Awadh vs The State Of M.P.

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Cr.A. Nos. 404/2005 & 408/2005

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. 404 of 2005

CNR No.: MPHC030099782005
RISHI UPADHYAY
Versus
THE STATE OF M.P.


Appearance:
Shri B.D.Sharma, Advocate for appellant.
Shri C.P.Singh, Public Prosecutor for respondent/State.

CRIMINAL APPEAL No. 408 of 2005
CNR No.: MPHC030102012005
AWADH AND ANR
Versus
THE STATE OF M.P.

Appearance:
Shri Shailendra Singh Sengar and Shri Atul Gupta, Advocates for
appellants.
Shri C.P.Singh, Public Prosecutor for respondent/State.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
17:58:20

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Cr.A. Nos. 404/2005 & 408/2005

Shri Vivek Kumar Vyas and Shri Avinash Chaturvedi, Advocates
for complainant.


JUDGMENT

Per : Justice Gurpal Singh Ahluwalia
By this common judgment , Criminal Appeal No. 404/2005 filed by
Rishi Upadhyay and Criminal Appeal No. 408/2005 filed by Awadh and
Giltu alias Ajay shall be decided.
2. Both the appeals arise out of judgment and sentence dated
22/6/2005 passed by I Additional Sessions Judge, Shivpuri in S.T. No.
207/2001, by which the appellants have been convicted under sections
148, 302/149 of IPC and have 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/- with default imprisonment of two years‟
RI for offence under Section 302/149 of IPC.
3. 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. Later on, a supplementary chargesheet
was filed against Narhari Prasad Sharma, Dwaraka Prasad, Awadh,
Radha Raman, Bharat, Giltu alias Ajay, Sant Kumar, and Rishi
Upadhyay. These persons were tried separately, and the witnesses were
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
17:58:20

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Cr.A. Nos. 404/2005 & 408/2005

examined afresh. Therefore, S.T. No. 177/2000 was held in respect of
co-accused Lakhan, Chokharmal, Vijay, Devendra, Mukesh, Kali alias
Kalicharan, and Nathuram, which was also decided by a separate
judgment and sentence dated 22/6/2005. During the pendency of that
trial, Lakhan expired, whereas Chokharmal, Vijay, Mukesh, Kali alias
Kalicharan, and Nathuram were acquitted.
Co-accused Devendra was convicted for offence under sections 148
and 302/ 149 of IPC. Devendra has filed separate appeal, which has been
registered as Criminal Appeal No. 398/ 2005. In view of 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 , said appeal shall be decided by a
separate judgment, although that appeal has also been taken up for
analogous hearing.
Narhari Prasad Sharma was tried in S.T. No. 29/2002. Dwarka
Prasad was tried in S.T. No. 175/2001, whereas Awadh, Radharaman,
Bharat, Giltu alias Ajay, Sant Kumar and Rishi Upadhyay were tried in
S.T. No. 207/2001. The evidences were recorded jointly in the presence of
all the accused persons. By the impugned judgment and sentence dated
22/06/2005, I Additional Session Judge, Shivpuri convicted Narhari
Prasad Sharma in S.T. No. 29/2002 and convicted Rishi Upadhyay,
Awadh, and Giltu alias Ajay in S.T. No. 207/2001 for offences under
Sections 148, 302/149 of the Indian Penal Code and sentenced them as
aforesaid. However, Dwarka was acquitted in S.T. No. 175/2001 and
Bharat, Radharaman, and Sant Kumar were acquitted in S.T. No.
207/2001.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
17:58:20

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Cr.A. Nos. 404/2005 & 408/2005

State has filed Criminal Appeal No. 92/2006 against the acquittal of
Dwarka Prasad, Radharaman, Bharat, and Sant Kumar. So far as the
acquittal of accused persons in a separate trial are concerned, no state
appeal has been filed. In Criminal Appeal No. 92/2006, Bharat has
expired, and accordingly, his name has been deleted from the array of
cause title and the appeal against his acquittal has been dismissed as
abated. Since the method of appreciating the evidence in an appeal
against acquittal is different from the method of appreciating the evidence
in an appeal against conviction, therefore, Criminal Appeal No. 92/2006
filed by the State against the acquittal of Dwarka Prasad, Radharaman,
and Sant Kumar shall be decided by a separate judgment.
Similarly, Narhari Prasad Sharma, who has been convicted and has
filed separate Criminal Appeal No. 402/2005, has also died during the
pendency of this appeal, accordingly, by order dated 13/10/2026, the
appeal filed by accused Narhari Prasad Sharma has been dismissed as
abated.
Thus, by this judgment, the conviction of Rishi Upadhyay, Awadh,
and Giltu alias Ajay will be considered.
4. 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
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
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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
(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, including the appellants for offence 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.
5. The appellants and co-accused persons abjured their guilt and
pleaded not guilty.
6. The prosecution in order to prove its case examined Banwari Lal
Tiwari alias Pappi (PW1), Rajendra Acharya (PW2), Kishanlal (PW3),
Dr. V. C. Goyal (PW4), Abdul Haq (PW5), Ramgopal Verma (PW6),
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
17:58:20

