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Allahabad High Court

LAKHMI AND 2 OTHERSversusSTATE OF U.P.

Decided

Holding

The High Court held that the contradictions were minor, the doctrine of falsus in uno does not apply, and the child witness’s testimony was competent and reliable, thereby upholding the convictions.

Summary

The appellants Lakhmi, Languri and Yogesh were convicted for the brutal murder, beheading and assault of Chameli Devi and the injury of her grandson Krishna Kumar, under Sections 302/34, 307/34, 509/34 and 506 IPC. The appellants appealed, arguing that the child witness’s testimony contained material contradictions, that the doctrine of falsus in uno, falsus in omnibus should invalidate the evidence, and that key material such as the length of the Jamun tree and an empty cartridge were not examined. The High Court held that the alleged discrepancies in the child witness’s statements were minor, that a child witness is competent under Section 118 of the Evidence Act, and that the doctrine of falsus in uno is not a rule of law in Indian jurisprudence. It further found the prosecution evidence, including forensic findings and eyewitness accounts, to be reliable and sufficient to prove guilt beyond reasonable doubt. Consequently, the court upheld the convictions and sentences, dismissing the appeal.

Issues considered

  • The alleged contradictions in the child witness’s testimony constitute material discrepancies affecting the prosecution case.
  • Whether the doctrine of falsus in uno, falsus in omnibus can be applied to discard the entire testimony of a witness.
  • Whether the failure to examine the length of the Jamun tree and the absence of an empty cartridge undermine the prosecution’s case.
  • The competency and reliability of a child witness under Section 118 of the Evidence Act.

Legislation cited

Subjects

  • murder
  • homicide
  • IPC 302
  • IPC 307
  • IPC 509
  • IPC 506
  • common intention
  • child witness
  • evidence law
  • falsus in uno
  • appeal dismissed

Judgment

                                                        AFR
                                   Judgement reserved on 18.02.2026
                                  Judgement delivered on 18.03.2026

        HIGH COURT OF JUDICATURE AT ALLAHABAD
                 CRIMINAL APPEAL No. - 4607 of 2017

Lakhmi and 2 others
                                                          …..Appellant(s)

                                   Versus

State of U.P.
                                                         …..Respondent(s)


Counsel for Appellant(s)            : Abhishek Kumar Chaubey, Anand
                                      Prakash Paul, Brij Bhushan Paul,
                                      Dharmendra Kumar Chaubey, Lal
                                      Vijai Singh, Pravin Kumar Tiwari,
                                      Sunil Kumar Shukla
Counsel for Respondent(s)           : Government Advocate


Court No. - 48

            HON'BLE CHANDRA DHARI SINGH, J.
            HON'BLE DEVENDRA SINGH-I, J

            (Per: Hon’ble Chandra Dhari Singh, J )

1.    This criminal appeal has been                    led against a
judgement and order dated 06.07.2017 passed by the
Additional      District    and     Sessions    Judge,     Anoopshahr
(Bulandshahr) in ST No. 310 of 2012 arising out of case
crime No. 400 of 2011, under Sections 302/34, 307/34,
509/34     and     506     IPC,     police   station   Dibai,   district
                                  2                              39

Bulandshahr whereby the learned Judge convicted and
sentenced the appellants Lakhmi, Languri and Yogesh as
under:

(a)   Life imprisonment and a           ne of Rs. 50,000/- each
under Section 302/34 IPC and in case of default in
payment     of     ne,   six      months’    additional    simple
imprisonment.

(b)   Twelve years rigorous imprisonment and a ne of Rs.
25,000/- each under Section 307/34 IPC and in case of
default in payment of           ne, three months’ additional
simple imprisonment.

(c)   Two years simple imprisonment and a              ne of Rs.
1000/- each under Section 509/34 IPC and in case of
default in payment of       ne,   fteen days additional simple
imprisonment.

      Appellant Languri and Yogesh were further convicted
and sentenced to two years simple imprisonment under
Section 506 IPC.

      However, all the sentences of the appellants were
directed to run concurrently.

2.    By the same impugned judgement and order, the
learned Judge acquitted appellant Lakhmi of the o;ence
under Section 506 IPC.

      Facts of the case

3.    The facts that formed the bedrock of the present
criminal appeal, in short compass, are that a written
report was given by Devi Singh, son of Nannu Singh,
resident   of    Danapur,      police   station   Dibai,   district
                             3                           39

Bulandshahr with the allegations inter alia that his
nephew Lakhmi Singh, son of Karan Singh was harbouring
animosity due to the land of his brother Chhiddu, because
Chhiddu has got the deed ( Wasiyat ) of his land done in
favour of his son Het Ram. Lakhmi Singh was demanding
share in that land. The    rst information report further
recounts that on 30.12.2011, his wife Chameli Devi along
with her grandson-Krishna Kumar aged about 6 years was
coming to her house from her eld, appellant Lakhmi and
his sons Languri and Yogesh, were sitting in ambush in
front of the house of Komal. Appellant-Lakhmi was armed
with Lathi and Daav (Banka), appellant-Languri was
having knife and appellant Yogesh was carrying gun and
as soon as his wife came under the tree of Jamun at 03:15
PM, all the three appellants with common intention
surrounded her wife and knocked her down and made
indiscriminate   ring on her and also assaulted her with
Daav and knife and all of them beheaded her wife and
hung the head on the tree. The appellants also cut the
stomach of the deceased. The       rst information report
further alleges that his grandson ( Nati) has also received
 re arm injury. On hearing the noise, when he along with
his son Het Ram and Heera Lal and several persons of the
village rushed to the spot and on being challenged, the
accused Languri and Yogesh @ed away from the spot
extending threat, whereas appellant-Lakhmi armed with
Daav, started jumping and dancing near the corpse, due
to which no one could dare to apprehend him. Chaos
erupted in the village. Woman closed their doors and law
and order situation in the area got disturbed. Police
                              4                            39

reached at the spot and apprehended the accused along
with Daav.

4.   On the basis of the aforesaid report, a case was
registered at case crime No. 400 of 2011, under Section
302/34 IPC, police station Dibai, district Bulandshahr.

5.   After the registration of the case, the investigation of
the case was taken up by PW-6, SO Umesh Chandra
Pachauri. He inspected the spot and prepared site plan,
Ext. Ka-12. He arrested the accused-Lakhmi from the spot
along with weapon of assault and recorded the statement
of witnesses Hakim Singh and Pappu Singh. He collected
bloodstained   and   simple   earth   from   the   place   of
occurrence. He also taken steps to take down the head of
the deceased from the tree. He also prepared memos of
bloodstained Trishul and Daav. The clothes wore by the
appellant-Lakhmi, i.e. bloodstained Kurta, bloodstained
Dhori, Sa were taken into possession, sealed and memo
whereof was prepared, which were also signed by the
investigating oCcer as well as the appellant-Lakhmi, Ext.
Ka-13. Since, the accused-appellants Yogesh and Languri
surrendered before the Court on 10.01.2012, he made an
application before the court concerned for remand of the
appellants Langurai and Yogesh, which was allowed by
the court concerned on 19.01.2012. On 20.01.2012, on
the pointing out of accused-Languri he recovered knife
and on the pointing out of accused-Yogesh, he recovered
gun. After the recovery of the aforesaid items on the
pointing out of accused-Lauguri and Yogesh, a case at
case crime No. 57 of 2012, under section 4/25 of the
                             5                           39

Arms Act and 58 of 2012 under Section 25 Arms Act were
also registered against the accused Languri and Yogesh
and after preparing warrants under the Arms Act, they
were sent to jail. He also inspected the place from where
weapon of assault, i.e. knife and gun were recovered and
prepared site plan, Ext Ka-14. Thereafter, this witness
(PW-6,   SO    Umesh    Chandra    Pachauri)   has    been
transferred.

