Allahabad High Court
Gendan Lal vs State Of U.P. on 25 March, 2025
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:43423-DB
A.F.R.
In Chamber
Case :- CRIMINAL APPEAL No. - 1954 of 1993
Appellant :- Gendan Lal
Respondent :- State of U.P.
Counsel for Appellant :- Praveen Kumar Srivastava,Virendra Kumar Kori
Counsel for Respondent :- A.G.A.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Per: Hon'ble Vivek Kumar Birla, J.)
1. This criminal appeal has been preferred assailing the judgement and order dated 25.10.1993 passed by Special/Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 373 of 1986 convicting and sentencing the appellant under section 307 IPC to undergo imprisonment for life and under section 25 Arms Act to undergo sentence of three years rigorous imprisonment, directing all the sentences to run concurrently.
2. By the order dated 10.11.1993, the appellant was released on bail.
3. The prosecution story, in brief, is that the complainant and the accused persons were residents of Village Kharkari, Police Station Katra, District Shahjahanpur. Accused Gendan Lal was the cousin (mausera bhai) of co-accused Karan Lal and he was the resident of Village Madhra, Police Station Bisalpur, District Pilibhit. Both sides had previous enmity due to which, one person from both sides had been murdered. Injured Ram Bharose was the uncle of complainant Raja Ram. One FIR was lodged for the murder of Balak Ram against accused sides and another FIR was lodged for the murder of Munna Lal (brother of accused Karan Lal) against the complainant side. Both the cases were pending before the Court of District & Sessions Judge-I. Ram Bharose, the injured and his brothers Brijpal and Mahendrapal and one Ram Saran were accused in the said case of murder of Munna Lal.
4. The prosecution version is that on 16.6.1986 at 12.30 p.m. in the Court of District & Sessions Judge-I, Shahjahanpur within the jurisdiction of Police Station Sadar Bazar, the trial of murder of Munna Lal (brother of accused Karan Lal) was going on in which, injured Ram Bharose (PW2), Mahendra Pal, Brij Pal and Ram Saran were standing in the witness box as accused persons. Complainant Raja Ram who was the prosecution witness in the said case was present in the Court for getting his evidence recorded against accused Karan Lal. Accused Karan Lal was the complainant in the case of murder of Munna Lal and his testimony was getting recorded in the Court along with one witness Dafedar. Accused Gendan Lal was also present in the said courtroom to whom accused Karan Lal indicated something by his fingers. On his indication, accused Gendan Lal took out a country-made pistol of 315 bore and fired at the injured Ram Bharose Lal (PW2) which hit him on his back. Accused Gendan Lal then tried to escape from the courtroom but he was caught by the complainant Raja Ram and Court Moharrir Ram Shankar along with his country-made pistol with one fired empty cartridge inside the pistol. Apart from this, five live cartridges were also recovered from the right pocket of accused Gendan Lal. He was taken to the police station by the complainant Raja Ram and Court Moharrir Ram Shankar. The written report was prepared on the way to the police station which is Ex. Ka-1. Accused Gendan Lal and injured Ram Bharose Lal were taken to the concerned police station. Thereafter, a chick report (Ex. Ka-5) was prepared by PW4 Constable Om Prakash Sharma on 16.6.1986 at 12.50 p.m. and he also made GD entry of the said incident which was registered as Case Crime No. 298 of 1986 and 299 of 1986 (Ex. Ka-6).
5. On the basis of written report of the complainant, a first information report was lodged against two accused persons namely, Gendan Lal and Karan Lal being S.T. No. 373/86 under Section 307 IPC. Accused Karan Lal was also charged under Section 307 read with Section 34 IPC while accused Gendan Lal was also charged under Section 25 (A)(1) of the Arms Act in S.T. No. 374/86. Co-accused Karan Lal was later on exonerated by the trial court from the charges levelled against him.
6. In order to establish the prosecution case, five witnesses were examined namely, PW1 Raja Ram, PW2 Ram Bharose Lal, PW3 Dr. Amarlal and PW4 Constable Om Prakash Sharma, P.S. Mal Khana, Sadar, Shahjahanpur, PW5 S.I. Vijendra Prasad Singh Yadav, P.S. Visalpur as ocular evidence.
