Himachal Pradesh High Court
Asha Rani vs State Of H.P on 12 August, 2025
( 2025:HHC:27298 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 364 of 2012
.
Reserved on: 30.07.2025
Date of Decision: 12.08.2025
Asha Rani ...Appellant
Versus
State of H.P. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant : Ms Sheetal Vyas, Advocate.
For the Respondent/State: Mr Jitender K. Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment of
conviction and order of sentence dated 18.08.2012, passed by
learned Additional Sessions Judge, Ghumarwin, District Bilaspur,
H.P. (learned Trial Court) vide which appellant (accused before the
learned Trial Court) was convicted of the commission of an
offence punishable under Section 304-II of Indian Penal Code
(IPC) and was sentenced to undergo rigorous imprisonment for 04
years, pay a fine of ₹2,000/-, and in default of payment of fine to
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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undergo further rigorous imprisonment for one month for the
commission of the aforesaid offence. (Parties shall hereinafter be
.
referred to in the same manner as they were arrayed before the
learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal
are that the police presented a challan before the learned Trial
Court for the commission of an offence punishable under Section
302 read with Section 34 of the IPC. It was asserted that the
informant Kiran Sharma (PW1), her mother Promila Devi (PW3)
and her grandfather, Sukh Ram (since deceased) were present in
their home on 25.03.2011. An old, dilapidated house existed near
the informant’s house. Two labourers were engaged to demolish
the old house. Jai Dei and her daughter-in-law, Asha Rani (the
present accused), arrived at the spot at 1:30 pm and instructed the
labourers to halt work. Jai Dei pushed the “Tasla” (basin) of the
labourer. Sukh Ram inquired as to why she had thrown “Tasla”.
Jai Dei and Asha started quarrelling with Sukh Ram. Asha Rani
went towards the rear side of the house. She picked up a piece of
brick and threw it towards Sukh Ram. The brick hit Sukh Ram on
the left side of his ribs. He sat down. His body began to swell, and
his breathing became irregular. He became restless. He was taken
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to the hospital, where he succumbed to his injuries. The matter
was reported to the police. ASI Luder Singh (PW20) went to the
.
spot and recorded the statement of Kiran Sharma (Ex-PW1/A),
which was sent to the police station where FIR (Ex-PW14/C) was
registered. ASI Luder Singh conducted the investigation. He
prepared the site plan (Ex-PW20/B). Informant Kiran Sharma
identified the piece of brick with which the injury was caused to
Sukh Ram. ASI Luder Singh (PW20) prepared the rough sketch of
brick (Ex-PW1/B). He sealed the brick in a parcel with seal “S” and
seized the parcel vide memo (Ex-PW1/C). He obtained the seal
impression (Ex-PW5/A) on a separate piece of cloth and handed it
over to Anil Kumar after its use. ASI Ramesh Chand (PW19) went
to the hospital. He took the photographs (Ex.PW19/A to
Ex.PW19/I), whose negatives are Ex.PW19/J. He conducted the
inquest on the dead body and prepared the reports
(Ex.PW16/B and Ex.PW16/C). He filed an application (Ex.PW16/A)
for conducting the postmortem examination of the dead body. Dr.
Ankur Dharamani (PW16) conducted the postmortem examination
and found that Sukh Ram died due to asphyxia caused by
antemortem blunt injury on the left side of the thoracic cavity,
leading to sudden and massive surgical emphysema along with
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laceration of the left lung, leading to respiratory failure. He
preserved the viscera and handed them over to the police officials
.
accompanying the dead body. ASI Luder Singh (PW20) filed an
application (Ex.PW10/B) for obtaining the MLC of the deceased.
Dr. Anuj Sharma (PW10) issued the MLC (Ex.PW10/A). ASI Luder
Singh (PW20) associated Patwari Halka, who prepared the report
(Ex.PW20/F). He issued the jamabandi (Ex.PW8/B) and Aks Shajra
(Ex.PW8/C). ASI Luder Singh (PW20) obtained the photographs
(Ex.PW20/H1 to Ex.PW20/H7), whose negatives are Ex.PW20/H8.
Report of analysis (Ex.PW9/A) was issued, in which it was
mentioned that no poison/ alcohol was detected in the viscera. ASI
Luder Singh (PW20) filed an application (Ex.PW16/A) seeking the
final opinion. He also produced the brick before the Medical
Officer. Dr. Ankur Dharamani (PW16) issued the final opinion
(Ex.PW16/F) that the piece of brick shown to him was sufficient to
cause blunt trauma to the chest, and the possibility of using the
brick as a weapon of offence to cause injury could not be ruled out.
The photographs of the brick (Ex.PW20/J1 to Ex.PW20/J5) were
taken. The brick was put in the same parcel from which it was
taken out, and the parcel was sealed with the seals of the hospital.
Sample seal (Ex.PW20/K) was taken on a separate piece of cloth. A
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letter (Ex.PW20/L) was submitted to Dr Piyush Kapila (PW21),
Assistant Professor Forensic Medicine, who issued a report
.
(Ex.PW9/B) stating that there was a possibility of fracture of ribs
and laceration of the left lungs by the piece of brick. Surgical
emphysema was sufficient to cause death. Statements of
remaining witnesses were recorded as per their version, and after
the completion of the investigation, the challan was prepared and
presented in the Court of learned Judicial Magistrate First Class,
Court No. III, Ghumarwin, District Bilaspur Camp at Bilaspur, who
committed it to the learned Sessions Judge for trial. Learned
Sessions Judge assigned the matter to the learned Additional
Sessions Judge (Fast Track Court), Ghumarwin, (learned Trial
Court) for disposal.
3. The learned Trial Court charged the accused with the
commission of an offence punishable under Section 302 read with
Section 34 of the IPC, to which they pleaded not guilty and claimed
to be tried.
4. The prosecution examined 21 witnesses to prove its
case. Kumari Kiran Sharma (PW1) is the informant. Kanta Devi
(PW2), Promila Devi (PW3), Geeta Devi (PW4), and Savitri Devi
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(PW6) are eyewitnesses. Anil Kumar (PW5) is the witness to the
recovery of the brick. Brahma Dass (PW7) stated that Narainu and
.
Garibi, parents of Jai Dei, used to reside in the old house. Dev Raj
(PW8) was working as a Patwari who issued the report of
Jamabandi and Aks Shajra. ASI Bachiter Singh (PW-9)prepared the
challan. Dr. Anuj Sharma (PW10) initially examined Sukh Ram.
Constable Varun Kumar (PW11) carried the case property from the
hospital to the police station. Constable Naresh Kumar (PW12)
carried the case property to RFSL. Constable Rajesh Kumar (PW13)
proved the entry in the daily diary. HC Raj Kumar (PW14) and HC
Naresh Kumar (PW-15) were working as MHCs with whom the
case property was deposited. Dr. Ankur Dharamani (PW16)
conducted the postmortem examination of the deceased. Rattan
Lal (PW17) is the son of Sukh Ram, who took him to the hospital.
Rajesh Kumar (PW18) is the Secretary of the Gram Panchayat, who
produced a copy of the Pariwar Register. ASI Ramesh Chand
(PW19) went to the hospital, conducted the inquest on the dead
body and took the photographs. ASI Luder Singh (PW20)
conducted the investigation. Dr. Piyush Kapila (PW21) is the
Forensic Expert, who issued the report that the injuries could have
been caused by the brick.
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5. The accused, in their statements recorded under
Section 313 of CrPC, denied the prosecution case in its entirety.
.
They claimed that they were innocent and were falsely implicated.
They stated that the house in question was given to Naraianu and
Garibi Devi. Jai Devi was in possession of the house after their
death. The accused went to the village and saw that the house was
being demolished by Sukh Ram with the help of the labourers.
They objected. Sukh Ram slapped and abused Jai Devi. Asha Rani
ran from the spot to save herself. Sukh Ram followed her. She did
not throw any bricks towards Sukh Ram. A false case was made
against the accused. Statements of Krishanu Ram (DW1), Dr. Ajay
Negi (DW2) and Dr. Superiya Atwal (DW3) were recorded in
defence.
