✦ High Court of India · 17 Oct 2025

State v. Counsel for

Case Details High Court of India · 17 Oct 2025

Court

High Court of India

Decided

17 Oct 2025

Bench

SAUMITRA DAYAL SINGH IIND ADDITIONAL SESSIONS

Length

6,415 words

Acts & Sections

Code of Criminal Procedure §313 Code of Criminal Procedure Indian Penal Code §147 Indian Penal Code §148 Indian Penal Code §149 Indian Penal Code §302 Indian Penal Code §307 Indian Penal Code §34 Indian Penal Code §5

formal FIR (Ex. Ka-3). Corresponding entry in the General Diary at Sl. No.7 was also made by him. A carbon copy of the GD entry is Ex. Ka-4. An FIR bearing Case Crime No.85 of 1982 under Section 147, 148, 149, 302, and 307 IPC was lodged against Gajram, Ram Singh, Dhian Singh, Doongar Singh, all sons of Chhiddu Singh, residing in Rahauli, Niranjan Singh, son of Devi Singh, residing in Village Rahauli, Lekhraj, and Jagan Singh, both sons of Ram Swaroop, residing in Village Kasaura at Police 3 CRLA No. 1355 of 1985 Station Baniya Kheda, District Moradabad.

4. Investigation was started by Sub-Inspector R.S. Sharma. He alongwith other Constables arrived at the spot and prepared an Inquest Report (Ex. Ka-13) of the deceased. Postmortem of deceased was conducted on

14.6.1982 at 3:20 p.m, by P.W.-9 Dr. U.C. Srivastava and its report Ex. Ka-5 was proved by him. He stated that :- "1. Lacerated wound 5 cm x 4 cm over back of middle part of left forearm, margins inverted. Connecting to lacerated wound 10 cm x 6 cm over middle part front of left forearm, muscles lacerated, margins everted. Blackening and tattooing present over whole of back of forearm. 8 small metallic shots recovered from the wound.

2. Multiple circular lacerated wound in an area of 5 cm x 5 cm x subcutaneous tissue deep over left hyphochondrium 10 cm below left nipple each would measuring ½ cm x ½ cm x subcutaneous tissue deep.

3. Circular lacerated would 4 cm x 4 cm x abdominal cavity deep over middle of epigastrium, 10 cm above umbilicus, margins inverted. Loop of intestine and omentum is protruding out, blackening and tattooing present around the wound in an area of 20 cm x 16 cm. Small metallic shots recovered

1. Eight from injury no.1

2. Eight from right lung

3. six from lever

4. 10 from abdominal cavity. One cap and two wadding pieces recovered from abdominal cavity."

5. Thus, doctor has opined that death occurred due to shock and haemorrhage as a result of injury to internal vital organs, caused by firearm. 4 CRLA No. 1355 of 1985

6. Smt. Barfa Devi was sent for medical examination to PHC, Billari alongwith Constable Phool Singh. She was medically examined by PW-5 Dr. Gyanendra Singh on 13.6.1982 at 2:30 p.m. Following injuries were noted by the doctor :- "Multiple lacerated wounds in an area of 9 cm. X 8 cm. on right side of her head, 5 cm above from pinna of right ear and 11 cm. from root of nose. Bleeding on cleaning present. Injury was kept under observation and X-ray of skull was advised."

7. It was observed by doctor that said injuries could have been caused by pellets of firearm. He has also stated that said injuries may have occurred in the night of 12/13.6.1982 at about 2:00 a.m. He has stated that injuries sustained by Barfa Devi were only possible if gunshot was fired by the assailant when both assailant and victim were facing each other.

8. Investigation was later on taken over by the then S.H.O. Shri R.L. Gautam, who recorded statements of the eye witnesses and the witnesses of Inquest. I.O. visited the place of occurrence on 13.6.1982 and collected blood stained cot, blood stained bed-sheet, pellets and a 13 feet ladder from the spot. Blood stained case materials was send for chemical examination and it's report Ex. Ka-6 and Ka-7 were submitted by FSL. Charge-sheet under sections 147, 148, 149, 302 and 307 IPC against all the accused persons was submitted on 30.6.1982 by P.W.-9 I.O. R.L. Gautam.

