Allahabad High Court
Shiv Kumar And Another vs State on 11 May, 2026
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 2026:AHC-LKO:33910-DB HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW RESERVED ON 1.4.2026 DELIVERED ON 11.5.2026 CRIMINAL APPEAL No. - 273 of 1991 Shiv Kumar and another ..Appellant(s) Versus State ..Respondent(s) Counsel for Appellant(s) : R.N.S. Chaudhary, Sanjeev Shukla Counsel for Respondent(s) : G.A., Court No. - 10 HON'BLE RAJNISH KUMAR, J.
HON'BLE MRS. BABITA RANI, J.
(Per: Hon'ble Mrs. Babita Rani, J)
1. Heard Sri Sanjeev Shukla, learned counsel for the appellants and Sri Shaielndra Singh, learned State counsel.
2. The order shall dispose of the afore-mentioned appeal which has been preferred by the appellants against the judgement and order dated 03.05.1991 passed by Additional Sessions Judge, Unnao in Sessions Trial No. 146 of 1986 arising out of case crime number 177/85, police station- Aasivan, district Unnao, in re: Shiv Kumar & Another v. State, whereby the accused, Rishikesh and Shiv Kumar were held guilty for commission of offence punishable under section 302 IPC read with Section 34 of the Indian Penal Code, 1860 ('IPC') while accused Saristey Lal and Ramshanker @Nanhu were acquitted from the charges under Section 302 read with Section 120-B of IPC. However, no appeal has been filed by the state, challenging the acquittal of co-accused Saristey Lal and Ramshanker.
3. During the pendency of the appeal, appellant no. 1, namely Shiv Kumar, had passed away and thus, the instant appeal was abated on his behalf by this Court vide its order dated 27.02.2024. Thus, the instant appeal survives only for appellant no. 2, namely Rishikesh who was bailed out on 06.06.1991.
4. For the sake of convenience, the parties shall be referred as per their original nomenclature as given at the time of trial.
FACTUAL MATRIX OF THE CASE
5. The case as set up by prosecution is that on 25.10.1985, the complainant Kamlesh Kumar along with Rajdev (deceased) and Nageshwar (PW2) are said to have been going to Panapur School on their bicycles. Rajdev was teacher in Panapur School and after taking leave from school, he had to go to the court with the complainant to file affidavit. At around 10:00 AM, when they reached in front of Tajpur Village, the accused Rishikesh (appellant no. 2) and Vijay Kumar carrying 'banka' in their hands while accused Shiv Kumar (appellant no.1) carrying a country made pistol suddenly emerged from a deep drain along the left track of canal. Accused Rishikesh is said to have caught hold of the handle of Rajdev's bicycle after which Vijay Kumar stuck Rajdev's head with the 'banka' due to which Rajdev fell from his bicycle. Then Rishikesh attacked Rajdev with his 'banka' and Shiv Kumar fired a close range shot at Rajdev, resulting in Rajdev's death. When Kamlesh and Nageshwar raised noise to rescue, then accused Rishikesh threatened to eliminate them and in fear, both Kamlesh and Nageshwar, stepped back. The accused, after commission of offence, fled away with their weapons from the scene. It has been further averred that after the accused had left, both Kamlesh and Nageshwar went to the spot and found the deceased dead due to injuries on the head with amputation of fingers of left hand. Thereafter, the complainant, Kamlesh Kumar wrote the Tehrir (Ka.1) under his handwriting and signature on the spot itself and left for police station on his bicycle to get the first information report lodged naming Shiv Kumar, Vijay Kumar and Rishikesh.
6. On the basis of Tehrir (Ex.Ka.1), First Information Report (Ex.ka.3) was registered under Section 302 of IPC against the accused on the same day. The initial investigation of the case was started by Sub Inspector Praveen Singh who prepared the site map, recovered spectacle, white pant, a box of cigarettes, pencil, pair of shoes and a coin from the body of the deceased, one cartridge, bicycle, pair of slippers alleged to have been left by the accused, sample of blood stained earth and plain earth, and same were respectively sealed on the spot itself vide respective recovery memo. He prepared the panchnama of dead body, including the other relevant papers including challan of the dead body and photo-lash of deceased. Thereafter, investigation was transferred to SHO Ganesh Prasad (PW7), who after taking over the investigation on 26.10.1985 and after completion of required formalities concluded the investigation and on the basis of incriminatory evidence found against accused, filed a charge-sheet (Ex. Ka.4A) under Section 302 read with Section 34 of IPC on 30.11.1985 against accused Rishikesh, Shiv Kumar and Vijay Kumar. On 11.12.1985, a charge-sheet (Ex.Ka.5) was filed against accused Saristey Lal and Ramshanker under Section 302 read with Section 120-B of IPC. Due to death of the first investigating officer, the documents prepared by him were produced and proved by PW7 i.e. second investigating officer as Ex. Ka.6- Ka.12 accordingly.
