar Singh and Rajendra son of Bashidhar of village Baghaoo entered the house. They compelled the women to hand over the ornaments that they were wearing. On the hue and cry and the noise of firing PW-2 Babu Ram, two other persons Gajadhar and his son Rajjan Lal and some other villagers arrived there. Babu Ram had carried a torch. He and others had positioned themselves behind a palm tree which is growing about 15 cubits away to the east of Chunni Lal’s house. The three miscreants who looted the women of the house in the courtyard below also got up on the roof. Then all the six accused left the scene by jumping away from the southern portion of the roof, which is somewhat low at that place. The motive for the crime is said to be a quarrel that Subhash had with Ram Prakash, Ram Shanker and Ram Naresh on the occasion of holi festival that year. The house of accused Ram Prakash adjoins the house Chunni Lal to the east and there are only some dilapidated walls in between. Ram Prakash and other accused were drinking liquor in their house and uttering abuses. Subhash had protested that there were women and daughters in his house just as they had in theirs. At this they had rushed into the house and had slapped Subhash and had also said that they would deal with him.

8. Smt. Munni Devi then dictated a report of the occurrence and she was sent by Chunni Lal to lodge it as he was himself an old man (being 62 years of age) and there was no other male member in the house. Smt. Munni Devi went to the police station on a tractor driven by some villagers and lodged the report (Ex. Ka-1) at police station Patiyali at 5:00 AM. Sri Ramesh Chandra Bhateley, S.I. who was then posted at O.P. Dariaoganj, was directed on wireless to proceed to the spot and undertake the investigation. He reached there on 16.8.1982 in the morning and soon after S.O. Patiyali Sri S.P. Singh (PW-5) also arrived there. Sri Bhateley carried out inquest on the dead body. He also prepared a site plan and recovered the blood stained and ordinary earth. Some ticklies, cardboard and empty of cartridge were found on the spot and also some articles like bush-shirt and a banian which were left at the spot by the miscreants. He examined the witnesses and carried out other investigation. Further investigation was then taken over by Sri S.P. Singh, S.O. (PW-5) who examined the remaining witnesses on 24.8.1982 and forwarded a chargesheet in the case. Meanwhile, post-mortem on the dead body of Subhash had been carried out by Dr. Daya Shanker Gupta, Medical Officer, District Hospital, Etah on 17.8.1982. The following ante-mortem injuries were found on the body of the deceased Subhash at the time of postmortem examination:-

“Fire arm wound of entry right side chest at 3 o’clock position and 2 cm away from right nipple, 2.5 cm x 2.5 cm with multiple wounds of pellets entry around it each 0.2 cm x 0.2 cm in an area of 7 cm x 5 cm. Direction front-back horizontal.”

9. The prosecution, in support of its case, has examined PW-1 Munni Devi, PW-2 Babu Ram, PW-3 Chunni Lal, PW-4 R.C. Bhateley, PW-5 S.P. Singh, PW-6 Bal Kishan, and PW-7 Dr. Daya Shanker Gupta. The defence has also produced as many as two witnesses, namely, DW-1 Kanhiya Lal and DW-2 Pyare in his defence. In addition to this, the prosecution produced certain documents, which were exhibited during the trial as under:

(i) First information report as Ext. Ka 15; (ii) Written report as Ext Ka 1; (iii) Recovery memo of blood stained as Ext. Ka 10; (iv) Recovery memo of empty cartridge as Ext. Ka 11; (v) Recovery memo of bush-shirt, banian as Ext. Ka 12; (vi) recovery memo and supurdginama of torch as Ext. Ka 13; and (vii) Site plan with index as Ext. Ka 9.

10. On perusal of the memo of appeal, we find that only general grounds have been taken to challenge the impugned judgment and order passed by the court below i.e. the judgment and order passed by the court below is bad in law and is not based upon the evidence on record; the sentence passed upon the appellant is much and too severe and that the judgment of the court below is based upon the conjunctures and surmises. However, on perusal of the judgement of the trial court, we find that the crux of the submission of the defence raised before the court below are to the effect that there was no motive to commit such offence; there was no source of light; no bloodstains were recovered from the spot; presence of eye witnesses on the spot is doubtful and they are only related and interested witnesses and are not worth belief and, testimony of two defence witnesses, namely, D.W.1-Kanhaiya Lal and D.W.2-Pyare has been incorrectly and illegally discarded by the trial court.