9. The case was committed to the Court of Sessions on February 23, 1983. Charges were framed against Ram Singh, Shyam Singh, and Dhian Singh under Section 147 IPC. Charges against Gajram, Niranjan Singh, Lekhraj, Jagan Singh, and Prem Pal Singh were framed under Section 148 IPC. Additionally, charges were framed under Section 302 read with Section 5 CRLA No. 1355 of 1985 149 IPC and Section 307 read with Section 149 IPC against Gajram, Niranjan Singh, Lekhraj, Jagan Singh, Prem Pal Singh, Ram Singh, Shyam Singh, and Dhian Singh. In all nine witnesses were examined by the prosecution.

10. Informant P.W.-1 Hetram deposed that he was sleeping with his mother, Barfa, in their courtyard. His brother was sleeping on the roof of Lekhraj. Around 2:00 am, his sleep was interrupted by the sound of gunshots. He climbed the ladder to reach the roof and found all the accused standing there. They were armed with country-made guns and clubs. Panicked by their presence, Hetram started raising an alarm and immediately descended the ladder. As soon as he did, his mother climbed the ladder, but she was shot in the head by Lekhraj. He couldn't see who fired at his mother and couldn't see the assailant who killed his brother.

11. P.W.-2 Lekhraj s/o Jhamman Singh R/o Rahauli, stated that he and Girindi Singh were sleeping on his roof. The accused were standing on the roof of his hall where deceased Chhotey Lal was sleeping. All of them were armed with guns and clubs. Accused Lekhraj shot Chhotey Lal in the stomach from point-blank range. Hetram came there shouting but he immediately returned back. His mother Barfa also arrived and raised an alarm. She was shot in head by accused Lekhraj. He stated during his cross examination that the cot on which Chhotey Lal was sleeping was not visible from his roof.

12. As soon as they woke up, they saw the accused fleeing, and he caught sight of them from behind. He saw the faces of some of the accused. P.W- 4 Girindi, stated he could not identify assailants. He was declared hostile by prosecution. 6 CRLA No. 1355 of 1985

13. P.W.-3 Barfa Devi stated that she and her son Hetram were sleeping in the courtyard of their home. Chhotey Lal was sleeping on the roof of Lekhraj's house. The roof of Lekhraj's hall is connected to her roof. They woke up upon hearing the sound of gunshots. A ladder was placed in their courtyard. Hetram climbed onto it and started raising alarm after seeing the accused standing on the roof. It was a moon night. He descended from the ladder after seeing the accused persons. Then she immediately climbed the ladder and reached the roof. She witnessed, Gajram was holding a gun, Dhian Singh, Ram Singh, and Doongar Singh were holding clubs, Niranjan was carrying a ‘farsa’, Lekhraj and Prem Pal were holding guns, and Jagan was carrying a country-made gun. When she raised alarm, Lekhraj fired at her, and she was hit on the head. On her alarm, Lekhraj and Girindi also arrived and witnessed the incident. Accused climbed down from the house of the accused Gajram and fled. She found her younger son Chhotey Lal lying dead on the cot. During cross- examination, she stated that her sleep was disrupted after hearing the sound of gunshots. Initially, her son Hetram climbed onto the ladder. Later, she reached the roof by climbing the ladder. When she stood on the roof, she was hit by a bullet. The bullet was fired by Lekhraj, who was standing on the roof. After all the witnesses were examined, statements of accused persons were recorded under Section 313 Cr.P.C. Findings of Learned Trial Court

