Shiv Dayal Sharma And Another. In Jail vs State Of U.P. on 22 January, 2025

Allahabad High Court

Shiv Dayal Sharma And Another. In Jail vs State Of U.P. on 22 January, 2025

Author: Sangeeta Chandra

Bench: Sangeeta Chandra

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 
Neutral Citation No. - 2025:AHC-LKO:4651-DB
 
Reserved on 18.11.2024
 
Delivered on 22.01.2025
 

 
Court No. - 9 
 

 
Case :- CRIMINAL APPEAL No. - 1058 of 2001 
 

 
Appellant :- Shiv Dayal Sharma And Another. In Jail 
 
Respondent :- State of U.P. 
 
Counsel for Appellant :- Vivek Shrotria,Arun Sinha,Ishraq Farooqui,M.P.Yadav(Ac),Mahmood Alam,Ravi Dinger,Sachchidanad,V. Bhatia,Vishnu Swaroop Srivastava 
 
Counsel for Respondent :- Govt.Advocate,I.B. Singh 
 

 
Hon'ble Mrs. Sangeeta Chandra, J. 
 

Hon’ble Mohd. Faiz Alam Khan, J.

1. Heard Shri M.P. Yadav, learned Amicus Curiae for the appellant No.1 – Shiv Dayal Sharma, Shri R.S. Dwivedi, learned Additional Government Advocate for the State-respondents and perused the record.

2. The instant criminal appeal has been preferred by the appellants, namely, Shiv Dayal Sharma and Ravi Pratap Sharma challenging the impugned judgment and order dated 22.10.2001 passed by learned Additional Sessions Judge/ Special Judge (E.C. Act), Lucknow in Sessions Trial No. 840 of 1997 (State vs. Shiv Dayal Sharma and others), arising out of Case Crime No.181 of 1997, under Sections 302/34 I.P.C., Police Station Bazar Khala, Lucknow, whereby the appellants were convicted under Section 302/34 I.P.C. and sentenced to undergo life imprisonment with fine of Rs.20,000/-, in default of which, they were required to undergo simple imprisonment for three years.

3. The story of the prosecution as is reflected from the record is in terms that a First Information Report was lodged by the informant, Gurpreet Singh at Police Station Bazar Khala, Lucknow on 30.05.1997 at 9:45 a.m. stating therein that a factory of the informant is situated at Malviya Nagar, Lucknow and in front of the said factory, the accused persons had encroached upon the land of the road and started doing business of wood and when their illegal acts were objected to by his father they became inimical towards them. It is further stated that on the basis of this enmity these persons have earlier assaulted Manager of the factory on 01.02.1997 pertaining to which, a First Information Report was lodged at the police station and in pursuance of the same, the accused persons were arrested and were lodged in jail and the land of the informant was reverted back to him. However, few days ago, the accused persons were released from jail and they were in search of an occasion to cause the death of his father, pertaining to which, a complaint was also lodged by him at Police Station Aishbagh.

It is further stated in the F.I.R. that some repair work was scheduled to be done at his godown and to supervise the same he and his father had gone to the factory at about 8:30 a.m. and at that point of time Inder Mohan Singh, Hardeep Singh and Harminder Singh had also arrived to discuss some arrangements to be made pertaining to the celebration of Guru Parv as his father was a Sevadar of the Gurdwara and at about 9:15 a.m. the accused persons, Shiv Dayal Sharma, Ravi Pratap Sharma and his uncle Lekhpal arrived at the factory and started firing gun shots towards his father whereby his father sustained many injuries and fell on the ground. It is further stated that the informant attempted to intervene, however, the accused persons also threatened him of his life and thereafter the accused persons fled away from the scene of the crime by firing gun shots in the air.

4. On the basis of this written application, an F.I.R. at Case Crime No.181 of 1997 was lodged under Section 307 I.P.C. which was converted under Section 302 I.P.C. on the death of the deceased.

5. The investigation of the case was entrusted to S.H.O. Ram Singh, who started investigation and recorded the statement of the Constable Clerk on the same day and proceeded to the place of incident and on the pointing of the informant prepared site plan, collected bloodstained and plain soil from the spot and also collected two spear cartridges and prepared written memo of the same. Thereafter recorded the statements of the Nirmala Pandey, Urmila Devi and Chunni Lal. He was transferred on 01.06.1997 to some other police station.