7. On finding a prima facie case, charge was framed against Shiv Kumar and Rishikesh under Section 302, read with Section 34 of IPC whereas under Section 302/120B of IPC against accused Saristey Lal and Ramshanker, to which they pleaded not guilty and claimed trial.
8. Vijay Kumar had already passed away by the time of the trial and thus, the trial was abated against him and continued against the remaining accused. The prosecution examined as many as 7 witnesses and a Court Witness was also examined after which the prosecution closed its evidence.
9. The statements of accused were recorded under Section 313 of Code of Criminal Procedure, 1973 (CrPC). They pleaded false implication and claimed themselves to be innocent. Despite being provided opportunity of leading evidence, the accused did not furnish any evidence in their defence and accordingly their opportunity of leading evidence was closed.
10. In order to properly appreciate the evidence and the circumstances which were arrayed against the accused, it may be apposite to have a brief resume of the evidence led by the prosecution. PW1 Sehdev was named in the FIR as eye witness to the incident but in his testimony he did not support the case of the prosecution and denied being a witness to the incident. He also stated that he had not given any statement to the investigating officer and denied the statement recorded under Section 161 of Cr.P.C. However, the fact of killing of the deceased on the relevant date, time and place has not been disputed by this witness and rather has corroborated the version of the prosecution. The only fact of which he resiled from his earlier statement made to the investigating officer is complicity of accused in the commission of offence and deposed that he did not see the accused committing the offence.
11. PW2, Nageshwar is an eye-witness to the incident and his testimony was found to be credible by the learned Trial Court. He testified that on 25.10.1985, he, along with Rajdev and complainant Kamlesh Kumar were going to Panapur School on their bicycles. At the time of the incident, deceased Rajdev was riding ahead, followed by complainant Kamlesh Kumar and PW2 was behind them. When they reached Village Tajpur, the three accused named above suddenly emerged in front of them, having arms with them. Accused Rishikesh and Vijay Kumar were having 'banka' with them while accused Shiv Kumar was carrying a country-made pistol. Accused Rishikesh caught hold of the handle of Rajdev's bicycle and called upon his accomplices to eliminate him. Thereafter, Vijay Kumar hit Rajdev on the head with his 'banka' due to which Rajdev fell down from his bicycle. Thereafter, Rishikesh also hit him with the 'banka' and Shiv Kumar fired at him. Seeing this, the complainant and PW2 started shouting and the three accused turned around stating 'kill them too'. Thereafter, the complainant and PW2 turned around and started running. After committing the offence, the accused also fled away from the scene and it was then only when PW1 and PW2 access the deceased and found him dead. The accused even had thrown away the bicycle of deceased Rajdev in the canal. When PW2 and the complainant went to check on Rajdev, he had passed away.
12. PW2 further stated that he was the son of Rajdev's uncle and there was prior enmity between complainant Kamlesh Kumar's father and accused Shiv Kumar's father due to a property dispute. He further stated that prior to the incident, complainant Kamlesh Kumar had filed a dacoity case against Shiv Kumar and some others. PW2 stated that they had decided to go to Panapur one day in advance. No one else was present at the time of their discussion relating to going to Panapur. Rajdev was going to take a leave from the school and to go with the complainant to file an affidavit in Unnao in the dacoity case filed by the complainant in which the police had filed a final report. It has been further deposed that deceased Rajdev was a resident of Langlesa village and his village was at a distance of around 1.5km from the village of PW2. He reached Rajdev's house at around 9:00 AM on the day of the incident. He stayed there for nearly 0.5 hours and then left for the school. Complainant Kamlesh Kumar had also reached by that time and they all left for the school. Rajdev had not eaten anything in PW2's presence. At the time of incident, 4-5 people from the nearby field had assembled but he could not find their names.