6. Learned Trial Court held that the testimony of the
informant was corroborated by her mother. It was proved that
Narainu and Garibi Devi were residing in the house. Garibi Devi
and Jai Devi did not deliver the possession of the house to Sukh
Ram. Jai Devi had a bona fide claim to the house after the death of
her mother. The prosecution evidence proved that the arguments
had taken place between the accused and the deceased Sukh Ram.
The defence version that the deceased had fallen while trying to
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chase Asha Devi was not corroborated on record. The testimonies
of the witnesses were natural. It was proved that Asha Rani threw
.
the brick towards Sukh Ram, who sustained injuries and died.
Merely throwing “Tasla” and having arguments with Sukh Ram
did not suggest any sharing of common intention. Jai Devi did not
do anything, and Asha Rani threw a brick weighing about 2.5 kg.
She had no apprehension of any injury. She knew that such bodily
injury would be inflicted on Sukh Ram as would be sufficient to
cause death. Therefore, the accused Asha Rani was convicted of the
commission of an offence punishable under Section 304-II of the
IPC and sentenced as aforesaid. The accused Jai Devi was acquitted.
7. Being aggrieved from the judgment and order passed
by the learned Trial Court, the accused/appellant has filed the
present appeal, asserting that the learned Trial Court erred in
convicting and sentencing the accused. Bhagwan Dass was given
up, and Savitri Devi did not support the prosecution case. The
informant is an interested witness. She admitted that there were
10-15 persons on the spot, but the prosecution did not cite any
witness to support its case. The prosecution witnesses admitted
that an argument had taken place between the parties. Savitri Devi
admitted that Sukh Ram had slapped Jai Devi. The Medical Officer
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admitted that he had prepared the notes. These notes were not
produced before the Court, and the postmortem report issued by
.
him is not admissible. The deceased was under treatment at the
Army Hospital, Chandigarh. The possession of the accused was
duly proved, and the informant party had no right to demolish the
house. The accused had a right of private defence to protect their
property. Therefore, it was prayed that the present appeal be
allowed and the judgment and order passed by the learned Trial
Court be set aside.
8. I have heard Ms. Sheetal Vyas, learned counsel for the
appellant, and Mr. Jitender K. Sharma, learned Additional
Advocate General, for the respondent/State.
9. Ms. Sheetal Vyas, learned counsel for the appellant,
submitted that the learned Trial Court erred in convicting and
sentencing the accused. It was duly proved on record and was also
found by the learned Trial Court that Narainu and his wife, Garibi
Devi, used to reside in the old dilapidated house. They were the
parents of Jai Devi. The informant party had no right to demolish
the house, but they had engaged the labourers to demolish the
house. Sukh Ram also slapped Jai Devi, and these circumstances
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make out a case of private defence in favour of the accused. The
independent witnesses did not support the prosecution’s case, and
.
the learned Trial Court erred in discarding their testimonies.
Throwing a brick at a person cannot lead to knowledge that would
be gained in the circumstances. Therefore, she prayed that the
present appeal be allowed and the judgment and order passed by
the learned Trial Court be set aside. She relied upon the judgments
in Dnyaneshwar Dagdoba Hivrekar Vs. The State of Maharashtra 1982
CrLJ 1870 & Mercelino Fernandes & Ors. Vs. The State 1970 SCC Online
Bom 21: 1971 Cr. LJ 598, in support of her submission.
10. Mr. Jitender K. Sharma, learned Additional Advocate
General for the respondent/State, submitted that a related witness
is not an interested witness. The presence of the informant and
her mother on the spot was quite natural. The house was being
demolished, and the household members would be present on the
spot. The testimony of the informant and her mother was quite
consistent. Hence, he prayed that the present appeal be dismissed.
11. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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12. The informant Kiran Sharma (PW-1) stated that an old
house located near her house had fallen. Her grandfather had
.
employed the labourers to remove the mud from that house. Jai
Devi and her daughter-in-law Asha Rani came to the spot on
25.03.2011 at 01:30 pm and asked the labourers to stop the work. Jai
Devi threw the “Tasla” of Bhagwan Dass. Sukh Ram inquired as to
why the accused was stopping the labourers. The accused started
quarrelling with Sukh Ram. Asha Rani went towards the back side
of the house and came towards Sukh Ram through the broken
house. She lifted the piece of Kaccha brick and threw it towards
Sukh Ram. Sukh Ram sustained an injury on his left side. He sat
down. His body began to swell, and his breathing became irregular.
He became restless. Informant’s father took Sukh Ram to the
hospital. However, Sukh Ram succumbed to his injuries. She
identified the brick. She further stated in her cross-examination
that the old house had 02 stories. Half of the roof was thatched and
half had slates. She volunteered to say that half portion was made
of slates and half portion was made of Khaprail. Garibi Devi had
her kitchen on the first floor of the portion covered by Khaprail.
She resided on the ground floor. She admitted that the portion
having khaprail was damaged, and the roof had caved in from the
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centre in the year 2008 due to heavy rains. Garibi Devi started
residing in the portion covered by the slates. Garibi Devi was
.
looking after her land herself. Her land was located at a distance of
40-50 meters. She admitted that Jai Devi is the daughter of Garibi
Devi. Pradhan Anil Kumar was brought by the accused. He was
accompanied by Veena Devi. The labourers were removing the dry
mud from the house covered by the Khaprail. They were also
removing the Khaprail and dry mud from the broken wall. The
accused told the labourers to stop the work and not to damage
their house. The labourers told the accused that the accused
should talk to Sukh Ram. The accused and Sukh Ram had an
argument which continued for 15-20 minutes. The accused asked
Sukh Ram to stop the work, but Sukh Ram declined to do so. 10-15
persons had gathered on the spot, and they had also seen Asha
Rani inflicting the injury with the brick. She admitted that there
was a wall between Sukh Ram and the accused. She volunteered to
say that there was an open door between them. The accused were
visible. The dry mud of the wall had fallen. The piece of brick was
thrown from a distance and came through the door. Sukh Ram did
not fall, and he was made to sit by the informant and her mother.
She did not know the name of the other person. She did not notice
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any injury on the body of Sukh Ram. She admitted that there was
no specific identification mark on the brick. She denied that Sukh
.
Ram was blind, and he fell while chasing Asha Rani.
13. It was submitted that she is related to Sukh Ram and,
she was an interested witness. This submission cannot be
accepted. It was laid down by the Hon’ble Supreme Court in Laltu
Ghosh v. State of W.B., (2019) 15 SCC 344: (2020) 1 SCC (Cri) 275: 2019
SCC OnLine SC 2 that a related witness is not an interested witness
and his testimony cannot be rejected on the ground of
interestedness. It was observed:
“12. As regards the contention that the eyewitnesses are
close relatives of the deceased, it is by now well-settled that
a related witness cannot be said to be an “interested”
witness merely by virtue of being a relative of the victim.
This Court has elucidated the difference between
“interested” and “related” witnesses in a plethora of cases,
stating that a witness may be called interested only when he
or she derives some benefit from the result of litigation,
which in the context of a criminal case would mean that the
witness has a direct or indirect interest in seeing the
accused punished due to prior enmity or other reasons, and
thus has a motive to falsely implicate the accused (for
instance, see State of Rajasthan v. Kalki [State of
Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri)
593]; Amit v. State of U.P. [Amit v. State of U.P., (2012) 4 SCC
107 : (2012) 2 SCC (Cri) 590] and Gangabhavani v. Rayapati
Venkat Reddy [Gangabhavani v. Rayapati Venkat Reddy,
(2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] ).
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13. Recently, this difference was reiterated in
Ganapathi v. State of T.N. [Ganapathi v. State of T.N.,
(2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793], in the
.
following terms, by referring to the three-Judge
Bench decision in State of Rajasthan v. Kalki [State of
Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri)
593] : (Ganapathi case [Ganapathi v. State of T.N.,
(2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793], SCC p. 555,
para 14)
“14. “Related” is not equivalent to “interested”. A
witness may be called “interested” only when he
or she derives some benefit from the result of a
litigation; in the decree in a civil case, or in seeing
an accused person punished. A witness who is a
natural one and is the only possible eyewitness in
the circumstances of a case cannot be said to be
“interested”.