6. The inquest of the dead body of the deceased was prepared by Sri Vakil Ahmad, Chowki In-charge, Thana Bazar Khala, Kaiserbagh, Lucknow and after a preparation of necessary papers, the dead body of the deceased was sent for postmortem which was conducted by Dr. Shailendra Nath Mehrotra.

7. The postmortem of the deceased was conducted at Guru Teg Bahadur Hospital, Thakurganj, Allahabad whereat P.W.2- Dr. Shailendra Nath Mehrotra was posted as Medical Officer on 30.05.1997 at about 2:30 p.m. The age of the deceased was found as 58 years. The rigor mortis was present in upper limb while it was not present in the lower limb of the deceased. The postmortem staining was present on the back side below the waist.

8. Following injuries were noted on the dead body of the deceased :-

“(1) Firearm wound of entry 2 cm x 1 cm x brain deep in front of the forehead about 1.5 cm above the nose margins inverted irregular blackening and tattooing were present around the wound and the bones beneath this injuries were also found fractured. The brain metallic was lacerated. The trajectory of the bullet was from front to back.

(2) Firearm wound of entry 1 cm x 1 cm x muscle deep on the lateral side of the right hand above 3 cm from elbow joint. Blackening was present all around the wound and the margins were inverted and irregular.

(3) Firearm wound of exit 2cm x 1.5 cm x muscle deep on the upper part of the right hand 7 cm above elbow. The margins were irregular.

(4) Firearm entry wound 1.5 cm x 1.5 cm x muscle deep on the left groin. Margins were irregular and the abrasion ring was present around the wound.

(5) Firearm wound of exit 2.5 cm x 2.0 cm x muscle deep 1.2 cm above the left knee. The margins were inverted and irregular.

(6) Firearm wound of entry 1 cm x 1 cm x abdominal cavity deep situated 12 cm. above Iliac crest. Margins of the wound were irregular.”

The death of the deceased was found to have occurred due to shock and haemorrhage and coma as a result of ante-moretem firearm injuries.

9. The Investigating Officer after completion of the investigation has submitted chargesheet against the accused persons under Section 302/34 I.P.C.

10. The trial court framed charges against the accused persons under Section 302/34 I.P.C. to which they denied and claimed trial.

11. The prosecution in order to prove its case beyond reasonable doubt has presented in oral evidence, P.W.1- informant, Gurpreet Singh, P.W.2- Dr. Shailender Nath Mehrotra, P.W.3- Hardeep Singh, P.W.4- Ram Shanker Verma, P.W.4A- Inder Mohan Singh, P.W.5- Inspector, Ram Singh (First Investigating Officer), P.W.6- Vakil Ahmad, Sub Inspector, P.W.7- Inspector, R.R. Pal ( Second Investigating Officer).

Apart from the same, the prosecution has also relied on the documentary evidence e.g. written F.I.R, chik F.I.R., postmortem report, site plan, memo prepared by the Investigating Officer, inquest report and various papers prepared for forwarding the dead body for postmortem and chargesheet.

12. After conclusion of the evidence of the prosecution, the statement of the accused persons was recorded under Section 313 Cr.P.C. wherein the accused persons denied all the evidence produced by the prosecution and claimed that on the basis of civil dispute they have been falsely implicated as accused persons and that the eye witnesses are related to the deceased and informant and also that they were not present at the spot.

13. Even after providing sufficient opportunity, the accused persons did not adduce any evidence in support of their defense.

14. The trial court by passing the impugned judgment and order found that the case of the prosecution is proved beyond reasonable doubt and, thus, convicted the accused persons, namely, Shiv Dayal Sharma and Ravi Pratap Sharma under Section 302/34 I.P.C. and they were sentenced in the manner as mentioned in the second paragraph of this judgment.

15. Aggrieved by the impugned judgment passed by the trial court, the appellants have preferred the instant appeal.

16. The appellant no.2, Ravi Pratap Sharma has died during the course of pendency of the appeal and the appeal has abated so far as he is concerned, thus, instant appeal is now surviving only with regard to appellant No.1- Shiv Dayal Sharma.

17. Learned counsel for the surviving appellant No.1- Shiv Dayal Sharma vehementally submits that the trial court has committed manifest illegality in appreciating the evidence available on record and has recorded a finding of conviction on the basis of surmises and conjectures.

