Devendra vs The State Of M.P.

NEUTRAL CITATION NO. 2026:MPHC-GWL:33856 1
Cr.A. No. 398/2005

IN THE HIGH COURT OF MADHYA PRADESH
A T G W A L I O R

BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA

nd
ON THE 2 OF NOVEMBER, 2026

CRIMINAL APPEAL No. 398 of 2005
CNR No.: MPHC030098702005
DEVENDRA

Versus

THE STATE OF M.P.


Appearance:
Shri Atul Gupta, Advocate for appellant.
Shri C.P.Singh, Public Prosecutor for respondent/State.
Shri Vivek Kumar Vyas, Advocate for complainant


JUDGMENT

Per : Justice Gurpal Singh Ahluwalia
This criminal appeal, under section 374 of the Cr.P.C., has been
filed against the judgment and sentence dated 22/6/2005 passed by I
Additional Sessions Judge, Shivpuri in S.T. No. 177/2000, by which the
appellant has been convicted under sections 148, 302/149 of IPC and has
been sentenced to undergo RI for 1 year for offence under Section 148
of IPC and rigorous imprisonment for life and to pay a fine of Rs.5000/-
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with default imprisonment of two years‟ RI for offence under Section
302/149 of IPC.
2. For the purposes of clarity, it is pointed out that Lakhan,
Chokharmal, Vijay, Devendra, Mukesh, Kali alias Kalicharan, and
Nathuram were tried in S.T. No. 177/2000, whereas the chargesheet in
respect of other 10 accused persons was not filed on the ground of
pendency of CID investigation. In the present trial, Lakhan expired during
the pendency of trial, whereas Chokharmal, Vijay, Mukesh, Kali alias
Kalicharan and Nathuram have been acquitted. Admittedly, the acquittal
of Chokharmal, Vijay, Mukesh, Kali alias Kalicharan, and Nathuram has
not been challenged.
A supplementary chargesheet was filed in respect of Narhari Prasad
Sharma, Dwarka Prasad, Awadh, Radharaman, Bharat, Giltu alias Ajay,
Sant Kumar, and Rishi Pathak. By a separate judgment passed in S.T.
Nos. 29/2002, 175/2001, and 207/2001, Narhari Prasad Sharma, Awadh,
Giltu alias Ajay, and Rishi Upadhyay were convicted, whereas Dwarka,
Bharat, Radharaman and Sant Kumar were acquitted. Against their
acquittal, Criminal Appeal No. 92/2006 was filed by the State, which too
was heard analogously along with the present appeal. Bharat, who was
acquitted and was respondent in Criminal Appeal No. 92/2006, had died
during the pendency of the appeal, therefore, the appeal filed against
Bharat was dismissed as abated, whereas Narhari Prasad Sharma, who
was convicted and had filed Criminal Appeal No. 402/2005, had expired
during the pendency of the appeal. Therefore, the appeal filed by Narhari
Prasad Sharma was dismissed as abated.
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Since the evidence in S.T. No. 177/2000, out of which the present
appeal has arisen, was recorded separately, and evidence in S.T. Nos.
29/2002, 175/2001, and 207/2001 was recorded separately, therefore, the
evidence led by the prosecution in the present case will be considered
while deciding the case of the present appellant, whereas while deciding
Cr.A. Nos.404/2005 and 408/2005, the evidence led in S.T. No. 207/2001
was considered in the light of the judgment passed by Supreme Court in
the case of A.T. Mydeen and Another Vs. The Assistant
Commissioner, Customs Department decided on 29.10.2021 in
Criminal Appeal No.1306/2021 . Accordingly, the present appeal is being
decided by a separate judgment after considering the evidence which was
relied on by the prosecution in the present trial.
3. Prosecution case, in short, is that on 18/05/2000 at around 10:15
AM, deceased Tuntun alias Dinesh, was purchasing a pouch from the Pan
shop of Rajendra Acharya situated in Rannod bus stand. As soon as he
was about to leave the shop, at that time, Awadh Bohre, Narhari Bohre,
Rishi Upadhyay armed with Iron rods, Giltu Bohre, Kalicharan Soni,
Mukesh Soni, Radharaman Bohre, Dwarka Bohre, Devendra Bohre armed
with Lathi and Sant Kumar, Vijay Bohre, Shyam Soni, Lakhan Bohre
armed with Pharsa , Chokharmal Bohre armed with Sword, Narendra
Bohre and Nathuram Kevat armed with gun, came there. Kali Soni and
Mukesh Soni threw deceased Tuntun alias Dinesh on the ground, and all
the other co-accused persons started assaulting him by their respective
weapons. Since the number of assailants was more, therefore, Banwari Lal
alias Pappi and other witnesses, who were present on the spot, could not
intervene and the accused persons, after realizing that Tuntun alias Dinesh
has expired, left the place of occurrence. Banwari Lal (PW1) lodged FIR
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(Ex.P/1), and accordingly, Crime No. 47/2000 was initially registered
under sections 307, 147, 148 and 149 of IPC, and injured Tuntun alias
Dinesh was sent to District Hospital Shivpuri for medical examination.
However, doctor declared him brought dead. The postmortem of the dead
body of Tuntun alias Dinesh was got done, spot map was prepared,
accused persons were arrested, Pharsa , sword, etc. were seized. The
statements of witnesses were recorded, and initially, chargesheet was filed
against Lakhan Bohre, Chhokarmal Kevat, Vijay Bohre, Devendra,
Mukesh Soni, Kali Charan, Nathuram Kevat, who were separately tried
and after the CID investigation, chargesheet was filed against remaining
co-accused persons under sections 147, 148, 149, 302 of IPC. By order
dated 24/12/2001, the trial Court framed charges under sections 148 and
302/149 of IPC.
4. The prosecution, in order to prove its case, examined Banwari alias
Pappi (PW1), Majhar Ahmad (PW2), Mukhtyar Ahmad (PW3), Pradeep
Kumar (PW4), Gopalkrishna Tiwari (PW5), Dr.V.C.Goyal (PW6), Abdul
Haq (PW7), Gayacharan Singh (PW8), Ramraj Singh Tomar (PW9) and
P.S.Yadav (PW10).
5. The appellant and co-accused persons examined Devendra Kumar
(DW1) as a defence witness, who filed certified copies of the deposition
sheets of witnesses Mukhtar Ahmad, Majhar Ahmad, Pradeep Pandey,
Balwant Lal Pappi, Gopal Krishna, P.S. Yadav, and Rajendra Acharya as
Ex. D/6 to D/12, which were recorded in S.T. Nos. 29/2002, 207/2001,
and 175/2001.
6. The trial Court, by the impugned judgment, convicted the appellant
for the offences mentioned above whereas acquitted Chokharmal, Vijay,
Mukesh, Kali alias Kalicharan and Nathuram. As already pointed out, the
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acquittal of Chokharmal, Vijay, Mukesh, Kali alias Kalicharan, and
Nathuram has not been challenged by the State.
7. Challenging the judgment and sentence passed by the Court below,
it is submitted by counsel for appellant that today this Court has heard
Criminal Appeal Nos. 404/2005 and 408/2005 arising out of S.T.
No.207/2001. Although the witnesses were examined afresh in that trial,
but the gist of the evidence is same. It is submitted that he would like to
adopt the arguments made by counsel for appellants in Criminal Appeal
Nos. 404/2005 and 408/2005, and he does not want to advance any
separate arguments by referring to the evidence led in the present trial.
8. Per contra , counsel for respondent-State has supported the findings
recorded by the trial Court.
9. Heard, learned counsel for the parties.
10. The first question for consideration is as to whether deceased
Tuntun alias Dinesh Tiwari died a homicidal death or not.
11. Dr. V.C. Goyal (PW6) had conducted the postmortem of the dead
body of Tuntun alias Dinesh Tiwari and noted as under:-
“Body lying supine on P.M. Table. Wear full T-shirt. Coloured
Glubond (Toliya). Full paint greenish Color & Colour Chaddi.
Black thread wear around neck. Black Cotton Patti around right
arm, metal kada in right wrist. Thread kalava right wrist. Rigor
mortis start in neck & both upper limb. Pupil unequal left side
dilated and right side, little constricted. Mouth closed. Following
injuries present over body:
1. Lacerated wound 2½ inch x 1½ cm x bone deep Rt side occipital
region skull.
2. Contusion 2 inch x 1 inch left temporal region.
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3. Contusion one inch x 1/2 inch Rt parietal region skull.
4. Contusion 2 inch x one inch Rt temporal region.
5. Contusion 2½ cm x 1½ cm left side fore head.
6. Contusion 2½ cm x 2 cm left maxillary area.
7. Contusion 3 inch x one inch left side neck.
8. Contusion one inch x one inch round posterior aspect of Rt
upper arm.
9. Contusion three inch x one inch lateral aspect of Rt upper arm.
10. Contusion five inch x 3/4 inch lower border of Rt scapula, back
of chest up to mid axillary line.
11. Contusion 5½ inch x one inch below contusion no. 10 oblique.
12. Contusion 4 inch x 1½ inch right gluetal region below iliac
crest.
Bleeding clots present around nose.
th
Fracture of 7 rib right side, fracture of occipital bone right side,
fracture of temporal bone right side
All injuries are antemortem in nature, caused by hard and blunt
object. Injury Nos. 1,2,3 & 4 sufficient to cause death.
In my opinion, mode of death is coma due to head injury
(Hematoma in occipital region and fracture of occipital bone and
right temporal bone). Duration since death upto time of PM two to
four hours.”
The postmortem report is (Ex.P/9).
12. Dr. V.C. Goyal (PW6) was cross-examined by counsel for co-
accused Vijay and Lakhan. It was claimed by Dr. Goyal that the cause of
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death is the cumulative effect of injuries No. 1,2,3 and 4. The bone
underneath injury No.1, which was in the occipital region, was found
fractured. Similarly, the temporal bone underneath injury No.2 was also
found fractured. On account of these injuries, a person may die