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Bhagwanlal (PW7), Mukhtyar Ahmad (PW8), Majar Ahmed (PW9),
Pradeep Pandey (PW10), Gopal Krishna Tiwari (PW11), P. S. Yadav
(PW12) and Ajay Bhargava (PW13).
7. Appellants did not examine any witness in their defense.
8. The trial Court by judgment and sentence dated 22.6.2005 acquitted
accused Dwarka Bohre, Bharat Bohre, Radharaman Bohre and Sant
Kumar of all the offences, whereas convicted the appellants for offences
under Sections 148 and 302/149 of the Indian Penal Code and sentenced
them as aforesaid.
9. Challenging the judgment and sentence passed by the Court below,
it is submitted by counsel for appellants that out of five eyewitnesses,
only two witnesses, namely Banwari Lal (PW1) and Pradeep Pandey
(PW10), have supported the prosecution case, whereas, Rajendra
Acharya (PW2), Mukhtyar Ahmed (PW8), and Majar Ahmed (PW9)
have turned hostile. It is submitted by counsel for appellants that
Banwari Lal (PW1) is the uncle of deceased, whereas Pradeep Pandey
(PW10) is the cousin brother of the deceased. Both are related witnesses.
Admittedly, there was an enmity between the parties and therefore, the
evidence of the related witnesses is required to be scrutinized very
minutely. It is further submitted that Banwari Lal (PW1) and Pradeep
Pandey (PW10) were not present at the spot. One Rajiv Pandey, whose
shop is also situated at the nearby place and was also present at the spot,
was not examined by the police. There are material omissions and
contradictions in the evidence of Banwari Lal (PW1) and Pradeep
Pandey (PW10), therefore, they are not reliable.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
17:58:20

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10. Per contra the appeals are vehemently opposed by Counsel for the
state.
11. Heard, learned counsel for the parties.
12. Dr. V. C. Goyal (PW4) had conducted the postmortem of the dead
body of Tuntun alias Dinesh. In the post mortem report, the doctor 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.
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.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
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Cr.A. Nos. 404/2005 & 408/2005