It is further submitted that the informant as well as the prosecution witnesses of fact, namely, P.W.3- Hardeep Singh, P.W.4- Ram Shanker Verma were related to each other and they were the persons of the same party and, therefore, the trial court has committed an illegality in accepting their evidence as truthful.

It is further submitted that according to the postmortem report and statement of doctor, P.W.2- Dr. Shailender Nath Mehrotra, the death of the deceased might have occurred in the intervening night of 29-30/05/1997, however, the trial court has not considered this aspect of the matter in correct perspective.

It is further submitted that the informant (P.W.1, Gurpreet Singh) has stated to have lifted the deceased who was bleeding heavily and put him in the car of P.W.4A- Inder Mohan Singh but no bloodstained were found on the clothes of this witness which belies the whole prosecution story.

It is further submitted that independent witnesses were shown to be present on the spot but they have not been produced before the trial court.

It is further submitted that the First Information Report of the case has been lodged ante-timed and, in fact, nobody has seen the incident and only on the basis of enmity, the informant has implicated the appellant and other co-accused persons.

It is further submitted that there are material contradictions and embellishment in the evidence of the prosecution witnesses and the trial court has committed illegality in relying on the evidence of such untrustworthy witnesses and, thus, the appellant is entitled to be acquitted.

18. Learned A.G.A., on the other hand, submits that the trial court has not committed any illegality in appreciating the evidence available on record and has relied on the evidence of the witnesses of fact, who in the facts and circumstances of the case, appear to be trustworthy and reliable.

It is further submitted that the evidence of the eye witnesses of the incident have been supported by the medical evidence and thus it was proved beyond reasonable doubt before the trial court that the accused persons have committed the murder of the deceased by firing gun shots and, thus, no illegality has been committed by the trial court in convicting the appellants.

19. Having heard learned counsel for the parties and having perused the record, it is reflected that the case of the prosecution in nutshell is that on 30.05.1997 at 9:45 a.m., the appellant and co-accused persons on the basis of the prior enmity had entered into the godown of the informant and deceased, where witnesses, Inder Mohan Singh, Hardeep Singh and Harminder Singh were also present and they opened fire on the deceased by the countrymade pistols they were possessing in their hands and the deceased had sustained multiple gun shot injuries and he was immediately taken to the hospital and declared dead.

It is also evident that the prosecution has presented before the trial Court, P.W.1- Gurpreet Singh, who is the son of deceased, P.W.3- Hardeep Singh as well as P.W.4A- Inder Mohan Singh, who were present at the scene of the crime. The prosecution has also relied upon the evidence of P.W.2- Dr. Shailendra Nath Mehrotra and also other prosecution witnesses. As stated earlier, the trial court found the case of prosecution proved beyond reasonable doubt.

20. Before proceeding further in the direction of appreciating the evidence available on record, it appears in the interest of justice that a survey of the evidence tendered by the prosecution be made.

21. P.W.1- Gurpreet Singh is the informant, who has stated in his statement recorded before the trial court that the name of the deceased was Sardar Baldev Singh, he was his father and was the owner of the old cycle factory situated at Malviya Nagar, Lucknow which he had purchased from the U.P. Mill Corporation and thereafter godowns were constructed in the tin-sheds of this factory.

It is further stated by him that the accused persons had installed an Ara machine (saw mill) on the nazul land situated towards the north of the factory owned by the deceased and on 03.11.1996 the accused persons had illegally encroached upon some of his land by demolishing the northern boundary wall of the factory and had placed their material and timber on the same. It is further stated by him that the accused Shiv Dayal Sharma has also instituted a civil suit with regard to the same land and the accused persons have earlier also fired gun shots on his Manager with regard to which an F.I.R. was lodged and the accused persons had gone to jail and after their release from the prison on bail they were adamant to take revenge. In his statement, this witness has described the incident and has stated that all the accused persons had taken out their countrymade pistols and fired gun shots towards the deceased and when he and other witnesses attempted to intervene, they were also threatened. It is also stated by him that other persons had taken the deceased immediately to the hospital in a Maruti van and he had gone to the police chowki and lodged the F.I.R., however, his father died during the course of treatment.

