REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 207 of 2007

Bhagaloo Lodh & Anr.                             …Appellants

Versus

State of U.P.                                           …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This criminal appeal has been preferred against the judgment  

and order dated 28.4.2004 passed by the High Court of Judicature at  

Allahabad (Lucknow Bench)  in  Criminal  Appeal  No.  956 of  2002  

dismissing the appeal against the judgment and order dated 12.7.2002  

passed by the Sessions Court, Hardoi, in Sessions Trial No. 108 of  

2000 convicting the appellants and co-accused Bhagaloo Singh, under  

Sections  302/34  of  Indian  Penal  Code,  1860  (hereinafter  called  as  

`IPC’) and sentencing them to undergo rigorous imprisonment for life.  

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2.       Facts and circumstances giving rise to this case are that:

A) An FIR dated 26.10.1999 was lodged by Rajesh Singh (PW.1)  

in Police Station-Tandiyanwan, Fatehpur District, Hardoi, against the  

appellants and two other co-accused Ram Lakhan and Bhagaloo Singh  

that the said four accused had killed Vinod Kumar on 25.10.1999 at  

9.00 P.M. Vinod Kumar, aged 22 years  was friend of Raj Kumar, the  

son of Ram Lakhan,  accused,  and thus had visiting terms with the  

family. One day, when he went to the house of Ram Lakhan, accused,  

he saw Bhagaloo Singh, accused in compromising position with the  

daughter  of  Ram Lakhan,  accused and reprimanded him. Bhagaloo  

Singh was living with Ram Lakhan, accused and helping him in his  

agricultural  work.  Bhagaloo  Singh  had  told  Vinod  Kumar  not  to  

disclose the factum of his intimacy with the daughter of Ram Lakhan  

to anyone. Thus, a quarrel took place between the two and Bhagaloo  

Singh,  accused  threatened  Vinod  Kumar  to  face  the  dire  

consequences.  It  is  in  that  consequence  that  the  two  appellants,  

alongwith Ram Lakhan caught hold of Vinod Kumar (deceased) and  

Bhagaloo  Singh  gave  several  blows  by  a  sharp  edged  weapon  

“Karauli”.  Vinod Kumar died immediately on the spot after having  

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12 injuries.   There had been enmity in these groups of parties  and  

there had been criminal cases between them.  

B) On the basis  of  the  said  FIR,  Case Crime No.155/1999 was  

registered under Sections 302/34 IPC and investigation ensued. The  

dead body of Vinod Kumar was recovered and sent for post mortem  

examination.  Buddhi  Narain  Lal  (PW.5),  Investigating  Officer  

completed the investigation and submitted chargesheet under Sections  

302/34 IPC. All the four accused pleaded not guilty and claimed trial.  

Thus, they were put to trial under Sections 302/34 IPC in Sessions  

Trial No. 108/2000.  

C) The  prosecution  in  order  to  prove  its  case  examined  five  

witnesses, namely, Rajesh Singh (PW.1), Devi Gulam Singh (PW.2)  

as  eye-witnesses,  Dr.  R.K.  Porwal  (PW.4),  Constable  Shailendra  

Singh (PW.3), and Buddhi Narain Lal, I.O. (PW.5). The accused also  

examined Jag Dev (DW.1) and Salim (DW.2) to prove alibi that the  

appellants could not be present on the place of occurrence as they had  

been in their agricultural field.  

After  conclusion  of  the  trial,  the  Sessions  Court  

convicted and sentenced the appellants  along with  Bhagaloo Singh  

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under Sections 302/34 IPC and sentenced them to undergo rigorous  

imprisonment for life vide judgment and order dated 12.7.2002.  

It  may be pertinent  to mention here that accused, Ram  

Lakhan had died during the course of trial.  

D) Being aggrieved, the appellants and co-accused Bhagaloo Singh  

preferred  Criminal  Appeal  No.  956  of  2002  before  the  Allahabad  

High  Court  (Lucknow  Bench)  which  has  been  dismissed  vide  

impugned judgment and order dated 28.4.2004.  Hence, the appellants  

filed this appeal.  

3. Shri J.P. Dhanda, learned counsel appearing for the appellants,  

has submitted that the appellants had falsely been implicated in the  

case due to enmity as there had earlier been criminal cases between  

the  parties.  The  FIR was  lodged  with  a  delay  of  9  hours  and  the  

prosecution failed to furnish any plausible explanation for the same.  

Rajesh Singh (PW.1) and Devi Gulam Singh (PW.2), the alleged eye-

witnesses, were very close relatives of the deceased, and thus, their  

testimonies  cannot  be  relied  upon  safely.  Prosecution  failed  to  

examine  any independent  witness.  Thus,  the  appeal  deserves  to  be  

allowed.  

