( 2025:HHC:27298 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 364 of 2012 Reserved on: 30.07.2025 Date of Decision: 12.08.2025 Asha Rani ...Appellant Versus State of H.P. ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes. For the Appellant : Ms Sheetal Vyas, Advocate. For the Respondent/State: Mr Jitender K. Sharma, Additional Advocate General. Rakesh Kainthla, Judge The present appeal is directed against the judgment of conviction and order of sentence dated 18.08.2012, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. (learned Trial Court) vide which appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 304-II of Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for 04 years, pay a fine of ₹2,000/-, and in default of payment of fine to 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. P a g e | 2 ( 2025:HHC:27298 ) undergo further rigorous imprisonment for one month for the commission of the aforesaid offence. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court for the commission of an offence punishable under Section 302 read with Section 34 of the IPC. It was asserted that the informant Kiran Sharma (PW1), her mother Promila Devi (PW3) and her grandfather, Sukh Ram (since deceased) were present in their home on 25.03.2011. An old, dilapidated house existed near the informant’s house. Two labourers were engaged to demolish the old house. Jai Dei and her daughter-in-law, Asha Rani (the present accused), arrived at the spot at 1:30 pm and instructed the labourers to halt work. Jai Dei pushed the “Tasla” (basin) of the labourer. Sukh Ram inquired as to why she had thrown “Tasla”. Jai Dei and Asha started quarrelling with Sukh Ram. Asha Rani went towards the rear side of the house. She picked up a piece of brick and threw it towards Sukh Ram. The brick hit Sukh Ram on the left side of his ribs. He sat down. His body began to swell, and his breathing became irregular. He became restless. He was taken P a g e | 3 ( 2025:HHC:27298 ) to the hospital, where he succumbed to his injuries. The matter was reported to the police. ASI Luder Singh (PW20) went to the spot and recorded the statement of Kiran Sharma (Ex-PW1/A), which was sent to the police station where FIR (Ex-PW14/C) was registered. ASI Luder Singh conducted the investigation. He prepared the site plan (Ex-PW20/B). Informant Kiran Sharma identified the piece of brick with which the injury was caused to Sukh Ram. ASI Luder Singh (PW20) prepared the rough sketch of brick (Ex-PW1/B). He sealed the brick in a parcel with seal “S” and seized the parcel vide memo (Ex-PW1/C). He obtained the seal impression (Ex-PW5/A) on a separate piece of cloth and handed it over to Anil Kumar after its use. ASI Ramesh Chand (PW19) went to the hospital. He took the photographs (Ex.PW19/A to Ex.PW19/I), whose negatives are Ex.PW19/J. He conducted the inquest on the dead body and prepared the reports (Ex.PW16/B and Ex.PW16/C). He filed an application (Ex.PW16/A) for conducting the postmortem examination of the dead body. Dr. Ankur Dharamani (PW16) conducted the postmortem examination and found that Sukh Ram died due to asphyxia caused by antemortem blunt injury on the left side of the thoracic cavity, leading to sudden and massive surgical emphysema along with P a g e | 4 ( 2025:HHC:27298 ) laceration of the left lung, leading to respiratory failure. He preserved the viscera and handed them over to the police officials accompanying the dead body. ASI Luder Singh (PW20) filed an application (Ex.PW10/B) for obtaining the MLC of the deceased. Dr. Anuj Sharma (PW10) issued the MLC (Ex.PW10/A). ASI Luder Singh (PW20) associated Patwari Halka, who prepared the report (Ex.PW20/F). He issued the jamabandi (Ex.PW8/B) and Aks Shajra (Ex.PW8/C). ASI Luder Singh (PW20) obtained the photographs (Ex.PW20/H1 to Ex.PW20/H7), whose negatives are Ex.PW20/H8. Report of analysis (Ex.PW9/A) was issued, in which it was mentioned that no poison/ alcohol was detected in the viscera. ASI Luder Singh (PW20) filed an application (Ex.PW16/A) seeking the final opinion. He also produced the brick before the Medical Officer. Dr. Ankur Dharamani (PW16) issued the final opinion (Ex.PW16/F) that the piece of brick shown to him was sufficient to cause blunt trauma to the chest, and the possibility of using the brick as a weapon of offence to cause injury could not be ruled out. The photographs of the brick (Ex.PW20/J1 to Ex.PW20/J5) were taken. The brick was put in the same parcel from which it was taken out, and the parcel was sealed with the seals of the hospital. Sample seal (Ex.PW20/K) was taken on a separate piece of cloth. A P a g e | 5 ( 2025:HHC:27298 ) letter (Ex.PW20/L) was submitted to Dr Piyush Kapila (PW21), Assistant Professor Forensic Medicine, who issued a report (Ex.PW9/B) stating that there was a possibility of fracture of ribs and laceration of the left lungs by the piece of brick. Surgical emphysema was sufficient to cause death. Statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented in the Court of learned Judicial Magistrate First Class, Court No. III, Ghumarwin, District Bilaspur Camp at Bilaspur, who committed it to the learned Sessions Judge for trial. Learned Sessions Judge assigned the matter to the learned Additional Sessions Judge (Fast Track Court), Ghumarwin, (learned Trial Court) for disposal. 