6.   After the transfer of PW-6, SO Umesh Chandra
Pachauri, the investigation of the case was taken up by
Station House OCcer, Ajay Kumar Agrawal, who sent the
materials relating to the crime to the Forensic Science
Laboratory, Agra on 25.03.2012 and after completing
necessary formalities, he submitted charge sheet against
the appellants.

7.   As the case was exclusively triable by the Court of
Sessions, learned Magistrate committed the case to the
Court of Sessions, where case was registered as ST No
310 of 2012 and the learned Additional Sessions Judge,
Anoopshahr vide order dated 20.04.2012 framed the
charges against the appellants under Sections 302/34
IPC, 307/34 IPC, 509/34 IPC and 506 IPC. The charges
were read over and explained to them, who denied the
charges and claimed to be tried.

8.   To bring home guilt of the appellants beyond the hilt,
the prosecution has examined as many as eleven
witnesses. PW-1, Devi Singh is the    rst informant, PW-2,
Het Ram Verma is the son of the deceased, PW-3, CP
Manoj Kumar, who was the Chik writer, PW-4, Dr Kishore
                             6                            39

Kumar, Medical OCcer, who conducted post-mortem on
the cadaver of the deceased-Chameli Devi, PW-5, Dr.
Surendra Goel, Medical OCcer, who examined injured,
Kishan Kumar, son of Chandra Pal Singh, PW-6, SO Umesh
Chandra Pachauri, the     rst investigating oCcer of the
case, PW-7, SI Atar Singh, who conducted inquest on the
body of the deceased, Ext. Ka-6, PW-8, Krishna Kumar is
the injured witness, PW-9 SI Jai Pal Singh is the witness of
recovery of weapon of assault, PW-10, Dr. Mahesh Prasad
Sharma, Deputy Director, Forensic Science Laboratory
and PW-11, Sudhir Kuma Jha, Scienti c OCcer, Forensic
Science Laboratory, Lucknow.

9.   PW-1, Devi Singh is the husband of the deceased
and the   rst informant of the case. In his examination-in-
chief, he deposed that deceased-Chameli Devi was his
wife and injured Krishna Kumar is his grandson. Accused-
Lakhmi is real nephew (bhatija). He has four brothers,
namely Chhiddu Singh, Karan Singh, Lal Singh and the
appellant. Although several persons were born to Chhiddu
Singh, but they died in the childhood. Chhiddu Singh
started considering Het Ram as his son and got the deed
registered of his asset in favour of Het Ram. In the year
1996, Chhiddu Singh died, the last rights of Chhiddu was
performed by his son Het Ram. After the death of Chhiddu
Singh, son of Karan Singh, namely Komal and Lakhmi
started demanding share in the property of Chhiddu Singh
and after preparing an unregistered deed, they have
registered a false case against his son Het Ram. As
Chhiddu Singh has given his land to Het Ram, appellant
Lakhmi started harbouring internal animosity with him
                             7                           39

and his son Languri and Yogesh were helping him. On
30.12.2011, his wife Chameli Devi along with her
grandson krishna Kumar was coming to house from her
 eld. Appelant Lakhmi and his sons Languri and Yogesh,
who were sitting in ambush in room of the house of
Komal. Lakhmi was armed with Daav, Languri was having
knife and Yogesh was having gun and as soon as his wife
came under the tree of Jamun at 03:15 PM, all the three
appellants with common intention surrounded her wife
and knocked her down. Yogesh made indiscriminate ring,
whereas Lakhmi with Daav and Languri with knife
assaulted her. All the three appellants beheaded her wife
and cut the stomach with knife and also caused several
injuries. His grandson Krishna Kumar also received
 rearm injury. Lakhmi uprooted the trident (Trishul) under
the tree of Jamun and in@icted below the naval of her
wife. He also unclothed the dead body and also hung
head of the deceased from the tree. On hearing the noise,
he along with several person of the vicinity rushed to the
spot and on being challenged Languri and Yogesh @ed
away by extending threats, whereas Lakhmi armed with
Daav, started jumping and dancing near the corpse, due
to which no one could dare to apprehend him. In the
meantime,    police   personnel   from   Daulatpur   Chauki
rushed there and apprehended the accused with weapon
of assault, i.e. Daav. He also proved his written report as
Ext. Ka-1.

10. It is also mentioned by PW-1, Devi Singh that prior to
the incident in question, accused-Lakhmi has assaulted
his daughter-in-law on 08.11.2011 with lathi and danda,
                                     8                              39

the case whereof is still going on in Court. His daughter-
in-law to save, hid herself in the room of Tube well.
Thereupon, Lakhmi Singh             red from the window, but the
 re missed.

11. PW-2, Het Ram Verma is the son of the deceased and
the   rst        informant.    In   his    examination-in-chief,    he
deposed that deceased was her mother, whereas Krishna
Kumar is his nephew. Accused-Lakhmi is his cousin. The
incident    in     question     took      place   at   03:15   PM   on
30.12.2011. When his mother and nephew were returning
home from the             eld, appellants Lakhmi, Languri and
Yogesh, were sitting in ambush. Lakhmi was armed with
Daav, Languri with knife and Yogesh was having gun. As
soon as her mother and nephew came under the tree of
Jamun,     all     the    accused    persons      surrounded    them,
knocked her mother down and made indiscriminate ring.
On hearing the sound of             re, he along with his brother
Heera Lal and father rushed to the spot and saw that they
have beheaded her mother with Daav. Appellant-Languri
cut her mother stomach apart from knife.                       Lakhmi
uprooted trident (Trishul) from the root of tree and
in@icted on the naval of her mother. His nephew Krishna
Kumar received           rearm injury on his leg. All the accused-
appellants tied the head of her mother with rope and
hung the same from the tree. Lakhmi had thrown out the
intestine of her mother. When Lakhmi and Languri were
beheading her mother, Yogesh was catching the leg of her
mother. On arrival of several persons of the village, when
they challenged the accused persons, accused Languri
and Yogesh @ed away extending threat, whereas accused
                             9                           39

Lakhmi started jumping and dancing near the dead body
with bloodstained Daav. Looking to the conduct of the
appellant Lakhmi, every one was frightened. The women
have closed their door and no one could dare to
apprehend the accused Lakhmi. At the same time, police
personnel from Daulatpur outpost reached there and
apprehended him along with weapon of assault (Daav).