14. In criminal cases, it is often the case that the
offence is witnessed by a close relative of the victim,
whose presence on the scene of the offence would be
natural. The evidence of such a witness cannot
automatically be discarded by labelling the witness as
interested. Indeed, one of the earliest statements with
respect to interested witnesses in criminal cases was
made by this Court in Dalip Singh v. State of
Punjab [Dalip Singh v. State of Punjab, 1954 SCR 145:
AIR 1953 SC 364: 1953 Cri LJ 1465], wherein this Court
observed : (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 relative would be
the last to screen the real culprit and falsely
implicate an innocent person.”
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15. In the case of a related witness, the Court may not
treat his or her testimony as inherently tainted and
needs to ensure only that the evidence is inherently
.
reliable, probable, cogent, and consistent. We may
refer to the observations of this Court in Jayabalan v.
State (UT of Pondicherry) [Jayabalan v. State (UT of
Pondicherry), (2010) 1 SCC 199: (2010) 2 SCC (Cri) 966]:
(SCC p. 213, para 23)
“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 approachof 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 thecourt 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 relatedto the victim.”
14. It was laid down by the Hon’ble Supreme Court in Thoti
Manohar vs State of Andhra Pradesh (2012) 7 SCC 723 that the court
cannot discard the testimony of a witness on the ground of a
relationship. It was observed:
“31. In this context, we may refer with profit to the decision
of this Court in Dalip Singh v. State of Punjab AIR 1953 SC 364,
wherein Vivian Bose, J., speaking for the Court, observed as
follows: –
“We are unable to agree with the learned Judges of
the High Court that the testimony of the two eye-
witnesses requires corroboration. If the foundation
for such an observation is based on the fact that the
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it is grounded on the reason that they are closely
related to the deceased, we are unable to concur. This.
is a fallacy common to many criminal cases and one
which another Bench of this Court endeavoured to
dispel in Rameshwar v. The State of Rajasthan (1952)
SCR 377 at p. 390 = (AIR 1952 SC 54 at page 59).”
32. In the said case, it was further observed that:
“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 thewitness has a cause, such as an enmity against the
accused, to wish to implicate him falsely. Ordinarily, a
close relative would be the last to screen the realculprit and falsely implicate an innocent person. It is
true that when feelings run high and there is apersonal cause for enmity, there is a tendency to drag
in an innocent person against whom a witness has a
grudge along with the guilty, but the foundation mustbe laid for such criticism and the mere fact of
relationship far from being a foundation is often a
sure guarantee of truth.”
33. In Masalti v. State of U.P. AIR 1965 SC 202, it has been
ruled that normally close relatives of the deceased would
not be considered to be interested witnesses who would also
mention the names of the other persons as responsible for
causing injuries to the deceased.
34. In Hari Obula Reddi and others v. The State of Andhra
Pradesh, AIR 1981 SC 82, a three-judge Bench has held that
evidence of interested witnesses is not necessarily
unreliable evidence. Even partisanship by itself is not a valid
ground for discrediting or rejecting sworn testimony. It can
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
interested witnesses should be subjected to scrutiny and
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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.
35. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614, it has
been 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 in having the accused, somehow or the other,
convicted for some animus or some other reason.
36. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of
Andhra Pradesh AIR 2006 SC 3010, while dealing with the
liability of interested witnesses who are relatives, a two-
judge Bench observed that:
“It is well settled that evidence of a witness cannot be
discarded merely on the ground that he is either
partisan or interested or a close relative to the
deceased if it is otherwise found to be trustworthyand credible.”
The said evidence only requires scrutiny with more care and
caution, so that neither the guilty escapes nor the innocent
is wrongly convicted. If, on such scrutiny, the evidence is
found to be reliable and probable, then 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 tofalsely implicate the accused, his testimony should
have corroboration in regard to material particulars
before it is accepted.”
15. This position was reiterated in Rajesh Yadav v. State of
U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, wherein it was
observed at page 222:
“Related and interested witness
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31. A related witness cannot be termed as an interested
witness per se. One has to see the place of occurrence along
with other circumstances. A related witness can also be a.
natural witness. If an offence is committed within the
precincts of the deceased, the presence of his family
members cannot be ruled out, as they assume the position
of natural witnesses. When their evidence is clear, cogent,and withstands the rigour of cross-examination, it becomes
sterling, not requiring further corroboration. A related
witness would become an interested witness only when he is
desirous of implicating the accused in rendering aconviction, on purpose.
32. When the court is convinced with the quality of the
evidence produced, notwithstanding the classification as
quoted above, it becomes the best evidence. Such testimony,being natural, adds to the degree of probability, the court
has to make reliance upon it in proving a fact. The aforesaid
position of law has been well laid down in Bhaskarrao v. State
of Maharashtra [Bhaskarrao v. State of Maharashtra, (2018) 6
SCC 591: (2018) 3 SCC (Cri) 374]: (SCC pp. 603-604, paras 32-
36)
“32. Coming back to the appreciation of the evidence athand, at the outset, our attention is drawn to the fact
that the witnesses were interrelated, and this Courtshould be cautious in accepting their statements. It
would be beneficial to recapitulate the law concerning
the appreciation of evidence of a related witness. In DalipSingh v. State of Punjab [Dalip Singh v. State of Punjab,
(1953) 2 SCC 36: 1954 SCR 145: AIR 1953 SC 364], Vivian
Bose, J. for the Bench, observed the law 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 relative would be the last to screen
the real culprit and falsely implicate an innocent
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person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to
drag in an innocent person against whom a witness
.
has a grudge along with the guilty, but foundation
must be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a
sure guarantee of truth. However, we are not
attempting any sweeping generalisation. Each case
must be judged on its own facts. Our observations are
only made to combat what is so often put forward in
cases before us as a general rule of prudence. There is
no such general rule. Each case must be limited to and
be governed by its own facts.’
33. In Masalti v. State of U.P. [Masalti v. State of U.P., (1964)
8 SCR 133: AIR 1965 SC 202], a five-Judge Bench of this
Court has categorically observed as under: (AIR pp. 209-
210, para 14)
’14. … There is no doubt that when a criminal court has to
appreciate evidence given by witnesses who are partisan
or interested, it has to be very careful in weighing such
evidence. Whether or not there are discrepancies in the
evidence, whether or not the evidence strikes the court as
genuine, whether or not the story disclosed by the
evidence is probable, are all matters which must be taken
into account. 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. Often enough, where
factions prevail in villages and murders are committed as
a result of enmity between such factions, criminal courts
have to deal with evidence of a partisan type. The
mechanical rejection of such evidence on the sole ground
that it is partisan would invariably lead to the failure of
justice. No hard-and-fast rule can be laid down as to
how much evidence should be appreciated. Judicial
approach has to be cautious in dealing with such
evidence, but the plea that such evidence should be
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rejected because it is partisan cannot be accepted as
correct.’
34. In Darya Singh v. State of Punjab [Darya Singh v. State
.
of Punjab, (1964) 3 SCR 397: AIR 1965 SC 328], this Court
held that evidence of an eyewitness who is a near relative
of the victim should be closely scrutinised, but no
corroboration is necessary for acceptance of his
evidence. In Harbans Kaur v. State of Haryana [Harbans
Kaur v. State of Haryana, (2005) 9 SCC 195: 2005 SCC (Cri)
1213], this Court observed that: (Harbans Kaur
case [Harbans Kaur v. State of Haryana, (2005) 9 SCC 195:
2005 SCC (Cri) 1213], SCC p. 198, para 7)
‘7. There is no proposition in law that relatives are to
be treated as untruthful witnesses. On the contrary,reason has to be shown when a plea of partiality is
raised to show that the witnesses had reason to shieldthe actual culprit and falsely implicate the accused.’
35. The last case we need to concern ourselves
is Namdeo v. State of Maharashtra [Namdeo v. State of
Maharashtra, (2007) 14 SCC 150: (2009) 1 SCC (Cri) 773],
wherein this Court after observing previous precedents
has summarised the law in the following manner: (SCC p.