7. In addition to above, the prosecution produced certain documents, which were exhibited during the trial as under:
(i) FIR Ext. Ka-5; (ii) Written report Ext. Ka-1; (iii) Recovery Memo of country made pistol live and empty cartridge and arrest of accused Ext. Ka-2; (iv) Recovery Memo of blood stained clothes Ext. Ka-3; (v) X-Ray report Ext. Ka-8; (vi) Injury report Ext. Ka-4; (vii) Charge-sheets (Mool) Ext. Ka-10 and Ka-11; (viii) Permission of District Magistrate Ext. Ka-9; and (ix) Site Plan Ext. Ka-7.
8. We have heard Sri Raj Kumar Vaish along with Sri P.K. Srivastava, learned counsel for the appellant and Sri Om Prakash Dwivedi, learned A.G.A. for the State respondents.
9. Submissions of Sri Vaish, learned counsel for the appellant are mainly that it is a case of defective investigation; the prosecution has withheld its best witness namely, Constable/Head Muharrir Rama Shankar Dwivedi who was instrumental in arresting the accused Gendan Lal inside the courtroom itself and was also witness of fard baramadgi of the weapon and cartridges; there is no ballistic expert report in respect of the weapon so recovered and used and the cartridges so recovered and used to connect the same with the offence so committed; the signatures of the appellants were not taken on the fard baramdagi; the presence of the appellant inside the courtroom by itself is not sufficient to indicate that he had committed any assault or offence as no other employee of the courtroom was examined to prove the prosecution story; PW1 and PW2 are highly interested witnesses as the informant PW1 Rajaram is nephew of the injured and PW2 Ram Bharose Lal himself is injured and belong to the anti party with whom the appellant's side was having cross criminal cases; PW2, the injured states that the fire-arm injury was caused to him from back side and he had seen the accused subsequent to sustaining of the injury by him, therefore, this by itself is not sufficient to prove that the appellant was the assailant; PW5, the Investigating Officer has submitted that he had recorded the statement of the Presiding Officer present in the courtroom but unfortunately he died before recording of the statement, therefore, there should have been a reference to the statement of the Presiding Officer recorded under section 161 Cr.P.C. which, does not find place in the judgment. It is lastly submitted that the appellant has no previous criminal history, and the prosecution has failed to prove its case beyond reasonable doubt, therefore, in any case, the maximum sentence has incorrectly been awarded in the present case and as he was detained in jail during trial for some time, therefore, the punishment be modified accordingly.
10. Learned counsel for the appellant has placed reliance on the judgments of this Court in the cases of Anil Kumar vs. State of U.P. LAWS (ALL) 2015 8 274; Ravi Karan vs. State of U.P. LAWS (ALL) 2019 11 333; and Rameshwar vs. State of U.P. LAWS (ALL) 2022 7 215.
11. Per contra, learned AGA submitted that date, time and place of the occurrence is not in dispute. Heinous offence has been committed inside the running courtroom with Presiding Officer on the Dias while statements of the witnesses were being recorded. He further submitted that there had been a close range firing as charring and tattooing was present. PW2 Ram Bharose Lal himself is the sufferer of injury and victim and his presence is not in doubt. The informant Rajaram was also admittedly present inside the courtroom in a cross case and is related to the injured Ram Bharose Lal being his nephew. It was submitted that Dr. Amar Lal, PW3, had duly certified the injury suffered by the victim and his testimony could not be dislodged even in cross examination. He further submitted that it is a case of prompt FIR. The incident had taken place at 12:30 p.m. on 16.6.1986 and the report was lodged at 12.50 p.m. i.e. after 20 minutes and the distance of police station is only half a kilometer from the court premises. The accused was arrested on the spot and the key witness in the present case is the injured victim himself who is still carrying the bullet inside his body and his sole testimony itself was sufficient to convict the appellant.
12. We have perused the record and considered the rival submissions.
13. Before proceeding further, it would be appropriate to refer to various relevant judgements of Hon'ble Apex Court as well as of this Court on related witnesses as well as on injured witnesses.
14. In Krishna Mochi and others vs. State of Bihar (2002) 6 SCC 81, the Hon'ble Apex Court laid emphasis on realistic approach to be adopted by the criminal courts while appreciating evidence in criminal trial, paragraph 32 whereof is quoted as under:
"32. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time........."
(Emphasis supplied)
15. In Masalti vs. State of U.P., AIR 1965 SC 202, Hon'ble Apex Court in paragraph 14 observed as under:
"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."