11. Per contra, learned AGA pointed out that there was a clear cut eye witnesses account; the incident had taken place inside the resident of the deceased and the informant and two witnesses, namely, PW.1- Munni Devi- widow of the deceased, and PW.3-Chunni Lal- father of the deceased. They have precisely narrated the story and they remain intact in their cross examinations. It is pointed out that PW-2-Babu Lal is neighbor and is independent witness and he has no reason to falsely implicate the accused. He further pointed out that the accused Rajendra in his statement recorded under section 313 Cr.P.C. has stated in reply to question no.8 that Ganga Prasad was his maternal father-in-law(Naniya Sasur) and his land was being cultivated by Chunni Lal (PW.3) and one Baimana was got executed by them and therefore, they were bearing enmity and have been falsely implicated.

12. Before proceeding further, it would be appropriate to refer to various relevant judgements of Hon’ble Apex Court as well as of this Court.

13. In Krishna Mochi and others vs. State of Bihar, (2002) 6 SCC 81, the Hon’ble Apex Court laid emphasis on realistic approach to be adopted by the criminal courts while appreciating evidence in criminal trial, paragraph 32 whereof is quoted as under:

“32. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing the world over and courts have been compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. I find that this Court in recent times has conscientiously taken notice of these facts from time to time………”

(Emphasis supplied)

14. In Masalti vs. State of U.P., AIR 1965 SC 202, Hon’ble Apex Court in paragraph 14 observed as under:

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

(Emphasis supplied)

15. In Darya Singh vs. State of Punjab, AIR 1965 SC 328, the Hon’ble Apex Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; a decree in a civil case, or in seeing a person punished in a criminal trial, paragraph 6 whereof is quoted as under:

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

16. In Appabhai and another vs. State of Gujarat, AIR 1988 SC 696, the Hon’ble Apex Court in paragraph 11 observed as under:

“11………Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner…..”

(Emphasis supplied)

17. Similar view has been taken in State of A.P. vs. S. Rayappa and others, (2006) 4 SCC 512 wherein it has been observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years, paragraph 6 whereof is quoted as under:

“6……by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.”

(Emphasis supplied)

18. In Pulicherla Nagaraju @ Nagaraja Reddy v. State of AP, (2006) 11 SCC 444, the Hon’ble Apex Court in paragraph 16 has held as under:

“16. In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted.”

(Emphasis supplied)

19. In Satbir Singh and others vs. State of U.P., (2009) 13 SCC 790, the Hon’ble Apex Court in paragraph 26 held as under:

“26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon …… ”

(Emphasis supplied)

20. In Jayabalan vs. U.T. of Pondicherry, 2010 (68) ACC 308 (SC), the Hon’ble Apex Court in paragraph 21 held as under:

“21. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.”

(Emphasis supplied)

21. In Dharnidhar vs. State of U.P., (2010) 7 SCC 759, the Hon’ble Apex Court held that there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case, paragraphs 12 and 13 whereof is quoted as under:

“12. There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [(2010)1 SCC 199], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under:

” 23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

……..

13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. [AIR 2010 SC 917], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same.

14. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution’s story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses’ cannot be relied upon by the Court.”

(Emphasis supplied)

22. In a very recent judgement rendered by Hon’ble Apex Court in Baban Shankar Daphal and others vs. The State of Maharashtra, 2025 SCC Online SC 137 in respect of testimony of witness which should not be discarded merely because of relation with victim, the Hon’ble Apex Court has, in paragraphs 27 and 28, held as under:

“27. One of the contentions of the learned counsel for the appellants is that the eyewitnesses to the incident were all closely related to the deceased and for prudence the prosecution ought to have examined some other independent eyewitness as well who were present at the time of the unfortunate incident. This was also the view taken by the Trial Court, but the High Court has correctly rejected such an approach and held that merely because there were some more independent witnesses also, who had reached the place of incident, the evidence of the relatives cannot be disbelieved. The law nowhere states that the evidence of the interested witness should be discarded altogether. The law only warrants that their evidence should be scrutinized with care and caution. It has been held by this Court in the catena of judgments that merely if a witness is a relative, their testimony cannot be discarded on that ground alone.