164, para 38)
’38. … it is clear that a close relative cannot be
characterised as an “interested” witness. He is a
“natural” witness. His evidence, however, must be
scrutinised carefully. If, on such scrutiny, his evidence
is found to be intrinsically
reliable, inherently probable, and wholly trustworthy,
conviction can be based on the “sole” testimony of
such a witness. A close relationship of the witness
with the deceased or victim is no ground to reject his
evidence. On the contrary, close relatives of the
deceased would normally be most reluctant to spare
the real culprit and falsely implicate an innocent one.’
36. From the study of the aforesaid precedents of this
Court, we may note that whoever has been a witness
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before the court of law, having a strong interest in result,
if allowed to be weighed in the same scales with those
who do not have any interest in the result, would be to
.
open the doors of the court for perverted truth. This
sound rule, which remains the bulwark of this system
and which determines the value of evidence derived from
such sources, needs to be cautiously and carefully
observed and enforced. There is no dispute about the fact
that the interest of the witness must affect his testimony
is a universal truth. Moreover, under the influence of
bias, a man may not be in a position to judge correctly,
even if they earnestly desires to do so. Similarly, he may
not be in a position to provide evidence in an impartial
manner when it involves his interest. Under such
influences, man will, even though not consciously,
suppress some facts, soften or modify others, and
provide a favourable colour. These are the most
controlling considerations in respect to the credibility of
human testimony, and should never be overlooked in
applying the rules of evidence and determining its
weight in the scale of truth under the facts and
circumstances of each case.” (emphasis in original and
supplied)
33. Once again, we reiterate with a word of caution, the trial
court is the best court to decide on the aforesaid aspect, as
no mathematical calculation or straitjacket formula can be
made on the assessment of a witness, as the journey
towards the truth can be seen better through the eyes of the
trial Judge. In fact, this is the real objective behind the
enactment itself, which extends the maximum discretion to
the court.”
16. Similar is the judgment in M Nageswara Reddy vs. State
of Andhra Pradesh 2022 (5) SCC 791, wherein it was observed:
“10. Having gone through the deposition of the relevant
witnesses -eye-witnesses/injured eye-witnesses, we are of
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( 2025:HHC:27298 )in the deposition of the eye-witnesses and injured eye-
witnesses. All are consistent insofar as accused Nos. 1 to 3
are concerned. As observed hereinabove, PW6 has identified.
Accused Nos. 1 to 3. The High Court has observed that PW1,
PW3 & PW5 were planted witnesses merely on the ground
that they were all interested witnesses, being relatives of
the deceased. Merely because the witnesses were therelatives of the deceased, their evidence cannot be
discarded solely on the aforesaid ground. Therefore, in the
facts and circumstances of the case, the High Court has
materially erred in discarding the deposition/evidence ofPW1, PW3, PW5 & PW6 and even PW7.”
17. It was laid down by the Hon’ble Supreme Court in
Mohd. Jabbar Ali v. State of Assam, 2022 SCC OnLine SC 1440, that
merely because the witnesses are related to each other is no reason
to discard their testimonies. The Court is required to see their
testimonies with due care and caution. It was observed:
55. It is noted that great weight has been attached to the
testimonies of the witnesses in the instant case. Having
regard to the aforesaid fact that this Court has examined thecredibility of the witnesses to rule out any tainted evidence
given in the court of Law. It was contended by learnedcounsel for the appellant that the prosecution failed to
examine any independent witnesses in the present case and
that the witnesses were related to each other. This Court, in
a number of cases, has had the opportunity to consider the
said aspect of related/interested/partisan witnesses and the
credibility of such witnesses. This Court is conscious of the
well-settled principle that just because the witnesses are
related/interested/partisan witnesses, their testimonies
cannot be disregarded; however, it is also true that when the
witnesses are related/interested, their testimonies have to
be scrutinised with greater care and circumspection. In the::: Downloaded on – 13/08/2025 21:27:25 :::CIS
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( 2025:HHC:27298 )case of Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381,
this Court held that the testimony of such related witnesses
should be analysed with caution for its credibility.
.
56. In Raju alias Balachandran v. State of Tamil Nadu, (2012)
12 SCC 701, this Court observed:
“29. The sum and substance is that the evidence of a
related or interested witness should be meticulously
and carefully examined. In a case where the related
and interested witness may have some enmity with
the assailant, the bar would need to be raised, and theevidence of the witness would have to be examined by
applying a standard of discerning scrutiny. However,
this is only a rule of prudence and not one of law, as
held in Dalip Singh [AIR 1953 SC 364] and pithilyreiterated in Sarwan Singh [(1976) 4 SCC 369] in the
following words: (Sarwan Singh case [(1976) 4 SCC
369, p. 376, para 10)
“10. … The evidence of an interested witnessdoes not suffer from any infirmity as such, but
the courts require, as a rule of prudence, not as
a rule of law, that the evidence of suchwitnesses should be scrutinised with a little
care. Once that approach is made and the courtis satisfied that the evidence of interested
witnesses have a ring of truth, such evidence
could be relied upon even withoutcorroboration.”
57. Further delving into the same issue, it is noted that in
the case of Ganapathi v. State of Tamil Nadu, (2018) 5 SCC
549, this Court held that in several cases when only family
members are present at the time of the incident and the case
of the prosecution is based only on their evidence, Courts
have to be cautious and meticulously evaluate the evidence
in the process of trial.
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18. This position was reiterated in Baban Shankar Daphal v.
State of Maharashtra, 2025 SCC OnLine SC 137, wherein it was
.
observed:
“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 eyewitnesses as well who were present at thetime 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 hadalso reached the place of the 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 scrutinised with care and caution. It has been heldby 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, isoften scrutinised. However, being a relative does not
automatically render a witness “interested” or biased. Theterm “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.
29. The distinction between “interested” and “related”
witnesses has been clarified in Dalip Singh v. State of Punjab
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AIR 1953 SC 364, where this Court emphasised that a close
relative is usually the last person to falsely implicate an
innocent person. Therefore, in evaluating the evidence of a
.
related witness, the court should focus on the consistency
and credibility of their testimony. This approach ensures
that the evidence is not discarded merely due to familial
ties, but is instead assessed based on its inherent reliability
and consistency with other evidence in the case. This
position has been reiterated by this Court in:
I, Md. Rojali Ali v. The State of Assam, Ministry of Home
Affairs through Secretary (2019) 19 SCC 567;
ii. Ganapathi v. State of T.N. (2018) 5 SCC 549;
iii. Jayabalan v. Union Territory of Pondicherry (2010) 1
SCC 199.
30. Though the eyewitnesses who have been examined in
the present case were closely related to the deceased,
namely his wife, daughter, and son, their testimonies are
consistent with respect to the accused persons being the
assailants who inflicted wounds on the deceased. As isrevealed from the sequence of events that transpired, one of
the family members was subjected to an assault. It was thus
quite natural for the other family members to rush on thespot to intervene. The presence of the family members on
the spot and thus being eyewitnesses has been well
established. In such circumstances, merely because the
eyewitnesses are family members, their testimonies cannotbe discarded solely on that ground.
19. It was rightly submitted on behalf of the State that her
presence on the spot was natural. The incident had taken place
near the informant’s house. Therefore, she, being the inmate of
the house, was a natural witness, and her testimony cannot be
rejected because she is the granddaughter of Sukh Ram.
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20. Her testimony is corroborated by her mother, Promila
Devi (PW3), who stated that informant Kiran Sharma (PW1) and
.
deceased Sukh Ram were present at home on 25.03.2011. Sukh Ram
had engaged labourers. Bhagwan Dass and Shailini were trying to
lift the mud from the old house. Jai Devi and Asha Rani came to the
spot. The accused told the labourers to stop the work as the house
belonged to them. Sukh Ram told the accused that the house
belonged to him and it was given to the husband of Garibi Devi for
residence. The argument continued between Sukh Ram and the
accused. Asha Devi went towards the rear side of the house. She
entered the damaged house and threw a brick toward Sukh Ram.
Brick hit Sukh Ram on the left side of the ribs. He sat down. His
body started swelling. His breathing became irregular. He became
restless. Sukh Ram was taken to the hospital, and he succumbed to
his injury on the same day. She stated in her cross-examination
that the house was given to Narainu by Sukh Ram. Garibi Devi used
to reside in the house after the death of Narainu. The house had 02
portions, and the one covered with Khaprail had collapsed. The
four feet of front walls were still standing, but the rear walls had
collapsed. The labourers were engaged by Sukh Ram. Jai Devi came
to the spot on the same day when the labourers had started the
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work. She had told Jai Devi to talk to Sukh Ram because he had
engaged the labourers. She admitted that Jai Devi had thrown
.