(Emphasis supplied)
16. In Darya Singh vs. State of Punjab, AIR 1965 SC 328, the Hon'ble Apex Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; a decree in a civil case, or in seeing a person punished in a criminal trial, paragraph 6 whereof is quoted as under:
"6. 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."
17. In Appabhai and another vs. State of Gujarat, AIR 1988 SC 696, the Hon'ble Apex Court in paragraph 11 observed as under:
"11.........Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner....."
(Emphasis supplied)
18. Similar view has been taken in State of A.P. vs. S. Rayappa and others, (2006) 4 SCC 512 wherein it has been observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years, paragraph 6 whereof is quoted as under:
"6......by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."
(Emphasis supplied)
19. In Pulicherla Nagaraju @ Nagaraja Reddy v. State of AP, (2006) 11 SCC 444, the Hon'ble Apex Court in paragraph 16 has held as under:
"16. In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted."
(Emphasis supplied)
20. In Satbir Singh and others vs. State of U.P., (2009) 13 SCC 790, the Hon'ble Apex Court in paragraph 26 held as under:
"26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon ...... "
(Emphasis supplied)
21. In Jayabalan vs. U.T. of Pondicherry, 2010 (68) ACC 308 (SC), the Hon'ble Apex Court in paragraph 21 held as under:
"21. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."
(Emphasis supplied)
22. In Dharnidhar vs. State of U.P., (2010) 7 SCC 759, the Hon'ble Apex Court held that there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case, paragraphs 12 and 13 whereof is quoted as under:
"12. There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [(2010)1 SCC 199], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under:
" 23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.
........
13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. [AIR 2010 SC 917], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same.
14. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses' cannot be relied upon by the Court."
(Emphasis supplied)
23. In a very recent judgement rendered by Hon'ble Apex Court in Baban Shankar Daphal and others vs. The State of Maharashtra, 2025 SCC Online SC 137 in respect of testimony of witness which should not be discarded merely because of relation with victim, the Hon'ble Apex Court has, in paragraphs 27 and 28, held as under:
"27. One of the contentions of the learned counsel for the appellants is that the eyewitnesses to the incident were all closely related to the deceased and for prudence the prosecution ought to have examined some other independent eyewitness as well who were present at the time of the unfortunate incident. This was also the view taken by the Trial Court, but the High Court has correctly rejected such an approach and held that merely because there were some more independent witnesses also, who had reached the place of incident, the evidence of the relatives cannot be disbelieved. The law nowhere states that the evidence of the interested witness should be discarded altogether. The law only warrants that their evidence should be scrutinized with care and caution. It has been held by this Court in the catena of judgments that merely if a witness is a relative, their testimony cannot be discarded on that ground alone.
28. In criminal cases, the credibility of witnesses, particularly those who are close relatives of the victim, is often scrutinized. However, being a relative does not automatically render a witness "interested" or biased. The term "interested" refers to witnesses who have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity or personal gain. A "related" witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simply because of their relationship to the victim. Courts must assess the reliability, consistency, and coherence of their statements rather than labelling them as untrustworthy.
(Emphasis supplied)
24. In a recent judgement rendered by Hon'ble Apex Court in Shahaja @ Shahajan Ismail Mohd. vs. State of Maharashtra, (2023) 12 SCC 558 has observed that the appreciation of ocular evidence is a hard task and has summed up the judicially evolved principles for appreciation of ocular evidence in a criminal case, paragraphs 29 and 30 whereof is quoted as under:
"29. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
29.1 While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
29.2. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
29.3 When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
29.4. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
29.5. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
29.6. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
29.7. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
29.8. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
29.9. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
29.10. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
29.11. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
29.12. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
29.13. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
30. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
(Emphasis supplied)
25. Paragraph 48 of Pahalwan Singh and others vs. State of U.P., 2020 (6) ALJ 166 is quoted under:
"48. Thus, in view of aforementioned decisions of the Supreme Court, it is now a settled position of law that the statements of the interested witnesses can be safely relied upon by the court in support of the prosecution story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons who are closely related to the deceased. When their statements find corroboration by other evidence, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called 'interested witnesses' cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons.