12. PW-2, Het Ram Verma further deposed that his
father has four brothers, the elder one was Chhiddu
Singh. He has got him educated and married. After his
death, PW-2, also performed his last rights. During his
lifetime, Chhiddu has made registered deed in his favour.
After the death of his Tau (Chhiddu Singh), accused-
Lakhmi Singh started demanding share in the property of
Chhiddu Singh. On his refusal to give the share in the said
property, Lakhmi and Komal made a forged deed of the
said property and   led a suit against him. However, they
have been defeated from all the courts and property has
come in his name, due to which accused Lakhmi, Languri
and Yogesh started harbouring enmity with him and
committed the murder of his mother.

13.   PW-2, Het Ram Verma also deposed that the report
of the incident was lodged by his father. After lodging of
the report, police also came to the spot. Police personnel
made me to climb the tree of Jamun and brought the
head of my mother down and got the clothes of my
mother in right direction, who was lying half naked. The
rope which was bloodstained and was about 14 feet was
taken into possession, sealed it and made memo thereof,
                              10                            39

which was signed by this witness and Om Prakash
Gauram, which he proved as Ext. Ka-2.

14. Police also collected bloodstained and simple earth
and also    took into possession          bloodstained trident
(Trishul) and got it sealed and memo thereof. He also
deposed that the police also took into possession
bloodstained Daav (weapon of assault) and after keeping
in a polythene, got it sealed in cloth.

15. PW-3, CP Manoj Kumar in his examination-in-chief
deposed that on 30.12.2011 he was posted at police
station Dibai as clerk. On that date, on the written
information of Devi Singh, he prepared Chick No. 278 of
2011, case crime No. 400 of 2011, under Section 302,
307 IPC in his writing, which he proved as Ext. Ka-7, which
was entered in GD on 30.12.2011 vide report No. 35 at
16:30 hours. He has proved the original GD as Ext. Ka-8.

16. PW-4, Dr. Kishore Kumar, in his examination-in-chief
deposed that on 31.12.2011 he was posted as Medical
OCcer at District Hospital, Bulandshahr. On that date he
conducted the autopsy on the cadaver of the deceased
which was brought by Constable 606 Ram Pal Singh and
Constable 1775 Amit Kumar of police station Dibai along
with relevant documents. He conducted the post mortem
at 09:30 AM on 31.12.2011 and found the following ante-
mortem injuries:

                “1.   Incised wound through and through
           at the level of C-5 vertebrae, all structure of
           neck C vessels found under the injury. Head
           separated from rest of the body.
                             11                            39

               2.    Stab wound (incised) 20 cm x 2 cm
          located   below    the   naval,   deep   into   the
          abdominal intestines. Due to this injury, the
          small intestine was cut at several places and
          about 800 ml of blood present in abdomen.”

17. In the opinion of the doctor, the cause of death of
the deceased was shock and haemorrhage as a result of
ante mortem injuries and excessive bleeding.

18. PW-4, Dr. Kishore Kumar also deposed that after
conducting the postmortem examination, he handed over
the clothes of the deceased, Kameez, Dhoti and Petticoat,
four toe rings and a piece of broken bangle to the
constable who brought the dead body for postmortem in
a sealed cover. He also handed over the dead body and
postmortem report the the constable. He deposed that
Injury No. 1 can be caused by sharp edged weapon, like
knife and Injury No. 2 can be caused by sharp edged
weapon like trident (Trishul).

19. PW-5, Dr. Surendra Goyal in his examination-in-chief
deposed that on 30.12.2011 he was posted at CHC at
Medical OCcer. On that date he examined Kishan Kumar,
son of Chandra Pal Singh, resident of Danapur, police
station Dibai, who was brought by Home Guard 770 Vani
Singh of PS Dibai, at about 04:55 PM on 30.12.2011. He
found the following injuries on his person:

               “Lacerated wound of size 2 cm x 1.5 cm x
          muscle deep on the lower and outer aspect of
          right thigh Blackening present around the
          wound. Fresh bleeding present.”
                              12                           39

               X-ray was advised and injury was kept
          under observation. Duration of the injury was
          fresh.

20. In the opinion of the doctor, the above injury was
caused by rearm.

21. PW-6,   Umesh    Chandra       Pachauri   was   the   rst
investigating oCcer of the case, whose evidence has
already been discussed above.

22. PW-7, SI Atar Singh in his examination-in-chief
deposed that on 30.12.2011 he was posted at Daulatpur
out-post of police statin Dibai as Sub-Inspector. On that
date at 17:30 hours, he prepared inquest on the body of
the deceased Chamai Devi, wife of Shri Devi Singh, which
he proved as Ext. Ka-6. He also prepared letter to RI,
Photo Lash, letter to CMO and specimen seal, which he
proved as Ext. Ka 16 to 19.

23. PW-8, Krishna Kumar is the injured witness. At the
time of recording of his examination-in-chief, he was aged
about 11 years and six months. At the time of incident,
i.e. 30.12.2011, he was aged about seven years and six
months. Court has examined the child whether he is
capable to answer the question correctly and on being
satis ed, his evidence was recorded. In his examination-
in-chief, he deposed that deceased-Chameli Devi was his
grand-mother. Among the persons, who had killed his
grand-mother, Lakhmi was armed with Daav, Languri was
carrying knife and Yogesh was having gun. On the date of
incident, i.e. 30.12.2011 at about 03:15 PM when he
along with his grand-mother was returning from       eld and
                            13                          39

as soon as they reached near the tree of Jamun, Yogesh
 red at his grand-mother, which hit this witness on the
thigh of his right leg. All the three accused knocked down
her grand-mother. On his alarm, his grand-father Devi
Singh, uncle (Kaka) Heera Lal and (Tau), Het Ram Verma
rushed to the spot. Accused were assaulting his grand-
mother. They beheaded his grand-mother from the
weapons which they were carrying and hung her head
from the tree. He further deposed that when his grand-
father, Kaka and Tau challenged them, accused-Yogesh
and Languri @ed towards Jungle.

24. PW-9, SI Jaipal Singh was the witness of recovery of
weapon of assault. He deposed that weapon of assault,
i.e. knife and gun was recovered in his presence.

25. PW-10, Dr. Mahesh Prasad Sharma, Deputy Director,
Forensic Science Laboratory in his examination-in-chief,
has deposed that on 10.01.2014, he was posted at
Forensic Science Laboratory, Dibai, district Bulandshahr.
Materials pertaining to Case Crime No. 400 of 2011,
under Sections 302,307, 506 and 509 IPC and 4/25 Arms
Act, containing six bundles dated 10.04.2012 were
received in his oCce. Bundle No. 1 contain Trident
(Trishul), Bundle No.2 Banka, Bundle No. 3, knife, Bundle
No. 4, Kurta Dhoti, Bundle No. 5, bloodstained earth and
Bundle No. 6 simple earth. Aforesaid articles were
examined. Articles kept in bundle Nos 1 to 6 were
bloodstained. Articles kept in bundle Nos. 4 and 5 were
having large bloodstained of 5 cm. Bundle Nos. 4 to 6
                                14                             39

contained human blood. Blood on articles kept on bundle
Nos. 1-3 was disintegrated.