13. Complainant PW3, Kamlesh Kumar corroborated the details of the incident as stated by PW2. He further confirmed that there was prior enmity between his father and accused Shiv Kumar's father. He further testified that there was also some prior property dispute between accused Rishikesh and deceased Rajdev. PW3 stated that prior to the incident dated 25.10.1985, he had been robbed at Safipur Miyaganj road due to which he had filed a complaint against accused Shiv Kumar, Saristelal and others and a final report had been filed in the case. The complainant, along with PW2 and deceased Rajdev were going to file an affidavit in the said case. A prior suit had also been filed between PW3 and accused Shiv Kumar relating to the cancellation of a lease.
14. PW4, Shyam Mohan Singh, had performed the post-mortem of the deceased Rajdev and the post-mortem report (Ex Ka2) disclosed the following injuries:
Incised wound 15 cm X 3 cm X brain cavity deep placed on left occiplo parietal region of scalp oblique. Its posterior end is about 7 cm above root of neck and about 5 cm above the root of left ear. Parietal and occipital parts are cut. Brain matter coming out through this injury. Margins of the wound are clear cut and well defined.
Incised wound 9 cm X 2 cm placed on left occipital region of scalp, bone deep oblique its lower end is about 10 cm above left ear. Margins are clear cut and well defined.
Gun-shot wound of entry 2 cm X 2 cm X brain cavity deep, oval in shape, placed on left side of occipital region of scalp, 4 cm above root of left ear on occipito pareital border of scalp. Margins are inverted, Blackening and tatooing present. Wound of exit not seen.
Abrasion 4 cm X 2 cm on left side of chest below nipple.
Abrasion 2 cm X 1 cm placed lateral to Inj. No.4.
Little and ring finger of left hand cut at Meta carpo phalangeal joint through & through. Bone is cut.
Incised wound placed on back of left hand middle finger. Bone of middle finger at phalanx cut.
The post-mortem report further revealed that the stomach of the deceased contained 250gm of semi-digested food. PW4 stated that the death could have been caused on 25.10.1985 at around 10AM and the injuries could have been caused by a 'banka' and the deceased also sustained injuries indicative of having fallen from a bicycle. PW4 stated that he received the body for post-mortem on 26.10.2025 at around 10:15 AM.
15. PW5 constable Jagdish had taken the dead body of Rajdev for postmortem. He stated that he got the post-mortem conducted at around 2:00 PM on 26.10.1985.
16. PW6 Head Constable Chotelal Tiwari stated that at around 12:40 PM on 25.10.1985, complainant Kamlesh Kumar came to the police station with a written complaint on the basis of which he wrote the FIR (Ex Ka3) and prepared GD.
17. PW7 Ganesh Prasad Mishra said that the initial investigation of the case was conducted by Sub Inspector Praveen Singh. Thereafter, he took over the investigation on 26.10.1985. Sub Inspector Praveen Singh had died and thus, could not testify before the learned Trial Court. PW7 prepared charge sheet Ex Ka4A against accused Vijay Kumar, Shiv Kumar and Rishikesh and chargesheet Ex Ka5 against accused Saristelal and Ram Shankar.
18. CW1 Sumeri Lal stated that he received the non-bailable warrant issued against Rishikesh and thereafter, found that Rishikesh had been absconding. He further testified that Rishikesh was also an accused in another offense registered under Section 302 IPC.
19. After considering the contentions raised by both the sides and appreciating the evidence produced on record, the learned Trial court acquitted the accused, Saristey Lal and Ramshanker of the charges as framed against them and convicted the accused Shiv Kumar and Rishikesh in the manner as indicated above.
20. Feeling dissatisfied from the order and judgement of conviction, the accused, Shiv Kumar and Rishikesh preferred the instant appeal.
Contentions raised by the parties
21. Raising challenge to the impugned order and judgment passed therein, learned counsel for accused vehemently argued that learned trial court had ignored that there were several material lacunas in the case of prosecution which had rendered the prosecution story highly improbable and doubtful. The trial court had committed grave error in holding that there was no inordinate or unexplained delay in lodging the FIR and failed to appreciate that the material witnesses have failed to explain the delay in a reasonable manner. Alleging the FIR to be anti-timed, it was contended that the incident is alleged to have taken place at around 10:00 AM and the FIR is said to have been lodged at 12:40 PM whereas the distance of the police station from the scene of incident is just around 4 miles and thus, it could not have taken 2 hours and 40 minutes for the complainant to reach the police station. The appellants state that the FIR was filed after deliberation to falsely implicate the accused. The FIR had not been promptly lodged and was deliberately delayed and manipulated.