“Tasla” of the labourers, and asked them to stop the work. 3-4
women had gathered on the spot. However, she could not mention
their names. She denied that Sukh Ram tried to chase Asha Devi
and fell.
21. The statement of this witness corroborates the
informant’s version in material particulars. Much of the incident
was not disputed in her cross-examination. Even the accused did
not dispute their presence on the spot in their statements recorded
under Section 313 of Cr.PC. They also admitted the argument with
Sukh Ram. Therefore, her testimony was rightly accepted by the
learned Trial Court.
22. Learned Trial Court found that the house was given to
Narainu, and Garibi Devi was residing in the house after his death.
It was submitted that Sukh Ram had no authority to demolish the
house because the house belonged to Garibi Devi and thereafter to
Jai Devi. Jai Devi was within her rights to stop Sukh Ram and the
labourers from raising the construction. This submission will not
help the accused. Section 103 of IPC deals with the right of private
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defence of property and is available against robbery, house
breaking by night, mischief by fire, theft, mischief or house
.
trespass under such circumstances that there is a reasonable
apprehension of death or grievous hurt. The act of Sukh Ram did
not fall in any of these categories. It is undisputed that Jai Devi was
not residing in the house; therefore, even, if there was a house
trespass, there was no reasonable apprehension of causing death
or grievous hurt to the accused; hence, the right of private defence
to the extent of causing death will not be available to the accused,
and submission of Ms. Sheetal Vyas, learned counsel for the
appellant that accused were within their right to exercise their
right of private defence cannot be accepted.
23. Kanta Devi (PW2) did not support the prosecution case.
She stated that she heard some noise and saw Sukh Ram and
Promila Devi (PW3) having an argument with Jai Devi. She did not
know the reason for the arguments. She was permitted to be
cross-examined. She denied that the accused Asha Rani picked up
a brick and threw it towards Sukh Ram, who sustained injuries.
She denied the previous statement recorded by the police.
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24. Geeta Devi (PW4) also did not support the prosecution
case. She stated that she heard some noise. She saw that Sukh Ram
.
was telling the accused that the house belonged to him, whereas
Jai Devi was claiming that the house belonged to her. She had not
seen any person inflicting a brick blow to Sukh Ram. She was
permitted to be cross-examined. She denied that Asha Rani went
to the back side of the house and picked up a brick, and threw it
towards Sukh Ram, who sustained an injury. She denied the
previous statement recorded by the police.
25. Savitri Devi (PW6) was the labourer. She also did not
support the prosecution’s case. She stated that Sukh Ram had
employed her and her husband to remove the material. Jai Devi,
whom she identified by pointing, came to the spot. She and Sukh
Ram argued. Sukh Ram slapped Jai Devi, who fell. Asha Rani did
not hit Sukh Ram with a brick. She was permitted to be cross-
examined. She denied that the accused Asha Rani went towards the
back side of the house and threw a brick towards Sukh Ram, who
sustained an injury. She denied the previous statement recorded
by the police.
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26. It was submitted that independent witnesses have not
supported the prosecution case, and the prosecution case cannot
.
be relied upon because of this fact. This submission is not
acceptable. It is apparent from the testimonies of these witnesses
that they were contradicted by their previous statements, which
were duly proved by the testimony of ASI Luder Singh (PW20).
Therefore, the witnesses are shown to have made two inconsistent
statements- one before the police and one before the Court, and
his credit has been shaken under Section 155(3) of the Indian
Evidence Act. It was laid down by the Hon’ble Supreme Court in Sat
Paul v. Delhi Admn., (1976) 1 SCC 727 that where a witness has been
thoroughly discredited by confronting him with the previous
statement, his statement cannot be relied upon. However, when he
is confronted with some portions of the previous statement, his
credibility is shaken to that extent, and the rest of the statement
can be relied upon. It was observed:
“52. From the above conspectus, it emerges clearly that
even in a criminal prosecution, when a witness is cross-
examined and contradicted with the leave of the court by
the party calling him, his evidence cannot, as a matter of
law, be treated as washed off the record altogether. It is for
the Judge of fact to consider in each case whether, as a
result of such cross-examination and contradiction, the
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( 2025:HHC:27298 )believed regarding a part of his testimony. If the Judge finds
that in the process, the credit of the witness has not been
completely shaken, he may, after reading and considering.
the evidence of the witness, as a whole, with due caution
and care, accept, in the light of the other evidence on the
record, that part of his testimony which he finds to be
creditworthy and act upon it. If in a given case, the whole ofthe testimony of the witness is impugned, and in the
process, the witness stands squarely and totally discredited,
the Judge should, as a matter of prudence, discard his
evidence in toto.”
27. This Court has also laid down in Ian Stilman versus. State
2002(2) Shim. L.C. 16 that where a witness has been cross-
examined by the prosecution with the leave of the Court, his
statement cannot be relied upon. It was observed:
“12. It is now well settled that when a witness who has been
called by the prosecution is permitted to be cross-examined
on behalf of the prosecution, such a witness loses credibility
and cannot be relied upon by the defence. We find supportfor the view we have taken from the various authorities of
the Apex Court. In Jagir Singh v. The State (DelhiAdministration), AIR 1975 Supreme Court 1400, the Apex
Court observed:
“It is now well settled that when a witness, who has
been called by the prosecution, is permitted to be
cross-examined on behalf of the prosecution, the
result of that course being adopted is to discredit this
witness altogether and not merely to get rid of a part
of his testimony”.
28. Therefore, the prosecution case cannot be doubted
simply because the independent witnesses have not supported it.
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29. It was submitted that the learned Public Prosecutor had
given up the witnesses Bhagwan Dass, Meena Devi, Prem Lal,
.
Sudesh Kumari and Labh Devi. Therefore, an adverse inference
should be drawn against the prosecution for their non-
examination. This submission cannot be accepted. It was held in
Hukam Singh vs. State of Rajasthan 2000 (7) SCC 490 that the Public
Prosecutor is under no obligation to examine all the witnesses. If
the statement of a witness is repetitive, the public prosecutor can
give him up. It was observed:
“13…..If there are too many witnesses on the same point, the
Public Prosecutor is at liberty to choose two or some among
them alone so that the time of the court can be saved fromrepetitious depositions on the same factual aspects. That
principle applies when there are too many witnesses cited if
they all had sustained injuries at the occurrence. The PublicProsecutor in such cases is not obliged to examine all the
injured witnesses. If he is satisfied by examining any two orthree of them, it is open to him to inform the court that he
does not propose to examine the remaining persons in thatcategory. This will help not only the prosecution for
relieving itself of the strain of adducing repetitive evidence
on the same point but also help the court considerably in
lessening the workload. The time has come to make every
effort possible to lessen the workload, particularly those
courts crammed with cases, but without impairing the cause
of justice.
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30. It was further held that the Public Prosecutor is not
obliged to examine a witness who will not support the
.
prosecution. It was observed at page 495:
“13. When the case reaches the stage envisaged in Section
231 of the Code the Sessions Judge is obliged “to take all
such evidence as may be produced in support of the
prosecution”. It is clear from the said section that the Public
Prosecutor is expected to produce evidence “in support ofthe prosecution” and not in derogation of the prosecution
case. At the said stage, the Public Prosecutor would be in a
position to take a decision as to which among the persons
cited are to be examined. If there are too many witnesses onthe same point, the Public Prosecutor is at liberty to choose
two or some among them alone so that the time of the Court
can be saved from repetitious depositions on the same
factual aspects. That principle applies when there are too
many witnesses cited if they all had sustained injuries at theoccurrence. The Public Prosecutor in such cases is not
obliged to examine all the injured witnesses. If he is
satisfied by examining any two or three of them, it is opento him to inform the Court that he does not propose to
examine the remaining persons in that category. This willhelp not only the prosecution in relieving itself of the strain
of adducing repetitive evidence on the same point but also
help the Court considerably in lessening the workload. Thetime has come to make every effort possible to lessen the
workload, particularly those courts crammed with cases,
but without impairing the cause of justice.