26. PW-11, Sudhir Kumar Jha in his examination-in-chief
deposed that on 10.09.2014 he was posted as               Senior
Scienti c   Assistant.    On         that   date   he   received
bloodstained and simple earth pertaining to Case Crime
No. 400 of 2011, under Sections 302, 307, 506, 509 IPC.
On examination, both          bloodstained and simple earth
were found the same, the report whereof was prepared by
him under his signature, Ext. Ka-21.

27. After the closure of the prosecution evidence, the
statements of the accused-appellants were recorded
under Section 313 Cr.P.C. in which, they denied the
charges levelled against them. Accused-Lakhmi has
stated that he was not present at the spot and he had
been arrested by the police after calling him from home.
Accused-Yogesh and Languri have stated that on the date
and time of incident, they were not present in the village.

28. Five witnesses have also been produced in defence.

29. DW-1, Ramesh, in his evidence deposed that on
30.12.2011 he along with appellant-Languri, Kaushal,
Manoj, Ram Prasad and Pankaj were on the brick kiln of
Badaur. They left for brick kiln at about 08:00 AM and
worked there till 05:00 PM. Appellant-Languri was with
him throughout the day.

30. DW-2,    Kaushal     in    his     evidence    deposed   that
appellant-Languri was with him on 30.12.2011 from 08:00
AM to 06:00 PM at the brick kiln.
                            15                          39

31. DW-3, Constable 139 Vinod Kumar, presently posted
at police station Dibai, district Bulandshahr, in his
evidence deposed that pursuant to the order of the Court
passed on the application under Section 311 Cr.P.C., he is
present along with register of Maalkhana of the year
2011-2012. However, he deposed that he is only Pairokar
and not competent to depose.

32. DW-4      HCP Amar Singh has been produced to
enquire about Malkhana Register.

33. DW-5, Raj Kumar in his evidence has stated that he
knows Devi Singh, who is the resident of Danpur and
retired as Head Master. He deposed that on the date of
incident when he was returning home after marketing, he
saw that a beheaded body was lying. No person was
present there. He was the   rst person to reach near the
dead body. It was about 4:00 o’clock. However, he does
not know the month and year. On his alarm, several
persons of the locality assembled there. Family members
of the deceased also reached. Police also reached at the
place.

34.      Learned Additional District & Sessions Judge,
Anoopshahr (Bulandshahr) after hearing the learned
counsel for the parties and assessing, evaluating and
scrutinizing the evidence on record, convicted and
sentenced the accused-appellants as indicated herein
above.

35. Hence, this appeal.
                            16                           39

36. Heard Shri B.B. Paul, learned Senior Advocate
assisted by Shri Anand Prakash Paul, learned counsel for
the appellants and Shri S.K. Ojha, learned Additional
Government Advocate-Ist, representing the State and
have gone through the record of the case.

Submissions on behalf of the appellats

37. Learned Counsel for the appellants contended that
there is material contradictions in the statement of star
witness PW-8, Krishna Kumar, which makes the entire
prosecution story doubtful. It is pointed out by the
learned counsel for the appellants that PW-8, Krishna
Kumar in his evidence at page No. 78 of the paper book
has stated that when the accused were assaulting his
grandmother, no person of the village was present there.
Yogesh   red at his grand-mother, which hit this witness
on the thigh of his right leg. All the three accused
knocked down her grand-mother. Whereas at other place
of his evidence at page No. 81 of the paper book this
witness has stated that after being hit by the   re, he @ed
weeping and that he did not tell about the incident to his
father, uncle and Tau (father’s elder brother) and they
reached the spot on hearing the noise. No person of the
village rushed to the spot. Shri Paul also submitted that
doctrine of Falsus in uno, falsus in omnibus be applied in
this case.

38. Learned counsel for the appellants heavily relied
upon the statement of DW-5 Raj Kumar and submitted
that the trial court has completely overlooked the facts
narrated by DW-5 Raj Kumar in his statement.
                                   17                                    39

39. Learned       counsel    for        the    appellants       has   also
submitted that PW-8, Krishna Kumar is a child witness and
his statement should be considered following the dictum
of Hon’ble Supreme Court as per settled principle of law
on the subject.

40. Learned       counsel    for        the    appellants       has   also
contended that the prosecution has not examined Komal
in front of whose house, the occurrence took place and
that the investigating oCcer has not examined the length
of Jamun tree under which the occurrence took place,
which is fatal for the prosecution.

41. Lastly, it is submitted by the learned counsel for the
appellants that non-recovery of empty cartridge from the
place   of    occurrence,    makes            the    prosecution      story
doubtful.

     Submission on behalf of the State

42. On the other hand, Shri S.K. Ojha, learned Additional
Government Advocate supported the                        ndings of the
learned trial court by stating that the learned trial court
has correctly martialled the evidence and considered
each and every aspect of the case while convicting the
appellants.

     Analysis and conclusion

43. The       rst contention of the learned counsel for the
appellants is there are material contradiction in the
evidence of PW-8, krishna kumar. In the depositions of
witnesses      there   may     always               be   some      normal
discrepancies. These discrepancies are due to lapse of
                               18                               39

time and mental disposition such as shock and horror at
the time of the occurrence. Material discrepancies are
those which are not normal and go to the root of the
prosecution case and not expected of a normal person.

44. For the better appreciation of argument of learned
counsel for the appellants on the point, it shall be useful
to refer to certain pronouncement of Hon’ble Supreme
Court on the point.

45. In State of Rajasthan Vs. Kalki (1981)2 SCC 752,
Hon’ble Supreme Court held as under:

               “6. The second ground on which the High Court
          refused to place reliance on the evidence of P.W. 1 was
          that there were "material discrepancies". As indicated
          above we have perused the evidence of P.W. 1. We
          have not found any "material discrepancies" in her
          evidence. The discrepancies referred to by the High
          Court are, in our opinion, minor, insigni cant, natural
          and not 'material'. The discrepancies are with regard to
          as to which accused "pressed the deceased and at
          which part of the body to the ground and sat on which
          part of the body; with regard to whether the respondent
          Kalki gave the axe blow to the deceased while the latter
          was standing or lying on the ground, and whether the
          blow was given from the side of the head or from the
          side of the legs. In the depositions of witnesses there
          are always some normal discrepancies however honest
          and truthful they may be. These discrepancies are due
          to normal errors of observation, normal errors of
          memory due to lapse of time, due to mental disposition
          such as shock and horror at the time of the occurrence,
          and the like. Material discrepancies are those which are
          not normal, and not expected of a normal person. As
                                19                              39

          indicated above we have not found any material
          discrepancies in the evidence of the P. W. 1.”



46. In State represented by Inspector of Police Vs.
Saravanam and another, (2008) 17 SCC 587, Hon'ble
Supreme Court held that while appreciating the evidence,
the court has to take into consideration whether the
contradictions/omissions had been of such magnitude
that   they   may      materially    a;ect    the   trial.   Minor
contradictions,      inconsistencies,     embellishments        or
improvements on trivial matters without e;ecting the
core of the prosecution case should not be made a ground
to reject the evidence in its entirety. The Trial Court, after
going through the entire evidence, must form an opinion
about the credibility of the witnesses and the appellate
Court in normal course would not be justi ed in reviewing
the same again without justi able reasons.