28. In criminal cases, the credibility of witnesses, particularly those who are close relatives of the victim, is often scrutinized. However, being a relative does not automatically render a witness “interested” or biased. The term “interested” refers to witnesses who have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity or personal gain. A “related” witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simply because of their relationship to the victim. Courts must assess the reliability, consistency, and coherence of their statements rather than labelling them as untrustworthy.

(Emphasis supplied)

23. In a recent judgement rendered by Hon’ble Apex Court in Shahaja @ Shahajan Ismail Mohd. vs. State of Maharashtra, (2023) 12 SCC 558 has observed that the appreciation of ocular evidence is a hard task and has summed up the judicially evolved principles for appreciation of ocular evidence in a criminal case, paragraphs 29 and 30 whereof is quoted as under:

“29. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

29.1 While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

29.2. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

29.3 When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

29.4. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

29.5. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

29.6. 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.

29.7. 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.

29.8. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind whereas it might go unnoticed on the part of another.

29.9. 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.

29.10. 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 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.

29.11. 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.

29.12. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination 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.

29.13. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.

[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]

30. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.”

(Emphasis supplied)

24. Paragraph 48 of Pahalwan Singh and others vs. State of U.P., 2020 (6) ALJ 166 is quoted under:

“48. Thus, in view of aforementioned decisions of the Supreme Court, it is now a settled position of law that the statements of the interested witnesses can be safely relied upon by the court in support of the prosecution story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons who are closely related to the deceased. When their statements find corroboration by other evidence, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called ‘interested witnesses’ cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons.

(Emphasis supplied)

25. Insofar as the testimony of injured witness is concerned, this Court in Kaptan Singh vs. State of UP, 2020 (1) ADJ 106 (DB) has, in paragraph 20, observed as under:

“20. Close scrutiny of the evidence shows that the statements of (PW-1) Vimla Devi and (PW-2) Ram Singar Pandey are clear, cogent and credible. Theyhave been subjected to cross-examination, but they remained stick to the prosecution version and no such fact, contradiction or inconsistency could emerge, so as to create any doubt about their testimony. Keeping in view the fact that after incident, deceased as well as injured were taken to hospital and were admitted there and that on the same night deceased Ram Niwas Rao has succumbed to injuries, it is apparent that the first information report of the incident was lodged without any undue delay. Version of (PW-1) Vimla Devi finds corroboration from testimony of (PW-2) Ram Singar Pandey and is fully consistent with medical evidence. It is also to be kept in mind that (PW-2) Ram Singar Pandey has himself sustained injuries in the same incident. In Jarnail Singh v. State of Punjab, (2009) 9SCC 719, the Supreme Court reiterated the special evidentiary status accorded to the testimony of an injured accused. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case, the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon. Similar view was expressed in the case of Krishan v. State of Haryana, (2006) 12 SCC 459. Hon’ble Supreme Court in Criminal Appeal Nos. 513-514 of 2014 Baleshwar Mahto and another v. State of Bihar and another, decided on 9.1.2017, has reiterated the law as under :

”28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.

”Convincing evidence is required to discredit an injured witness.” [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881:1973 SCC (Cri) 563:AIR 1972 SC 2593], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696], Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh [(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107], where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)

”28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214]). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the Courts below.”

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.” In this very judgment, relationship between the medical evidence and ocular evidence was also discussed, based on number of earlier precedents, as under: ”33. In State of Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] it was held as follows: (SCC p. 101, para 15)

”15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the Court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694, the Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

It has been held that law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.”

(Emphasis supplied)

26. In a recent judgement rendered by Hon’ble Apex Court in Neeraj Sharma vs. State of Chhattisgarh, (2024) 3 SCC 125 in respect of importance of injured witness in a criminal trial, the Hon’ble Apex Court has, in paragraphs 22 and 23, held as under:

“22. The importance of injured witness in a criminal trial cannot be over stated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as an extremely valuable evidence in a criminal Trial.

23. In the case of Balu Sudam Khalde v. State of Maharashtra 2023 SCC OnLine SC 355 this Court summed up the principles which are to be kept in mind when appreciating the evidence of an injured eye-witness. This court held as follows:

“26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:

(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.

(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.

(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.

(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.”

(Emphasis supplied)

27. We have considered the grounds taken in the memo of appeal and in the impugned judgment and submissions of the learned AGA and perused the records.