22. P.W.2- Dr. Shailendra Nath Mehrotra has proved the postmortem report prepared by him while P.W.3- Sardar Hardeep Singh who claimed himself the eye witness of the incident, stated that the deceased was a member of the Gurdwara Langar Committee and he along with Inder Mohan and Harminder Singh had arrived at the property of the deceased on 30.05.1997 at about 9 p.m. and the informant was also present there. He further stated that at about 9:15 a.m., the accused persons had arrived and fired gun shots towards the deceased and when they attempted to intervene, they were also threatened and thereafter the accused persons had fled away. It is also stated by him that he has taken the deceased to the medical college where the deceased was declared dead by the doctors.

23. P.W.4A- Inder Mohan Singh in his statement recorded before trial court stated the incident to have occurred on 9.15 a.m. on 30.05.1997 and that he was present at the cycle factory/godown of the deceased in relation with the arrangement to be made for celebrations of Guru Parv and that at about 9:55 a.m. the accused persons arrived and started firing gun shots towards the deceased from a distance of about 6 inches and thereafter fled away. He also stated to have taken the deceased to hospital and also that the informant lodged the F.I.R. at police station and when they arrived at the medical college, doctors declared the deceased as brought died.

24. P.W.5- Sri Ram Singh is the first Investigating Officer, who stated to have recorded the statement of various witnesses and thereafter to have been transferred at some other police station.

25. P.W.6- Vakil Ahmad has stated to have recorded the entry in the General Diary of the police station pertaining to the death of the deceased.

26. P.W.7- Sri R.R. Pal, Inspector, C.B.C.I.D has stated to have investigated the case and to have collected evidence during the course of investigation and also to have filed the chargesheet against the accused persons.

27. So far as the principles on the basis of which the appreciation of evidence tendered before the trial court is to be appreciated are concerned, they are now no longer res integra and the same have been settled by the Hon’ble Supreme Court in catena of its judgments.

28. In Vadivelu Thevar V/s state of Madras : AIR 1957 SC 614, wherein it is held by Hon’ble Apex Court that “The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated.” “The Indian Legislature has not insisted on laying down any such exceptions to the general Rule recognized in Section 134 quoted above. The Section enshrines the well recognized maxim that “Evidence has to be weighed and not counted.” Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon.

“It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.”

“Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.”

29. Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). It was held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short ‘the Evidence Act‘). But, if there are doubts and suspicion about the testimony of such a witness the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. Therefore, it is not the number, the quantity, but the quality which is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth around it, is cogent, credible and trustworthy, or otherwise.

30. In Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854 Hon’ble Supreme Court held in Para 10, that “The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness.”

31. In AIR 2003 SUPREME COURT 3617, Sucha singh v/s State of Punjab Hon’ble Apex Court after considering Masalti and others vs. State of U.P. (MANU/SC/0074/1964), State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76), opined as under:- “Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of “falsus in uno falsus in omnibus” (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liar. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that, it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence’. (See Nisar Ali v. State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and another v. (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and another v. State of Madhya Pradesh, 1972 3 SCC 751) and Ugar Ahir and others v. State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and others v.state of punjab (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc. (2002 (4) JT (SC) 186).”

32. In State of Gujarat vs J.P Varu reported in 2016 Cr.L.J 4185 (Supreme Court) it has been propounded by the Supreme Court that, ” Para 13 the burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted.”

33. Thus, the appreciation of the evidence produced by the prosecution is to be made in the background of above settled legal proposition.

34. Coming to the facts of the case, as per the case of the prosecution, the incident had occurred in the morning of 30.05.1997 i.e. at about 9:15 a.m. Having regard to the distance of the police station from the place of occurrence, the F.I.R. appears to have been lodged without any delay. Though it has been argued with considerable force that the F.I.R. appears to have been lodged ante-timed but keeping in view the fact that the entry of the substance of this information given by the informant has also been recorded in the General Diary of the police station and also keeping in view the statement of P.W.6- Sri Vakil Ahmad who had stated that at the relevant point of time he was posted as Chowki In-charge, K.G.M.C. Medical College and with regard to the death of the deceased information was sent to the police chowki K.G.M.C. which was entered into the General Diary of the chowki at 10:20 a.m. and copy of the General Diary has also been proved by him, this argument in the considered opinion of this Court is not having any substance. Moreover, P.W.4- Ram Shanker Verma, who at the relevant point of time was posted as Constable Clerk at the police station Bazar Khala, Lucknow has also fortified that he has entered the substance of the written information lodged by P.W.1- Gurpreet Singh at Bazar Khala in the General Diary No.22 at 9:45 a.m. on 30.05.1997 and also that he got information of the death of the deceased at 10:40 a.m. and on this information the case which was initially lodged under Section 307 I.P.C. was amended under Section 302 I.P.C. and substance of this modification was entered by him in the General Diary of the police station at Rapat No.27 at 10:40 a.m. on 30.05.1997 and he has proved the copy of the G.D. as Ext. Ka-6.