14. Learned Trial Court, after considering the statements of Dr. Gyanendra Singh and Dr. U.C. Srivastava about the timing of the injuries sustained by Barfa Devi and Chhotey Lal, along with the prompt registration of the FIR and the discovery of blood-stained bedding from 7 CRLA No. 1355 of 1985 the roof of P.W.-2 Lekhraj, concluded that prosecution had definitively established the date, time, and place of the incident. While observing that it is not disclosed in the FIR who fired at deceased Chhotey Lal, it gone into the details of evidence tendered by the prosecution regarding motive and identification of accused by the witnesses. It was observed, five out of eight accused belonged to village Rahauli, PS Kurhfatehgarh where the alleged incident occurred. But three accused persons including accused Lekhraj were residents of Village Kasura, P.S. Baniya Khera. On that basis it was held, persons belonging to village Rahauli may have been easily recognised and identified. It also observed that accused Gajram, Ram Singh, Dhian Singh and Doongar Singh are real brothers and accused Niranjan was their cousin. Accused Lekhraj is uncle (Phoopha) of Gajram. Accused Prempal was cousin of accused Lekhraj. It was also observed that accused Lekhraj himself had admitted during his statement u/s 313 Cr.P.C that he was resident of Village Kasura, but was a resident of Village Rahauli.

15. Considering the motive alleged by prosecution it was observed that P.W.-1 Hetram had testified against accused Lekhraj just half a year before the alleged incident, but their relationship remained normal during that period. The trial court found that the prosecution failed to establish alleged motive. It was observed that if the said motive had existed, then accused would have chosen to kill Hetram in place of Chhotey Lal because it was Hetram who had deposed against accused Lekhraj.

16. The trial court determined from the deposition of P.W.-1 Hetram that Hetram and deceased Chhotey Lal were holding grudges against accused Lekhraj. This conclusion was drawn from the statement of P.W-1 Hetram, 8 CRLA No. 1355 of 1985 that accused Lekhraj had married Bilaso Devi. Bilaso Devi happens to be the daughter of Pooran Singh, who was brother of Hetram's grandfather. After death of Pooran Singh, his property was transferred in favour of Bilaso Devi. The court presumed that that transfer of land belonging to their grandfather's brother which was transferred in favour of Bilaso Devi may have led to jealousy in the minds of Hetram and his family members. Said jealousy might have resulted into strained relations between the parties which could be a cause for impelling accused Lekhraj to commit the murder. But it also observed that accused Lekhraj comparatively had a greater motive as against the other accused.

17. Testimony of all four eyewitnesses were considered by the Trial Court and it found that none except P.W.-3 Barfa Devi was present at the time of occurrence. Testimony of P.W.-1 Hetram was disbelieved on two counts, firstly because had he been present on the spot, he would not have allowed his mother to go on the roof. Secondly, he himself admitted that he did not know who fired at his brother and mother. P.W.-2 Lekhraj's testimony was disregarded because it was inconsistent with the medical evidence, especially in context of claim made by this witness that accused Lekhraj shot the deceased from a close range. Considering the testimony of P.W.-8 Dr. U.C. Srivastava, who stated that injuries sustained by deceased could only have been caused if bullet had been fired from a distance of six feet, it was held by the learned trial court that testimony of this witness contradicts medical evidence. As far as testimony of P.W.-4 was concerned, it was rejected because he was declared hostile.

18. Testimony of P.W.-3 Barfa Devi alone was considered who was also injured in the incident. It was observed that she was hit on her head and it 9 CRLA No. 1355 of 1985 appears that at that moment she had not reached the roof. It was further observed, if she was shot on her head she may have at once twisted her neck. In such circumstances, she could have only recognised that miscreant who was her relative and accused Lekhraj is said to be such person. Considering that P.W-3 Barfa Devi could have identified Lekhraj alone, and accused Lekhraj had a stronger motive to kill Chhotey Lal compared to the other accused. On basis of the evidence tendered by P.W.-3 Barfa Devi and other circumstances considered by the trial court, accused Lekhraj alone was held guilty.