(Emphasis supplied)
26. Insofar as the testimony of injured witness is concerned, this Court in Kaptan Singh vs. State of UP, 2020 (1) ADJ 106 (DB) has, in paragraph 20, observed as under:
"20. Close scrutiny of the evidence shows that the statements of (PW-1) Vimla Devi and (PW-2) Ram Singar Pandey are clear, cogent and credible. Theyhave been subjected to cross-examination, but they remained stick to the prosecution version and no such fact, contradiction or inconsistency could emerge, so as to create any doubt about their testimony. Keeping in view the fact that after incident, deceased as well as injured were taken to hospital and were admitted there and that on the same night deceased Ram Niwas Rao has succumbed to injuries, it is apparent that the first information report of the incident was lodged without any undue delay. Version of (PW-1) Vimla Devi finds corroboration from testimony of (PW-2) Ram Singar Pandey and is fully consistent with medical evidence. It is also to be kept in mind that (PW-2) Ram Singar Pandey has himself sustained injuries in the same incident. In Jarnail Singh v. State of Punjab, (2009) 9SCC 719, the Supreme Court reiterated the special evidentiary status accorded to the testimony of an injured accused. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case, the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon. Similar view was expressed in the case of Krishan v. State of Haryana, (2006) 12 SCC 459. Hon'ble Supreme Court in Criminal Appeal Nos. 513-514 of 2014 Baleshwar Mahto and another v. State of Bihar and another, decided on 9.1.2017, has reiterated the law as under :
''28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
''Convincing evidence is required to discredit an injured witness.'' [Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881:1973 SCC (Cri) 563:AIR 1972 SC 2593], Malkhan Singh v. State of U.P. [(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696], Bonkya v. State of Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag Singh [(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC (Cri) 302], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri) 211] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107], where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29)
''28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214]). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the Courts below.''
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.'' In this very judgment, relationship between the medical evidence and ocular evidence was also discussed, based on number of earlier precedents, as under: ''33. In State of Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] it was held as follows: (SCC p. 101, para 15)
''15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the Court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.''
In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694, the Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
It has been held that law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
(Emphasis supplied)
27. In a recent judgement rendered by Hon'ble Apex Court in Neeraj Sharma vs. State of Chhattisgarh, (2024) 3 SCC 125 in respect of importance of injured witness in a criminal trial, the Hon'ble Apex Court has, in paragraphs 22 and 23, held as under:
"22. The importance of injured witness in a criminal trial cannot be over stated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as an extremely valuable evidence in a criminal Trial.
23. In the case of Balu Sudam Khalde v. State of Maharashtra 2023 SCC OnLine SC 355 this Court summed up the principles which are to be kept in mind when appreciating the evidence of an injured eye-witness. This court held as follows:
"26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
(Emphasis supplied)"
28. Reference may be made to judgment of Co-ordinate Bench of which one of us (V.K. Birla, J.) was a member in the case of Rakshpal and Another vs. State of U.P. 2025 (2) ADJ 462 (DB) wherein the law was considered extensively.
29. Hon'ble Apex Court in the case of 'Balu Sudam Khalde vs. State of Maharashtra' 2023 13 SCC 365 has again considered the guidelines for consideration of evidence of injured witness, relevant paragraph 26 whereof is quoted as under:
"26. When the evidence of an injured eyewitness is to be appreciated, the undernoted legal principles enunciated by the courts are required to be kept in mind:
26.1. The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
26.2. Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
26.3. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
26.4. The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
26.5. If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
26.6. The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
(Emphasis supplied)
30. Apart from the law as discussed above, a reference may be made to the law relating to the effect of defect in investigation.
31. The law relating to the effect of a defect in investigation has been discussed and summarized by the Hon'ble Supreme Court in Gajoo v. State of Uttarakhand, (2012) 9 SCC 532, in the following words :
''20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, while dealing with the cases of omissions and commissions by the investigating officer, and duty of the Court in such cases, held as under: (SCC pp. 280-83, paras 27-36)
''27. Now, we may advert to the duty of the Court in such cases. In Sathi Prasad v. State of U.P., (1972) 3 SCC 613, this Court stated that it is well-settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, (2004) 3 SCC 654, held: (SCC p. 657, para 5)
'5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
28. Dealing with the cases of omission and commission, the Court in Paras Yadav v. State of Bihar, (1999) 2 SCC 126, enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the Courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
29. In Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374, the Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the Court on the one hand and on the other the Courts must seriously deal with persons who are involved in creating designed investigation. The Court held that: (SCC p. 398, para 42)
'42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair, as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this Courts have a vital role to play.' (emphasis in original)
30. With the passage of time, the law also developed and the dictum of the Court emphasised that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
31. Reiterating the above principle, this Court in NHRC v. State of Gujarat, (2009) 6 SCC 767, held as under: (SCC pp. 777-78, para 6)
'6. ... ''35. ... The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators.'' (Zahira Habibullah case, SCC p. 395, para 35)'
32. In State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715, this Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the investigating officer could be put against the prosecution case. This Court, in para 19, held as follows: (SCC p. 720)
'19. But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. The criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit the investigating officer's suspicious role in the case."