35. It is also reflected that P.W.6- Sri Vakil Ahmad has also established to have prepared the Panchayatnama and since the Panchayatnama has been prepared on the basis of the death information given by the K.G.M.C. staff and the F.I.R. of the case has been registered at police station Bazar Khala substance of which has been entered in the General Diary of the police station at Rapat No.22 at 9:45 a.m. and in this background, the crime number of the F.I.R. which was registered at Bazar Khala police station has not been mentioned in the inquest report and, thus, absence of crime number on inquest report may not be of any substance.

36. It is also evident from record that the incident had occurred at Malviya Nagar, Lucknow which falls under the police chowki Aishbagh of police station Bazar Khala, Lucknow and the incident is shown to have occurred within the boundary wall of the factory of the deceased. The informant, P.W.1- Gurpreet Singh and witnesses, Hardeep Singh and Inder Mohan Singh in their statements have fortified that the factory was surrounded by the boundary wall and a gate was also situated towards the west of the factory. P.W.3- Hardeep Singh and P.W.4A- Inder Mohan Singh appears to be the natural witnesses of the incident and their presence at the site of the occurrence, in the considered opinion of this Court, may not be doubted. Both these witnesses have fortified that the incident had occurred in the morning and they have assigned specific role of firing to all the accused persons, who according to them, were possessing countrymade pistols. The Investigating Officer has also collected plain soil and bloodstained soil along with two empty cartridges from the spot and, thus, there is no doubt pertaining to the place where the incident had occurred.

37. So far as the evidence tendered by witnesses, P.W.1- Gurpreet Singh, P.W.3- Hardeep Singh and P.W.4A- Inder Mohan Singh are concerned, there are certain minor discrepancies in the statement of these witnesses but these are natural minor contradictions which are bound to occur and are not affecting the core of prosecution story. The evidence of these witnesses is having a ring of truth around it. It is to be recorded that memory of a person fades with the passage of time and, therefore, it is very difficult for a witness, to recall exactly what had occurred at the relevant point of time. It is also worthwhile to mention that different persons perceive an incident differently and, therefore, it is not possible for prosecution witnesses to give a parrot like description of the incident and having considered the evidence of these witnesses of fact, we do not find any glaring contradictions therein and the truthfulness of these witnesses could not be doubted.

38. Dr. Shailendra Nath Mehrotra, who has been testified as P.W.2 has also given detailed account of the injuries sustained by the deceased and the postmortem report has been proved by him, which would reveal that the deceased had sustained various firearm injuries and his death had occurred due to shock and haemorrhage and coma as a result of ante-moretem firearm injuries. The Doctor has established and proved that these ante-mortem firearm injuries may be sustained by the deceased at 9:15 a.m. on 30.05.1997. Though certain minor embellishments have been highlighted by the learned counsel for the appellant to create some doubts with regard to the time of death of the deceased but having regard to the specific statement of P.W.2- Dr. Shailendra Nath Mehrotra that these injuries might have been inflicted on the person of the deceased at 9:15 a.m. on 30.05.1997, the hypothetical answers given by this witness during the course of cross-examination and in response to suggestions by the defence counsel, in our considered opinion, do not have any substance and on the basis of this, the reliable testimony of eye witnesses could not be doubted.

39. In Ramkant Rai v. Madan Rai and Ors. reported in MANU/SC/0780/2003 : 2004 CriLJ 36, the Apex Court has observed in Para No. 22 as under:

“22. It is trite that where the eye witnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. eye witnesses’ account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence Including medical evidence, as 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 credit-worthy; 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.”