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/9C) as the original postmortem
report was exhibited in the trial of co-accused persons as Ex.P/9.
This witness was not cross-examined at all. Therefore, it is clear
that deceased Tuntun alias Dinesh Tiwari had died a homicidal death.
13. The moot question for consideration is as to whether the appellants
are the author of the injuries caused to deceased Tuntun alias Dinesh
Tiwari or not?
14. Earlier, it appears that the trial Court had kept a copy of evidence of
witnesses led in another trial of co-accused, but the said procedure
adopted by the trial Court was set aside, and accordingly, the evidence
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
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of the witnesses were recorded afresh in the presence of the appellants
as well as acquitted co-accused persons.
15. Banwarilal alias Pappi (PW1) had lodged the FIR. He has stated
that on 18/05/2000, it was around 10:15 AM. This witness was sitting in
the shop of Pradeep Pandey (PW10), which is situated front of the Pan
shop of Rajendra Sharma. The shop of Pradeep Pandey (PW10) is
situated at a distance of 20-25 feet from the place of occurrence. The
deceased Tuntun alias Dinesh, who is the nephew of this witness, had
come to the Pan shop of Rajendra Sharma for chewing pan, but he was
surrounded by 17 persons whose names are Avadh Bohre, Narhari
Bohre, Rishi Upadhyay, Dwarka Bohre, Lakhan Bohre, Vijay Bohre,
Devendra Bohre, Giltu Bohre, Sant Bohre, Radharaman Bohre,
Chokharmal Kevat, Nathuram Kevat, Narendra Bohre, Bharat Bohre,
Shyam Soni, Kali Soni and Mukesh Soni, who were present in the court,
and two more persons arrested are still absconding, who are not present
in the Court. Mukesh and Kali Soni threw Tuntun Tiwari alias Dinesh
Tiwari on the ground and thereafter all the accused persons started
assaulting the injured/deceased. He was assaulted by Lathi, Pharsa and
iron rods. Avadh Bohre, Rishi Upadhyay and Narhari Bohre were
carrying Iron rods. Mukesh Soni, Kali Soni, Vijay Bohre, Devendra
Bohre, Giltu Bohre were carrying Lathis. Dwarka Bohre, Lakhan Bohre,
Bharat Bohre, Shyam Bohre were carrying Pharsa . Chokharmal Bohre
was carrying a sword and Nathuram Kevat and Narendra were carrying
guns. Narendra and Nathuram Kevat were also challenging the other
persons by threatening that in case if somebody comes to intervene in
the incident, then he too will be killed, and therefore, the witnesses
Signature Not Verified
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SHRIVASTAVA
Signing time: 06-11-2026
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could not dare to intervene in the matter. The injured suffered multiple
injuries and after assaulting the injured, the accused persons fled away.
Thereafter, the injured/deceased was taken to police station by this
witness and his another nephew, Pradeep Pandey (PW10), on a handcart.
Sub Inspector Yadav called one Jeep and sent Tuntun Tiwari to Shivpuri
Hospital for treatment, and this witness lodged the FIR which is
(Ex.P/1), and the copy of FIR in the present trial is Ex.P/1C and the
original copy of FIR is annexed in ST No. 177/2000.
16. Pradeep Pandey (PW10) was examined and cross-examined on
13/12/2002. Initially Pradeep Pandey (PW10) insisted that since his
evidence has already been recorded in another trial, therefore, the same
should be read in this case also, but he was told that in view of order
passed by High Court, his evidence is to be recorded afresh in this trial.
Accordingly, he requested that his earlier deposition sheet or statement
under Section 161 of Cr.P.C. may be read out to him, but that was also
denied. Accordingly, his evidence was recorded afresh.
17. Pradeep Pandey (PW10) stated that incident took place about 2 ½
years back. It was 10 AM. He was in his shop. Tuntun Tiwari
(deceased) came to his shop and thereafter went to the shop of Rajendra
Pan Wale . After purchasing Pouch, Tuntun returned back. Immediately
at that time, 15 persons came there. Kali and Mukesh Soni threw
Tuntun Tiwari on the ground and Narendra Bohre shouted that he would
run therefore he should be shot. Thereafter, the accused persons started
beating Tuntun by Lathis, Iron Rod and Pharsa . Tuntun fell
unconscious and blood started oozing out from the head. Banwarilal
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
17:58:20

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Cr.A. Nos. 404/2005 & 408/2005

was also sitting in his shop and was reading newspaper. Thereafter, this
witness and Banwarilal took the injured to Police Station on a handcart.
The accused persons present in the Court were the assailants. Spot map
was not prepared in his presence and it does not bear his signatures.
18. Since, counsel for the appellants has simply tried to point out the
omissions and contradictions in the evidence of Banwarilal (PW1) and
Pradeep Pandey (PW10), therefore, the cross examination of these two
witnesses is not being considered in detail, however, the arguments
raised by counsel for the appellants would be considered.
19. It is submitted that there is a discrepancy with regard to sequence
i.e., that whether the injured/deceased was sent to hospital and thereafter
FIR was registered, or whether FIR was registered first and thereafter,
the injured/deceased was sent to hospital. The tree as claimed by
witnesses is not shown in the spot map. The witnesses could not have
seen the incident from the shop of Pradeep Pandey. The witnesses are
related to the deceased and therefore they are interested witnesses. The
copy of FIR was sent to the Magistrate on the next date of incident,
therefore, there was no strict compliance of Section 157 of Cr.P.C.
Whether the witnesses had stayed in the police station for the entire day
or not?
20. Before considering the submissions made by counsel for appellants,
this Court would like to consider the law governing the field of
omissions and contradictions.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 06-11-2026
17:58:20

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21. 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).

22. 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
Signature Not Verified
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SHRIVASTAVA
Signing time: 06-11-2026
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alone, they may amount to contradiction of some serious
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
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SHRIVASTAVA
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Vs. State of M.P.] is made in a statement of a witness under
Section 161 CrPC, the same may amount to contradiction and
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".
23. 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
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SHRIVASTAVA
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justified in reviewing the same, without providing justifiable
reasons for 13 Criminal Appeal No.819/2016 [Allu Vs. State of
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."
24. 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
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upon such evidence. (Vide State of Rajasthan v. Rajendra Singh
(2009) 11 SCC 106.)
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
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prosecution version, when the entire evidence is put in a
crucible for being tested on the touchstone of credibility."
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".