19. Learned trial court vide its judgment dated 17.5.1985 extended the benefit of doubt to all accused except Lekhraj and acquitted them. Accused Lekhraj was sentenced to imprisonment for life under Section 302 read with Section 34 of IPC. Similarly, he was also sentenced to undergo rigorous imprisonment for a term of four years under Section 307 IPC. Arguments on behalf of appellant

20. Shri Rahul Mishra alongwith Shri Jaideep Mishra, learned counsel for the appellant submitted that P.W.-1 Hetram, in his FIR, stated that Gajram and Sohanpal were arraigned in as gangsters in another case, and he was a police witness. During his cross-examination, he claimed that his testimony in above case took place 1.5 years before the incident. He further stated, during that period, he had never fought or quarrelled with them. Hetram admitted, neither party held any grudges against the other, despite the fact that he testified against them. He also admitted that the deceased Chhotey Lal was not a witness in that case and the appellant was acquitted in that case. It was further submitted, if there was no bitterness 10 CRLA No. 1355 of 1985 between P.W.-1 Hetram and the accused Lekhraj, there was no reason to commit murder of Chhotey Lal, who was not even a witness against the accused. Even if it is assumed that some animosity existed, it would have been between Hetram and the other accused persons. It was submitted, statements of prosecution witness do not in any manner indicate that in the given circumstances, accused would have chosen to commit murder of the deceased Chhotey Lal, rather, motive may have arisen only to kill Hetram, who had earlier deposed against the accused persons.

21. Hetram also admitted that his real aunt was living with his father outside marriage, and Dhoom Singh was born out of that relationship. Dhoom Singh is younger to Hetram. P.W.-3 Barfa Devi also admitted this relationship and stated that Dhoom Singh was present at their house at the time when the alleged incident occurred. Although Hetram and his mother, P.W.-3 Barfa Devi, did not admit that Dhoom Singh was driven out of their house because he was also claiming a share of ancestral property, actually, Dhoom Singh was demanding a share in the ancestral property and same was refused by the deceased's family. Therefore, it cannot be ruled out that Dhoom Singh may have murdered the deceased.

22. It was further submitted that the circumstances surrounding the incident suggest that the witnesses did not actually witness the incident. The incident occurred at approximately 2:00 am. The deceased, Chhotey Lal, was sleeping alone on the roof of witness Lekhraj. P.W.-1 Hetram and P.W.-3 Barfa Devi were sleeping below in their courtyard. P.W.-1 Hetram stated that when he reached the top bar of the ladder after hearing the gunshot. He saw all the accused standing on the roof. He also admitted that the gun of the deceased was lying in the adjoining room of 11 CRLA No. 1355 of 1985 the courtyard, but he did not carry it before climbing onto the ladder. Statement of P.W.-1 Hetram reveals that he witnessed the accused standing on the rooftop, but nothing else. He testified that he heard a gunshot, but his conduct proved otherwise. Knowing his brother was sleeping on the roof, this witness heard sound of gunshot did not bother to carry gun with him that was lying near him. Hence, his conduct belies his deposition.

23. P.W.-2 Lekhraj stated that he was sleeping on his roof with Girindi Singh when he heard the sound of gunfire. He further stated that when he stood up from his cot, he saw that Lekhraj shot in the stomach of Chhotey Lal from point-blank range. But P.W.-8 Dr. U.C. Srivastava has categorically stated that gun shot injury sustained by deceased was possible only if shot was fired from a distance of 6 feet. Said statement of the doctor clearly proves that injuries sustained by deceased were not caused from close range. Therefore, it is also apparent from the said circumstances that the alleged incident was not witnessed by P.W.-2. Learned counsel submitted that testimony of another eye witness P.W.-3 Barfa Devi is not reliable. Admittedly, she is the mother of P.W-1 Hetram and her age at the time of occurrence would have been at least more than 50 years. It is not possible for a lady of such age to suddenly climb up the ladder in a spur of moment. Usually, women wear ‘Sarees’ and it is not possible for a woman aged about 50 years to suddenly climb upon a ladder while wearing a ‘Saree’. Hence, considering the age of P.W.-3 and presuming that she was wearing a ‘Saree’, it can be safely concluded that neither she went upon the roof nor she has witnessed the incident. Moreover, this fact that incident was not witnessed by P.W.-3 also finds corroboration from the nature of injuries sustained by her. 12 CRLA No. 1355 of 1985