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4. On the contrary, Shri T.N. Singh, learned counsel appearing for  

the  State  has  opposed  the  appeal  contending  that  the  prosecution  

furnished satisfactory explanation of delay of 9 hours in lodging the  

FIR, as nobody could go to the police station at a distance of 18 Kms.  

out  of  fear.   Both  the  eye-witnesses  were  closely  related  to  the  

deceased but their testimonies had been found trustworthy by both the  

courts below, and thus cannot be discarded. More so,  the law does not  

prohibit to rely upon the evidence of the closely related witnesses of  

the deceased or victim if it  is found to be reliable.  In view of the  

above, appeal lacks merit and is liable to be dismissed.  

5. The autopsy on the body of the deceased Vinod Kumar was  

conducted Dr. R.K. Porwal (PW.4) on 26.10.1999 and he found the  

following ante-mortem injuries:

i) Incised wound size 1 cm x 0.5 x muscle deep present on left  

temporal region, 1.5 cm lateral to left eyeball.

ii) Incised wound size 16 cm x 5 cm x bone deep present in front  

of the neck, 2 cm above the xiphisenuim the trachea is clean  

cut, margins of the wounds are clean cut.  

iii) Incised wounds size 2 cm x 1 cm x chest cavity deep present  

on left side of the chest at the level of nipple at 9 O’ clock  

position.  Wound is 6 cm medial to nipple underlying heart is  

clean cut.  

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iv) Incised wound size 2.5 cm x 1 cm x muscle deep present on  

right side of chest at 4 O’clock position from right nipple.  It is  

6 cm away from right nipple.  

v) Incised wound size 2 cm x 0.7 cm x chest cavity deep (lower  

chest)  present  on right side of  chest,  7 cm away from right  

nipple at 4 O’ clock position underlying lower is lacerated.  

vi) Incised wound size 6 cm  x 1 cm x chest cavity deep.  Present  

on right side of chest left O’clock position, 9 cm away from  

nipple margins of the wounds are clean out.  

vii) Incised wound size 6 cm x 2.5 cm x chest cavity deep on left  

side of chest 1.5 cm left to midline.  

viii) Incised wound size 1.5 cm x 1 cm x muscle deep present on  

left  side  of  chest  4  cm  lateral  to  midline  at  the  level  of  

xiphislesinim.  

ix) Incised wound size 5 cm x 2.5 cm x abdominal cavity deep  

present on left side of upper abdomen 1 cm lateral to medline  

at the level of T8 spine intestine is coming out of the wound.

x) Incised wound 1 cm x 0.5 cm x muscle deep present side of  

back at the level of T9 spine 8 cm lateral to midline.

xi) Incised wound size 1.5 cm x 0.5 cm x muscle deep present on  

right side of back at left the level of T12 spine 6 cm lateral to  

medline.  

xii) Incised wound size 1 cm x 0.5 x muscle deep present on left  

side of back at the level of T10 spine 7 cm lateral to midline.  

            The cause of death spelt out in the post-mortem report was  

shock  and  hemorrhage  as  a  result  of  ante-mortem  injuries.   It  is  

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pertinent  to  mention  that  in  his  deposition  in  the  Trial  Court,  Dr.  

Porwal reiterated the said cause of death and also stated therein that  

the ante-mortem injuries suffered by the deceased were attributable to  

a sharp edged weapon, like karauli and were sufficient in the ordinary  

course of nature to cause death.  

6. The  fact  of  homicidal  death  of  Vinod  Kumar,  the  place  of  

occurrence and time of his death are not in dispute. Shri Dhanda has  

raised  very  limited  issues  referred  to  hereinabove  and  the  case  is  

restricted only to those issues.  

7. Prompt and early reporting of the occurrence by the informant  

with  all  its  vivid  details  gives  an  assurance  regarding  truth  of  its  

version.  In case there is some delay in filing the FIR, the complainant  

must  give  explanation  for  the  same.  In  absence  of  such  an  

explanation,  the  delay  may  give  presumption  that  

allegations/accusations were false and had been given after thought or  

had  given  a  coloured  version  of  events.   Undoubtedly,  delay  in  

lodging the  FIR does not  make the  complainant’s  case improbable  

when such delay is properly explained.  However, deliberate delay in  

lodging the complaint is always fatal.  (Vide: Sahib Singh v. State of  

Haryana, AIR 1997 SC 3247; Gorige Pentaiah Pentaiah v. State of  

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A.P. & Ors., (2008) 12 SCC 531; and  Kishan Singh (dead) thr. Lrs.  

v. Gurpal Singh & Ors., AIR 2010 SC 3624).

8. So far as the delay in lodging the FIR is concerned, it has been  

explained by Rajesh Singh (PW.1) as under:

“I  had  not  gone  to  lodge  report  in  Police  Station  Tandiyanwan due  to  fear.   We looked the  corpse  at  night.  I and Hanif went to Tandiyanwan Police Station  by motorcycle in next morning”.  

9. The incident occurred at 9.00 P.M. on 25.10.1999 and the FIR  

was  lodged  on 26.10.1999  at  6.10  A.M.  at  the  police  station  at  a  

distance of 18 K.M. from the place of incident.  Rajesh Singh (PW.1)  

has mentioned that on account of fear of the accused persons, he could  

not go to the police station to lodge the FIR at night. This explanation  

has been found by both the courts below to be perfectly convincing,  

and after considering all the facts and circumstances of the case, the  

courts below drawn  an inference that the explanation furnished was  

quite satisfactory.  We do not see any cogent reason to take a view  

contrary to the view taken by the courts below.  