40. Hon’ble Supreme Court in Ram Praksh and others vs. The State of Uttar Pradesh reported in Manu/SC/0062/1968, while dealing with a similar argument held in pargraph 5 of the report as under:-

“5. On the second point, it is urged, that according to the medical evidence the death might have been caused on the night intervening 18th and 19th July, 1966, Dr. S. P. Gulati P.W. 4, who had performed the postmortem examination stated that faecal matter and gas were present in the small and large intestines of Ganeshi Lal; owing to this reason he thought it probable that the deceased had not eased himself till the time of receiving the injuries. Mr. Anthony says that it is well-known that a person with normal habits particularly in villages empties his bowels early in the morning. The presence of the faecal matter in the small and large intestines showed that Ganeshi Lal must have died within some hours of his taking food on the previous night namely by the midnight of 18th and 19th July, 1966. This, according to Mr. Anthony, established that the prosecution case about the time of death cannot be accepted. Reliance has been placed on the statement in Modi’s Medical Jurisprudence and Toxicology, 10th Ed., p. 151, that one can give an opinion that the death occurred some time after the deceased go up in the morning if the large intestines was found empty of faecal matter. It is submitted that conversely it can well be said that if the large intestine is found full of faecal matter it should be inferred that death did not take place in the morning. The learned trial judge discussed this matter in his judgment and disposed it of by saying that there was no proof that before the occurrence Ganeshi Lal had eased himself and that even if he had gone for that purpose there was no presumption that his bowels had moved. According to him, the question of time had to be decided on the basis of direct and other evidence on the record. We concur in that view and find it difficult to accept that the question of time should be decided only by taking into consideration the fact that faecal matter was found in the intestines of the deceased. This may be a factor which might have to be considered along with the other evidence but this fact alone cannot be decisive.”

41. Thus, no contradiction of the medical evidence with the oral account of the incident as stated by P.W.1- Gurpreet Singh, P.W.3- Hardeep Singh and P.W.4A- Indra Mohan Singh is emerging in this case. There cannot be any doubt that while appreciating the evidence on record, the court is required to exercise due diligence, though the standard of such exercise would be of a prudent person. The Court must bear in mind the facts and circumstances where in the crime has been committed, the quality of evidence, nature of the witnesses, their level of understanding and power of perception and reproduction. The quest must be to find out the truth from the evidence on record. At the same time, it must be kept in mind that there cannot be a prosecution case with a cast iron perfection. Nevertheless, obligation lies on the court to analyze, sift and assess the evidence on record, with reference to trustworthiness and truthfulness of the prosecution witnesses, by a process of sincere judicial scrutiny adopting the yard stick of settled principles of appreciation of the evidence. What is to be insisted upon is proof beyond reasonable doubt. The contradictions, infirmities which might have been pointed out in prosecution case, must be assessed at the yardstick of probability. To judge the credibility of the evidence of a witness, one has to look into his evidence, and if any discrepancies is found in the ocular account of the witnesses not affecting the core of the case, the witness may not be labeled as not credit worthy. Even honest and truthful witnesses may differ in some details, which may not be related to the core of the prosecution case and their evidence, therefore, must be appreciated keeping in mind the power of observation, retention and reproduction as well as the human conduct and occurring incidents in ordinary course of nature.

42. The presence of the two eye witnesses on the scene of crime has also been doubted by learned counsel for the appellant by submitting that their presence is imaginary as they were not having any reason to be there where the incident has taken place. Keeping in view of the evidence of P.W.3- Sardar Hardeep Singh and P.W.4A- Inder Mohan Singh, it is evident that deceased Baldev Singh was convener of Gurdwara Langar Committee, Yahiyaganj, Lucknow and these witnesses had arrived in order to discuss the arrangements to be made for organizing a langar on the occasion of Guru Parv and they both in one voice have stated that they had come to discuss the formalities and modalities of organizing the festival of Guru Parv with the deceased. They have also stated that they had earlier gone together to collect donation from various persons and also that the time of their meeting was fixed a day before the incident by the deceased himself, thus, having considered the evidence of these witnesses, we find a ring of truth in it and, in our considered opinion, they have given a truthful account of the incident.

43. So far as the motive which has resulted in the commission of offence is concerned, the same was available to the accused persons and has also been proved by the prosecution. The establishment of shop by the accused persons in front of the godown/cycle factory of the deceased and the fact that earlier also the accused persons have assaulted the Manager of the factory of the deceased, in our considered opinion, is a sufficient indication that accused persons were highly inimical towards the deceased as they had gone to prison for assaulting the Manager of the deceased.