22. The next contention of the accused is that they have been falsely implicated in the matter as there was prior enmity between the families of the accused/appellants and the complainant. The complainant's father, Guruprasad and accused Shiv Kumar's father were involved in a property dispute at the time of the incident. Further, the complainant had earlier been robbed at Safipur-Miyaganj road due to which he had lodged a complaint against accused Shiv Kumar, Saristey Lal and others. The accused had no direct enmity with Rajdev and had there been any such incident as alleged, it would have been much more likely that they would have attacked the complainant instead of Rajdev. Therefore motive as alleged has rendered the prosecution version unbelievable.
23. Further, the accused also highlighted various discrepancies in the testimony of the prosecution witnesses. They contended that the complainant PW3 stated that he along with PW2 and deceased Rajdev were going to court to file affidavit and for that Rajdev was going to take a leave from school. However, a pair of slippers was recovered from the scene of occurrence and it is unlikely that Rajdev would be going to either the school or the court in a pair of slippers. Only a single coin was found from the body of the deceased which was highly unlikely and the complainant had not informed the family members of the deceased before lodging the FIR which is unnatural behaviour.
24. The further contention is that the death of deceased was ante-timed as the post-mortem report revealed that the deceased had around 250gm of semi-digested food in his stomach at the time of death. PW2 and PW3 had stated in their testimonies that the deceased had not eaten anything on 25.10.1985 and thus, it was likely that the deceased had been killed early morning on 25.10.1985 and due to the reasons, he was found with semi-digested food of the previous night and thereafter, the accused were falsely implicated in the matter by alleging that the death occurred at around 10:00 AM at the hands of the accused.
25. Concluding the contentions, it has been submitted that since PW2 and PW3 are interested and related witnesses and neither sustained any injuries in the incident in-spite of being present on the spot, it is suffice to take inference that neither they are reliable witnesses nor the version of prosecution can be taken as gospel truth and that impugned judgement of conviction and order on quantum of sentence are liable to be set aside as the findings given by learned trial court are perverse being based on mis-appreciation of evidence produced on record. The presence of PW2 and PW3 have not been established beyond doubt, rather they were proved to be planted witnesses and their evidence was highly improbable, unnatural and unworthy of any credit. Further contention is that the PW2 is the interested witness being relative of the deceased. In the same tune, PW3 is also a planted witness as he couldn't establish the reason for his presence on the spot and that is why none of alleged eye witnesses have suffered any injury. Had PW3 been present on the spot, then there was no reason for the accused to have let him go free while causing injuries to his companion. With these broad submissions, it was argued that impugned judgement is liable to be set aside, and the appeal filed by accused deserves to be accepted, and that the accused deserves to be acquitted.
26. The learned counsel for the respondent submitted that the learned trial Court has passed a speaking and well-reasoned judgment based on proper appreciation of evidence available on record. The testimonies of PW2 and PW3 remain unblemished and unchallenged, thus, the judgment of the learned trial Court convicting the accused warrants no interference.
POINTS OF DETERMINATION
27. Upon perusal of the contentions advanced by both the parties, the testimony of the witnesses, the impugned judgment and other evidence available on record, the following issues emerge for consideration:-
A. Whether the Trial Court erred in relying upon the testimony of PW2 and PW3 without appreciating the fact that PW3 had prior enmity with the accused and PW2 was a relative of the deceased?
B. Whether deceased died a homicidal death at the given time and place and whether the first information report was promptly lodged?
C. Whether judgment passed by trial court suffers from any illegality and perversity as argued?
Answer to here-in-above formulated issues:-ISSUE NO. 1
28. The learned Trial Court found the testimony of the witnesses and the ocular evidence present on record to be sufficient to convict the accused. The appellants have vociferously stated that the testimonies of PW2 and PW3 could not have been relied upon as they were interested and related witnesses. Before commencing to pen down an answer to the issue no (i), it is deemed apposite to refer to the following judicial precedents laying down the principles relating to the evidentiary value of ocular evidence and eye-witness account.