3. The learned Trial Court charged the accused with the commission of an offence punishable under Section 302 read with Section 34 of the IPC, to which they pleaded not guilty and claimed to be tried. 4. The prosecution examined 21 witnesses to prove its case. Kumari Kiran Sharma (PW1) is the informant. Kanta Devi (PW2), Promila Devi (PW3), Geeta Devi (PW4), and Savitri Devi P a g e | 6 ( 2025:HHC:27298 ) (PW6) are eyewitnesses. Anil Kumar (PW5) is the witness to the recovery of the brick. Brahma Dass (PW7) stated that Narainu and Garibi, parents of Jai Dei, used to reside in the old house. Dev Raj (PW8) was working as a Patwari who issued the report of Jamabandi and Aks Shajra. ASI Bachiter Singh (PW-9)prepared the challan. Dr. Anuj Sharma (PW10) initially examined Sukh Ram. Constable Varun Kumar (PW11) carried the case property from the hospital to the police station. Constable Naresh Kumar (PW12) carried the case property to RFSL. Constable Rajesh Kumar (PW13) proved the entry in the daily diary. HC Raj Kumar (PW14) and HC Naresh Kumar (PW-15) were working as MHCs with whom the case property was deposited. Dr. Ankur Dharamani (PW16) conducted the postmortem examination of the deceased. Rattan Lal (PW17) is the son of Sukh Ram, who took him to the hospital. Rajesh Kumar (PW18) is the Secretary of the Gram Panchayat, who produced a copy of the Pariwar Register. ASI Ramesh Chand (PW19) went to the hospital, conducted the inquest on the dead body and took the photographs. ASI Luder Singh (PW20) conducted the investigation. Dr. Piyush Kapila (PW21) is the Forensic Expert, who issued the report that the injuries could have been caused by the brick. P a g e | 7 ( 2025:HHC:27298 ) 5. The accused, in their statements recorded under Section 313 of CrPC, denied the prosecution case in its entirety. They claimed that they were innocent and were falsely implicated. They stated that the house in question was given to Naraianu and Garibi Devi. Jai Devi was in possession of the house after their death. The accused went to the village and saw that the house was being demolished by Sukh Ram with the help of the labourers. They objected. Sukh Ram slapped and abused Jai Devi. Asha Rani ran from the spot to save herself. Sukh Ram followed her. She did not throw any bricks towards Sukh Ram. A false case was made against the accused. Statements of Krishanu Ram (DW1), Dr. Ajay Negi (DW2) and Dr. Superiya Atwal (DW3) were recorded in defence. 6. Learned Trial Court held that the testimony of the informant was corroborated by her mother. It was proved that Narainu and Garibi Devi were residing in the house. Garibi Devi and Jai Devi did not deliver the possession of the house to Sukh Ram. Jai Devi had a bona fide claim to the house after the death of her mother. The prosecution evidence proved that the arguments had taken place between the accused and the deceased Sukh Ram. The defence version that the deceased had fallen while trying to P a g e | 8 ( 2025:HHC:27298 ) chase Asha Devi was not corroborated on record. The testimonies of the witnesses were natural. It was proved that Asha Rani threw the brick towards Sukh Ram, who sustained injuries and died. Merely throwing “Tasla” and having arguments with Sukh Ram did not suggest any sharing of common intention. Jai Devi did not do anything, and Asha Rani threw a brick weighing about 2.5 kg. She had no apprehension of any injury. She knew that such bodily injury would be inflicted on Sukh Ram as would be sufficient to cause death. Therefore, the accused Asha Rani was convicted of the commission of an offence punishable under Section 304-II of the IPC and sentenced as aforesaid. The accused Jai Devi was acquitted. 7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused/appellant has filed the present appeal, asserting that the learned Trial Court erred in convicting and sentencing the accused. Bhagwan Dass was given up, and Savitri Devi did not support the prosecution case. The informant is an interested witness. She admitted that there were 10-15 persons on the spot, but the prosecution did not cite any witness to support its case. The prosecution witnesses admitted that an argument had taken place between the parties. Savitri Devi admitted that Sukh Ram had slapped Jai Devi. The Medical Officer P a g e | 9 ( 2025:HHC:27298 ) admitted that he had prepared the notes. These notes were not produced before the Court, and the postmortem report issued by him is not admissible. The deceased was under treatment at the Army Hospital, Chandigarh. The possession of the accused was duly proved, and the informant party had no right to demolish the house. The accused had a right of private defence to protect their property. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. 8. I have heard Ms. Sheetal Vyas, learned counsel for the appellant, and Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent/State. 9. Ms. Sheetal Vyas, learned counsel for the appellant, submitted that the learned Trial Court erred in convicting and sentencing the accused. It was duly proved on record and was also found by the learned Trial Court that Narainu and his wife, Garibi Devi, used to reside in the old dilapidated house. They were the parents of Jai Devi. The informant party had no right to demolish the house, but they had engaged the labourers to demolish the house. Sukh Ram also slapped Jai Devi, and these circumstances P a g e | 10 ( 2025:HHC:27298 ) make out a case of private defence in favour of the accused. The independent witnesses did not support the prosecution's case, and the learned Trial Court erred in discarding their testimonies. Throwing a brick at a person cannot lead to knowledge that would be gained in the circumstances. Therefore, she prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside. She relied upon the judgments in Dnyaneshwar Dagdoba Hivrekar Vs. The State of Maharashtra 1982 CrLJ 1870 & Mercelino Fernandes & Ors. Vs. The State 1970 SCC Online Bom 21: 1971 Cr. LJ 598, in support of her submission. 10. Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that a related witness is not an interested witness. The presence of the informant and her mother on the spot was quite natural. The house was being demolished, and the household members would be present on the spot. The testimony of the informant and her mother was quite consistent. Hence, he prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. P a g e | 11 ( 2025:HHC:27298 ) 12. The informant Kiran Sharma (PW-1) stated that an old house located near her house had fallen. Her grandfather had employed the labourers to remove the mud from that house. Jai Devi and her daughter-in-law Asha Rani came to the spot on 25.03.2011 at 01:30 pm and asked the labourers to stop the work. Jai Devi threw the “Tasla” of Bhagwan Dass. Sukh Ram inquired as to why the accused was stopping the labourers. The accused started quarrelling with Sukh Ram. Asha Rani went towards the back side of the house and came towards Sukh Ram through the broken house. She lifted the piece of Kaccha brick and threw it towards Sukh Ram. Sukh Ram sustained an injury on his left side. He sat down. His body began to swell, and his breathing became irregular. He became restless. Informant’s father took Sukh Ram to the hospital. However, Sukh Ram succumbed to his injuries. She identified the brick. She further stated in her cross-examination that the old house had 02 stories. Half of the roof was thatched and half had slates. She volunteered to say that half portion was made of slates and half portion was made of Khaprail. Garibi Devi had her kitchen on the first floor of the portion covered by Khaprail. She resided on the ground floor. She admitted that the portion having khaprail was damaged, and the roof had caved in from the P a g e | 12 ( 2025:HHC:27298 ) centre in the year 2008 due to heavy rains. Garibi Devi started residing in the portion covered by the slates. Garibi Devi was looking after her land herself. Her land was located at a distance of 40-50 meters. She admitted that Jai Devi is the daughter of Garibi Devi. Pradhan Anil Kumar was brought by the accused. He was accompanied by Veena Devi. The labourers were removing the dry mud from the house covered by the Khaprail. They were also removing the Khaprail and dry mud from the broken wall. The accused told the labourers to stop the work and not to damage their house. The labourers told the accused that the accused should talk to Sukh Ram. The accused and Sukh Ram had an argument which continued for 15-20 minutes. The accused asked Sukh Ram to stop the work, but Sukh Ram declined to do so. 10-15 persons had gathered on the spot, and they had also seen Asha Rani inflicting the injury with the brick. She admitted that there was a wall between Sukh Ram and the accused. She volunteered to say that there was an open door between them. The accused were visible. The dry mud of the wall had fallen. The piece of brick was thrown from a distance and came through the door. Sukh Ram did not fall, and he was made to sit by the informant and her mother. She did not know the name of the other person. She did not notice P a g e | 13 ( 2025:HHC:27298 ) any injury on the body of Sukh Ram. She admitted that there was no specific identification mark on the brick. She denied that Sukh Ram was blind, and he fell while chasing Asha Rani. 13. It was submitted that she is related to Sukh Ram and, she was an interested witness. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Laltu Ghosh v. State of W.B., (2019) 15 SCC 344: (2020) 1 SCC (Cri) 275: 2019 SCC OnLine SC 2 that a related witness is not an interested witness and his testimony cannot be rejected on the ground of interestedness. It was observed: “12. As regards the contention that the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an “interested” witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between “interested” and “related” witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri) 593]; Amit v. State of U.P. [Amit v. State of U.P., (2012) 4 SCC 107 : (2012) 2 SCC (Cri) 590] and Gangabhavani v. Rayapati Venkat Reddy [Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 : (2014) 6 SCC (Cri) 182] ). P a g e | 14 ( 2025:HHC:27298 ) 13. Recently, this difference was reiterated in Ganapathi v. State of T.N. [Ganapathi v. State of T.N., (2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793], in the following terms, by referring to the three-Judge Bench decision in State of Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2 SCC 752: 1981 SCC (Cri) 593] : (Ganapathi case [Ganapathi v. State of T.N., (2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793], SCC p. 555, para 14) “14. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”. 14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], wherein this Court observed : (AIR p. 366, para 26) “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted, and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.” P a g e | 15 ( 2025:HHC:27298 ) 15. In the case of a related witness, the Court may not treat his or her testimony as inherently tainted and needs to ensure only that the evidence is inherently reliable, probable, cogent, and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry) [Jayabalan v. State (UT of Pondicherry), (2010) 1 SCC 199: (2010) 2 SCC (Cri) 966]: (SCC p. 213, para 23) “23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses, but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.” 14. It was laid down by the Hon’ble Supreme Court in Thoti Manohar vs State of Andhra Pradesh (2012) 7 SCC 723 that the court cannot discard the testimony of a witness on the ground of a relationship. It was observed: “31. In this context, we may refer with profit to the decision of this Court in Dalip Singh v. State of Punjab AIR 1953 SC 364, wherein Vivian Bose, J., speaking for the Court, observed as follows: - “We are unable to agree with the learned Judges of the High Court that the testimony of the two eye- witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men P a g e | 16 ( 2025:HHC:27298 ) hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased, we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. The State of Rajasthan (1952) SCR 377 at p. 390 = (AIR 1952 SC 54 at page 59).” 32. In the said case, it was further observed that: “A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted, and that usually means unless the witness has a cause, such as an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true that when feelings run high and there is a personal cause for enmity, there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but the foundation must be laid for such criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.” 33. In Masalti v. State of U.P. AIR 1965 SC 202, it has been ruled that normally close relatives of the deceased would not be considered to be interested witnesses who would also mention the names of the other persons as responsible for causing injuries to the deceased. 34. In Hari Obula Reddi and others v. The State of Andhra Pradesh, AIR 1981 SC 82, a three-judge Bench has held that evidence of interested witnesses is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It can be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to scrutiny and P a g e | 17 ( 2025:HHC:27298 ) accepted with caution. If, on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. 35. In Kartik Malhar v. State of Bihar (1996) 1 SCC 614, it has been opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term ‘interested’ postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or some other reason. 36. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh AIR 2006 SC 3010, while dealing with the liability of interested witnesses who are relatives, a two- judge Bench observed that: “It is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or a close relative to the deceased if it is otherwise found to be trustworthy and credible.” The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If, on such scrutiny, the evidence is found to be reliable and probable, then it can be acted upon. “If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted.” 15. This position was reiterated in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, wherein it was observed at page 222: “Related and interested witness P a g e | 18 ( 2025:HHC:27298 ) 31. A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent, and withstands the rigour of cross-examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness only when he is desirous of implicating the accused in rendering a conviction, on purpose. 