28. On perusal of records we find that PW.1-Munni Devi is the widow of the deceased; the incident had taken place at about 11.00 PM in the night of 15/16.8.1982 and the first information report was lodged at 5.00 AM on 16.08.1982, under Section 396 IPC; there were 6 accused mentioned in the first information report. She had stated that on the occasion of festival Holi accused Ram Prakash, Ram Naresh and Rajendra had beaten her husband inside the residence and were bearing enmity as well. She had clearly narrated the manner in which the murder was committed and at the time of incident when the deceased was fired upon he was standing on a ladder and after being hit by the bullet he fell down on the ground. She being the wife of the deceased (now widow), was a natural witness present on the spot that had taken place inside the resident at 11.00 PM in the night. Recovery memo of torch and light was also prepared by the police. The questions in respect of the incident were put in the question answer form and during examination she had categorically recognized the accused herein Rajendra apart from other accused persons, who all were standing, in the order of their standing inside the court room. She remain intact during cross examination and she had also stated in categorical terms that none of the accused was covering his face.

29. PW.2-Babu Singh is neighbour of the deceased and is eye witness of the incident. He on the question of source of light and the manner in which the incident had taken place, remained intact even in cross examination; his presence being a neighbour could not be disputed as the incident had taken place in the night. Further, he being an independent witness had no reason to falsely implicate the accused.

30. PW.3- Chunni Lal is the father of the deceased and has narrated the incident. He has given precise eye witness account in the present case. He is natural witness present inside his own resident during night hours. Nothing contrary could be extracted by the defence in his cross-examination. He has also stated that he was also beaten with slaps and fists and no medical examination was conducted which is quite natural as on account of such beating there is usually no visible injury.

31. PW.4, PW.5 and PW.6 are the formal witnesses and are intact.

32. PW.7-Dr. Daya Shanker Gupta, who had conducted the examination and has proved the injury report. The deceased has suffered following injuries:-

“Fire arm wound of entry right side chest at 3 o’clock position and 2 cm away from right nipple, 2.5 cm x 2.5 cm with multiple wounds of pellets entry around it each 0.2 cm x 0.2 cm in an area of 7 cm x 5 cm. Direction front-back horizontal.”

33. We find that the informant-widow of the deceased had gone to lodge the first information report and the distance of police station was about 11 kms, therefore, it cannot be said that first information report lodged at 5.00 AM in the morning was in any manner delayed. We further find that one of the grounds of the defence was that no bloodstains were found on the spot. This in our opinion, could be a case of improper or defective investigation, however, the location where the dead body was found was a place where there was movement of various persons and therefore, absence of bloodstains on the next day would not cause any dent to the prosecution version. We further find that 44 pellets, 1 cardboard and 1 Tikli were recovered from the dead body which was duly proved by Dr. P.W.7-Daya Shanker. In so far as the ground that all the witnesses are interested witnesses, we find that PW.1-Munni Devi and PW.3-Cunni Lal being the widow and father of the deceased respectively, PW.2-Babu Singh being neighbour were all natural witnesses present on the spot. PW.1 and PW3 were directly related to the deceased and their presence on the spot in the middle of the night could not be questioned in view of the law as discussed above their testimonies cannot be discarded lightly. PW-2 being independent witness had no reason to falsely implicate the accused. We, therefore, on re-appreciation of evidence as well as on perusal of the impugned judgment, find no legal infirmity in judgment of conviction impugned herein.

34. The appeal is accordingly dismissed. The conviction of appellant Rajendra is confirmed.

35. Since accused appellant- Rajendra is absconding and Non Bailable Warrants could not be executed and his appeal has been dismissed and conviction and sentence awarded by the trial court has been confirmed by us, his bail bonds are cancelled and sureties are discharged. The Chief Judicial Magistrate concerned is directed to take the appellant into custody and send him to jail to serve out the sentence awarded by the trial court and confirmed by us.

36. Let a copy of this order be communicated by the Registrar (Compliance) to the Chief Judicial Magistrate concerned for compliance within a week.

37. The Chief Judicial Magistrate, is also directed to send his compliance report within one month to this Court.

38. Lower court record be sent to the concerned Court forthwith.

Order Date :- 19.05.2025

Abhishek/Nitendra