29. In Vadivelu Thevar v. State of Madras, reported in (1957) 1 SCC 700, the Hon'ble Supreme Court held that witnesses can broadly be classified into three categories which are:
"18. 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.
19. 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. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
(Emphasis added by court)
30. In Dalip Singh And Others v. State Of Punjab, reported in (1953) 2 SCC 36, the Hon'ble Supreme Court observed that:
"24. 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. 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.
25. This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course, that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices."
(Emphasis added by court)
31. In Thoti Manohar v. State of Andhra Pradesh; (2012) 7 SCC 723, the Hon'ble Supreme Court made the following observations:
"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 cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."
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 for 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:
"16. it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and 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 careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon.
"16..If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted."
*****
38. The learned counsel for the appellant has endeavoured hard to highlight certain discrepancies pertaining to time, situation of the land, number of persons, etc., but in our considered opinion, they are absolutely minor in nature. The minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount to adopting a hyper-technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored"
(Emphasis added by court)
32. In the instant case, learned trial court found and observed PW2 and PW3 as wholly reliable witnesses and recorded the conviction against the accused, which has been raised to challenge by accused. Now in the light of arguments raised by the accused as well as the aforementioned precedents, we proceed to test the veracity and reliability of the testimonies of PW2 and PW3 firstly regarding the probative value of their evidence even if they are found to be related witnesses and secondly, on the basis of the reasons for their natural presence on place of occurrence.
33. The accused pointed out that PW2 was the son of uncle of deceased Rajdev, and thus, he was a related witness whose testimony could not have been relied upon in convicting the accused. But as observed by Hon'ble Supreme Court in Thoti Manohar (supra), merely on the ground of being a relative, the testimony of a witness does not become unreliable. It is not disputed that PW2 was a relative of Rajdev and thus, he was related to the deceased. However, there is nothing on record which would indicate why PW2 would falsely implicate the accused. The accused frequently alleged that the complainant PW3 had prior enmity with them but they could not throw a similar shade on the testimony of PW2. PW2 had no purpose or object in implicating an innocent person for the murder of Rajdev. He was cross-examined at length and in great detail but no material inconsistency has been found in his testimony. The description of the incident as given by PW2 is corroborated by the recovery (Ex Ka7 to Ka11) made by the police. We thus concur with the finding of the learned Trial Court that the testimony of PW2 was reliable and trustworthy.
34. PW3, on the other hand, had prior enmity with the accused. His father was engaged in some property dispute with the father of accused Shiv Kumar. Further, PW3 had filed a dacoity case against accused Shiv Kumar and others in which Rajdev was a witness for PW3 Kamlesh Kumar and police had filed final report in the case. When the alleged incident took place, the deceased Rajdev, along with PW2 Nageshwar and PW3 Kamlesh Kumar, were going to file a protest application against the final report. Further, it is relevant to mention here that Rajdev had also been a witness in a previous bribery case filed by complainant PW1 against a police officer. Thus, deceased appears to have been routinely involved in the legal affairs of the complainant PW3 and it seems natural for him to accompany PW3 in filing a protest application against a final report, therefore, the presence of PW3 at the time and place of occurrence cannot be said to be a mere coincidence or a matter of chance. Deceased Rajdev was a school teacher and thus, it does not raise suspicion if the complainant sought his assistance in legal formalities. PW3 was also cross-examined in length but no material inconsistency could be found in his testimony from the version stated in the FIR or from the testimony of PW2. Despite lengthy examination, the testimonies of both PW1 and PW2 appear to be unblemished and no material inconsistency has been brought to light.
35. Another point raised by the accused to discredit the testimony of PW2 and PW3 is that PW1 turned hostile and did not support the case of the prosecution. He denied being at the scene of incident. Further, no other independent witness was examined by the prosecution and this failure, it is contended, would be fatal to the case of the prosecution.