instantaneously or may survive even for twenty-four hours.
This witness was further cross-examined by counsel for appellant.
He clearly stated that injuries Nos. 3 & 4 are situated adjoining to each
other, but both the injuries cannot be caused by a single blow. Since
directions of both the injuries were different, therefore, the same could be
caused by separate blows only. Similarly, he further claimed that although
injuries No.2 and 5 were also situated at a nearby place, but the same
cannot be caused by a single blow for the reason that their directions were
different. The bleeding from the nose was on account of the injuries, and
there was no separate injury on the nose. Injury No.1 was sufficient to
cause death in the ordinary course of nature. Similarly, injury No.10 was
also claimed to be sufficient to cause death in the ordinary course of
nature as it was on a vital part of the body. It was further stated that injury
Nos.2,3 and 4 were also sufficient to cause death. No further cross-
examination was done.
Therefore, it is clear that no effective cross-examination of this
witness was done. Under these circumstances, it is clear that deceased
Tuntun alias Dinesh Tiwari had died a homicidal death.
13. The next question for consideration is who were the authors of the
injuries caused to the deceased Tuntun alias Dinesh Tiwari ?.
14. Banwari alias Pappi (PW1), Majhar Ahmad (PW2), Mukhtiyar
Ahmad (PW3), and Pradeep Kumar (PW4) are eyewitnesses. All four
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witnesses have supported the prosecution case. It is not out of place to
mention here that in the subsequent trial, Majhar Ahmad (PW2) and
Mukhtar Ahmad (PW3) had turned hostile. Be that whatever it may be.
15. Banwarilal alias Pappi (PW1) has stated that he was sitting in the
shop of Pradeep Pandey, which is situated at the New Bus Stand, Village
Rannod. The Pan shop of Rajendra Sharma is situated nearby. His
nephew, Tuntun alias Dinesh, had gone to the shop of Rajendra for
chewing Pan . After chewing Pan , as soon as he left the shop, seventeen
persons of the village of this witness came there. Out of them, Lakhan was
having a Pharsa , Vijay Bohre was having a Pharsa , Devendra Bohre was
having a Lathi, Mukesh and Kali Soni were having Lathis, Chokharmal
Kewat was having a sword, Nathuram Kewat was having a gun, Narendra
Bohre was having a gun, Dwarka Bohre was having a Lathi, Radha
Raman Bohre was having a Lathi, Santram Bohre was having a Pharsa ,
Giltu Bohre was having a Lathi, Bharat Bohre was having a Pharsa ,
Avadh Bohre was having an iron rod, Narhari Bohre was having an iron
rod, Rishi Updadhyay was having an iron rod, and Shyam Soni was
having a Pharsa . Mukesh and Kali threw Tuntun alias Dinesh on the
ground, and thereafter, all seventeen persons started assaulting the injured.
After assaulting the injured/deceased, the accused persons ran away.
Narendra Bohre was challenging that in case if somebody tries to
intervene, then he too will be killed. Thereafter, this witness and his
nephew Pradeep (PW4) took Tuntun alias Dinesh on a handcart to Rannod
Police Station. The shopkeepers thereafter closed down their shops and
ran away. Majhar and Mukhtyar, who were also residents of his village
and were standing for purchasing vegetables, had also witnessed the
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incident. This witness informed ASI Yadav at the Rannod Police Station.
ASI Yadav did not lodge the report immediately and sent the injured to
the district hospital. This witness stayed back in Rannod, whereas his
another nephew Damodar and Brijesh, took Tuntun to District Hospital,
Shivpuri. After the injured was sent, the FIR was lodged by ASI Yadav.
The FIR is Ex.P/1. At about 5 PM, when dead body of Tuntun was
brought back to Village Rannod, then he came to know that he had
expired. Blood-stained earth and plain earth were seized from the spot
vide seizure memo (Ex.P/2). On the very same day, Lakhan and
Chokharmal were arrested. A Pharsa was seized from the possession of
Lakhan, whereas a sword was seized from the possession of Chokharmal.
The seizure memo of Pharsa is Ex.P/3, and the seizure memo of the
sword is Ex.P/4. The sword was identified by this witness as Article A
and Pharsa was identified by this witness as Article B. This witness was
cross-examined.
16. Similar evidence has been given by Majhar Ahmad (PW2),
Mukhtar Ahmad (PW3), and Pradeep Kumar (PW4).
17. As already pointed out, no separate arguments were advanced by
the counsel for appellant, and it was submitted that he would like to adopt
the arguments advanced by the other counsel in Criminal Appeal Nos.
404/2005 and 408/2005. The contention of counsel for appellant is that
evidence led by prosecution in the present case during the cross-
examination of the witnesses is on a similar line to what Banwarilal alias
Pappi (PW1) and Pradeep (PW4) have stated in subsequent trial (S.T.
No.207/2001).
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18. This Court has also gone through the evidence of the witnesses. It is
not out of place to mention here that in the present case, the prosecution
had examined four eye-eyewitnesses, namely Banwari alias Pappi (PW1),
Majhar Ahmad (PW2), Mukhtar Ahmad (PW3), and Pradeep Kumar
(PW4), and all four have supported the prosecution case, whereas in the
subsequent trial, which was conducted separately, Mukhtar Ahmad, and
Majhar had not supported the prosecution case. Be that whatever it may
be.
19. The counsel for appellant is right in submitting that the evidence of
Banwarilal alias Pappi (PW1) and Pradeep Kumar (PW4) is more or less
same in the present case, but in the present case, Majhar (PW2) and
Mukhtar Ahmad (PW3) have also supported the prosecution case.
20. No attempt has been made by the counsel for the appellant to
demolish the evidence of Majhar (PW2) and Mukhtar Ahmad (PW3).
21. Since counsel for the appellant has adopted the submissions made
by counsel for appellants in Cr.A. Nos. 404/2005 and 408/2005, therefore,
the arguments advanced by counsel for co-accused persons in Cr.A.
Nos.404/2005 and 408/22005 are being considered in the light of the
evidence led in the present case.
22. The conviction of appellants in Cr.A. Nos. 404/2005 and 408/2005
was primarily challenged on the following grounds:-
(i) There are material omissions and contradictions in the evidence of
Banwarilal alias Pappi (PW1) and Pradeep Kumar (PW4).
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(ii) Pradeep Kumar (PW4) in paragraph 4 of his cross-examination has
stated that at the time of incident, his elder brother Rajiv was also there.
However, his statement was not recorded by the Police during
investigation and he has not been examined by prosecution, therefore, it
is clear that prosecution has withheld an important witness.
(ii) Banwarilal alias Pappi (PW1) in paragraph 7 of his cross-
examination has stated that differences were going on between the
families of complainant party and accused party and, therefore, on
account of enmity, the appellant was falsely implicated.
(iii) Banwari alias Pappi (PW1) is the uncle of deceased, whereas
Pradeep Kumar (PW4) is the cousin brother of the deceased. Both are
related and interested witnesses and, therefore, their evidence is liable to
be disbelieved.
(iv) The copy of FIR was sent on the next day of incident, therefore,
there was no strict compliance of S.157 of Cr.P.C.
23. Per contra the appeal is vehemently opposed by Counsel for the
state.
24. Heard, learned counsel for the parties.
25. Before considering the submissions with regard to omissions and
contradictions in the evidence of Banwari alias Pappi (PW1) and Pradeep
Kumar (PW4), this Court would like to consider the law governing the
field of omissions and contradictions.
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26. The Supreme Court in the case of Mritunjoy Biswas v. Pranab,
reported in (2013) 12 SCC 796 has held as under :
"28. As is evincible, the High Court has also taken note of
certain omissions and discrepancies treating them to be material
omissions and irreconcilable discrepancies. It is worthy to note
that the High Court has referred to the some discrepancies
which we find are absolutely in the realm of minor
discrepancies. It is well settled in law that the minor
discrepancies are not to be given undue emphasis and the
evidence is to be considered from the point of view of
trustworthiness. The test is whether the same inspires
confidence in the mind of the court. If the evidence is incredible
and cannot be accepted by the test of prudence, then it may
create a dent in the prosecution version. If an omission or
discrepancy goes to the root of the matter and ushers in
incongruities, the defence can take advantage of such
inconsistencies. It needs no special emphasis to state that every
omission cannot take place of a material omission and,
therefore, minor contradictions, inconsistencies or insignificant
embellishments do not affect the core of the prosecution case
and should not be taken to be a ground to reject the prosecution
evidence. The omission should create a serious doubt about the
truthfulness or creditworthiness of a witness. It is only the
serious contradictions and omissions which materially affect the
case of the prosecution but not every contradiction or omission
(see Leela Ram v. State of Haryana (2000) SCC (Cri) 222,
Rammi v. State of M.P. (2000) SCC (Cri) 26 and Shyamal
Ghosh v. State of W.B. (2012) 7 SCC 646).