32. When the court is convinced with the quality of the evidence produced, notwithstanding the classification as quoted above, it becomes the best evidence. Such testimony, being natural, adds to the degree of probability, the court has to make reliance upon it in proving a fact. The aforesaid position of law has been well laid down in Bhaskarrao v. State of Maharashtra [Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591: (2018) 3 SCC (Cri) 374]: (SCC pp. 603-604, paras 32- 36) “32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of a related witness. In Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, (1953) 2 SCC 36: 1954 SCR 145: AIR 1953 SC 364], Vivian Bose, J. for the Bench, observed the law as under: (AIR p. 366, para 26) ‘26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted, and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent P a g e | 19 ( 2025:HHC:27298 ) person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.’ 33. In Masalti v. State of U.P. [Masalti v. State of U.P., (1964) 8 SCR 133: AIR 1965 SC 202], a five-Judge Bench of this Court has categorically observed as under: (AIR pp. 209- 210, para 14) ‘14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence, whether or not the evidence strikes the court as genuine, whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to the failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence, but the plea that such evidence should be P a g e | 20 ( 2025:HHC:27298 ) rejected because it is partisan cannot be accepted as correct.’ 34. In Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, (1964) 3 SCR 397: AIR 1965 SC 328], this Court held that evidence of an eyewitness who is a near relative of the victim should be closely scrutinised, but no corroboration is necessary for acceptance of his evidence. In Harbans Kaur v. State of Haryana [Harbans Kaur v. State of Haryana, (2005) 9 SCC 195: 2005 SCC (Cri) 1213], this Court observed that: (Harbans Kaur case [Harbans Kaur v. State of Haryana, (2005) 9 SCC 195: 2005 SCC (Cri) 1213], SCC p. 198, para 7) ‘7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused.’ 35. The last case we need to concern ourselves is Namdeo v. State of Maharashtra [Namdeo v. State of Maharashtra, (2007) 14 SCC 150: (2009) 1 SCC (Cri) 773], wherein this Court after observing previous precedents has summarised the law in the following manner: (SCC p. 164, para 38) ‘38. … it is clear that a close relative cannot be characterised as an “interested” witness. He is a “natural” witness. His evidence, however, must be scrutinised carefully. If, on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable, and wholly trustworthy, conviction can be based on the “sole” testimony of such a witness. A close relationship of the witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relatives of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.’ 36. From the study of the aforesaid precedents of this Court, we may note that whoever has been a witness P a g e | 21 ( 2025:HHC:27298 ) before the court of law, having a strong interest in result, if allowed to be weighed in the same scales with those who do not have any interest in the result, would be to open the doors of the court for perverted truth. This sound rule, which remains the bulwark of this system and which determines the value of evidence derived from such sources, needs to be cautiously and carefully observed and enforced. There is no dispute about the fact that the interest of the witness must affect his testimony is a universal truth. Moreover, under the influence of bias, a man may not be in a position to judge correctly, even if they earnestly desires to do so. Similarly, he may not be in a position to provide evidence in an impartial manner when it involves his interest. Under such influences, man will, even though not consciously, suppress some facts, soften or modify others, and provide a favourable colour. These are the most controlling considerations in respect to the credibility of human testimony, and should never be overlooked in applying the rules of evidence and determining its weight in the scale of truth under the facts and circumstances of each case.” (emphasis in original and supplied) 33. Once again, we reiterate with a word of caution, the trial court is the best court to decide on the aforesaid aspect, as no mathematical calculation or straitjacket formula can be made on the assessment of a witness, as the journey towards the truth can be seen better through the eyes of the trial Judge. In fact, this is the real objective behind the enactment itself, which extends the maximum discretion to the court.” 16. Similar is the judgment in M Nageswara Reddy vs. State of Andhra Pradesh 2022 (5) SCC 791, wherein it was observed: “10. Having gone through the deposition of the relevant witnesses -eye-witnesses/injured eye-witnesses, we are of the opinion that there are no major/material contradictions P a g e | 22 ( 2025:HHC:27298 ) in the deposition of the eye-witnesses and injured eye- witnesses. All are consistent insofar as accused Nos. 1 to 3 are concerned. As observed hereinabove, PW6 has identified Accused Nos. 1 to 3. The High Court has observed that PW1, PW3 & PW5 were planted witnesses merely on the ground that they were all interested witnesses, being relatives of the deceased. Merely because the witnesses were the relatives of the deceased, their evidence cannot be discarded solely on the aforesaid ground. Therefore, in the facts and circumstances of the case, the High Court has materially erred in discarding the deposition/evidence of PW1, PW3, PW5 & PW6 and even PW7.” 