24. In continuation of the above argument, learned counsel submitted that claim of prosecution is that Barfa Devi was shot by Lekhraj while she was standing on the ladder. It appears from the said fact that the injuries sustained by her, were only possible if the gun was fired from an oblique angle. P.W.-5 Dr. Gyanendra Singh has stated that bullet injuries sustained by her were only possible if assailant had fired upon the victim while standing in front of her. Aforesaid fact indicates that P.W.-3 Barfa Devi has not sustained injuries in a manner as alleged by prosecution because nature of injuries sustained by her does not find support from medical evidence. It was also argued that the alleged incident occurred at night, but witnesses claimed to have witnessed it in moonlight. However, they also admitted that it was a cloudy night and it rained for 20 minutes after the incident. This fact is significant because it made it nearly impossible for the witnesses to identify the assailants in the dead of the night.

25. From the foregoing circumstances, it is very much apparent that incident was not witnessed either by P.W.-1 Hetram or by P.W.-2 Lekhraj. Nature of injuries sustained by P.W.-3 also suggests that said injury was not caused at the time when she was standing on the roof. This fact leads to the irresistible conclusion that P.W.-3 Barfa Devi was not on the roof at the time she sustained injuries and hence she had not witnessed the incident. Therefore, none of the witnesses produced by the prosecution are reliable. Their testimony suffers from material discrepancies and it cannot be relied upon. Hence, The trial courts' judgment is flawed by serious defects and must therefore be set aside. Arguments on behalf of State 13 CRLA No. 1355 of 1985

26. Ms. Archana Singh, learned AGA for the State, has submitted that witnesses produced by prosecution have proved the guilt of appellant beyond reasonable doubt. Informant Hetram who was examined as P.W.- 1, categorically stated that he reached upon the roof after climbing the ladder and saw that appellant Lekhraj alongwith other accused persons was standing on the roof. Informant Hetram and P.W.-3 Barfa Devi have stated that their sleep was disrupted after they heard sound of gunshot. Both witnesses have stated that it was Hetram who first went on the roof and witnessed appellant Lekhraj and other assailants standing near the cot on which deceased Chhotey Lal sleeping. P.W.-3 Barfa Devi has stated, after she reached on the roof, she was shot on her head by appellant Lekhraj. Testimony of both the witnesses on this particular point is consistent. Both witnesses were cross examined at length but defence was unable to bring forth any fact from their testimony by which any inference may be drawn that either of the witnesses were not present on the spot. It was further submitted that FIR of the incident was lodged the very next day. Promptness in lodging the FIR also indicates that no opportunity to concoct or interpolate was available to informant.

27. Learned AGA submitted that injured P.W.-3 was examined by doctor on the very next date and her statement also found corroboration from the testimony of P.W.-5 Dr. Gyanendra Singh. This witness has categorically stated that victim had suffered bullet injury on her head and said injury could only occur if victim was shot by the assailant at the time she is standing in front of him. Moreover, P.W.-3 Barfa Devi herself has deposed that she was shot when she was standing on the roof. Said fact itself indicates that both victim and appellant were standing in front of each other at the time when victim was shot. Hence, argument raised by 14 CRLA No. 1355 of 1985 appellant that victim at the time when she received gunshot injury, was standing on the last bar of ladder is only an attempt to divert the attention from the testimony of injured.

28. It was further argued that learned trial court has erred in doubting the presence of P.W.-1 Hetram at the time of occurrence. Learned trial court was swayed by extraneous factors. It has been observed by learned trial court that Hetram being son of P.W.-3 Barfa Devi, would in no condition allow his mother to go on the roof after witnessing a large number of assailants on the roof. Said assumption of learned trial court is totally irrelevant. Conclusions from the testimony of a witness can be drawn after it is read as a whole. Testimony of a witness cannot be discarded on basis of conjectures and surmises. It is trite that different persons react in different manner in a given circumstance. Any presumption either for or against cannot be raised regarding presence of P.W.-1 Hetram on basis of a fact not available on records.