27. The Supreme Court in the case of Shyamal Ghosh v. State of
W.B. reported in (2012) 7 SCC 646 , has held as under :
68. From the above discussion, it precipitates that the
discrepancies or the omissions have to be material ones and then
alone, they may amount to contradiction of some serious
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consequence. Every omission cannot take the place of a
contradiction in law and therefore, be the foundation for
doubting the case of the prosecution. Minor contradictions,
inconsistencies or embellishments of trivial nature which do not
affect the core of the prosecution case should not be taken to be
a ground to reject the prosecution evidence in its entirety. It is
only when such omissions amount to a contradiction creating a
serious doubt about the truthfulness or creditworthiness of the
witness and other witnesses also make material improvements
or contradictions before the court in order to render the evidence
unacceptable, that the courts may not be in a position to safely
rely upon such evidence. Serious contradictions and omissions
which materially affect the case of the prosecution have to be
understood in clear contradistinction to mere marginal
variations in the statement of the witnesses. The prior may have
effect in law upon the evidentiary value of the prosecution case;
however, the latter would not adversely affect the case of the
prosecution.
69. Another settled rule of appreciation of evidence as already
indicated is that the court should not draw any conclusion by
picking up an isolated portion from the testimony of a witness
without adverting to the statement as a whole. Sometimes it
may be feasible that admission of a fact or circumstance by the
witness is only to clarify his statement or what has been placed
on record. Where it is a genuine attempt on the part of a witness
to bring correct facts by clarification on record, such statement
must be seen in a different light to a situation where the
contradiction is of such a nature that it impairs his evidence in
its entirety.
70. In terms of the Explanation to Section 162 CrPC which
deals with an omission to state a fact or circumstance in the
statement referred to in sub- section (1), such omission may
amount to contradiction if the same appears to be significant
and otherwise relevant having regard to the context in which
such omission occurs and whether there is any omission which
amounts to contradiction in particular context shall be a
question of fact. A bare reading of this Explanation reveals that
if a significant omission 12 Criminal Appeal No.819/2016 [Allu
Vs. State of M.P.] is made in a statement of a witness under
Section 161 CrPC, the same may amount to contradiction and
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the question whether it so amounts is a question of fact in each
case. (Sunil Kumar Sambhudayal Gupta v. State of Maharashtra
and Subhash v. State of Haryana .)
71. The basic element which is unambiguously clear from the
Explanation to Section 162 CrPC is use of the expression
"may". To put it aptly, it is not every omission or discrepancy
that may amount to material contradiction so as to give the
accused any advantage. If the legislative intent was to the
contra, then the legislature would have used the expression
"shall" in place of the word "may". The word "may" introduces
an element of discretion which has to be exercised by the court
of competent jurisdiction in accordance with law. Furthermore,
whether such omission, variation or discrepancy is a material
contradiction or not is again a question of fact which is to be
determined with reference to the facts of a given case. The
concept of contradiction in evidence under criminal
jurisprudence, thus, cannot be stated in any absolute terms and
has to be construed liberally so as to leave desirable discretion
with the court to determine whether it is a contradiction or
material contradiction which renders the entire evidence of the
witness untrustworthy and affects the case of the prosecution
materially".
28. The Supreme Court in the case of S. Govidaraju v. State of
Karnataka, reported in (2013) 15 SCC 315, has held as under :
"23. It is well settled legal proposition that while appreciating
the evidence, the court has to take into consideration whether
the contradictions/omissions were of such magnitude so as to
materially affect the trial. Minor contradictions, inconsistencies,
embellishments or improvements in relation to trivial matters,
which do not affect the core of the case of the prosecution, must
not be made a ground for rejection of evidence in its entirety.
The trial court, after going through the entire evidence available,
must form an opinion about the credibility of the witnesses, and
the appellate court in the normal course of action, would not be
justified in reviewing the same, without providing justifiable
reasons for 13 Criminal Appeal No.819/2016 [Allu Vs. State of
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M.P.] doing so. Where the omission(s) amount to a
contradiction, creating a serious doubt regarding the truthfulness
of a witness, and the other witnesses also make material
improvements before the court in order to make the evidence
acceptable, it would not be safe to rely upon such evidence. The
discrepancies in the evidence of eyewitnesses, if found not to be
minor in nature, may be a ground for disbelieving and
discrediting their evidence. In such circumstances, the witnesses
may not inspire confidence and if their evidence is found to be
in conflict and contradiction with the other evidence available or
with a statement that has already been recorded, then in such a
case, it cannot be held that the prosecution has proved its case
beyond reasonable doubt."
29. The Supreme Court in the case of Sunil Kumar Sambhudayal
Gupta (Dr.) v. State of Maharashtra, reported in (2010) 13 SCC 657
has held as under :
30. While appreciating the evidence, the court has to take into
consideration whether the contradictions/omissions had been of
such magnitude that they may materially affect the trial. Minor
contradictions, inconsistencies, embellishments or
improvements on trivial matters without effecting the core of the
prosecution case should not be made a ground to reject the
evidence in its entirety. The trial court, after going through the
entire evidence, must form an opinion about the credibility of
the witnesses and the appellate court in normal course would not
be justified in reviewing the same again without justifiable
reasons. (Vide State v. Saravanan (2008) 17 SCC 587.)
31. Where the omission(s) amount to a contradiction, creating a
serious doubt about the truthfulness of a witness and the other
witness also makes material improvements before the court in
order to make the evidence acceptable, it cannot be safe to rely
upon such evidence. (Vide State of Rajasthan v. Rajendra Singh
(2009) 11 SCC 106.)
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32. The discrepancies in the evidence of eyewitnesses, if found
to be not minor in nature, may be a ground for disbelieving and
discrediting their evidence. In such circumstances, witnesses
may not 14 Criminal Appeal No.819/2016 [Allu Vs. State of
M.P.] inspire confidence and if their evidence is found to be in
conflict and contradiction with other evidence or with the
statement already recorded, in such a case it cannot be held that
the prosecution proved its case beyond reasonable doubt. (Vide
Mahendra Pratap Singh v. State of U.P. (200() 11 SCC 334);
33. In case, the complainant in the FIR or the witness in his
statement under Section 161 CrPC, has not disclosed certain
facts but meets the prosecution case first time before the court,
such version lacks credence and is liable to be discarded. (Vide
State v. Sait (2008) 15 SCC 440);
34. In State of Rajasthan v. Kalki (1981) 2 SCC 752, while
dealing with this issue, this Court observed as under: (SCC p.
754, para 8) "8. ... In the depositions of witnesses there are
always normal discrepancies however honest and truthful they
may be. These discrepancies 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 the
occurrence, and the like. Material discrepancies are those which
are not normal, and not expected of a normal person."
35. The courts have to label the category to which a discrepancy
belongs. While normal discrepancies do not corrode the
credibility of a party's case, material discrepancies do so. (See
Syed Ibrahim v. State of A.P (2006)10 SCC 601 and Arumugam
v. State (2008) 15 SCC 590;
36. In Bihari Nath Goswami v. Shiv Kumar Singh (2004) 9 SCC
186 this Court examined the issue and held: (SCC p. 192, para
9) "9. Exaggerations per se do not render the evidence brittle.
But it can be one of the factors to test the credibility of the
prosecution version, when the entire evidence is put in a
crucible for being tested on the touchstone of credibility."
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37. While deciding such a case, the court has to apply the
aforesaid tests. Mere marginal variations in the statements
cannot be dubbed as improvements as the same may be
elaborations of the statement made by the witness earlier. The
omissions which amount to contradictions in material particulars
i.e. go to the root of the case/materially affect the trial or core of