17. It was laid down by the Hon’ble Supreme Court in Mohd. Jabbar Ali v. State of Assam, 2022 SCC OnLine SC 1440, that merely because the witnesses are related to each other is no reason to discard their testimonies. The Court is required to see their testimonies with due care and caution. It was observed: 55. It is noted that great weight has been attached to the testimonies of the witnesses in the instant case. Having regard to the aforesaid fact that this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. This Court, in a number of cases, has had the opportunity to consider the said aspect of related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded; however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinised with greater care and circumspection. In the P a g e | 23 ( 2025:HHC:27298 ) case of Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381, this Court held that the testimony of such related witnesses should be analysed with caution for its credibility. 56. In Raju alias Balachandran v. State of Tamil Nadu, (2012) 12 SCC 701, this Court observed: “29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised, and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369] in the following words: (Sarwan Singh case [(1976) 4 SCC 369, p. 376, para 10) “10. … The evidence of an interested witness does not suffer from any infirmity as such, but the courts require, as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth, such evidence could be relied upon even without corroboration.” 57. Further delving into the same issue, it is noted that in the case of Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, this Court held that in several cases when only family members are present at the time of the incident and the case of the prosecution is based only on their evidence, Courts have to be cautious and meticulously evaluate the evidence in the process of trial. P a g e | 24 ( 2025:HHC:27298 ) 18. This position was reiterated in Baban Shankar Daphal v. State of Maharashtra, 2025 SCC OnLine SC 137, wherein it was observed: “27. One of the contentions of the learned counsel for the appellants is that the eyewitnesses to the incident were all closely related to the deceased, and for prudence, the prosecution ought to have examined some other independent eyewitnesses as well who were present at the time of the unfortunate incident. This was also the view taken by the Trial Court, but the High Court has correctly rejected such an approach and held that merely because there were some more independent witnesses also, who had also reached the place of the incident, the evidence of the relatives cannot be disbelieved. The law nowhere states that the evidence of the interested witness should be discarded altogether. The law only warrants that their evidence should be scrutinised with care and caution. It has been held by this Court in the catena of judgments that merely if a witness is a relative, their testimony cannot be discarded on that ground alone. 28. In criminal cases, the credibility of witnesses, particularly those who are close relatives of the victim, is often scrutinised. However, being a relative does not automatically render a witness “interested” or biased. The term “interested” refers to witnesses who have a personal stake in the outcome, such as a desire for revenge or to falsely implicate the accused due to enmity or personal gain. A “related” witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simply because of their relationship to the victim. Courts must assess the reliability, consistency, and coherence of their statements rather than labelling them as untrustworthy. 29. The distinction between “interested” and “related” witnesses has been clarified in Dalip Singh v. State of Punjab P a g e | 25 ( 2025:HHC:27298 ) AIR 1953 SC 364, where this Court emphasised that a close relative is usually the last person to falsely implicate an innocent person. Therefore, in evaluating the evidence of a related witness, the court should focus on the consistency and credibility of their testimony. This approach ensures that the evidence is not discarded merely due to familial ties, but is instead assessed based on its inherent reliability and consistency with other evidence in the case. This position has been reiterated by this Court in: I, Md. Rojali Ali v. The State of Assam, Ministry of Home Affairs through Secretary (2019) 19 SCC 567; ii. Ganapathi v. State of T.N. (2018) 5 SCC 549; iii. Jayabalan v. Union Territory of Pondicherry (2010) 1 SCC 199. 