36. In this regard, we may refer to the judgment of the Hon'ble Supreme Court in Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, wherein the Hon'ble Supreme Court made the following observations:
"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 serious misconception of the correct legal position. The onus of proving the prosecution 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 the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But 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 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 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 in 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, yet there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village home. So far as Pakodewalla and Hotelwalla etc. are concerned there is positive evidence to show that they were interrogated by the police but they expressed ignorance about the occurrence. In this connection the evidence of P.W. 5 Harnek Singh clearly shows that the Investigating Officer interrogated the Hotelwalla and the Pakodewalla but they stated before him that they had not witnessed the occurrence. In these circumstances, therefore, there was no obligation on the prosecution to examine such witnesses who were not at all material. It is not a case where some persons were cited as eye-witnesses by the prosecution on material points and were deliberately withheld from the Court. For these reasons, therefore, the learned Additional Sessions Judge was not at all justified in raising an adverse inference against the prosecution case from this fact and the High Court was right in rejecting this part of the reasoning adopted by the learned Additional Sessions Judge."
(Emphasis added by court)
37. So far as assailing the prosecution version by the accused on the ground of non-examination of persons assembled on place of occurrence is concerned, it is worth-while to mention here that although PW2 and PW3 stated that when they raised hue and cry, people working in the nearby fields had come to the spot of incident, but none of them have been produced as a witness by the prosecution. In dealing with this contention, learned Trial Court came to the conclusion that this failure was not fatal as it is not unusual for people to resist being produced as witnesses in the courts. This is a ground reality which we cannot deny. It is not that the prosecution did not produce any witness as both PW1 and PW2 stated that PW1 Sehdev had witnessed the incident. The incident is of 25.10.1985 and the statement of PW1 was recorded on 01.06.1988. Accused Vijay Kumar had also died in the intervening period and complainant PW3 had spent nearly one year in jail. Both the prosecution and defence seem to be intervened in an intricate web of enmity and have not restrained themselves from resorting to violence. PW1 appears to have taken a neutral stand and has denied witnessing the incident itself. He stated that he came to the spot after the incident had taken place and did not support either the prosecution or the defence. There are ample reasons for PW1 to have turned hostile and take such a neutral stand and we thus find that merely because PW1 turned hostile, the entire case of the prosecution cannot be said to have fallen, therefore, the contention of accused is rejected out-rightly on this score. Moreover, the fact of killing of deceased between 9-10 am on the day of occurrence and place of occurrence has been corroborated by the evidence of PW1.
38. Another contention raised to challenge the prosecution version is that PW2 and PW3 have not been injured in the incident, despite the fact that PW3 had an intrinsic enmity with accused Shiv Kumar. However, merely because they had not been injured in the incident, their testimony cannot be discarded as unreliable or tainted. In the case of Mallanna v. State of Karnataka (2007) 8 SCC 523, the Hon'ble Supreme Court made the following observations regarding the evidentiary value of uninjured related and interested witnesses "22. Another ground of attack to the evidence of PW-1, PW-2 and PW-3 is that no reliance should be placed upon these witnesses as PW-1 and PW-2 are close relations of the deceased and PW-3 is his bodyguard inasmuch as, undisputedly, there was animosity between the deceased and the accused persons, especially when these witnesses cannot be said to be stamp witnesses as none of them has received any injury. In our view, merely because witnesses are related or interested or not injured their evidence cannot be discarded if the same is otherwise found to be credible, especially when they have supported the prosecution case in material particulars. All the three eyewitnesses PW-1, PW-2 and PW-3 are natural witnesses. PW-3 was undisputedly bodyguard of the deceased and PW-1 and PW-3 came with the deceased to the house of PW-2 which was in Gulbarga the previous night for appearance of the deceased in Sessions trial, pending against him, in the morning court at Gulbarga and in the morning all of them went to the court where the present occurrence had taken place in the broad day light. So far as PW-2 is concerned, further submission has been made that his evidence should be discarded also on the ground that he made the statement before the doctor [PW-6] to the effect that A-4 was also the assailant, as would appear from Exhibit P-10, an entry made in the register duly maintained in the hospital, which shows that he had not seen the occurrence. The learned counsel for the appellants is right in submitting that A-4 was not an assailant but only a person present at the time of the conspiracy being hatched as per the prosecution itself, but has been named along with the accused persons who were said to have assaulted the deceased. The submission of the counsel is that therefore his testimony as a whole has to be discarded and the statement of this witness cannot be accepted in the circumstances of the case. PW-2 is a close relation of the deceased. In fact, the deceased stayed with him the previous night and they came to the court premises. The incident had happened unexpectedly all of a sudden. Immediately thereafter he along with two others carried the deceased in an auto-rickshaw to the hospital and reported the incident to the doctor. One can understand in the circumstances that the witness was in complete shock and, therefore, a discrepancy made by him in including the name of A-4 along with the other accused persons to be assailants is a mistake which could be committed by any person in the circumstances narrated above. For this mistake, the statement of PW-2 cannot be discarded which is corroborated in material particulars by the statements of other eye-witnesses and the documents produced by the prosecution. Further, it has been submitted that this witness was an advocate, as such he ought to have realised the implication of delay in lodging the FIR. We find from the evidence of this witness that he being close relation of the deceased was under shock, as such he couldn't take any steps for lodging the FIR before the same was lodged by PW-1. Thus, we find no reason whatsoever to discard the sworn testimony of PW-1, PW-2 and PW-3."