the prosecution case, render the testimony of the witness liable
to be discredited".
30. By referring to the evidence of Banwarilal alias Pappi (PW1), it
was submitted by counsel for appellant that, he has stated that after he
reached Police Station Rannod, then ASI Yadav did not lodge the FIR
immediately but asked to take the injured for treatment and then this
witness stayed at P.S. Rannod to lodge report whereas his nephew
Damodar and Brajesh took injured Tuntun to District Hospital, Shivpuri.
However, by referring to the evidence of P.S.Yadav (PW10), it is
submitted that this witness has stated that after the injured was brought to
Police Station in an injured condition, he registered the FIR and thereafter
he sent the injured Tuntun alias Dinesh to District Hospital, Shivpuri.
Thus, it is submitted that there is material contradiction with regard to
sequence of the proceedings.
31. Considered the submission made by counsel for appellant.
32. Banwarilal alias Pappi (PW1), has merely stated that the injured
was taken by his nephew Damodar and Brajesh to District Hospital,
Shivpuri, while he stayed back at Rannod and lodged the FIR. P.S.
Yadav (PW10) has stated that he recorded the FIR and then he sent the
injured Tuntun alias Dinesh Tiwari to District Hospital, Shivpuri for
treatment. Even assuming that FIR was lodged and thereafter the injured
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was sent to hospital, still it is clear that there would be gap of only 10-15
minutes and vice versa. A discrepancy of 15 minutes cannot be said to be
a major discrepancy going to the root of the cause. Even counsel for
appellants could not explain as to how such a discrepancy would give any
dent, much less deep dent to the prosecution case.
33. It was next contended by counsel for appellant that Banwarilal alias
Pappi (PW1) has stated that total 17 persons who were named by him had
assaulted the injured/deceased Tuntun Tiwari, whereas Pradeep Kumar
(PW4) has named only 15 persons who had assaulted the injured/deceased
Tuntun Tiwari.
34. If evidence of both the witnesses is seen then it is clear that there is
no discrepancy. In paragraph 1 of his examination-in-chief, Pradeep
Kumar (PW4) has stated that all the accused persons (15 mentioned by
him in paragraph 1) started assaulting the deceased and other persons also
started assaulting the deceased. Even assuming that there is discrepancy
as to whether 15 persons or 17 persons had assaulted the deceased, but
names of assailants disclosed by Banwarilal alias Pappi (PW1) and
Pradeep Kumar (PW4) are identical. Therefore, such discrepancy would
not make any difference.
35. It was next contended by counsel for appellant that Banwarilal alias
Pappi (PW1) has stated that when injured /deceased Tuntun alias Dinesh
Tiwari was about to return from the Pan shop of Rajendra Sharma after
chewing pan, he was surrounded by 17 persons, whereas Pradeep
Kumar(PW4) in paragraph 1 of his examination-in-chief has stated that
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after purchasing pouch when Tuntun Tiwari was returning back, then he
was assaulted by the accused persons.
36. It is not the case of defence that the incident did not take place in
front of the Pan shop of Rajendra Sharma. Whether deceased Tuntun was
attacked just outside the shop of Rajendra Sharma or he had moved few
steps will not amount to change of place of occurrence. When a person is
being attacked by more than 15 persons and the incident was being
witnessed by witnesses from a distance of 20 to 25 feet, then certain
omissions and contradictions with regard to the observations regarding the
manner of commission of offence seen by the witnesses, are bound to take
place. These discrepancies which are normal in nature merely indicate that
the witnesses are not tutored witnesses. From the spot map also, it is clear
that the incident took place near the Pan shop of Rajendra, not at the shop
of Rajendra. Thus, it is clear that expressions/impression in the mind of
witnesses regarding the place of incident may differ from witness to
witness because the distance between what was expressed by Banwarilal
alias Pappi (PW1) and Pradeep Kumar (PW4) is so less that such a
discrepancy may arise, which is indicative of the fact that they are not
tutored witnesses, but natural witnesses.
37. The Supreme Court in the case of State of Rajasthan v. Kalki
reported in (1981) 2 SCC 752 has held that “in the depositions of
witnesses there are always normal discrepancies however honest and
truthful they may be. These discrepancies 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 the occurrence, and the
like. Material discrepancies are those which are not normal, and not
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expected of a normal person”. Thus, the submission made by counsel for
appellants that in view of the discrepancy with regard to place of incident
as narrated by Banwarilal Tiwari alias Pappi (PW1) and Pradeep Kumar
(PW4), the place of incident was changed, cannot be accepted and is
hereby rejected.
38. It is next contended by counsel for appellant that Pradeep Kumar
(PW4) in paragraph 4 of his cross-examination has stated that at the time
of incident, his brother Rajiv was also there. However, his statement was
not recorded by the police during investigation and he has not been
examined by the prosecution, therefore, it is clear that the prosecution has
withheld an important witness, and accordingly it is submitted that on that
ground, the evidence of Banwarilal alias Pappi (PW1) and Pradeep Kumar
(PW4) are liable to be disbelieved.
39. Considered the submissions made by counsel for the appellants.
40. It is a well-established principle of law that it is not the number of
witnesses, but the quality of witnesses that decides the fate of a trial. If
Banwarilal alias Pappi (PW1) and Pradeep Kumar (PW4) are found to be
reliable and trustworthy witnesses, then merely because some more
witnesses who were also present on the spot were not examined by the
police either in investigation or during trial will not make the evidence of
trustworthy and reliable witnesses, vulnerable.
41. The Supreme Court in Sarwan Singh v. State of Punjab reported
in (1976) 4 SCC 369 has held as under:-
“ 13. Another circumstance which appears to have weighed
heavily with the Additional Sessions Judge was that no
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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
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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 homes. 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 PW 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 eyewitnesses 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.”
42. The Supreme Court in the case of Khema v. State of U.P. reported
in (2023) 10 SCC 451 has held as under:-
23. This Court, in the celebrated case of Vadivelu Thevar v.
State of Madras [Vadivelu Thevar v. State of Madras, 1957
SCC OnLine SC 13 : 1957 SCR 981 : AIR 1957 SC 614] , has
observed thus : (AIR p. 619, paras 11-12)
“11. … Hence, in our opinion, it is a sound and well-
established rule of law that the court is concerned with the
quality and not with the quantity of the evidence necessary
for proving or disproving a fact. Generally speaking, oral
testimony in this context may be classified into three
categories, namely:
(1) Wholly reliable.
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(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. 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.”
43. The Supreme Court in the case of Govindaraju v. State reported in
(2012) 4 SCC 722 has held as under:-
“24. It is a settled proposition of law of evidence that it is not
the number of witnesses that matters but it is the substance. It is
also not necessary to examine a large number of witnesses if the
prosecution can bring home the guilt of the accused even with a
limited number of witnesses. In Lallu Manjhi v. State of
Jharkhand [(2003) 2 SCC 401 : 2003 SCC (Cri) 544] (SCC p.
405, para 10), this Court had classified the oral testimony of the
witnesses into three categories:
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
In the third category of witnesses, the court has to be cautious
and see if the statement of such witness is corroborated, either
by the other witnesses or by other documentary or expert
evidence.
25. Equally well settled is the proposition of law that where
there is a sole witness to the incident, his evidence has to be
accepted with caution and after testing it on the touchstone of
evidence tendered by other witnesses or evidence otherwise
recorded. The evidence of a sole witness should be cogent,
reliable and must essentially fit into the chain of events that
have been stated by the prosecution. When the prosecution
relies upon the testimony of a sole eyewitness, then such
evidence has to be wholly reliable and trustworthy. Presence of
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such witness at the occurrence should not be doubtful. If the
evidence of the sole witness is in conflict with the other
witnesses, it may not be safe to make such a statement as a
foundation of the conviction of the accused. These are the few
principles which the Court has stated consistently and with
certainty.”