14. The situation in a case where the prosecution cited two
categories of witnesses to the occurrence, one consisting of
persons closely related to the victim and the other
consisting of witnesses who have no such relation, the
Public Prosecutor’s duty to the Court may require him to
produce witnesses from the latter category, also subject to
his discretion to limit to one or two among them. But if the::: Downloaded on – 13/08/2025 21:27:25 :::CIS
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( 2025:HHC:27298 )Public Prosecutor got reliable information that anyone
among that category would not support the prosecution
version, he is free to state in court about that fact and skip.
that witness from being examined as a prosecution witness.
It is open to the defence to cite him and examine him as a
defence witness. The decision in this regard has to be taken
by the Public Prosecutor fairly. He can interview the witnessbeforehand to enable him to know well in advance the stand
which that particular person would be adopting when
examined as a witness in court.
15. A four-judge Bench of this Court had stated the above
legal position thirty-five years ago in Masalti v. State of
U.P. [AIR 1965 SC 202: (1965) 1 Cri LJ 226]. It is contextually
apposite to extract the following observation of the Bench:
“It is not unknown that where serious offences like the
present are committed and a large number of accusedpersons are tried, attempts are made either to terrorise
or win over prosecution witnesses and if the prosecutor
honestly and bona fide believes that some of hiswitnesses have been won over, it would be unreasonable
to insist that he must tender such witnesses before the
court.”
16. The said decision was followed in Bava Hajee
Hamsa v. State of Kerala [(1974) 4 SCC 479: 1974 SCC (Cri) 515:
AIR 1974 SC 902]. In Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033], Krishna
Iyer J., speaking for a three-judge Bench had struck a noteof caution that while a Public Prosecutor has the freedom
“to pick and choose” witnesses he should be fair to the
court and the truth. This Court reiterated the same position
in Dalbir Kaur v. State of Punjab [(1976) 4 SCC 158: 1976 SCC
(Cri) 527].
31. It was laid down by the Hon’ble Supreme Court in Pohlu
v. State of Haryana, (2005) 10 SCC 196, that the intrinsic worth of
the testimony of witnesses has to be assessed by the Court and if
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the testimony of the witnesses appears to be truthful, the non-
examination of other witnesses will not make the testimony
.
doubtful. It was observed: –
“[10] It was then submitted that some of the material
witnesses were not examined and, in this connection, it was
argued that two of the eye-witnesses named in the FIR,
namely, Chander and Sita Ram, were not examined by the
prosecution. Dharamvir, son of Sukhdei, was also notexamined by the prosecution, though he was a material
witness, being an injured eyewitness, having witnessed the
assault that took place in the house of Sukhdei, PW 2. It is
true that it is not necessary for the prosecution to multiplywitnesses if it prefers to rely upon the evidence of
eyewitnesses examined by it, which it considers sufficient
to prove the case of the prosecution. However, the intrinsic
worth of the testimony of the witnesses examined by the
prosecution has to be assessed by the Court. If theirevidence appears to be truthful, reliable and acceptable, the
mere fact that some other witnesses have not been
examined will not adversely affect the case of theprosecution. We have, therefore, to examine the evidence of
the two eye witnesses, namely, PW 1 and PW 2, and to findwhether their evidence is true, on the basis of which the
conviction of the appellants can be sustained.”
32. This position was reiterated in Rohtash vs. State of
Haryana 2013 (14) SCC 434, and it was held that the prosecution is
not bound to examine all the cited witnesses, and it can drop
witnesses to avoid multiplicity or plurality of witnesses. It was
observed:
14. A common issue that may arise in such cases where
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( 2025:HHC:27298 )same may be material witnesses, is whether the prosecution
is bound to examine all the listed/cited witnesses. This
Court, in Abdul Gani & Ors. v. State of Madhya Pradesh, AIR.
1954 SC 31, has examined the aforesaid issue and held, that
as a general rule, all witnesses must be called upon to testify
in the course of the hearing of the prosecution, but that
there is no obligation compelling the public prosecutor to
call upon all the witnesses available who can depose
regarding the facts that the prosecution desires to prove.
Ultimately, it is a matter left to the discretion of the public
prosecutor, and though a court ought to and no doubt would
take into consideration the absence of witnesses whose
testimony would reasonably be expected, it must adjudge
the evidence as a whole and arrive at its conclusion
accordingly, taking into consideration the persuasiveness of
the testimony given in the light of such criticism, as may be
levelled at the absence of possible material witnesses.
15. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a
similar view has been reiterated, observing that a court
cannot normally compel the prosecution to examine a
witness which the prosecution does not choose to examine
and that the duty of a fair prosecutor extends only to the
extent of examination of such witnesses, who are necessary
for the purpose of disclosing the story of the prosecution
with all its essentials.
16. In Masalti v. the State of U.P., AIR 1965 SC 202, this Court
held that it would be unsound to lay down as a general rule,
that every witness must be examined, even though, the
evidence provided by such witness may not be very
material, or even if it is a known fact that the said witness
has either been won over or terrorised. In such cases, it is
always open to the defence to examine such witnesses as
their own witnesses, and the court itself may also call upon
such a witness in the interests of justice under Section 540
Cr. P.C.
(See also: Bir Singh & Ors. vs. State of U.P., (1977 (4) SCC 420)
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( 2025:HHC:27298 )
17. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328,
this Court reiterated a similar view and held that if the eye-
witness(s) is deliberately kept back, the Court may draw an
.
inference against the prosecution and may, in a proper case,
regard the failure of the prosecutor to examine the said
witnesses as constituting a serious infirmity in the proof of
the prosecution case.
18. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this
Court held as under:
“10. … Material witnesses considered necessary by the
prosecution for unfolding the prosecution’s storyalone need to be produced without unnecessary and
redundant multiplication of witnesses. The
appellant’s counsel has not shown how theprosecution’s story is rendered less trustworthy as a
result of the non-production of the witnessesmentioned by him. No material and important
witness was deliberately kept back by the prosecution.
Incidentally, we may point out that the accused toohave not considered it proper to produce those
persons as witnesses for controverting the
prosecution version…..”
19. In Harpal Singh v. Devinder Singh & Ann, AIR 1997 SC
2914, this Court reiterated a similar view and further
observed:
“24. … Illustration (g) in Section 114 of the Evidence
Act is only a permissible inference and not a necessary
inference. Unless there are other circumstances also
to facilitate the drawing of an adverse inference, it
should not be a mechanical process to draw the
adverse inference merely on the strength of non-
examination of a witness even if it is a material
witness…..”
20. In Mohanlal Shamji Soni v. Union of India &Anr., AIR 1991
SC 1346, this Court held:
“10. It is a cardinal rule in the law of evidence that the
best available evidence should be brought before the::: Downloaded on – 13/08/2025 21:27:25 :::CIS
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( 2025:HHC:27298 )Court to prove a fact or the points in issue. But it is left
either for the prosecution or for the defence to
establish its respective case by adducing the best.
available evidence, and the Court is not empowered
under the provisions of the Code to compel either the
prosecution or the defence to examine any particular
witness or witnesses on their side. Nonetheless, ifeither of the parties withholds any evidence which
could be produced and which, if produced, would be
unfavourable to the party withholding such evidence,
the Court can draw a presumption under illustration
(g) to Section 114 of the Evidence Act.
.. In order to enable the Court to find out the truth and
render a just decision, the salutary provisions of
Section 540 of the Code (Section 311 of the new Code)
are enacted whereunder any Court by exercising its
discretionary authority at any stage of enquiry, trial
or another proceeding can summon any person as a
witness or examine any person in attendance though
not summoned as a witness or recall or re-examine
any person in attendance though not summoned as a
witness or recall and re-examine any person already
examined who are expected to be able to throw light
upon the matter in dispute; because if judgments
happen to be rendered on inchoate, inconclusive and
speculative presentation of facts, the ends of justice
would be defeated.”