29. It was lastly submitted by learned AGA that testimony of P.W.-1 Hetram and P.W.-3 Barfa Devi is unblemished. Nothing material has been put forth by appellant to establish that these witnesses were not present on the spot or they had not seen appellant Lekhraj alongwith other accused persons standing on the roof where the deceased Chhotey Lal was sleeping. It is significant to note, P.W.-3 Barfa Devi is an injured witness and testimony of an injured witness is always placed on a higher pedestal. From the testimony of prosecution witnesses, the complicity of appellant is proved beyond reasonable doubt. Hence, the appellant Lekhraj is not entitled to any relief. Conclusion 15 CRLA No. 1355 of 1985

30. We have carefully considered the conflicting arguments presented by the appellant and the State. Firstly, we have gone through the evidence that was presented by the prosecution to prove the date, time and place of occurrence of alleged incident.As per First Information Report, alleged incident is stated to have occurred between 12:00 pm and 2:00 am on

13.6.1982. Postmortem of the deceased, Chhotey Lal, was performed at 3:30 pm on 14.6.1982. Dr. U.C. Srivastava stated that injuries sustained by deceased were about 1 and ½ days old and injuries might have occurred at around 2:00 am on 13.6.1982. Similarly, Dr. Gyanendra Singh, who examined Barfa Devi, at 2:30 pm on 13.6.1982 claimed that gunshot injury was sustained by Barfa Devi might have occurred at approximately 2:00 am on June 12 or 13, 1982. Testimony of P.W.-5 Gyanendra Singh and P.W.-8 U.C.Srivastava establishes that alleged incident in which deceased Chotey Lal and P.W.-3. Barfa Devi sustained gunshot injuries occurred in night of June 12/13 of 1982.

31. Prosecution also produced four eyewitnesses of the alleged incident to prove its case. However, one of the witnesses, P.W.-1 Hetram , has candidly admitted that he did not witness either the assailant who shot the deceased or the assailant who fired upon his mother. He has stated that he and his mother, P.W.-3 Barfa Devi, were sleeping in their courtyard on the date of the alleged occurrence. Their sleep was disrupted at about 2:00 am upon hearing gunshots. Immediately, he climbed onto a ladder and saw all the accused armed with guns and clubs standing near the cot of Chhotey Lal. He however immediately came down raising an alarm. His mother, P.W.-3 Barfa Devi, followed him onto the roof, where the accused, Lekhraj, shot her, causing a head injury. P.W.-3 Barfa Devi has also stated the same fact. She has corroborated the testimony of P.W.-1 16 CRLA No. 1355 of 1985 Hetram and stated that Hetram was the first to reach the roof. When he came down , she immediately went upon the roof. where accused Lekhraj was standing along with other accused persons . Accused Lekhraj shot her in the head.

32. Apart from the evidence of witnesses, it is an admitted fact that deceased ,P.W-1 Hetram and P.W.-3 are family members. P.W.-3 Barfa Devi is mother of Hetram and deceased. In the given circumstances, it's not unusual for family members to be present at their house at midnight, considering that alleged incident occurred in a village, in 1982. People who lived in villages 30 to 40 years ago rarely left their homes, especially at night, unless they had to travel for urgent work or to attend to relatives. Hence presence of these witnesses at their house at the time of occurrence is wholly natural. It cannot be denied. Even appellants have not denied their presence.These witnesses testified that the deceased was shot at while sleeping on the roof of Lekhraj. The Inquest Report also establishes that the dead body was found on the roof of P.W.-2 Lekhraj. The site plan shows that the roof of P.W.-2 Lekhraj is adjacent to the roof of the house of the informant. The joint reading of oral testimony from P.W.-1 Hetram, P.W.-3 Barfa Devi, P.W.5 Dr. Gyanendra Singh, and P.W.-8 U.C. Srivastava, along with the site plan and Inquest Report, clearly indicate that the incident occurred at midnight on June 12-13, on the roof of P.W.- 2 Lekhraj, that is adjacent to the informant's house. At the time of the incident, the informant and his mother, P.W.-3 Barfa Devi, were present at their house. Considering the fact, it leaves no room of doubt that the prosecution has proved the date, time and place of the occurrence of the alleged incident beyond reasonable doubt.