44. One of the submission advanced by learned counsel for the appellant is that P.W.4A- Inder Mohan Singh is the son-in-law (damad) of the deceased Baldev Singh and, therefore, he is an interested witness and the informant, Gurpreet Singh (P.W.1) is the son of the deceased and, therefore, he is also an interested witness and, thus, their testimonies could not be believed and P.W.3- Hardeep Singh is also the member of a committee which was looking after the organization of the festival of Guru parv and was a close associate of the deceased.

45. In Appabhai and Ors. vs. State of Gujarat : MANU/SC/0028/1988, Hon’ble Supreme Court held as under :-

“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.”

46. In Sucha Singh and Ors. vs. State of Punjab : MANU/SC/0527/2003, Hon’ble Supreme Court has observed as follows :-

“15. In Dalip Singh and Ors. v. The State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 it has been laid down as under:-

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

16. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 in which Vadivelu Thevar v. State of Madras MANU/SC/0039/1957 : 1957CriLJ1000 was also relied upon.

17. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness. should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh’s case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:

“We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. It the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If 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 one which another Bench of this Court endeavoured to dispel in – ‘Rameshwar v. State of Rajasthan MANU/SC/0036/1951 : 1952CriLJ547 . we find, however, that it unfortunately still persists, it not in the judgements of the Courts, at any rate in the arguments of counsel.”

18. Again in Masalti and Ors. v. State of U.P. MANU/SC/0074/1964 : [1964]8SCR133 this Court observed: (p, 209-210 para 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. 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 rejected because it is partisan cannot be accepted as correct.

20. As observed by this Court in State of Rajasthan v. Teja Ram and Ors. MANU/SC/0189/1999 : 1999CriLJ2588 the over-insistence on witnesses having no relating with the victims often results in criminal justice going away. When any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.”

47. In Bhagaloo Lodh and Ors. vs. State of U.P. reported in MANU/SC/0700/2011 it was held as under :-

“14. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased. (Vide: M.C. Ali and Anr. v. State of Kerala MANU/SC/0247/2010 : AIR 2010 SC 1639; Myladimmal Surendran and Ors. v. State of Kerala MANU/SC/0670/2010 : AIR 2010 SC 3281; Shyam v. State of Madhya Pradesh MANU/SC/7112/2007 : (2009) 16 SCC 531; Prithi v. State of Haryana MANU/SC/0532/2010 : (2010) 8 SCC 536; Surendra Pal and Ors. v. State of U.P. and Anr. MANU/SC/0713/2010 : (2010) 9 SCC 399; and Himanshu @ Chintu v. State (NCT of Delhi) MANU/SC/0006/2011 : (2011) 2 SCC 36).”

48. It is, therefore, settled that merely because witnesses are close relatives of victim, their testimonies cannot be discarded. Relationship with the deceased is not a factor that affects credibility of a witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case, Court has to adopt a careful approach and analyses the evidence to find out, whether it is cogent and credible evidence.

49. Keeping in view the law placed herein before, it is evident that the testimony or the evidence of a person could not be doubted only on the score that he is related to the deceased or informant. It depends on the facts and circumstances of each case in order to assess the actual incident, as to whether the presence of the accused persons as well as of the witnesses was probable at the given time and place. The incident had occurred in the early hours of the day and P.W.3- Hardeep Singh as well as P.W.4A- Inder Mohan Singh in one voice have stated that they had come to godown/factory of the deceased Baldev Singh to discuss the modalities of organization of festival of Guru Parv. Informant is the son of the deceased and since it has been established beyond doubt by the prosecution that the place of incident was surrounded by the boundary wall from all sides, the presence of any other witness was not possible, on the score that at first, the incident is of early morning and secondly, as the place of incident was protected by boundary wall, it is not expected from anyone standing outside the premises to have seen the incident, thus, the only caution which is to be exercised by this Court is to appreciate the evidence of these witnesses who are related to the deceased with a little amount of caution in its mind but only on this score that the witnesses are related to the deceased or informant their testimonies could not be rejected outrightly.