21. In Banti @ Guddu v. State of M.P. AIR 2004 SC 261, this
Court held:
“12. In trials before a Court of Session, the
prosecution “shall be conducted by a Public
Prosecutor”. Section 226 of the Code of Criminal
Procedure, 1973, enjoins him to open up his case by
describing the charge brought against the accused. He
has to state what evidence he proposes to adduce for
proving the guilt of the accused…….If that version is
not in support of the prosecution’s case, it would be
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( 2025:HHC:27298 )examine those persons as witnesses for the
prosecution.
13. When the case reaches the stage envisaged in
.
Section 231 of the Code, the Sessions Judge is obliged
“to take all such evidence as may be produced in
support of the prosecution”. It is clear from the said
section that the Public Prosecutor is expected toproduce evidence “in support of the prosecution” and
not in derogation of the prosecution’s case. At the said
stage, the Public Prosecutor would be in a position to
take a decision as to which among the presences citedare to be examined. If there are too many witnesses on
the same point, the Public Prosecutor is at liberty to
choose two or some among them alone so that the
time of the Court can be saved from repetitiousdepositions on the same factual aspects…….This will
help not only the prosecution in relieving itself of the
strain of adducing repetitive evidence on the same
point but also help the Court considerably in lessening
the workload. The time has come to make every effortpossible to lessen the workload, particularly those
courts crammed with cases, but without impairing the
cause of justice.
14. It is open to the defence to cite him and examine
him as a defence witness.”
22. The said issue was also considered by this Court in R.
Shaji (supra), and the Court, after placing reliance upon its
judgments in Vadivelu Thevar v. State of Madras, AIR 1957 SC
614, and Kishan Chand v. State of Haryana JT 2013 (1) SC 222,
held as under:
“22. In the matter of the appreciation of evidence of
witnesses, it is not the number of witnesses, but the
quality of their evidence, that is important, as there is
no requirement in the law of evidence stating that a
particular number of witnesses must be examined to
prove/disprove a fact. It is a time-honoured principle
that evidence must be weighed and not counted. The::: Downloaded on – 13/08/2025 21:27:25 :::CIS
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( 2025:HHC:27298 )test is whether the evidence has a ring of truth, is
cogent, credible, trustworthy, or otherwise. The legal
system has laid emphasis on the value provided by.
each witness, as opposed to the multiplicity or
plurality of witnesses. It is thus the quality and not
quantity which determines the adequacy of evidence,
as has been provided by Section 134 of the EvidenceAct. Where the law requires the examination of at
least one attesting witness, it has been held that the
number of witnesses produced over and above this
does not carry any weight.”
23. Thus, the prosecution is not bound to examine all the
cited witnesses, and it can drop witnesses to avoid
multiplicity or plurality of witnesses. The accused can also
examine the cited, but not examined, witnesses, if he so
desires, in his defence. It is the discretion of the prosecutor
to tender the witnesses to prove the case of the prosecution,
and “the court will not interfere with the exercise of that
discretion unless, perhaps, it can be shown that the
prosecution has been influenced by some oblique motive.”
In an extraordinary situation, if the court comes to the
conclusion that a material witness has been withheld, it can
draw an adverse inference against the prosecution, as has
been provided under Section 114 of the Evidence Act.
Undoubtedly, the public prosecutor must not take the
liberty to “pick and choose” his witnesses, as he must be
fair to the court, and therefore, to the truth. In a given case,
the Court can always examine a witness as a court witness if
it is so warranted in the interests of justice. The evidence of
the witnesses must be tested on the touchstone of
reliability, credibility and trustworthiness. If the court finds
the same to be untruthful, there is no legal bar for it to
discard the same.
33. This position was reiterated in Rajesh Yadav v. State of
U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, wherein it was
observed at page 224: –
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( 2025:HHC:27298 )Non-examination of the witness
34. A mere non-examination of the witness per se will not
vitiate the case of the prosecution. It depends upon the
.
quality and not the quantity of the witnesses and their
importance. If the court is satisfied with the explanation
given by the prosecution, along with the adequacy of the
materials, sufficient enough to proceed with the trial and
convict the accused, there cannot be any prejudice.
Similarly, if the court is of the view that the evidence is not
screened and could well be produced by the other side in
support of its case, no adverse inference can be drawn. The
onus is on the part of party who alleges that a witness has
not been produced deliberately to prove it.
35. The aforesaid settled principle of law has been laid down
in Sarwan Singh v. State of Punjab [Sarwan Singh v. State of
Punjab, (1976) 4 SCC 369: 1976 SCC (Cri) 646]: (SCC pp. 377-
78, para 13)
“13. Another circumstance which appears to have
weighed heavily with the Additional Sessions Judge was
that no independent witness of Salabatpura had been
examined by the prosecution to prove the prosecution
case of assault on the deceased, although the evidence
shows that there were some persons living in that
locality like the “pakodewalla”, hotelwalla, shopkeeper
and some of the passengers who had alighted at
Salabatpura with the deceased. The Additional Sessions
Judge has drawn an adverse inference against the
prosecution for its failure to examine any of those
witnesses. Mr Hardy has adopted this argument. In our
opinion, the comments of the Additional Sessions Judge
are based on a serious misconception of the correct legal
position. The onus of proving the prosecution’s case rests
entirely on the prosecution, and it follows as a logical
corollary that the prosecution has complete liberty to choose
its witnesses if it is to prove its case. The court cannot compel
the prosecution to examine one witness or the other as its
witness. At most, if a material witness is withheld, the court
may draw an adverse inference against the prosecution. But
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it is not the law that the omission to examine any and every
witness, even on minor points, would undoubtedly lead to
rejection of the prosecution’s case or drawing of an adverse
.
inference against the prosecution. The law is well-settled
that the prosecution is bound to produce only such witnesses
as are essential for the unfolding of the prosecution
narrative. In other words, before an adverse inference
against the prosecution can be drawn, it must be proved to
the satisfaction of the court that the witnesses who had been
withheld were eyewitnesses who had actually seen the
occurrence and were therefore material to prove the case. It
is not necessary for the prosecution to multiply witnesses
after witnesses on the same point; it is the quality rather
than the quantity of the evidence that matters. In the
instant case, the evidence of the eyewitnesses does not
suffer from any infirmity or any manifest defect on its
intrinsic merit. Secondly, there is nothing to show that
at the time when the deceased was assaulted, a large
crowd had gathered and some of the members of the
crowd had actually seen the occurrence and were cited as
witnesses for the prosecution and then withheld. We
must not forget that in our country, there is a general
tendency amongst the witnesses in mofussil to shun
giving evidence in courts because of the cumbersome
and dilatory procedure of our courts, the harassment to
which they are subjected by the police and the searching
cross-examination which they have to face before the
courts. Therefore, nobody wants to be a witness in a
murder or any serious offence if he can avoid it.
Although the evidence does show that four or five
persons had alighted from the bus at the time when the
deceased and his companions got down from the bus,
there is no suggestion that any of those persons stayed
on to witness the occurrence. They may have proceeded
to their village homes.” (emphasis supplied)
36. This Court has reiterated the aforesaid principle
in Gulam Sarbar v. State of Bihar [Gulam Sarbar v. State of
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Bihar, (2014) 3 SCC 401: (2014) 2 SCC (Cri) 195]: (SCC pp. 410-
11, para 19)
“19. In the matter of the appreciation of evidence of
.
witnesses, it is not the number of witnesses but the
quality of their evidence which is important, as there is
no requirement under the Law of Evidence that any
particular number of witnesses is to be examined to
prove/disprove a fact. It is a time-honoured principle
that evidence must be weighed and not counted. The test
is whether the evidence has a ring of truth, is cogent,
credible, trustworthy or otherwise. The legal system has
laid emphasis on the value provided by each witness,
rather than the multiplicity or plurality of witnesses. It is
quality and not quantity which determines the adequacy
of evidence, as has been provided by Section 134 of the
Evidence Act. Even in probate cases, where the law
requires the examination of at least one attesting
witness, it has been held that the production of more
witnesses does not carry any weight. Thus, conviction
can even be based on the testimony of a sole eyewitness
if the same inspires confidence. (Vide Vadivelu
Thevar v. State of Madras [Vadivelu Thevar v. State of
Madras, 1957 SCR 981: AIR 1957 SC 614], Kunju v. State of
T.N. [Kunju v. State of T.N., (2008) 2 SCC 151 : (2008) 1 SCC
(Cri) 331], Bipin Kumar Mondal v. State of W.B. [Bipin
Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2
SCC (Cri) 150], Mahesh v. State of M.P. [Mahesh v. State of
M.P., (2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783], Prithipal
Singh v. State of Punjab [Prithipal Singh v. State of Punjab,
(2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan
Chand v. State of Haryana [Kishan Chand v. State of
Haryana, (2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807] .)”