47. In State of U.P. Vs. M.K. Anthony, (1985)1 SCC
505, Hon’ble Supreme Court held as under:

                  “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 scrutinise the evidence more
          particularly keeping in view the de ciencies, draw-
          backs and in rmities pointed out in the evidence as a
          whole and evaluate them to         nd 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.
          Minor discrepancies on trivial matters not touching the
                               20                                39

         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 oCcer not going to
         the : root of the matter would not ordinarily permit
         rejection of the evidence as a whole. 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 bene t 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 in rmities in the matter of trivial details.
         Even honest and truthful witnesses may di;er in some
         details unrelated to the main incident because power of
         observation, retention and reproduction di;er with
         individuals. Cross examination is an unequal duel
         between a rustic and re ned lawyer. Having examined
         the evidence of this witness, a friend and well-wisher of
         the family carefully giving due weight to the comments
         made by the learned Counsel for the respondent and
         the reasons assigned to by the High Court for rejecting
         his evidence simultaneously keeping in view the
         appreciation of the evidence of this witness by the trial
         court, we have no hesitation in holding that the High
         Court was in error in rejecting the testimony of witness
         Nair whose evidence appears to us trustworthy and
         credible.”

48. In State of Rajasthan Vs. Rajendra Singh, (2009)
11 SCC 106 held as under:
                “Where the omission(s) amount to a
         contradiction, creating a serious doubt
         about the truthfulness of a witness and
                                   21                                 39

         other     witness          also       make      material
         improvements before the court in order to
         make the evidence acceptable, it cannot be
         safe to rely upon such evidence.”


49. In Mahendra Pratap Singh Vs. State of Uttar
Predesh, (2009) 11 SCC 334) held as under:
               “The discrepancies in the evidence of eye-
         witnesses, if found to be not minor in nature,
         may     be      a   ground         for    disbelieving     and
         discrediting         their        evidence.      In       such
         circumstances,        witnesses           may   not     inspire
         con dence and if their evidence is found to be
         in    con@ict       and        contradiction    with     other
         evidence     or      with       the      statement     already
         recorded, in such a case it cannot be held that
         prosecution proved its case beyond reasonable
         doubt.”



50. In the light of the aforesaid observations of Hon'ble
Supreme Court, we will now consider whether the
contradictions/omissions had been of such magnitude
that they may have materially a;ected the trial. The
contradiction pointed out by the learned counsel for the
appellants that at one place PW-8, Krishna Kumar stated
that when the accused were assaulting his grandmother,
no person of the village rushed there. Yogesh                 red at his
grandmother, which hit PW-8 on his right thigh and all the
three accused knocked her grandmother down (page No.
                              22                             39

78 of the paper book). Whereas at the other place (page
81 of the paper book) PW-8, Krishna Kumar stated that
after being hit by the re, he @ed weeping and did not tell
about the occurrence to his father, uncle and Tau and
they rushed to the spot on hearing noise and that no
person of the village came at the place of occurrence.
What, learned counsel for the appellants wants to submits
that when PW-8, Krishna Kumar after being hit by the re,
@ed from the place of occurrence, he did not have any
occasion to see the occurrence.

51. This contention of the learned counsel is totally
misconceived inasmuch at the place of occurrence, PW-8,
Krishna Kumar was present along with his grandmother.
As per his evidence, Yogesh        red at his grandmother, but
the red missed and hit PW-8 on the thigh of his right leg.
PW-8, Krishna Kumar, to a speci c question, during his
cross examination, which was done on 04.06.2016 has
speci cally stated that     re was made from a very close
range. PW-5,      Dr. Surendra Goyal, who examined the
injuries   of   PW-8,   Krishna    kumar   also   opined   that
blackening was present around the wound and fresh
bleeding was present. From the evidence of PW-8 coupled
with the opinion of PW-5, Dr. Surendra Goyal, it is clear
that the    re was made from a very close range, which
goes to suggest that all the accused persons as well as
deceased and the injured PW-8 were present nearby and
PW-8 after being hit by the bullet, @ed towards his home,
there was no diCculty for him to see the other part of the
incident, wherein his grandmother was hacked to death
by the accused. So far not giving information by PW-8,
                             23                            39

Krishna Kumar to his father, uncle and Tau about the
occurrence is concerned, it is the case of the prosecution
that on hearing the noise, father, uncle and Tau of the
injured themselves rushed to the spot and, therefore, no
question arises for giving them information about the
occurrence.

52. In view of the above, such a minor contradiction
pointed out by the learned counsel for the appellant is of
no help to the appellants. Further the discrepancies
pointed out by the learned counsel for the appellant is
very trivial in nature, which does not, in any way, a;ect
the foundation of the prosecution case.

53. Further, so far as application of doctrine of “ falsus in
uno, falsus in omnibus” it is settled position of law that
falsus in uno, falsus in omnibus (false in one thing, false
in every thing) that the above principle is foreign to our
criminal law jurisprudence. This aspect of the matter has
been considered by Hon’ble Supreme Court in catena of
judgements.

54. In Hangovan Vs. State of Tamil Nadu (2020)10
SCC 533, held as under:

          “The counsel for the appellant lastly argued
that once the witnesses had been disbelieved with
respect to the co-accused, their testimonies with respect
to the present accused must also be discarded. The
counsel is, in e;ect, relying on the legal maxim “falsus in
uno, falsus in omnibus, which Indian Courts have always
been reluctant to apply. A three-Judge Bench of this
Court, as far back as in 1957, in Nisar Ali Vs. State of
                               24                                 39

U.P., 1957 SCC OnLine SC 42 held on he point as
follows:

                      “9.…..This maxim has not received
                general       acceptance          in      di;erent
                jurisdictions in India nor has this maxim
                come to occupy the status of a rule of law.
                It is merely a rule of cation. All that is
                amounts to is that in such cases the
                testimony may be disregarded and not
                that it must be disregarded….

                      10. The doctrine merely involves the
                question of weight of evidence which a
                court   may    apply     in   a   given    set    of
                circumstances but it is not what may be
                called “a mandatory rule of evidence...”

55. In Ram Vijay Singh Vs. State of U.P., (2021) 15
SCC 241, a three Judge Bench of Supreme Court held as
under:

                “We     do   not    nd    any     merit    in    the
           arguments raised by the learned counsel for
           the appellant. A part statement of a witness
           can be believed even though some part of the
           statement may not be relied upon by the court.
           The maxim falsus in uno, falsus in omnibus is
           not the rule applied by the courts in India.”

56. Hence, as held above, it has been the consistent
stand of the Hon’ble Supreme Court that Principle “falsus
in uno, falsus in omnibus” is not a rule of evidence and if
the court inspires con dence from the rest of the
                            25                           39

testimony of such a witness, it can very well rely on such
a part of the testimony.

57. Next argument of learned counsel for the appellants
is that the trial court has completely overlooked the the
statement of DW-5 Raj Kumar.