33. In Ram Bali v. State of U.P., (2004) 10 SCC 598, the judgment in Karnel Singh v. State of M.P., (1995) 5 SCC 518 was reiterated and this Court had observed that: (Ram Bali case, SCC p. 604, para 12)
'12. ... In case of defective investigation the Court has to be circumspect [while] evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective.'
34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well.
(Emphasis supplied)
32. In State of Karnataka v. Suvarnamma, (2015) 1 SCC 323, the Hon'ble Supreme Court held that ''It is also well-settled that though the investigating agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence.''
(Emphasis supplied)
33. In State of U.P. vs. Phool Singh 2022 (4) ADJ 397 (DB) of which one of us (V.K. Birla, J.) was member, the Co-ordinate Bench has also considered the law relating to effect of defect in investigation.
34. We find that in the present case the accused Gendan Lal has caused fire-arm injury to PW2 Ram Bharose Lal, who is the victim as well and real uncle of the informant Raja Ram inside the running courtroom in presence of large number of persons. Ram Bharose Lal suffered injury on his back and when the accused Gendan Lal tried to run away he was caught on the spot i.e. inside the courtroom by the informant Raja Ram with the help of police constable Ram Shanker. The weapon, country made pistol of 315 bore, was recovered from his hand with an empty cartridge inside the weapon and five live cartridges from his right pocket. Undisputedly, it has also come in evidence that the accused Gendan Lal was relative of Karan Lal who was accused in a murder case whose statement had already been recorded in a sessions trial pending against him and the allegation is that he signalled Gendan Lal to cause fire. It is no doubt that mere preparation of the recovery memo as alleged in the police station which is half a kilometre away from the court premises by itself would not create any doubt on the prosecution story as the incident of firing which took place very much inside the running courtroom with Presiding Officer on the Dias.
35. It is quite natural that under such circumstances, to avoid any panic, accused Gendan Lal arrested on the spot with weapon used in the crime in his hand, was immediately taken to the police station which was only half a kilometre away from the court premises along with the weapon recovered on the spot. It is also admitted case that the bullet was still inside the body of the injured Ram Bharose Lal PW2 when his statement was recorded. It has come in the evidence that there was a cross case also wherein, the Informant in the present case Raja Ram, was the informant in the aforesaid case and was present for recording of his statement. Karan Lal was informant in the other case and his statement had already been recorded and statement of one witness Dafedar was being recorded. The presence of both the witnesses PW1 as well as PW2 is clearly proved and is more or less admitted to the accused side as well. The old enmity was also admitted as from both sides murders have been committed wherein close relatives of all the accused persons present in the court were involved.
36. PW1 Raja Ram has admitted that Brij Pal and Mahendra Pal were his real brothers. Their father Balak Ram was murdered wherein Karan Lal was the accused and on the same day, Munna Lal, the brother of Karan Lal was also murdered wherein Brij Pal and Mahendra Pal were accused persons. These murders had taken place on 11.11.1984 and because of these two murders both were present as there were cross sessions trial that were being conducted, therefore, presence of PW1 Raja Ram is proved beyond doubt and the presence of PW2 Ram Bharose Lal, who is the victim himself, is not in dispute. The victim PW2 Ram Bharose Lal had clearly stated that the learned Judge was sitting on the Dias and the Peshkar was recording the statement and Head Constable was also present. He was sitting near the cage of the accused persons. Accused Gendan Lal came from behind and he could not see him. Karan Lal was looking at the accused Gendan Lal. PW2 Ram Bharose Lal saw Gendan Lal firing at him and, thereafter, he ran in the direction of the chamber of the learned Judge. PW2 Ram Bharose Lal, the victim himself has also proved the enmity amongst the accused persons present and has stated that the learned Judge who was sitting on the Dias also shouted. PW2, victim Ram Bharose Lal was hospitalized for ten days and the bullet was still inside his body when his statement was recorded.