33. Once the prosecution has proven the alleged date, time, and place of 17 CRLA No. 1355 of 1985 occurrence, the next issue to be examined is the claim of the prosecution regarding the presence of witnesses who claimed to have witnessed the incident and identified the accused persons. One of the witnesses, P.W-4 Girindi Singh, turned hostile during the trial. So his testimony does not require any further discussion. P.W-1 Hetram's testimony is admissible only upto the extent that he was present at his home at the time of the incident. He witnessed the accused persons standing near the cot of deceased Chhotey Lal, who was sleeping on the roof of Lekhraj. However, he has clearly stated that he did not witness either of the incidents, i.e, when deceased Chhotey Lal was shot, or when P.W.3 Barfa Devi suffered a gunshot wound. As far as P.W.-2 Lekhraj is concerned, his testimony reflects that he did not witness the incident. During his cross-examination, he stated that the cot on which Chhotey Lal was sleeping was not visible from his roof. Hence, there was no opportunity for him to witness the incident.

34. The entire prosecution story rests solely on the testimony of P.W.-3 Barfa Devi. During her examination-in-chief, Barfa Devi clearly stated that she immediately climbed the ladder and reached the roof after her son Hetram came down. She testified that she reached the roof of P.W.-2 Lekhraj, where the accused Lekhraj and other accused were standing- armed with guns and clubs. During her cross-examination, she reiterated this statement and claimed that she received a single gunshot while standing on the roof of Lekhraj. She further stated that she was shot at by the appellant Lekhraj, who was also standing on the rooftop. She mentioned that she was shot from a distance of 5-6 paces and did not fall after being injured. Instead, she remained on the roof with her deceased son. When the evidence of P.W.-3 Barfa Devi is read as a whole, it does 18 CRLA No. 1355 of 1985 not create any doubt about her presence at the place of the incident.

35. Now it will be appropriate to examine the appellant's arguments regarding the nature of the injury sustained by Barfa Devi. The appellant has primarily focused on the statement of P.W.-1 Hetram, who claimed during his cross-examination that his mother suffered injury while standing on the last bar of the ladder. Taking cue from the said statement, it was argued, if accused Lekhraj had fired a gun while standing on the roof and it had hit Barfa Devi, who was standing on the last bar of ladder, then the injury would have been oblique. But doctor had opined that her injuries were only possible if the gun was fired from front. However, the prosecution case from the beginning has been that Barfa Devi sustained injury while she was standing on the roof. P.W.-1 Hetram himself had mentioned this fact in the FIR and he stated same in his examination in chief. However, he has stated in his cross examination that his mother sustained gunshot while she was standing on last bar of the ladder . It is a settled law that before deriving conclusion on any fact, court has to appreciate the entire evidence. It cannot conclude by merely looking into a part of evidence.

36. In light of the above facts, it will be appropriate to look into evidence appreciated till now which clearly indicates that both witnesses were sleeping in night and they woke up upon hearing gunshot. When Hetram reached the roof first, where his brother was sleeping, he found that appellant along with 7 other accused persons armed with guns and clubs were present. Such circumstances will naturally shock any person. Both witnesses have consistently stated that P.W.-3 Barfa climbed the ladder after Hetram came down. It is manifest that Hetram was in his courtyard when his mother Barfa had climbed the ladder, to reach the roof. This fact 19 CRLA No. 1355 of 1985 itself manifests that Hetram panicked and came down the ladder. He later saw his mother shot but could not tell with certainty her location at the time she suffered that bullet injury. None other than P.W.-3 Barfa Devi is the best person who could disclose the actual facts. It is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive and it not being substantive evidence, it may not be relied to doubt the evidence of the injured witness, whose presence is established. Here, P.W.-3 Barfa Devi is an injured witness and testimony of injured witness stands on a higher pedestal than the other witnesses.