50. Having considered the evidence of these witnesses in the backdrop of the submissions advanced by learned counsel for the appellant, it is evident that P.W.3- Hardeep Singh has stated in clear terms that P.W.4A- Inder Mohan Singh is son-in-law of deceased Baldev Singh and P.W.4A- Inder Mohan Singh has also stated in clear terms that witness Hardeep Singh is the son-in-law of deceased Baldev Singh, therefore, these witnesses have not concealed their relationship with the deceased. Moreover, it is an admitted fact that the deceased has sustained multiple firearm injuries within the four walls of his factory, thus, the question which stairs the face of this Court is why the son and close relative of the deceased will implicate the innocent persons leaving the main culprits of the incident. It is true that prior enmity is a double edged weapon but when a criminal case is based on the evidence of certain witnesses who have claimed to have seen the incident, the fate of that case is required to be adjudicated on the quality of the evidence tendered by those witnesses who claimed to have seen the incident. In our considered opinion, the presence of eye witnesses, P.W.1- Gurpreet Singh, P.W.3- Hardeep Singh and P.W.4A- Inder Mohan Singh, who claimed to have seen the incident have been established at the place of the incident beyond reasonable doubt and, therefore, their reliable testimony could not be brushed aside only on the basis of their relationship with the deceased.

51. The record would further reveal that informant, Gurpreet Singh testified as P.W.1 has corroborated the allegations levelled in the F.I.R. He has categorically stated about the date, time and place of the incident as well as has given a reliable and trustworthy account of incident. The other two witnesses, namely, P.W.3- Hardeep Singh and P.W.4A- Inder Mohan Singh have also supported the case of the prosecution and their evidence is not containing any contradictions so far as the date, time and place of the incident is concerned. As stated earlier the presence of the three prosecution witnesses, namely, P.W.1, informant Gurpreet Singh, P.W.3- Hardeep Singh and P.W.4A- Inder Mohan Singh is fortified at the place of the incident. The enmity between the parties is well established. The accused persons were known to the witnesses and informant. The manner of assault as stated by these three witnesses of fact is finding corroboration also by the medical evidence. Prior to the incident, the Manager of the deceased, namely, Mukhtar Singh was also assaulted by the accused persons on 01.02.1997 pertaining to which, a case under Section 307 I.P.C. was registered and the accused person were lodged in jail in connection with that case. In the meantime, the deceased appears to have encroached the land which was being claimed by the accused persons and the boundary wall which was demolished by the accused persons was also constructed during this period i.e. when the accused persons were in jail in connection with the case lodged pertaining to the assault on Mukhtar Singh (Manager of the deceased Baldev Singh). The accused persons after being released from jail on bail were annoyed by the aforesaid act of the deceased. At the cost of repetition, we would like to highlight that there is no material contradiction in the testimony of these witnesses. The deceased has been assaulted with gun shots fired from firearms from a very close range as is evident from the postmortem report as blackening and tattooing has been found in many injuries sustained by the deceased. The act of all the accused persons of coming together shooting the victim and leaving the place of occurrence would suggest clearly that they were acting in furtherance of a common design and common plan, thus, they were sharing common intention to commit the murder of the deceased and as they all have fired gun shots towards the deceased, they all have participated in the incident. Thus, having regard to the evidence available on record, we do not find any infirmity and perversity in the judgment of the trial court so far as the appreciation of evidence is concerned. To us the case of the prosecution is/was proved beyond reasonable doubt before the trial court. In result the appeal preferred by the appellant appears to be without any substance and force and, thus, is dismissed as such.

52. The record would reveal that by passing the impugned judgment accused persons, namely, Shiv Dayal Sharma and Ravi Pratap Sharma both were convicted for committing offence under Section 302/34 I.P.C. One of the appellant, namely, Ravi Pratap Sharma has died during the pendency of instant appeal and proceedings of this appeal has already been abated so far he is concerned and appellant No.1- Shiv Dayal Sharma has also been released from prison in pursuance of the remission granted by the State Government and in this regard a report has also been submitted by the Office of the Senior Superintendent of Central Jail, Naini, Prayagraj dated 14.04.2024, which is also available on record, thus, the appellant No.1 Shiv Dayal Sharma is not required to surrender anywhere in connection with this case unless wanted in any other criminal case.

53. A copy of this order be immediately sent to the trial court along with record of the trial court and also to the Member/Secretary, Uttar Pradesh State Legal Services Authority.

54. Shri M.P. Yadav, learned Amicus, who appeared and assisted this case for appellant No.1, Shiv Dayal Sharma shall get Rs.15,000/- as Honorarium, which shall be paid by SLSA Uttar Pradesh within thirty days from today.

Order Date :- 22.01.2025

N. Pal/Shubhankar