39. Further, it should not be out of place to mention here that PW2 has adduced reliable and convincing reason for being with deceased and PW3 Kamlesh at the time of occurrence. He stated that a day before the incident, they all had decided firstly to go to Panapur school where the deceased was a teacher and then, after getting the casual leave of the deceased sanctioned, proceed to Unnao to file protest application and for this reason they all were on their way at the relevant time. This witness was questioned at length, but he answered every question accurately and stood by his statement leaving no scope of doubt. As discussed earlier, PW2 and PW3 were natural witnesses and were thus present at the spot of occurrence. Their testimony cannot be discarded merely because they were uninjured or related or interested, when the learned Trial Court found their testimony to be reliable. No material inconsistency has been pointed out in their testimony which would lead us to take a contrary view. No substance is found in the argument raised by the accused to the effect that deceased was killed in early hours of the morning as semi-digested food was found in his stomach. We find that PW2 and PW3 merely stated in their testimonies that deceased Rajdev had not eaten anything in their presence, but it does not mean that he did not eat in breakfast. PW 2 stated that he reached Rajdev's house at 9:00 AM and then PW2 reached later. However, this does not indicate that Rajdev had not eaten anything prior to 9:00 AM when PW2 reached his residence. The food was found in semi-digested condition and thus, it was more likely to be something eaten in the morning. Even PW1, who turned hostile, has supported the case of the prosecution in this regard and has stated that he came to know that the incident took place at around 9-10:00 AM. We are in agreement of the observation recorded by the learned Trial Court that it is a usual practice for people to eat something by 10:00 AM in the morning before they leave home for something and thus, the undigested food found in Rajdev's stomach would have been what he had eaten in the morning. Hence, issue no.1 as formulated above is decided against the accused.
ISSUE NO.2
40. Now we take up the argument as raised by learned counsel for accused that the FIR is anti- timed and there was inordinate and unexplained delay in lodging the first information report. The case of prosecution mainly rests upon the testimony of PW2 and PW3, who proved to be eye-witness of occurrence, as discussed above. PW2 and PW3 testified that murder of deceased was committed at about 10:00 AM and after fleeing away of accused from the place of occurrence, they reached there again and found the deceased dead. Both deposed in a voice that after 10-15 minutes of incident, a complaint of the incident was reduced into writing by PW3 which took around one hour and at about 11:00 AM, PW3 Kamlesh left for police station on his bicycle to get the FIR lodged.
41. The accused also raised the issue of the FIR being ante-timed. The incident is said to have occurred around 10:00 AM and PW3 stated that he reached the police station at 12:30 PM and the FIR represented the registration time as 12:40 PM. PW3 stated that he wrote the complaint at the site of the incident and after about 1 hour of the incident, left for the police station. It took him around 1.5 hours to reach the police station, where he stayed for around 1.5-2 hours and then they left the police station at around 2:30-3:00 PM. PW2 stated that the complaint was written on the spot after about 10 minutes of the running away of the accused and it took nearly 20-25 minutes to write the report. The police had come to the spot at around 3:30 PM. PW3 stated that he wrote the complaint at the spot of the incident in order to assure PW2 that nothing fabricated was being put in the complaint. The accused have challenged this contention on the ground that the distance of the police station was only about 4 miles and it could not have taken PW3 complainant 1.5-2 hours to reach the police station. PW6 Head Constable stated that complainant PW3 had reached the police station at around 12:40 PM, stayed there for an hour and then left with the police for the scene of occurrence. The police is said to have reached the spot at 3:30PM. The time taken by the complainant to reach the police station is similar to that taken by the police in reaching the scene of occurrence. Learned trial court has fairly recorded its satisfaction regarding the promptness of FIR in light of prevailing facts and circumstances and evidence as well, which warrants no interference, therefore the contention of accused is rejected.