37. P.W.-3 Barfa Devi has proved the date, time and place to occurrence. Learned counsel for appellant raised doubts as to the reliability of this witness. It was argued that it was unnatural for P.W.-3 Barfa, given her age, and the fact that she was wearing a ‘Saree’, to climb a ladder in a panicked state. It is pertinent to mention that doubt regarding a witness's physical capacity can only be raised if same is supported by evidence on the record. Not a a single question was put to this witness on this particular fact. It is trite that credibility of witnesses cannot be doubted on basis of surmises and conjectures. Hence, this argument in absence of any cogent evidence lacks merit. Another argument raised by the appellant regarding existence of moon light at the time of occurrence so as to identify the assailant was also considered. This witness has stated in her cross-examination that the storm and rain occurred much later after the incident. Therefore, the argument raised by appellant that assailants were not identified by Barfa Devi (P.W.-3), has no merit.

38. The issues of the seat of location of the injury of P.W.-3 Barfa Devi at 20 CRLA No. 1355 of 1985 the time she was shot were also taken into account. It is evident that her testimony in this regard does not in any way contradict medical evidence. She stated that she was shot by the accused Lekhraj while standing on the roof. P.W.-4 Dr. Gyanendra Singh also testified that she sustained a gunshot injury on her head, which could only have been inflicted by a bullet fired from the front. Hence, her testimony is inconsistent to medical evidence. Additionally, P.W.-1 Hetram's testimony is significant because he witnessed the accused Lekhraj and another assailant standing on the roof after hearing the sound of gunshots. P.W.-3 Barfa Devi also saw them on the roof and immediately went there after P.W.-1 Hetram. The time gap between the sound of gunshots and the arrival of these two witnesses on the roof and their subsequent witnessing of Lekhraj standing there with a gun, who later shot at Barfa Devi, is so short that it leaves no doubt about the prosecution's role in assigning him this task.

39. From the foregoing discussions, it is manifest that testimony of P.W.- 3 Barfa Devi is reliable and remained unshaken during her cross examination. This witness was cross-examined at length during trial, but nothing substantial has been brought out from her testimony that would impeach the credibility of her evidence or make her evidence unreliable. Similarly, when the manner of occurrence described by a witness is shaky, doubt may arise about their credibility. But nothing inconsistent or contradictory in this witness's testimony was found to suggest any reason for doubt.

40. Before concluding the judgement, we would like to point out that certain findings made by the learned trial court are contrary to the principles established for evaluating witness testimony. Time and again it 21 CRLA No. 1355 of 1985 has been held by superior courts that motive loses significance whenever direct evidence is presented by prosecution, yet learned trial court has thoroughly examined the issue of motive and has relied on it to acquit the remaining seven accused persons. It has held that the appellant Lekhraj, had a stronger motive to murder compared to the other accused. However, that finding is totally out of context. While we agree with the other finding of Trial Court that P.W.-3, Barfa Devi, would have turned her head after the bullet wound and could not have seen the other accused, we disapprove it's attempt to consider motive to acquit the other accused persons. However, there is no cross appeal against the order of acquittal of the other accused persons.

41. Thus, we are of the view that judgment of learned trial court does not suffer from any infirmity. Appellant has failed to show any such inconsistency or discrepancy in the prosecution evidence which can form a basis of extending him benefit of doubt. Prosecution has succeeded in establishing the fact that the appellant namely Lekhraj has committed murder of Chhotey Lal by causing gunshot injuries. Accordingly, his conviction for offence under 302/34 of I.P.C. is hereby affirmed. Sentence awarded by the Trial Court is hereby affirmed. The judgment and sentence dated 17.5.1985 passed by the IInd Additional Sessions Judge, Moradabad in Sessions Trial No. 127 of 1983 (State vs. Gajram & Ors.) is hereby affirmed.

42. The appellant Lekhraj is on bail. His bail bond is cancelled. He is directed to immediately surrender before the Trial Court.

43. A copy of judgment, free of cost, be provided to the appellant. 22 CRLA No. 1355 of 1985

44. This Criminal Appeal fails and is hereby dismissed. (Anil Kumar-X,J.) October 17, 2025 SK I agree. (Saumitra Dayal Singh,J.) SUSHEEL KUMAR SUSHEEL KUMAR High Court of Judicature at Allahabad High Court of Judicature at Allahabad