44. Under these circumstances, this Court is of the considered opinion
that merely because Rajiv Pandey, who too was present on the spot, was
not examined, cannot be a ground to discard the evidence of
eyewitnesses who are otherwise reliable and trustworthy.
45. It is next contended by counsel for appellant that Banwarilal alias
Pappi (PW1) in his cross-examination has stated that there are
approximately 40 shops on the spot but they were not shown in the spot
map. It is submitted that Banwarilal alias Pappi (PW1) tried to deny
enmity, but in his evidence, he specifically stated that differences were
going on between the families of the complainant party and the accused
party. Even in his statement under Section 161 of CrPC, he alleged
enmity between the parties. Thus, it is submitted that on account of
enmity, the appellants were falsely implicated.
46. Considered the submission made by counsel for appellant.
47. Enmity is a double-edged weapon. If on one hand it provides a
motive for false implication, then on the other hand, it provides a motive
for committing the offence.
48. The Supreme Court in the case of Anil Rai v. State of Bihar,
reported in (2001) 7 SCC 318 has held as under :
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18. There is no doubt that PWs 1, 2, 5 and 6 relied upon and
believed by the trial as well as the High Court are not friendly to
the accused persons on account of previous existing enmity
between them. The admitted position of law is that enmity is a
double-edged weapon which can be a motive for the crime as
also the ground for false implication of the accused persons. In
case of inimical witnesses, the courts are required to scrutinise
their testimony with anxious care to find out whether their
testimony inspires confidence to be acceptable notwithstanding
the existence of enmity. Where enmity is proved to be the
motive for the commission of the crime, the accused cannot urge
that despite proof of the motive of the crime, the witnesses
proved to be inimical should not be relied upon. Bitter
animosity, held to be a double-edged weapon, may be
instrumental for false involvement or for the witnesses inferring
and strongly believing that the crime must have been committed
by the accused. Such possibility has to be kept in mind while
evaluating the prosecution witnesses regarding the involvement
of the accused in the commission of the crime. Testimony of
eyewitnesses, which is otherwise convincing and consistent,
cannot be discarded simply on the ground that the deceased were
related to the eyewitnesses or previously there were some
disputes between the accused and the deceased or the witnesses.
The existence of animosity between the accused and the
witnesses may, in some cases, give rise to the possibility of the
witnesses exaggerating the role of some of the accused or trying
to rope in more persons as accused persons for the commission
of the crime. Such a possibility is required to be ascertained on
the facts of each case. However, the mere existence of enmity in
this case, particularly when it is alleged as a motive for the
commission of the crime, cannot be made a basis to discard or
reject the testimony of the eyewitnesses, the deposition of whom
is otherwise consistent and convincing.
49. The Supreme Court in the case of Matibar Singh v. State of U.P.,
reported in (2015) 16 SCC 168 has held as under :
14. That brings us to the question whether there is any room for
our interference with the conviction of Matibar Singh, appellant,
as recorded by the High Court in the impugned judgment. We
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must, at the outset, say that the High Court‟s judgment, which
has been read out at length before us, has dealt with the evidence
adduced at the trial as also the submissions made by the learned
counsel for the parties with commendable clarity. We have,
therefore, no hesitation in affirming the reasoning and the
conclusions arrived at by the High Court. The fact that there was
previous enmity between the complainant‟s party and the rival
group of which the accused happen to be members or
sympathisers is a factor that need to be taken as adverse to the
prosecution. Enmity is a double-edged weapon. It was because
of the said enmity that the victim was assaulted while he was on
his way to attend the function. The existence of such enmity
lends support to the prosecution case rather than demolish the
same. The trial court was obviously in error in taking a contrary
view which the High Court has rightly corrected by the
impugned judgment. So also, the High Court was, in our
opinion, perfectly justified in holding that the deposition of the
victim and the eyewitnesses examined at the trial had not been
shaken in cross-examinations to render it unsafe for the Court to
rest an order of conviction against the accused persons.