10. So far as the issue of accepting the evidence of closely related  

witnesses is concerned, both the courts below had placed a very heavy  

reliance on the depositions of Rajesh Singh (PW.1) and Devi Gulam  

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Singh (PW.2), in spite of the fact that Rajesh Singh (PW.1) was the  

brother of  the deceased Vinod Kumar and Devi Gulam Singh was  

also closely related to Rajesh Singh (PW.1). The daughter of Rajesh  

Singh (PW.1)  got married with Sarvesh, the nephew (sister’s son) of  

Devi  Gulam  Singh  (PW.2).  Both  of  them  had  supported  the  

prosecution case. Both of them have been extensively cross-examined  

by the defence, but nothing could be extracted therefrom which could  

impair their credibility. The courts below found that evidence of both  

the eye-witnesses inspired confidence and was worth acceptance as  

both of them had given full version of the incident.    

More  so,  both  the  courts  below  have  held  that  the  

witnesses had no reason to falsely implicate the appellants and the co-

accused and spare the real assailants.  

11. In  the  statement  under  Section  313  of  Code  of  Criminal  

Procedure, 1973,  the appellants had not taken the defence that they  

could  not  be  present  at  the  place  of  occurrence  as  at  the  time of  

occurrence they were working in their paddy field. Thus, in view of  

the  above,  the  deposition  of  the  two  witnesses  examined  in  their  

defence becomes meaningless.   

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12. The incident had occurred outside the village and not inside the  

village.   Therefore,  it  is  likely that some other persons might have  

come  there  after  the  accused  had  run  away  from  the  place  of  

occurrence. Rajesh Singh (PW.1) had deposed that one Sushil Kumar,  

a resident of far away village of district Hardoi, who got married in  

the same village was also with him. However, no question had been  

put to Buddhi Narain Lal (PW.5), I.O. by the defence as to why Sushil  

Kumar had not been examined.   

13. So  far  as  the  evidence  of  defence  witness,  namely  Jag  Dev  

(DW.1) is concerned, he has deposed that the present appellants had  

been working in their  paddy field at  the time of occurrence of the  

crime. However, the court below did not believe his statement for the  

reason that the witness had never got his statement recorded by the  

Investigating  Officer,  nor  did  he  disclose  such  fact  to  any  other  

person. He was examined first time in the court. Similarly, statement  

of  Salim  (DW.2)  has  been  found  not  worth  acceptance.  The  said  

witness was present in the morning at the place of occurrence when  

the  Investigating  Officer  reached  there.  The  appellants  had  been  

named in the FIR.  Salim (DW.2) also admitted that he knew that a  

murder case had been registered against the appellants, but he did not  

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disclose to the Investigating Officer or to any other person that the  

appellants  could  not  be  the  assailants.   Salim  (DW.2)   has  also  

admitted that his father was the Pradhan and he had defeated Saroj  

Singh, a very close relative of Vinod Kumar, deceased.            

14.       Evidence of a close relation can be relied upon provided it is  

trustworthy.  Such evidence is required to be carefully scrutinised and  

appreciated before resting of conclusion to convict the accused in a  

given  case.  But  where  the  Sessions  Court  properly  appreciated  

evidence and meticulously analysed the same and the High Court re-

appreciated the said evidence properly to reach the same conclusion,  

it is difficult for the superior court to take a view contrary to the same,  

unless  there  are  reasons  to  disbelieve  such  witnesses.   Thus,  the  

evidence  cannot  be  disbelieved  merely  on  the  ground  that  the  

witnesses  are  inter-related to  each other  or  to  the  deceased.  (Vide:  

M.C.  Ali  &  Anr.  v.  State  of  Kerala,  AIR  2010  SC  1639;  

Myladimmal Surendran & Ors. v. State of Kerala, AIR 2010 SC  

3281;  Shyam v.  State  of  Madhya Pradesh, (2009)  16  SCC 531;  

Prithi v. State of Haryana, (2010) 8 SCC 536; Surendra Pal & Ors.  

v.  State  of  U.P.  &  Anr.,  (2010)  9  SCC  399;  and  Himanshu  @  

Chintu v. State (NCT of Delhi), (2011) 2 SCC 36).

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In  view  of  the  law  laid  hereinabove,  no  fault  can  be  

found with the evidence recorded by the courts below accepting the  

evidence of closely related witnesses.  

15. In view of the above, we are of the considered opinion that the  

facts and circumstances of present case do not warrant any review of  

the judgments and orders of the courts below. The appeal lacks merit  

and is accordingly dismissed.   

 …………….....................J.                                       (Dr. B.S. CHAUHAN)

………............................ J.          (SWATANTER KUMAR)  New Delhi,               June 14, 2011

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