34. Witness Bhagwan Dass was given up as he was won
over. Meena Devi, Prem Lal, Sudesh Kumari and Labh Devi were
given up because they were repetitive. Since the Public Prosecutor
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( 2025:HHC:27298 )is not supposed to examine the witness against the prosecution
case and multiply the witnesses by the examination of similar
.
witnesses, therefore, the prosecution case cannot be doubted
because of the non-examination of the witnesses.
35. Dr. Anuj Sharma (PW10) examined Sukh Ram. He found
swelling on the face and genitalia, which was increasing
progressively. He referred the patient to the regional hospital. As
per his opinion, the injuries were caused by the blunt weapon. He
stated in his cross-examination that he did not observe any mark
of visible injury. The symptoms noticed by him could be caused by
blunt trauma, a fall or a disease. It was submitted that the
testimony of the Medical Officer shows that the injury could have
been caused by way of a fall, and this is sufficient to doubt the
prosecution’s case. This submission cannot be accepted. The
statement made by the Medical Officer suggests an alternative
possibility which does not make the prosecution case suspect. It
was laid down by the Hon’ble Supreme Court in Ramakant Rai v.
Madan Rai, (2003) 12 SCC 395: 2003 SCC OnLine SC 1086 that when
the testimonies of the witnesses are found credible, the medical
evidence pointing to alternative possibilities is not sufficient to
discard the prosecution’s case. It was observed at page 404:
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22. It is trite that where the eyewitnesses’ account is found
credible and trustworthy, medical opinion pointing to
alternative possibilities is not accepted as conclusive.
.
Witnesses, as Bentham said, are the eyes and ears of justice.
Hence, the importance and primacy of the quality of the
trial process. Eyewitnesses’ accounts would require a
careful independent assessment and evaluation for their
credibility, which should not be adversely prejudged,
making any other evidence, including the medical evidence,
the sole touchstone for the test of such credibility. The
evidence must be tested for its inherent consistency and the
inherent probability of the story; consistency with the
account of other witnesses held to be creditworthy;
consistency with the undisputed facts; the “credit” of the
witnesses; their performance in the witness box; their
power of observation, etc. Then the probative value of such
evidence becomes eligible to be put into the scales for a
cumulative evaluation.
36. Therefore, the prosecution’s case cannot be rejected
due to alternative possibilities in the medical evidence.
37. Dr. Ankur Dharamani (PW16) conducted the
postmortem examination of Sukh Ram, and in his opinion, the
cause of death was due to asphyxia caused by antemortem blunt
injury on the left side of the thoracic cavity, leading to sudden and
massive surgical emphysema along with laceration of the left
lung, leading to respiratory failure. As per his opinion, the piece of
brick shown to him was sufficient to cause blunt trauma, and the
possibility of using the brick as a weapon of offence could not be
ruled out. He stated in his cross-examination that the
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postmortem report was prepared based on rough notes prepared
at the time of the postmortem. He had not seen the rough notes on
.
the date of the deposition. He found a hematoma over the left
posterior lateral thoracic region. There was no external injury on
the dead body. External injury could appear from throwing the
stone with full force, but it was not necessarily true. He admitted
that the brick was Kaccha and had cracks on its side. The injury
could have been caused by way of a fall on a hard surface.
38. The statement of this witness also shows that the death
could have taken place due to the antemortem injury caused by the
piece of brick (Ex-P1). He admitted that the injury could have been
caused by way of a fall, but it was merely an alternative
hypothesis, which is not sufficient to doubt the prosecution’s case.
39. Dr. Piyush Kapila (PW21) examined the brick and
conducted the postmortem report, and as per him, there was a
possibility of fracture of ribs and laceration of the left lung with
the brick, which could have caused death in the ordinary course of
nature. He stated in his cross-examination that he could not say
that the brick could not have been pelted by a weak lady. Only the
postmortem report parcel containing the brick was shown to him.
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40. The statement of this witness also corroborates the
testimonies of the prosecution witnesses that the injury sustained
.
by Sukh Ram could have been caused by using the brick.
41. It was suggested to the prosecution witnesses that
Sukh Ram ran after Asha Rani and fell in the process. This
suggestion was falsified by the statement of Dr. Supriya Atwal
(DW3), who stated that she had examined Sukh Ram on
05.09.2009, and issued a certificate (Ex-DW2/A) stating that Sukh
Ram was 100% visually disabled. She stated that Sukh Ram was
able to count the fingers close to his face. The fact that Sukh Ram
was unable to count the figures unless these were brought close to
his face makes it highly improbable that he would be in a position
to run after Asha Rani to chase her. Hence, the defence evidence
makes the suggestions given to the witnesses highly doubtful that
Sukh Ram chased the accused, Asha Rani, and fell in the process.
42. The testimony of the informant and her mother
corroborated each other on material particulars. It was duly
proved by their testimonies that Asha Rani picked up a brick and
hurled it towards Sukh Ram, who sustained an injury and died due
to the injury sustained by her.
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43. Learned Trial Court held that throwing a brick towards
Sukh Ram shows that Asha Rani knew that a bodily injury would
.
be caused, which was sufficient to cause death, and the learned
Trial Court convicted the accused for the commission of an offence
punishable under Section 304-II. It is difficult to uphold this
reasoning.
44. It is the specific case of the prosecution that a Kaccha
brick was thrown towards Sukh Ram. A kaccha brick does not
cause death of the person, especially when it hits the ribs.
Therefore, the inference cannot be drawn that the injury was
caused with the knowledge that death would be caused. It was laid
down in Dnyaneshwar Dagdoba Hivrekar v. State of Maharashtra,
1982 SCC OnLine Bom 305, that causing an injury on the head does
not lead to the inference that the assailant knew the death would
be caused. Similarly, it was held in Marcelino Fernandes v. State,
1970 SCC OnLine Bom 21, that causing injury to the head does not
suggest a knowledge that death would be caused. Similar is the
judgment in Shailesh v. State of Maharashtra, 1994 SCC OnLine Bom
597. In the present case, the injury was inflicted not on the vital
part and not with a deadly weapon; therefore, the knowledge on
the part of Asha Rani to cause death cannot be inferred. She can
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( 2025:HHC:27298 )
only be held liable for causing simple hurt to Sukh Ram. Hence,
the conviction recorded by the learned Trial Court is altered to an
.
offence punishable under Section 323 of the IPC.
45. It is undisputed that Sukh Ram was demolishing the
house which was given to Garibi Devi. This fact was admitted by
the informant and her mother. Jai Devi is the daughter of Garibi
Devi, and she had a legitimate cause to protest. It is also proven
that an argument ensued between Jai Devi and Sukh Ram. Asha
Rani threw the brick towards Sukh Ram when the arguments were
continuing. These facts show that the incident had taken place in
the heat of a moment without any premeditation; therefore, the
accused, Asha Rani, is sentenced to undergo simple imprisonment
for six months, pay a fine of ₹1,000/- and in default of payment of
fine to undergo further simple imprisonment for 01 month for the
commission of an offence punishable under Section 323 of IPC.
She is entitled to the benefit of set off for the period of
imprisonment undergone by her during the
investigation/pendency of the trial.
46. In view of above, the present appeal is partly allowed
and the accused Asha Rani is convicted of the commission of an
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offence punishable under Section 323 of IPC, and sentenced to
undergo simple imprisonment for 06 months, pay a fine of
.
₹1,000/- and in default of payment of fine to undergo further
simple imprisonment for 01 month. Subject to this modification,
rest of the judgment of the learned Trial Court is upheld. Modified
jail warrant be prepared accordingly.
(Rakesh Kainthla)
Judge
12th August 2025
(Shamsh Tabrez)
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