37. In his cross examination, he has categorically stated that immediately after he had been fired upon, he had seen Gendan Lal doing this and it is only when accused Gendan Lal ran in the direction of the chamber of the learned Judge, he was caught. He had specifically denied the suggestion that somebody else had fired upon him and had categorically stated that accused Gendan Lal had fired upon him. The doctor has proved the injuries caused to Ram Bharose Lal and has categorically stated that the injuries could have been suffered at 12:30 p.m.on 16.6.1986 by a firearm and there was charring, blackening and tattooing present and, therefore, it was a case of close range firing caused from behind. Investigating officer SI V.P. Singh Yadav had clearly stated that he had recorded the statement of Kunwar Sawal Singh, learned Sessions Judge in whose court, this incident had taken place. He had fully supported the prosecution story which could not be dislodged in his cross examination.
38. We further find that accused Gendan Gendan Lal in his statement recorded under section 313 Cr.P.C. has admitted the enmity between the parties and that Karan Lal was inside the courtroom. In his statement, he denied his relationship with accused Karan Lal, however, we find that at page 39 of the paper book he had admitted that accused Karan Lal is his cousin (mausera bhai) and he was present inside the courtroom at the time of the incident. This clearly reflects that he has admitted the enmity and his presence in the courtroom for the purpose of doing pairvi on behalf of his brother Karan Lal who was accused in a cross case. The same suggestion was made to the accused Karan Lal and, therefore, the case of the prosecution that the accused Gendan Lal was close relative of accused Karan Lal was present on the spot and the accused side and the informant side were having old enmity is not in dispute.
39. We, therefore, find that the prosecution has clearly proved its case beyond doubt. An attempt to murder had taken place inside the courtroom. In view of the law as referred to above, the sole testimony of the injured-victim-witness is sufficient to hold the appellant guilty. In the present case, there were two eye witnesses, one, PW1 Raja Ram, the informant whose presence in the courtroom is not in dispute, who is related to the injured witness and, second, PW2 is the injured Ram Bharose Lal who himself is the victim and was still carrying the bullet inside his body when his statement was recorded and the injuries caused to him were duly proved. There was recovery of weapon from the hands of the accused Gendan Lal who was arrested from the spot itself inside the courtroom. The statement of the learned Presiding Officer was also recorded who, unfortunately, died before recording of this statement in the Court as witness. Therefore, the presence of the injured and accused persons is not in dispute. In other words, the date, time and place is not in dispute. There are categorical statement of the injured victim PW2 Ram Bharose Lal that the Presiding Officer was sitting on the Dias and that of PW5 Vijendra Prasad Singh Yadav, Investigating Officer that statement of the Presiding Officer Kunwar Sawal Singh who was admittedly sitting on the Dias at the time of the incident was recorded in his chamber. Therefore, not taking note of the statement of the Presiding Officer recorded under section 161 Cr.P.C. would be of no consequence.
40. The victim Ram Bharose Lal who is also injured witness PW2, has suffered entry wound of 0.75 cm x 0.5 cm depth whereof could not be measured, just 3.5 cm above partition of waist with blackening, tattooing and charring. This is undoubtedly vital part of the body. Had this injury been little closer to heart or lungs or any other vital organ, injuring the same it would have definitely caused death, an offence of murder in open Court.
41. Under these circumstances, non-production of any particular person as witness is of no consequence.
42. We have gone through the judgment relied on by learned counsel for the appellant.
43. In view of the discussion made hereinabove, we find that the judgments relied on by learned counsel for the appellant has no applicability in the facts and circumstances of the present case.
44. We, therefore, find that the present appeal is devoid of merits and is accordingly dismissed. The conviction of appellant Gendan Lal is confirmed.
45. In so far as the punishment for life is concerned, we find that the incident had taken place in broad day light inside the running courtroom when statements were being recorded with the Presiding Officer on the Dias. We are of the opinion that this is a fit case where maximum punishment has been awarded by the trial court and we, therefore, affirm the punishment for life along with other punishments, as awarded.
46. Since the appellant Gendan Lal is on bail, his bail bonds are cancelled and the sureties are discharged. He is directed to surrender before the court concerned within three weeks to undergo the punishments awarded.
47. Lower court record be sent to the concerned Court forthwith.
48. Let a copy of this order be communicated by the Registrar (Compliance) to the Court concerned for compliance and to proceed in accordance with law in case the accused fails to surrender.
Order Date :- 25.3.2025
Madhurima