58. DW-5, Raj Kumar, who is resident of another village
Dangarh, in his evidence has stated that on the date of
incident when he was returning home after marketing, he
saw that a beheaded body was lying. No person was
present there. He was the    rst person to reach near the
dead body. It was about 4:00 o’clock. However, he does
not know the month and year. On his alarm, several
persons of the locality assembled there. Family members
of the deceased also reached. Police also reached the
place. DW-5, Raj Kumar was shown as a chance witness,
who reached at the spot at 04:00 PM.

59. The    rst information report in the instant case has
been lodged at 04:30 PM, at police station Dibai, which is
allegedly 7 kms away from the place of occurrence in
which the time of occurrence has been shown at 03:15
PM. In the    rst information report it has clearly been
mentioned by the      rst informant that the incident in
question took place at 03:15 PM. Further, PW-7, SI Atar
Singh, in his cross-examination, which was recorded on
04.01.2017 deposed that on 30.12.2011, he was posted
at Daulatpur police outpost, police station Dibai as Sub-
Inspector. On that date, when he along with SI M.P. Singh
and Constables Amit and Rampal was busy in maintaining
law and order situation in the vicinity, at about 03:30 PM,
                             26                           39

he received information from informer that a woman has
been done to death. Believing on the said information,
when he reached at the spot at about 03:45 PM, he found
the beheaded body of a woman lying under the tree of
Jamun near the house of Komal. Neck was hanging on the
tree. A person carrying Daav with dancing near the dead
body. There was a large crowd and the people was
frightened. The police personnel arrested that person
along with Daav and on enquiry he told his name as
Lakhmi son of Karan Singh, resident of Danpur. PW-8,
Krishna Kumar in his evidence has also stated that the
incident took place at about 03:15 PM.

60. From the perusal of the statements of PW-1 Devi
Singh, the     rst informant, PW-8, Krishna Kumar, the
injured witness and PW-7, SI Atar Singh, who reached the
spot at 03:45 PM and arrested the accused-appellant
Lakhmi Singh, it is clear that the incident in question took
place at 03:15 PM as claimed by the prosecution and the
story set up by the defence through the evidence of DW-5
Raj Kumar has no leg to stand.

61. Next argument of learned counsel for the appellants
is that PW-8 is a child witness and as his testimony is
false and highly improbably and cannot be accepted.

62. Before, we deal with the aforesaid argument of
learned counsel for the appellants, it would be apposite to
refer certain pronouncements of the Supreme Court on
the subject.

63. In   Dattu    Ramrao      Sakhare     Vs.   State    of
Maharashtra, (1997) 5 SCC 341, Hon’ble Supreme Court
                              27                           39

held that as long as a child witness is found to be
competent to depose i.e., capable of understanding the
questions put to it and able to give rational answers, the
testimony of such witness can be considered as evidence
in terms of Section 118 of the Evidence Act, irrespective
of their tender age or absence of any oath. The only
additional factor to be considered is that the witness must
be found to be reliable, exhibiting the demeanour of any
other competent witness, with no likelihood of having
been tutored. It further clari ed that there is no
requirement or condition that the evidence of a child
witness must be corroborated before it can be considered,
and rather the insistence of any corroboration is only a
rule of prudence that would depend upon the peculiar
facts and circumstances of each case.

     The Court further held as under:
          “A child witness if found competent to
     depose to the facts and reliable one such
     evidence could be the basis of conviction. In
     other words even in the absence of oath the
     evidence of a child witness can be considered
     under Section 118 of the Evidence Act provided
     that such witness is able to understand the
     questions and able to give rational answers
     thereof. The evidence of a child witness and
     credibility   thereof   would   depend   upon   the
     circumstances of each case. The only precaution
     which the court should bear in mind while
     assessing the evidence of a child witness is that
     the witness must be a reliable one and his/her
                            28                            39

    demeanour must be like any other competent
    witness and there is no likelihood of being
    tutored. There is no rule or practice that in every
    case the evidence of such          a witness be
    corroborated before a conviction can be allowed
    to stand but, however as a rule of prudence the
    court always     nds it desirable to have the
    corroboration to such evidence from other
    dependable evidence on record.”

64. In Suryanarain Vs. State of Karnataka, (2001)9
SCC 129, Hon’ble Supreme Court held thus:

              “ The evidence of the child witness cannot
         be rejected per se, but the court, as rule of
         prudence, is required to consider such evidence
         with close scrutiny and only on being convinced
         about the quality of the statements and its
         reliability, base conviction by accepting the
         statement of the child witness. The witness of
         PW2 cannot be discarded only on the ground of
         her being of Teen age. The fact of being PW2 a
         child witness    would   require   the   court to
         scrutinise her evidence with care and caution. If
         she is shown to have stood the test of cross-
         examination and there is no in rmity in her
         evidence, the prosecution can rightly claim a
         conviction based upon her testimony alone.
         Corroboration of the testimony of a child
         witness is not a rule but a measure of caution
         and prudence. Some discrepancies in the
                                    29                                   39

           statement of a child witness cannot be made
           the      basis     for    discarding        the     testimony.
           Discrepancies in the deposition, if not in
           material particulars, would lend credence to the
           testimony of a child witness who, under the
           normal circumstances, would like to mix up
           what the witness saw with what he or she is
           likely     to     imagine        to   have    seen.     While
           appreciating the evidence of the child witness,
           the      courts    are    required     to    rule    out    the
           possibility of the child being tutored. In the
           absence of any allegation regarding tutoring or
           using the child witness for ulterior purposes of
           the prosecution, the courts have no option but
           to rely upon the con dence inspiring testimony
           of such witness for the purposes of holding the
           accused guilty or not.”
65. In Ratansinh Dalsukhbhai Nayak Vs. State of
Gujarat, (2004) 1 SCC 64, Hon’ble Supreme Court
explained that although child witnesses are considered as
dangerous witnesses as they are pliable and liable to be
in@uenced easily, shaped and moulded yet it is an
accepted    norm       that    if   after    careful    scrutiny      their
testimony is found to inspire con dence and truthful, then
there is no obstacle in accepting the evidence of such
child witness.

     The Court further held as under:

     “The decision on the question whether the child
     witness has suCcient intelligence primarily rests
                             30                            39

     with the trial Judge who notices his manners, his
     apparent possession or lack of intelligence, and
     the said Judge may resort to any examination
     which will tend to disclose his capacity and
     intelligence as well as his understanding of the
     obligation of an oath. The decision of the trial
     court may, however, be disturbed by the higher
     court if from what is preserved in the records, it
     is clear that his conclusion was erroneous. This
     precaution is necessary because child witnesses
     are amenable to tutoring and often live in a
     world   of   make-believe.   Though    it   is   an
     established principle that child witnesses are
     dangerous witnesses as they are pliable and
     liable to be in@uenced easily, shaped and
     moulded, but it is also an accepted norm that if
     after careful scrutiny of their evidence the court
     comes to the conclusion that there is an impress
     of truth in it, there is no obstacle in the way of
     accepting the evidence of a child witness.”