50. From the evidence, it is clear that shop of Pradeep Kumar (PW4) is
situated quite nearer to the place of occurrence. The incident took place
in the middle of the road, therefore, the presence of Pradeep Kumar
(PW4) in his shop is natural. Counsel for appellant could not point out
any evidence to show that the shop of Pradeep Kumar (PW4) was
closed. The incident took place on 18/05/2000 at 10:15 AM in the
middle of a market of Rannod bus stand. Therefore, on account of
locality, it is natural that shops situated in the said locality must have
been opened by that time. Furthermore, the FIR was lodged within
fifteen minutes i.e. 10:30 AM, by Banwarilal alias Pappi (PW1). The
witnesses stated that after the assault was over, they took the injured to
the police station on a handcart. Therefore, these fifteen minutes were
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spent by the witnesses for rushing to the place of occurrence and taking
the injured on a handcart to the police station. By no stretch of
imagination, it can be said that Banwarilal alias Pappi (PW1) and
Pradeep Kumar (PW10) were not present or that they had sufficient time
to deliberate upon with an intention to falsely implicate the accused
persons. Furthermore, looking to the number of injuries sustained by
Tuntun alias Dinesh Tiwari, it is clear that he was assaulted by several
persons.
51. Prompt lodging of an FIR can be treated as a guarantee of
truthfulness. The Supreme Court in the case of Nanhey v. State of U.P
reported in (1973) 3 SCC 317 has held as under:-
" ..... It is difficult to believe that soon after the occurrence in
question Munna so quickly cooked up a false story involving
the appellant and by 1.40 p.m. lodged the concocted first
information report at the police station....”.
52. Similarly, the Supreme Court in Krishnan v. State reported in
(2003) 7 SCC 56 has held that prompt lodging of FIR rules out any
possibility of deliberation to falsely implicate any person in the crime
and has held as under:-
“17. The fact that the first information report was given almost
immediately, rules out any possibility of deliberation to falsely
implicate any person. All the material particulars implicating
the four appellants were given. It has to be noted that both the
trial court and the High Court have analysed in great detail PW
1's evidence to form the basis for conviction. Therefore, the
trial court and the High Court rightly acted upon the evidence
of PW 1. The highly hypothetical imaginative story advanced
by the defence to contend that PW 1 and his family members
killed the deceased is too hollow to be accepted. If that was
really so, they would not have chosen the place and the time for
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doing so. There is not even a shadow of material to substantiate
the plea.”
53. The Supreme Court in the case of Jarnail Singh v. State of
Haryana reported in 1993 Supp (3) SCC 91 has held that in cases
relating to murder, the time taken in lodging the FIR assumes special
significance and has held as under:-
“10. Apart from that if the evidence adduced on behalf of the
prosecution is accepted then whether there was immediate
motive for committing the offence loses all significance. The
present case has many special features which weigh heavily
against the accused persons and it is not easy on their part to
dislodge them. The occurrence took place before noon. The FIR
was lodged at 12.30 p.m. within an hour. A copy of the FIR was
received by the concerned Magistrate by 2.15 p.m., the same
day. The Investigating Officer reached the place of occurrence
before 4 p.m. Even the post-mortem examinations of the two
victims were held by two doctors mentioned above by 5.30 p.m.
the same day. In cases relating to murder the time taken in
lodging the FIR assumes special significance. The FIR being
the first version of the occurrence disclosed to the police acts as
check on the part of the prosecution. The fact that Surjit Kaur
(PW 4) lodged the FIR within an hour of the occurrence, giving
the details of the manner of occurrence lends corroboration to
her testimony in court regarding the participation of the accused
persons in the present occurrence. The manner of occurrence
disclosed by Surjit Kaur (PW 4) in the FIR was fully
corroborated by the post-mortem examination reports. She
stated in the FIR at 12.30 p.m. that accused persons after having
assaulted the two victims with gandasa and lathis, crushed them
with the wheel of the truck. The two doctors during post-
mortem examinations found that injury No. 7 on the chest of
Gurbux Singh and injury No. 11 on Wasava Singh could have
been caused by the wheel of the truck passing over the chest of
Gurbux Singh and any blunt part of the truck striking against
the body of Wasava Singh. This not only corroborates the
version disclosed by Surjit Kaur (PW 4) in the FIR but goes a
long way to establish the correctness thereof. If Surjit Kaur
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(PW 4) had not witnessed the occurrence as suggested by
accused persons then how could she have mentioned in the FIR
that after assaulting the two victims the accused persons entered
into the truck and crushed the victims with the wheel of the
truck, which is supported by the post-mortem examination.”
54. The Supreme Court in the case of State of U.P. v. Harban Sahai
reported in (1998) 6 SCC 50 has held that prompt and early reporting of
an occurrence to the Police with vivid details gives assurance regarding
the truth of the version and has held as under:-
13. PW 1's version regarding the occurrence gets a very stable
corroboration from the FIR which was lodged by him within
two hours of the occurrence. The High Court did not entertain
any doubt that the FIR was ante-dated or that there was any
delay in its lodgement. Even the defence did not contend like
that. In such a situation the prompt and early reporting of the
occurrence by PW 1 to the police with all its vivid details gives
us an assurance regarding truth of his version.
55. Thus, the presence of Banwarilal alias Pappi (PW1) and Pradeep
Kumar (PW4) not only finds strength from the prompt lodging of the
FIR, but the prompt lodging of FIR also rules out the possibility of
lodging any concocted FIR after due deliberation. Further more, Majhar
(P.W.2) and Mukhtyar Ahmed (P.W.3) have also supported the
prosecution case and no attempt at all, was made by Counsel for the
appellant to demolish their evidence.
56. It was next contended by counsel for appellant that since
Banwarilal alias Pappi (PW1) and Pradeep Kumar (PW4) are related to
the deceased, therefore, they are related and interested witnesses and
their evidence should not be relied upon.
57. Considered the submission made by counsel for appellant.
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58. The Supreme Court in the case of Mahavir Singh v. State of M.P.,
reported in (2016) 10 SCC 220 has held as under :
18. The High Court has attached a lot of weight to the evidence
of the said Madho Singh (PW 9) as he is an independent
witness. On perusal of the record, it appears that the said person
already had deposed for the victim family on a number of
previous occasions, that too against the same accused. This
being the fact, it is important to analyse the jurisprudence on
interested witness. It is a settled principle that the evidence of
interested witness needs to be scrutinised with utmost care. It
can only be relied upon if the evidence has a ring of truth to it, is
cogent, credible and trustworthy. Here we may refer to chance
witness also. It is to be seen that although the evidence of a
chance witness is acceptable in India, yet the chance witness has
to reasonably explain the presence at that particular point more
so when his deposition is being assailed as being tainted.
19. A contradicted testimony of an interested witness cannot be
usually treated as conclusive…….
59. The Supreme Court in the case of Raju v. State of T.N. , reported in
(2012) 12 SCC 701 has held as under :
21. What is the difference between a related witness and an
interested witness? This has been brought out in State of Rajasthan v.
Kalki . It was held that: (SCC p. 754, para 7)
“ 7. … True, it is, she is the wife of the deceased; but she cannot be
called an „interested‟ witness. She is related to the deceased.
„Related‟ is not equivalent to „interested‟. A witness may be called
„interested‟ only when he or she derives some benefit from the result
of a litigation; in the decree in a civil case, or in seeing an accused
person punished. A witness who is a natural one and is the only
possible eyewitness in the circumstances of a case cannot be said to
be „interested‟.”
22. In light of the Constitution Bench decision in State of Bihar v.
Basawan Singh , the view that a “natural witness” or “the only
possible eyewitness” cannot be an interested witness may not be,
with respect, correct. In Basawan Singh , a trap witness (who would
be a natural eyewitness) was considered an interested witness since
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he was “concerned in the success of the trap”. The Constitution
Bench held: (AIR p. 506, para 15)
“ 15. … The correct rule is this: if any of the witnesses are
accomplices who are particeps criminis in respect of the actual crime
charged, their evidence must be treated as the evidence of
accomplices is treated; if they are not accomplices but are partisan or
interested witnesses, who are concerned in the success of the trap,
their evidence must be tested in the same way as other interested
evidence is tested by the application of diverse considerations which
must vary from case to case, and in a proper case, the court may even
look for independent corroboration before convicting the accused
person.”
23. The wife of a deceased (as in Kalki ), undoubtedly related to the
victim, would be interested in seeing the accused person punished—
in fact, she would be the most interested in seeing the accused person
punished. It can hardly be said that she is not an interested witness.
The view expressed in Kalki is too narrow and generalised and needs
a rethink.
24. For the time being, we are concerned with four categories of
witnesses—a third party disinterested and unrelated witness (such as
a bystander or passer-by); a third party interested witness (such as a
trap witness); a related and therefore an interested witness (such as
the wife of the victim) having an interest in seeing that the accused is
punished; a related and therefore an interested witness (such as the
wife or brother of the victim) having an interest in seeing the accused
punished and also having some enmity with the accused. But, more
than the categorisation of a witness, the issue really is one of
appreciation of the evidence of a witness. A court should examine
the evidence of a related and interested witness having an interest in
seeing the accused punished and also having some enmity with the
accused with greater care and caution than the evidence of a third
party disinterested and unrelated witness. This is all that is expected
and required.
25. In the present case, PW 5 Srinivasan is not only a related and
interested witness, but also someone who has an enmity with the
appellants. His evidence, therefore, needs to be scrutinised with great
care and caution.
26. In Dalip Singh v. State of Punjab this Court observed, without
any generalisation, that a related witness would ordinarily speak the
truth, but in the case of an enmity there may be a tendency to drag in
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an innocent person as an accused—each case has to be considered on
its own facts. This is what this Court had to say: (AIR p. 366, para
26)
“ 26. A witness is normally to be considered independent unless he or
she springs from sources which are likely to be tainted and that
usually means unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely. Ordinarily, a close
relation would be the last to screen the real culprit and falsely
implicate an innocent person. It is true, when feelings run high and
there is personal cause for enmity, that there is a tendency to drag in
an innocent person against whom a witness has a grudge along with
the guilty, but foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any sweeping
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.”
27. How the evidence of such a witness should be looked at was