25. By referring to the evidence of Banwarilal Tiwari alias Pappi
(PW1), it was submitted by counsel for appellants that in paragraph 3 of
his examination-in-chief, he has stated that after he reached Police Station
Rannod, then ASI Yadav called a Jeep and sent the injured Tuntun Tiwari
to Shivpuri hospital for treatment and this witness lodged the FIR
(Ex.P/1C). However, by referring to the evidence of P.S.Yadav (PW12), it
is submitted that in paragraph 1 of his examination-in-chief, this witness
has stated that after the injured was brought to Police Station in an injured
condition, he registered the FIR (Ex.P/1C) 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.
26. Considered the submission made by counsel for appellants.
27. Banwarilal Tiwari alias Pappi (PW1), in paragraph 3 of his
examination-in-chief, has merely stated that after noticing the critical
condition of injured Tuntun, he was sent to hospital for treatment and the
FIR was lodged by him. P.S. Yadav (PW12) has stated that he recorded
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the FIR and then he sent the injured Tuntun alias Dinesh Tiwari to District
Hospital, Shivpuri for treatment. It is not out of place to mention here that
evidence of these two witnesses were recorded after approximately 3
years of the incident. Even assuming that FIR was lodged and thereafter
the injured 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.
28. It was next contended by counsel for appellants that Banwarilal
Tiwari alias Pappi (PW1) has stated that total 17 persons had assaulted the
injured/deceased Tuntun Tiwari, whereas Pradeep Pandey (PW10) has
stated that only 15 persons had assaulted the injured/deceased Tuntun
Tiwari.
29. If evidence of both the witnesses is seen then it is clear that there is
no major discrepancy. In paragraph 1 of his examination-in-chief,
Banwarilal Tiwari alias Pappi (PW1) has named 17 persons. Even
assuming that there is discrepancy as to whether 15 persons or 17 persons
had assaulted the deceased, but names of assailants were disclosed by
Banwarilal Tiwari alias Pappi (PW1), whereas Pradeep Pandey (PW10)
had stated that 15 persons had assaulted the deceased and the accused
present in the Court were amongst the assailants. Therefore, such
discrepancy would not make any difference.
30. It was next contended by counsel for appellants that Banwarilal
Tiwari alias Pappi (PW1) has stated that when injured /deceased Tuntun
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alias Dinesh Tiwari went to the Pan shop of Rajendra Sharma for chewing
pan, he was surrounded by 17 persons, whereas Pradeep Pandey(PW10)
in paragraph 2 of his examination-in-chief has stated that after purchasing
pouch when Tuntun Tiwari was returning back, then he was assaulted by
15 persons.
31. 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 impressions/observations
of the witnesses regarding the manner of commission of offence, 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 on the road situated near
the Pan shop of Rajendra and not at the shop of Rajendra. Thus, it is clear
that expressions regarding the place of incident may differ from witness to
witness because the distance between what was expressed by Banwarilal
Tiwari alias Pappi (PW1) and Pradeep Pandey (PW10) is so less that such
a discrepancy may arise, which is indicative of the fact that they are not
tutored witnesses, but natural witnesses.
32. 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
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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”. 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 Pandey
(PW10), the place of incident was changed, cannot be accepted and is
hereby rejected.
33. It is next contended by counsel for appellants that Pradeep Pandey
(PW10) in paragraph 5 of his cross-examination has stated that at the time
of incident, his elder brother Rajiv was also there, but 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 Tiwari alias Pappi (PW1) and Pradeep
Pandey (PW10) are liable to be disbelieved.
34. Considered the submissions made by counsel for the appellants.
35. In paragraph 9 of his cross-examination, Banwarilal Tiwari alias
Pappi (PW1) has specifically stated that immediately after the assault
began, Rajiv went back to his house and, therefore, under such
circumstances if Rajiv was not examined by the Police, then it cannot be
said that any important witness has been withheld by the Police.
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36. 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 Tiwari alias Pappi (PW1) and Pradeep Pandey (PW10) 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.
37. 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
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
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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 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
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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.”
38. 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.
(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.”

39. 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
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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
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.”

40. 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.
41. It is next contended by counsel for appellants that Banwarilal
Tiwari alias Pappi (PW1) in paragraph 4 of his cross-examination has
stated that there are approximately 50 shops on the spot but they were
not shown in the spot map. It is submitted that in paragraph 7 of his
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cross-examination, Banwarilal Tiwari 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.

42. Considered the submission made by counsel for appellants.
43. 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.
44. The Supreme Court in the case of Anil Rai v. State of Bihar,
reported in (2001) 7 SCC 318 has held as under :
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
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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.