ISSUE NO.3
42. Perusal of testimony of PW2 lucidly establishes his presence on the place of occurrence and no inconsistency could be pointed out in his statement by the accused. It is well settled proposition of law that minor discrepancies are bound to occur in the statement of any witness. On examining the disposition made by PW2 and PW3, we have tried to ascertain whether these witnesses can be relied upon to sustain the conviction against accused. In our opinion, on separating truth from untruth, exaggerations, improvement and shifting the chef from the grain, statement of PW2 and PW3 are worthy of full reliance. Both these witnesses were subjected to pertinent cross examination. Nothing could be extracted from the same to prove that they were manipulated and that PW2 and PW3 were not present on the place of occurrence at the relevant time. As such, there can be no reason to disbelieve their statements.
43. Nothing is on record to suggest as to why PW2 Nageswar, who is cousin of the deceased, would falsely implicate and depose against accused and screen real culprits facilitating them to escape unpunished. As learned counsel for the accused failed to point out any such material inconsistency, improbability, contradiction or improvement in the statement of PW2 and PW3 on the basis of which it could have been stated that they were deposing falsely, hence, it is observed that there was no reason to disbelieve their statement and same had been rightly acted upon and relied upon by learned trial court to record finding of guilt of the accused. On the aspect of motive, the accused have contended that they did not have any direct motive to kill the deceased Rajdev as their enmity was with the complainant PW3. However, it is clear that Rajdev was a witness in the dacoity case filed by complainant PW3 against accused Shiv Kumar. Accused Rishikesh is also said to have been involved in a property dispute with the deceased. We do not find any merit in this argument of the accused that they did not have any motive to kill the deceased.
44. The postmortem report Ex Ka2 has further supported the version of the prosecution. The report dated 26.10.1985 declared the probable time of death to be 25.10.1985. 3 incised wounds, 2 abrasions, gun-shot and amputation of the left hand finger were found on the body of the deceased. PW4 doctor Shyam Mohan stated in his testimony that the death could have occurred at around 10:00 AM on 25.10.1985 and further affirmed that the injuries could have been caused by 'banka'.
45. The appellants pointed out certain discrepancies in the testimony of PW3. For instance, on one side PW3 said that they were going to file a protest application against the final report but on the other hand, he said that they were going to file only affidavit. Similarly, in the FIR also he pointed out that they were going to file an affidavit. However, it has to be borne in mind that the complainant does not know the technical know-how of the legal formalities. A hyper-technical approach cannot be adopted to reject the entire case of the prosecution based on certain minor discrepancies. Both the prosecution witnesses stated that they were going to Unnao for filing an affidavit in the dacoity case that the complainant had filed against accused Shiv Kumar.
46. Thus, no other point that has been urged survives for consideration. If the fact of probable and natural prosecution story, production of reliable and trustworthy evidence on record by the prosecution, coupled with other facts and circumstances, as discussed here in above, are put together, then an irresistible, and inescapable conclusion can be drawn as to complicity of accused Shiv Kumar and Rishikesh in the commission of offences for which they had been charged with. Having said that and for the reasons as discussed above, the judgement of conviction and order of sentence as passed by learned Trial Court as against the accused Shiv Kumar and Rishikesh warrants no interference and accordingly, the appeal filed by accused Shiv Kumar and Rishikesh is liable to be dismissed.
47. The appeal is dismissed, accordingly. The judgement of conviction is upheld and the order of sentence is confirmed. The surviving appellant no. 2-Rishikesh is on bail. He shall surrender within two weeks from today before the learned Chief Judicial Magistrate, Unnao, failing which, learned Chief Judicial Magistrate, Unnao shall take appropriate steps to arrest the appellant no. 2-Rishikesh to serve out the sentence.
48. All pending applications also stand disposed of.
49. Original record of lower court be remitted after due compliance forthwith and in any case within one week from today.
(Mrs. Babita Rani,J.) (Rajnish Kumar,J.) May 11, 2026 AKK