again considered in Darya Singh v. State of Punjab . This Court
was of the opinion that a related or interested witness may not
be hostile to the assailant, but if he is, then his evidence must be
examined very carefully and all the infirmities taken into
account. It was observed that where the witness shares the
hostility of the victim against the assailant, it would be unlikely
that he would not name the real assailant but would substitute
the real assailant with the “enemy” of the victim. This is what
this Court said: (AIR p. 331, para 6)
“ 6. There can be no doubt that in a murder case when evidence
is given by near relatives of the victim and the murder is alleged
to have been committed by the enemy of the family, criminal
courts must examine the evidence of the interested witnesses,
like the relatives of the victim, very carefully. But a person may
be interested in the victim, being his relation or otherwise, and
may not necessarily be hostile to the accused. In that case, the
fact that the witness was related to the victim or was his friend,
may not necessarily introduce any infirmity in his evidence. But
where the witness is a close relation of the victim and is shown
to share the victim‟s hostility to his assailant, that naturally
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makes it necessary for the criminal courts to examine the
evidence given by such witness very carefully and scrutinise all
the infirmities in that evidence before deciding to act upon it. …
[I]t may be relevant to remember that though the witness is
hostile to the assailant, it is not likely that he would deliberately
omit to name the real assailant and substitute in his place the
name of the enemy of the family out of malice. The desire to
punish the victim would be so powerful in his mind that he
would unhesitatingly name the real assailant and would not
think of substituting in his place the enemy of the family though
he was not concerned with the assault. It is not improbable that
in giving evidence, such a witness may name the real assailant
and may add other persons out of malice and enmity and that is
a factor which has to be borne in mind in appreciating the
evidence of interested witnesses. On principle, however, it is
difficult to accept the plea that if a witness is shown to be a
relative of the deceased and it is also shown that he shared the
hostility of the victim towards the assailant, his evidence can
never be accepted unless it is corroborated on material
particulars.”
28. More recently, in Waman v. State of Maharashtra this Court
dealt with the case of a related witness (though not a witness
inimical to the assailant) and while referring to and relying upon
Sarwan Singh v. State of Punjab , Balraje v. State of
Maharashtra , Prahalad Patel v. State of M.P. , Israr v. State of
U.P. , S. Sudershan Reddy v. State of A.P. , State of U.P. v.
Naresh , Jarnail Singh v. State of Punjab and Vishnu v. State of
Rajasthan it was held: ( Waman case , SCC p. 302, para 20)
“ 20. It is clear that merely because the witnesses are related to
the complainant or the deceased, their evidence cannot be
thrown out. If their evidence is found to be consistent and true,
the fact of being a relative cannot by itself discredit their
evidence. In other words, the relationship is not a factor to affect
the credibility of a witness and the courts have to scrutinise their
evidence meticulously with a little care.”
29. The sum and substance is that the evidence of a related or
interested witness should be meticulously and carefully
examined. In a case where the related and interested witness
may have some enmity with the assailant, the bar would need to
be raised and the evidence of the witness would have to be
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examined by applying a standard of discerning scrutiny.
However, this is only a rule of prudence and not one of law, as
held in Dalip Singh and pithily reiterated in Sarwan Singh in the
following words: ( Sarwan Singh case , SCC p. 376, para 10)
“ 10. … The evidence of an interested witness does not suffer
from any infirmity as such, but the courts require as a rule of
prudence, not as a rule of law, that the evidence of such
witnesses should be scrutinised with a little care. Once that
approach is made and the court is satisfied that the evidence of
interested witnesses have a ring of truth such evidence could be
relied upon even without corroboration.”
60. The Supreme Court in the case of State of U.P. v. Kishanpal ,
reported in (2008) 16 SCC 73 has held as under :
17. The plea of “interested witness”, “related witness” have been
succinctly explained by this Court in State of Rajasthan v. Kalki.
The following conclusion in para 7 is relevant: (SCC p. 754)
“7. As mentioned above the High Court has declined to rely on
the evidence of PW 1 on two grounds: (1) she was a „highly
interested‟ witness because she „is the wife of the deceased‟, and
(2) there were discrepancies in her evidence. With respect, in
our opinion, both the grounds are invalid. For, in the
circumstances of the case, she was the only and most natural
witness; she was the only person present in the hut with the
deceased at the time of the occurrence, and the only person who
saw the occurrence. True, it is, she is the wife of the deceased;
but she cannot be called an „interested‟ witness. She is related to
the deceased. „Related‟ is not equivalent to „interested‟. A
witness may be called „interested‟ only when he or she derives
some benefit from the result of a litigation; in the decree in a
civil case, or in seeing an accused person punished. A witness
who is a natural one and is the only possible eyewitness in the
circumstances of a case cannot be said to be „interested‟.”
From the above it is clear that “related” is not equivalent to
“interested”. The witness may be called “interested” only when
he or she has derived some benefit from the result of a litigation,
in the decree in a civil case, or in seeing an accused person
punished. A witness, who is a natural one and is the only
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possible eyewitness in the circumstances of a case cannot be
said to be “interested”.
18. The plea of defence that it would not be safe to accept the
evidence of the eyewitnesses who are the close relatives of the
deceased, has not been accepted by this Court. There is no such
universal rule as to warrant rejection of the evidence of a
witness merely because he/she was related to or interested in the
parties to either side. In such cases, if the presence of such a
witness at the time of occurrence is proved or considered to be
natural and the evidence tendered by such witness is found in
the light of the surrounding circumstances and probabilities of
the case to be true, it can provide a good and sound basis for
conviction of the accused. Where it is shown that there is enmity
and the witnesses are near relatives too, the court has a duty to
scrutinise their evidence with great care, caution and
circumspection and be very careful too in weighing such
evidence. The testimony of related witnesses, if after deep
scrutiny, found to be credible cannot be discarded.
19. It is now well settled that the evidence of witness cannot be
discarded merely on the ground that he is a related witness, if
otherwise the same is found credible. The witness could be a
relative but that does not mean his statement should be rejected.
In such a case, it is the duty of the court to be more careful in the
matter of scrutiny of evidence of the interested witness, and if,
on such scrutiny it is found that the evidence on record of such
interested witness is worth credence, the same would not be
discarded merely on the ground that the witness is an interested
witness. Caution is to be applied by the court while scrutinising
the evidence of the interested witness.
20. It is well settled that it is the quality of the evidence and not
the quantity of the evidence which is required to be judged by
the court to place credence on the statement. The ground that the
witness being a close relative and consequently being a partisan
witness, should not be relied upon, has no substance.
Relationship is not a factor to affect credibility of a witness. It is
more often than not that a relation would not conceal actual
culprit and make allegations against an innocent person.
Foundation has to be laid if plea of false implication is made. In
such cases, the court has to adopt a careful approach and analyse
the evidence to find out whether it is cogent and credible. (Vide
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State of A.P. v. Veddula Veera Reddy, Ram Anup Singh v. State
of Bihar, Harijana Narayana v. State of A.P., Anil Sharma v.
State of Jharkhand, Seeman v. State, Salim Sahab v. State of
M.P., Kapildeo Mandal v. State of Bihar and D. Sailu v. State of
A.P.)
21. In Kulesh Mondal v. State of W.B. this Court considered the
reliability of interested/related witnesses and has reiterated the
earlier rulings and it is worthwhile to refer the same which reads
as under: (SCC pp. 580-81, para 11)
“11. „10. We may also observe that the ground that the
[witnesses being close relatives and consequently being partisan
witnesses,] should not be relied upon, has no substance. This
theory was repelled by this Court as early as in Dalip Singh v.
State of Punjab 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: (AIR p. 366, para 25)
“25. We are unable to agree with the learned Judges of the High
Court that the testimony of the two eyewitnesses requires
corroboration. If 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 which another Bench of this Court
endeavoured to dispel in Rameshwar v. State of Rajasthan (AIR
at p. 59). We find, however, that it unfortunately still persists, if
not in the judgments of the Courts, at any rate in the arguments
of counsel.”
11. Again in Masalti v. State of U.P. this Court observed: (AIR
pp. 209-10, para 14)
“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
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should be rejected because it is partisan cannot be accepted as
correct.”
12. To the same effect is the decision in State of Punjab v. Jagir
Singh, Lehna v. State of Haryana …. As observed by this Court
in State of Rajasthan v. Kalki 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 categorised. 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 v. State of Bihar.”
61. The Supreme Court in the case of Sudhakar v. State , reported in
(2018) 5 SCC 435 has held as under :
16. It would be appropriate to have a look at the legal position
with regard to the evidence of related and interested witnesses.
In Sarwan Singh v. State of Punjab, SCC para 10, this Court
observed thus: (SCC p. 376, para 10)
“10. … The evidence of an interested witness does not suffer
from any infirmity as such, but the courts require as a rule of
prudence, not as a rule of law, that the evidence of such
witnesses should be scrutinised with a little care. Once that
approach is made and the court is satisfied that the evidence of
interested witnesses have a ring of truth such evidence could be
relied upon even without corroboration.”
It is settled law that there cannot be any hard-and-fast rule that
the evidence of interested witnesses cannot be taken into
consideration and they cannot be termed as witnesses. But, the
only burden that would be cast upon the courts in those cases is
that the courts have to be cautious while evaluating the evidence
to exclude the possibility of false implication. Relationship can
never be a factor to affect the credibility of the witness as it is
always not possible to get an independent witness.
17. Then, next comes the question “what is the difference
between a related witness and an interested witness?”. The plea
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of “interested witness”, “related witness” has been succinctly
explained by this Court that “related” is not equivalent to
“interested”. The witness may be called “interested” only when
he or she derives some benefit from the result of a litigation in
the decree in a civil case, or in seeing an accused person
punished. In this case at hand PWs 1 and 5 were not only related
witnesses, but also “interested witnesses” as they had pecuniary
interest in getting the accused petitioner punished. [refer State of
U.P. v. Kishanpal]. As the prosecution has relied upon the