66. In Gagan Kanojia and another Vs. State of
Punjab (2006) 13 SCC 516, Supreme Court held that
Part of the statement of a child witness, even if tutored,
can be relied upon, if the tutored part can be separated
from untutored part, in case such remaining untutored
part inspires con dence. In such an eventuality the
untutored part can be believed or at least taken into
consideration for the purpose of corroboration as in the
case of a hostile witness.
                              31                           39

67. In State of U.P. Vs. Krishna Master and others,
AIR 2010 SC 3071, this Court held that there is no
principle of law that it is inconceivable that a child of
tender age would not be able to recapitulate the facts in
his memory. A child is always receptive to abnormal
events which take place in his life and would never forget
those events for the rest of his life. The child may be able
to recapitulate carefully and exactly when asked about
the same in the future. In case the child explains the
relevant events of the crime without improvements or
embellishments, and the same inspire con dence of the
Court, his deposition does not require any corroboration
whatsoever. The child at a tender age is incapable of
having any malice       or   ill will against any person.
Therefore, there must be something on record to satisfy
the Court that something had gone wrong between the
date of incident and recording evidence of the child
witness due to which the witness wanted to implicate the
accused falsely in a case of a serious nature.



68. In State of U.P. v. Krishna Master (2010) 12 SCC
324 this Court held that there is no principle of law that it
is inconceivable that a child of tender age would not be
able to recapitulate the facts in his memory. A child is
always receptive to abnormal events which take place in
his life and would never forget those events for the rest of
his life. The child may be able to recapitulate carefully
and exactly when asked about the same in the future. In
case the child explains the relevant events of the crime
without improvements or embellishments, and the same
                               32                                 39

inspire con dence of the court, his deposition does not
require any corroboration whatsoever. The child at a
tender age is incapable of having any malice or ill will
against any person. Therefore, there must be something
on record to satisfy the court that something had gone
wrong between the date of incident and recording
evidence of the child witness due to which the witness
wanted to implicate the accused falsely in a case of a
serious nature.”

69. In State of M.P. Vs Ramesh (2011) 4 SCC 786,
Hon’ble Supreme Court after considering a catena of
decisions on the point, held as under”

                 “In view of the above, the law on the issue
          can be summarized to the e;ect that the
          deposition of a child witness may require
          corroboration,      but    in   case    his   deposition
          inspires the con dence of the court and there is
          no embellishment or improvement therein, the
          court may rely upon his evidence. The evidence
          of a child witness must be evaluated more
          carefully with greater circumspection because
          he is susceptible to tutoring. Only in case there
          is evidence on record to show that a child has
          been     tutored,    the    Court      can    reject   his
          statement partly or fully. However, an inference
          as to whether child has been tutored or not,
          can    be   drawn    from       the    contents   of   his
          deposition.”
                             33                           39

70. Similarly in Pradeep Vs. Haryana, reported in
2023 SCC OnLine SC 777 Supreme Court emphasized on
the importance of preliminary examination of a child
witness. It held that although oat cannot be administered
to a child witness under 12-years of age yet, as per
Section 118 of the Evidence Act it is the duty of a Trial
Judge to conduct a preliminary examination before
recording the evidence of the child witness to ascertain if
the child is able to understand the questions put to him
and that he is able to give rational answers to the
questions put to him. It held that the Trial Judge must
record its opinion and satisfaction that the child witness
understands the duty of speaking the truth and state why
he is of the opinion that the child understands the duty of
speaking the truth. It further held that the questions put
to the child in the preliminary examination must also be
recorded so that the appellate court can go into the
correctness of the opinion of the Trial Court.

71. In a very recent judgement of Hon’ble Supreme
Court in State of Madhya Pradesh Vs. Balveer Singh,
2025 INSC 261, after considering a catena of judgements
on the point summarised the law in the following words:

               “(I) The Evidence Act does not prescribe
          any minimum age for a witness, and as such a
          child witness is a competent witness and his or
          her evidence and cannot be rejected outrightly.
               (II) As per Section 118 of the Evidence Act,
          before the evidence of the child witness is
          recorded, a preliminary examination must be
                          34                         39

     conducted by the Trial Court to ascertain if the
     child-witness   is    capable   of   understanding
     sanctity of giving evidence and the import of
     the questions that are being put to him.

     (III) Before the evidence of the child witness is
recorded, the Trial Court must record its opinion and
satisfaction that the child witness understands the
duty of speaking the truth and must clearly state
why he is of such opinion.

     (IV) The questions put to the child in the course
of the preliminary examination and the demeanour
of the child and their ability to respond to questions
coherently and rationally must be recorded by the
Trial Court. The correctness of the opinion formed by
the Trial Court as to why it is satis ed that the child
witness was capable of giving evidence may be gone
into by the appellate court by either scrutinizing the
preliminary examination conducted by the Trial
Court, or from the testimony of the child witness or
the demeanour of the child during the deposition
and cross-examination as recorded by the Trial
Court.

     (V) The testimony of a child witness who is
found to be competent to depose i.e., capable of
understanding the questions put to it and able to
give coherent and rational answers would be
admissible in evidence.
                              35                                 39

     (VI) The Trial Court must also record the
demeanour of the child witness during the course of
its deposition and cross-examination and whether
the evidence of such child witness is his voluntary
expression and not borne out of the in@uence of
others.

     (VII) There is no requirement or condition that
the evidence of a child witness must be corroborated
before it can be considered. A child witness who
exhibits the demeanour of any other competent
witness and whose evidence inspires con dence can
be relied upon without any need for corroboration
and can form the sole basis for conviction. If the
evidence of the child explains the relevant events of
the crime without improvements or embellishments,
the same does not require any corroboration
whatsoever.

     (VIII)Corroboration of the evidence of the child
witness may be insisted upon by the courts as
measure        of   caution    and       prudence      where    the
evidence of the child is found to be either tutored or
riddled with material discrepancies or contradictions.
There     is   no      hard   and    fast       rule   when    such
corroboration would be desirous or required, and
would     depend        upon       the    peculiar     facts   and
circumstances of each case.

     (IX)      Child     witnesses        are     considered     as
dangerous witnesses as they are pliable and liable to
                        36                              39

be in@uenced easily, shaped and moulded and as
such the courts must rule out the possibility of
tutoring. If the courts after a careful scrutiny,      nd
that there is neither any tutoring nor any attempt to
use the child witness for ulterior purposes by the
prosecution, then the courts must rely on the
con dence-inspiring testimony of such a witness in
determining the guilt or innocence of the accused. In
the absence of any allegations by the accused in this
regard, an inference as to whether the child has
been tutored or not, can be drawn from the contents
of his deposition.

     (X) The evidence of a child witness is considered
tutored if their testimony is shaped or in@uenced at
the instance of someone else or is otherwise
fabricated. Where there has been any tutoring of a
witness, the same may possibly produce two broad
e;ects in their testimony; (i) improvisation or (ii)
fabrication.

     (i) Improvisation in testimony whereby facts
have been altered or new details are added
inconsistent   with   the     version    of   events   not
previously stated must be eradicated by                rst
confronting the witness with that part of its previous
statement      that   omits      or     contradicts    the
improvisation by bringing it to its notice and giving
the witness an opportunity to either admit or deny
the omission or contradiction. If such omission or
contradiction is admitted there is no further need to
                        37                              39

prove the contradiction. If the witness denies the
omission or contradiction the same has to be proved
in the deposition of the investigating oCcer by
proving that part of police statement of the witness
in question. Only thereafter, may the improvisation
be discarded from evidence or such omission or
contradiction be relied upon as evidence in terms of
Section 11 of Evidence Act.