45. 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,
1
as recorded by the High Court in the impugned judgment . We
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
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shaken in cross-examinations to render it unsafe for the Court to
rest an order of conviction against the accused persons.

46. From the evidence, it is clear that shop of Pradeep Pandey (PW10)
is situated quite nearer to the place of occurrence. The incident took
place in the middle of the road, therefore, the presence of Pradeep
Pandey (PW10) in his shop is natural. Counsel for appellants could not
point to any evidence to show that the shop of Pradeep Pandey (PW10)
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 Tiwari alias Pappi (PW1).
The witnesses have stated that after the assault was over, they took the
injured to the police station on a handcart. Therefore, these fifteen
minutes were 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 Tiwari alias
Pappi (PW1) and Pradeep Pandey (PW10) were not present or that they
had sufficient time to deliberate with an intention to falsely implicate the
accused persons. Furthermore, looking at the number of injuries
sustained by Tuntun alias Dinesh Tiwari, it is clear that he was assaulted
by several persons.
47. 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:-
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" ..... 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....”.
48. 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
doing so. There is not even a shadow of material to substantiate
the plea.”
49. 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
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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
(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.”

50. 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
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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.
51. Thus, the presence of Banwarilal Tiwari alias Pappi (PW1) and
Pradeep Pandey (PW10) 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.
52. It was next submitted by counsel for appellants that since
Banwarilal Tiwari alias Pappi (PW1) and Pradeep Pandey (PW10) are
related to the deceased, therefore, they are related and interested
witnesses and their evidence should not be relied upon.
53. Considered the submissions made by counsel for appellants.
54. 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.
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19. A contradicted testimony of an interested witness cannot be
usually treated as conclusive…….
55. 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
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.
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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
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
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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
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
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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
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.”
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56. 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
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
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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
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
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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
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
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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.”
57. 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
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
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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.
58. 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.
59. Thus, it is clear that there is a distinction between “related witness”
and “interested witness”. However, Court should examine the evidence
of a 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.
60. This Court has already found that prompt lodging of the FIR within
fifteen minutes of the occurrence by Banwarilal Tiwari alias Pappi
(PW1), who claimed that he had witnessed the incident as he was sitting
at the shop of Pradeep Pandey (PW10) 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)
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and Pradeep Pandey (PW10), nothing else was pointed out by counsel
for appellants to make the evidence of Banwarilal Tiwari alias Pappi
(PW1) and Pradeep Pandey (PW10) unreliable.
61. So far as contention of counsel for appellants that although number
of shops are situated nearby but Police has not examined any
independent witnesses and those who were examined have turned hostile
therefore evidence of Banwarilal Tiwari alias Pappi (PW1) and Pradeep
Pandey (PW10) should be discarded is concerned, the same cannot be
accepted. As already pointed out, it is not the quantity of witnesses, but
the quality of witnesses that matters. Nowadays, independent witnesses
hesitate in coming forward for multiple reasons, primarily due to
hesitation on their part in participating in investigation, as well as, Court
proceedings. Furthermore, in the present case, prosecution had examined
independent witnesses who had supported the prosecution case in
previous trial but turned hostile in this case. Be that whatever it may be.
Since this Court has found that Banwarilal Tiwari alias Pappi (PW1) and
Pradeep Pandey (PW10) are reliable witnesses, therefore, merely
because independent witnesses have turned hostile will not demolish the
evidence of reliable and trustworthy witnesses only on the ground that
they are related witnesses. 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.
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62. 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.
63. 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.
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
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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.
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
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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
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
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SHRIVASTAVA
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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
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.”
64. 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.
65. No other arguments were advanced by counsel for the appellants.
66. For the reasons mentioned above, this Court is of considered
opinion that the trial Court has rightly convicted the appellants for
offence under Section 148 and Section 302/ 149 of the IPC.
67. So far as the question of sentence is concerned, the minimum
sentence for offence under section 302, IPC is life imprisonment.
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NEUTRAL CITATION NO. 2026:MPHC-GWL:33856
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Cr.A. Nos. 404/2005 & 408/2005

68. Accordingly, conviction of appellants 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.
69. Ex consequenti , judgment and sentence dated 22/6/2005 passed by I
Additional Sessions Judge, Shivpuri in S.T. No. 207/2001, is hereby
affirmed.

70. Appellants are on bail. Their bail bonds are hereby cancelled, and
they are directed to immediately surrender before the trial Court to
undergo the remaining jail sentence.
71. Accordingly, Criminal Appeal No. 404/2005 filed by Rishi
Upadhyay and Criminal Appeal No. 408/2005 filed by Awadh and Giltu
alias Ajay, are hereby dismissed .
72. 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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