evidence of interested witnesses, it would be prudent in the facts
and circumstances of this case to be cautious while analysing
such evidence. It may be noted that other than these witnesses,
there are no independent witnesses available to support the case
of the prosecution.
62. The Supreme Court in the case of Sarwan Singh v. State of
Punjab , reported in (2003) 1 SCC 240 has held as under :
14. The test of creditworthiness and acceptability in our view,
ought to be the guiding factors and if so the requirements as
above, stand answered in the affirmative, question of raising an
eyebrow on reliability of witness would be futile. The test is the
credibility and acceptability of the witnesses available — if they
are so, the prosecution should be able to prove the case with
their assistance.
15. Coming to the contextual facts once again, while it is true
that there is no independent witness, but the evidence available
on record does inspire confidence and the appellant has not been
able to shake the credibility of the eyewitnesses: there is not
even any material contradiction in the case of the prosecution.
63. Thus, it is clear that there is distinction between “related witness”
and “interested witness”. However, Court should examine the evidence of
related witness having some enmity with the accused with greater care
and caution, but their evidence cannot be rejected merely on the ground
that they are related witnesses.
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64. This Court has already found that prompt lodging of the FIR within
fifteen minutes of the occurrence by Banwarilal alias Pappi (PW1), who
claimed that he had witnessed the incident as he was sitting at the shop of
Pradeep Kumar (PW4) and he immediately took the injured to the police
station in a handcart, clearly establishes his presence and truthfulness.
Except by pointing out minor contradictions and omissions in the
evidence of Banwarilal Tiwari alias Pappi (PW1) and Pradeep Kumar
(PW4), nothing else was pointed out by counsel for appellants to make the
evidence of Banwarilal alias Pappi (PW1) and Pradeep Kumar (PW4)
unreliable.
65. Even otherwise, why related witnesses would spare the real
assailants could not be explained by counsel for appellants except by
saying that there was old enmity. As already pointed out, enmity is a
double-edged. If on one hand it provides motive for false implication, then
at the same time, it provides motive for commission of offence. At the
cost of repetition, it is once again clarified that two independent witnesses
namely Majhar (PW2) and Mukhtyar Ahmed (PW3) have supported the
prosecution case and no attempt was made to challenge their evidence.
66. So far as the submission regarding delayed compliance of Section
157 of Cr.P.C. is concerned, the same, by itself, cannot be a ground to
discard/disbelieve the trustworthy evidence.
67. The Supreme Court in the case of Jafel Biswas v. State of W.B.,
reported in (2019) 12 SCC 560 has held as under:-
16. The purpose and scope of Section 157 CrPC has time and
again been considered by this Court in large number of cases.
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17. The learned counsel for the appellant has relied on State of
Rajasthan v. Daud Khan [ State of Rajasthan v. Daud Khan ,
(2016) 2 SCC 607 : (2016) 1 SCC (Cri) 793] , Sheo Shankar
Singh v. State of U.P. [ Sheo Shankar Singh v. State of U.P. ,
(2013) 12 SCC 539 : (2014) 4 SCC (Cri) 390] and Bijoy Singh
v. State of Bihar [ Bijoy Singh v. State of Bihar , (2002) 9 SCC
147 : 2003 SCC (Cri) 1093] .
18. In State of Rajasthan [ State of Rajasthan v. Daud Khan ,
(2016) 2 SCC 607 : (2016) 1 SCC (Cri) 793] in paras 27 and
28, this Court has laid down as follows: (SCC pp. 620-21)
“ 27 . The delay in sending the special report was also the
subject of discussion in a recent decision being Sheo Shankar
Singh v. State of U.P. [ Sheo Shankar Singh v. State of U.P. ,
(2013) 12 SCC 539 : (2014) 4 SCC (Cri) 390] wherein it was
held that before such a contention is countenanced, the accused
must show prejudice having been caused by the delayed
dispatch of the FIR to the Magistrate. It was held, relying upon
several earlier decisions as follows: (SCC pp. 549-50, paras 30-
31)
„ 30 . One other submission made on behalf of the appellants
was that in the absence of any proof of forwarding the FIR copy
to the jurisdiction Magistrate, violation of Section 157 CrPC
has crept in and thereby, the very registration of the FIR
becomes doubtful. The said submission will have to be rejected,
inasmuch as the FIR placed before the Court discloses that the
same was reported at 4.00 p.m. on 13-6-1979 and was
forwarded on the very next day viz. 14-6-1979. Further, a
perusal of the impugned judgments of the High Court [ Sarvajit
Singh v. State of U.P. , 2003 SCC OnLine All 1214 : (2004) 48
ACC 732] as well as of the trial court discloses that no case of
any prejudice was shown nor even raised on behalf of the
appellants based on alleged violation of Section 157 CrPC.
Time and again, this Court has held that unless serious
prejudice was demonstrated to have been suffered as against the
accused, mere delay in sending the FIR to the Magistrate by
itself will not have any deteriorating (sic) effect on the case of
the prosecution. Therefore, the said submission made on behalf
of the appellants cannot be sustained.
31 . In this context, we would like to refer to a recent
decision of this Court in Sandeep v. State of U.P. [ Sandeep v.
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State of U.P. , (2012) 6 SCC 107 : (2012) 3 SCC (Cri) 18]
wherein the said position has been explained as under in paras
62-63: (SCC p. 132)
“ 62 . It was also feebly contended on behalf of the appellants
that the express report was not forwarded to the Magistrate as
stipulated under Section 157 CrPC instantaneously. According
to the learned counsel FIR which was initially registered on 17-
11-2004 was given a number on 19-11-2004 as FIR No. 116 of
2004 and it was altered on 20-11-2004 and was forwarded only
on 25-11-2004 to the Magistrate. As far as the said contention
is concerned, we only wish to refer to the reported decision of
this Court in Pala Singh v. State of Punjab [ Pala Singh v. State
of Punjab , (1972) 2 SCC 640 : 1973 SCC (Cri) 55] wherein this
Court has clearly held that (SCC p. 645, para 8) where the FIR
was actually recorded without delay and the investigation
started on the basis of that FIR and there is no other infirmity
brought to the notice of the court then, however improper or
objectionable the delay in receipt of the report by the Magistrate
concerned be, in the absence of any prejudice to the accused it
cannot by itself justify the conclusion that the investigation was
tainted and the prosecution insupportable.
63 . Applying the above ratio in Pala Singh [ Pala Singh v.
State of Punjab , (1972) 2 SCC 640 : 1973 SCC (Cri) 55] to the
case on hand, while pointing out the delay in the forwarding of
the FIR to the Magistrate, no prejudice was said to have been
caused to the appellants by virtue of the said delay. As far as the
commencement of the investigation is concerned, our earlier
detailed discussion discloses that there was no dearth in that
aspect. In such circumstances we do not find any infirmity in
the case of the prosecution on that score. In fact the above
decision was subsequently followed in Sarwan Singh v. State of
Punjab [ Sarwan Singh v. State of Punjab , (1976) 4 SCC 369 :
1976 SCC (Cri) 646] , Anil Rai v. State of Bihar [ Anil Rai v.
State of Bihar , (2001) 7 SCC 318 : 2001 SCC (Cri) 1009] and
Aqeel Ahmad v. State of U.P. [ Aqeel Ahmad v. State of U.P. ,
(2008) 16 SCC 372 : (2010) 4 SCC (Cri) 11] ”‟
28 . It is no doubt true that one of the external checks against
antedating or ante-timing an FIR is the time of its dispatch to
the Magistrate or its receipt by the Magistrate. The dispatch of a
copy of the FIR “forthwith” ensures that there is no
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manipulation or interpolation in the FIR. [ Sudarshan v. State of
Maharashtra , (2014) 12 SCC 312 : (2014) 5 SCC (Cri) 94] If
the prosecution is asked to give an explanation for the delay in
the dispatch of a copy of the FIR, it ought to do so. [ Meharaj
Singh v. State of U.P. , (1994) 5 SCC 188 : 1994 SCC (Cri)
1391] However, if the court is convinced of the prosecution
version's truthfulness and trustworthiness of the witnesses, the
absence of an explanation may not be regarded as detrimental to
the prosecution case. It would depend on the facts and
circumstances of the case. [ Rattiram v. State of M.P. , (2013) 12
SCC 316 : (2014) 1 SCC (Cri) 635] ”
19. The obligation is on the IO to communicate the report to the
Magistrate. The obligation cast on the IO is an obligation of a
public duty. But it has been held by this Court that in the event
the report is submitted with delay or due to any lapse, the trial
shall not be affected. The delay in submitting the report is
always taken as a ground to challenge the veracity of the FIR
and the day and time of the lodging of the FIR.
20. In cases where the date and time of the lodging of the FIR is
questioned, the report becomes more relevant. But mere delay
in sending the report itself cannot lead to a conclusion that the
trial is vitiated or the accused is entitled to be acquitted on this
ground.
21. This Court in Anjan Dasgupta v. State of W.B. [ Anjan
Dasgupta v. State of W.B. , (2017) 11 SCC 222 : (2017) 4 SCC
(Cri) 280] (of which one of us was a member, Hon'ble Ashok
Bhushan, J.) had considered Section 157 CrPC. In the above
case also, the FIR was dispatched with delay. Referring to an
earlier judgment [ Rabindra Mahto v. State of Jharkhand ,
(2006) 10 SCC 432 : (2006) 3 SCC (Cri) 592] of this Court, it
was held that in every case from the mere delay in sending the
FIR to the Magistrate, the Court would not conclude that the
FIR has been registered much later in time than shown.
22. The High Court has rightly noted this submission and
opined that to find out whether the FIR is genuine or not, and
whether the trial court has rightly convicted the accused or not,
the entire evidence has to be looked into.
23. On delayed dispatch of FIR, some prejudice has to be
proved by accused. The prejudice which was sought to be
projected by the appellants is that in FIR names of only 7
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SHRIVASTAVA
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accused were mentioned but in the report sent to the Magistrate
there were 10 names. For the present case, it is sufficient to
notice that name of all the appellants were very much in the
FIR, hence addition of three names in report can in no manner
prejudice the appellants.
68. This Court has already considered the evidence in detail and has
found that FIR was lodged promptly and is not ante timed or ante dated .
Therefore, a delay of one day in sending copy to Magistrate would not be
fatal to the prosecution case.
69. No other arguments were advanced by counsel for the appellants.
70. For the reasons mentioned above, this Court is of considered
opinion that the trial Court has rightly convicted the appellant for offence
under Section 148 and Section 302/ 149 of the IPC.
71. So far as the question of sentence is concerned, the minimum
sentence for offence under section 302, IPC is life imprisonment.
72. Accordingly, conviction of appellant for offences under section 148
and section 302/149 of IPC are hereby affirmed, and the sentences
awarded by the trial Court are also affirmed.
73. Ex consequenti , judgment and sentence dated 22/6/2005 passed by I
Additional Sessions Judge, Shivpuri in S.T. No. 177/2000, is hereby
affirmed.
74. Appellant is on bail. His bail bonds are hereby cancelled, and he is
directed to immediately surrender before the trial Court to undergo the
remaining jail sentence.
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SHRIVASTAVA
Signing time: 06-11-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:33856 44
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75. Accordingly, the appeal fails and is, hereby, dismissed .
76. Let a copy of this judgment along with the record of the trial court
be sent back to the trial Court for necessary information and compliance.

(G. S. AHLUWALIA) (ANURADHA SHUKLA)
JUDGE JUDGE


(and)


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Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
17:58:20