     (ii) Whereas the evidence of a child witness
which is alleged to be doctored or tutored in toto,
then such evidence may be discarded as unreliable
only if the presence of the following two factors have
to be established being as under: -

▪ Opportunity of Tutoring of the Child Witness in
question   whereby     certain   foundational       facts
suggesting or demonstrating the probability that a
part of the testimony of the witness might have
been tutored have to be established.

This may be done either by showing that there was a
delay in recording the statement of such witness or
that the presence of such witness was doubtful, or
by imputing any motive on the part of such witness
to depose falsely, or the susceptibility of such
witness in falling prey to tutoring. However, a mere
bald assertion that there is a possibility of the
witness in question being tutored is not suCcient.

▪ Reasonable likelihood of tutoring wherein the
foundational   facts   suggesting     a   possibility   of
                         38                            39

tutoring as established have to be further proven or
cogently substantiated. This may be done by leading
evidence to prove a strong and palpable motive to
depose falsely, or by establishing that the delay in
recording the statement is not only unexplained but
indicative and suggestive of some unfair practice or
by proving that the witness fell prey to tutoring and
was in@uenced by someone else either by cross-
examining such witness at length that leads to
either material discrepancies or contradictions, or
exposes a doubtful demeanour of such witness rife
with   sterile   repetition   and   con dence    lacking
testimony, or through such degree of incompatibility
of the version of the witness with the other material
on record and attending circumstances that negates
their presence as unnatural.

(XI) Merely because a child witness is found to be
repeating certain parts of what somebody asked her
to say is no reason to discard her testimony as
tutored, if it is found that what is in substance being
deposed by the child witness is something that he or
she had actually witnessed. A child witness who has
withstood his or her cross-examination at length and
able to    describe the scenario       implicating the
accused in detail as the author of crime, then minor
discrepancies or parts of coached deposition that
have crept in will not by itself a;ect the credibility of
such child witness.
                             39                            39

    (XII) Part of the statement of a child witness, even if
    tutored, can be relied upon, if the tutored part can
    be separated from the untutored part, in case such
    remaining untutored or untainted part inspires
    con dence.

    The untutored part of the evidence of the child
    witness can be believed and taken into consideration
    or the purpose of corroboration as in the case of a
    hostile witness.”

72. In view of the above dictum of Hon’ble Supreme
Court, we have gone through the testimony of PW-8,
Krishna Kumar. At the time of incident, this witness was
aged about seven years, eight months and 15 days. When
the evidence of the child was recorded, he was aged
about 11 years and six months. Before recording the
evidence of PW-8, krishna Kumar, he was examined by
the Trial Judge by putting certain questions and on being
satis ed, the Trial Judge recorded his statement. In his
evidence,   he   has    supported   the   prosecution   case.
Although, he was subjected to lengthy cross-examination,
but nothing adverse could be elicited from his mouth to
make the prosecution story doubtful. Further, PW-8,
Krishna Kumar is an injured witness and his presence at
the place cannot be doubted.

73. Next argument of the learned counsel for the
appellants is in respect of non-examination of one Komal
in front of whose house, the occurrence took place and
non-examination of length of Jamun tree.
                              40                        39

74. This Court failed to notice as to what bene t learned
counsel for the appellants want to derive from examining
the length of Jamun tree. Moreover, PW-1, Devi Singh,
who is also the   rst informant of the case, in his cross-
examination which was recorded on 18.10.2012 has
stated that he had enmity over the plot with Komal and
Lakhmi. His elder brother Chhiddu Singh was issueless
and he had given his land to Het Ram. For this land, a
case was instituted by Komal and Lakhmi Singh against
Het Ram, which ended in 1999 in favour of Het Ram.
Since, Komal and rst informant was in inimical terms, no
occasions exists for the    rst informant to produce Komal
as prosecution witness, rather accused-appellants should
have produced him as defence witnesses.

75. So far as non-recovery of empty cartridge from the
place of occurrence is concerned, it is of no help to the
appellants. Weapon of assault, i.e. Daav and trident
(trishul) have been recovered from appellant Lakhmi, and
on the pointing out of the appellant Languria, knife and
on the pointing out of the appellant Yogesh gun were
recovered. Further, Dr. Surendra Goyal, who examined the
injury of the injured PW-8, Krishna Kumar, opined that
injury was caused by       rearm. No suggestion was put to
PW-5. Dr. Surendra Goyal, about non-presence of pellet in
the injury.

76.   Materials pertaining to Case Crime No. 400 of 2011,
under Sections 302,307, 506 and 509 IPC and 4/25 Arms
Act, containing six bundles dated 10.04.2012 were sent to
Forensic Science Laboratory. Bundle No. 1 contain Trident
                            41                           39

(Trishule), Bundle No.2 Banka, Bundle No. 3, knife, Bundle
No. 4, Kurta Dhoti, Bundle No. 5, bloodstained earth and
Bundle No. 6 simple earth. Aforesaid articles were
examined by PW-10, Dr. Mahesh Prasad Sharma, Deputy
Director, Forensic Science Laboratory. Articles kept in
bundle Nos 1 to 6 were bloodstained. Articles kept in
bundle Nos. 4 and 5 were having large bloodstained of 5
cm. Bundle Nos. 4 to 6 contained human blood. Blood on
articles kept on bundle Nos. 1- 3 was disintegrated.
Further bloodstained and simple earth pertaining to Case
Crime No. 400 of 2011, under Sections 302, 307, 506, 509
IPC was examined by PW-11, Sudhir Kumar Jha, Senior
Scienti c Assistant, Lucknow.     On examination, both
bloodstained and simple earth were found the same, the
report whereof was Ext. Ka-21.

77. We have carefully scrutinized and examined the
evidence of prosecution witnesses and we       nd that they
have been correctly marshalled and assessed by the
kerned Trial Court. It was a gruesome murder, which was
committed in a broad day light in which the deceased was
hacked to death. In addition to the death of the deceased,
PW-8, Krishna Kumar also received     rearm injury on his
leg.

78. In view of what has been indicated herein above, we
are of the view that the prosecution has successfully
proved its case beyond all reasonable doubt against all
the accused persons under Sections 302/34, 509/34 IPC
and 506 IPC. Conviction of the appellants Languri and
Yogesh under Section 506 IPC is also upheld.
                                                            42                              39




                              79. Accordingly, the instant criminal appeal is dismissed.

                              80. The appellants are in jail. They shall remain in jail to
                              serve out the sentence awarded to them by the learned
                              Trial Court.

                              81. OCce is directed to send a copy of this order to the
                              court concerned for compliance and compliance report be
                              submitted to this Court within two months.




                                                (Devendra Singh-I,J.) (Chandra Dhari Singh,J.)

                              March 18, 2026
                              Ishrat




Digitally signed by :-
MOHAMMAD ISHRAT
High Court of Judicature at Allahabad


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