30. Though the eyewitnesses who have been examined in the present case were closely related to the deceased, namely his wife, daughter, and son, their testimonies are consistent with respect to the accused persons being the assailants who inflicted wounds on the deceased. As is revealed from the sequence of events that transpired, one of the family members was subjected to an assault. It was thus quite natural for the other family members to rush on the spot to intervene. The presence of the family members on the spot and thus being eyewitnesses has been well established. In such circumstances, merely because the eyewitnesses are family members, their testimonies cannot be discarded solely on that ground. 19. It was rightly submitted on behalf of the State that her presence on the spot was natural. The incident had taken place near the informant’s house. Therefore, she, being the inmate of the house, was a natural witness, and her testimony cannot be rejected because she is the granddaughter of Sukh Ram. P a g e | 26 ( 2025:HHC:27298 ) 20. Her testimony is corroborated by her mother, Promila Devi (PW3), who stated that informant Kiran Sharma (PW1) and deceased Sukh Ram were present at home on 25.03.2011. Sukh Ram had engaged labourers. Bhagwan Dass and Shailini were trying to lift the mud from the old house. Jai Devi and Asha Rani came to the spot. The accused told the labourers to stop the work as the house belonged to them. Sukh Ram told the accused that the house belonged to him and it was given to the husband of Garibi Devi for residence. The argument continued between Sukh Ram and the accused. Asha Devi went towards the rear side of the house. She entered the damaged house and threw a brick toward Sukh Ram. Brick hit Sukh Ram on the left side of the ribs. He sat down. His body started swelling. His breathing became irregular. He became restless. Sukh Ram was taken to the hospital, and he succumbed to his injury on the same day. She stated in her cross-examination that the house was given to Narainu by Sukh Ram. Garibi Devi used to reside in the house after the death of Narainu. The house had 02 portions, and the one covered with Khaprail had collapsed. The four feet of front walls were still standing, but the rear walls had collapsed. The labourers were engaged by Sukh Ram. Jai Devi came to the spot on the same day when the labourers had started the P a g e | 27 ( 2025:HHC:27298 ) work. She had told Jai Devi to talk to Sukh Ram because he had engaged the labourers. She admitted that Jai Devi had thrown “Tasla” of the labourers, and asked them to stop the work. 3-4 women had gathered on the spot. However, she could not mention their names. She denied that Sukh Ram tried to chase Asha Devi and fell. 21. The statement of this witness corroborates the informant’s version in material particulars. Much of the incident was not disputed in her cross-examination. Even the accused did not dispute their presence on the spot in their statements recorded under Section 313 of Cr.PC. They also admitted the argument with Sukh Ram. Therefore, her testimony was rightly accepted by the learned Trial Court. 22. Learned Trial Court found that the house was given to Narainu, and Garibi Devi was residing in the house after his death. It was submitted that Sukh Ram had no authority to demolish the house because the house belonged to Garibi Devi and thereafter to Jai Devi. Jai Devi was within her rights to stop Sukh Ram and the labourers from raising the construction. This submission will not help the accused. Section 103 of IPC deals with the right of private P a g e | 28 ( 2025:HHC:27298 ) defence of property and is available against robbery, house breaking by night, mischief by fire, theft, mischief or house trespass under such circumstances that there is a reasonable apprehension of death or grievous hurt. The act of Sukh Ram did not fall in any of these categories. It is undisputed that Jai Devi was not residing in the house; therefore, even, if there was a house trespass, there was no reasonable apprehension of causing death or grievous hurt to the accused; hence, the right of private defence to the extent of causing death will not be available to the accused, and submission of Ms. Sheetal Vyas, learned counsel for the appellant that accused were within their right to exercise their right of private defence cannot be accepted. 23. Kanta Devi (PW2) did not support the prosecution case. She stated that she heard some noise and saw Sukh Ram and Promila Devi (PW3) having an argument with Jai Devi. She did not know the reason for the arguments. She was permitted to be cross-examined. She denied that the accused Asha Rani picked up a brick and threw it towards Sukh Ram, who sustained injuries. She denied the previous statement recorded by the police. P a g e | 29 ( 2025:HHC:27298 ) 24. Geeta Devi (PW4) also did not support the prosecution case. She stated that she heard some noise. She saw that Sukh Ram was telling the accused that the house belonged to him, whereas Jai Devi was claiming that the house belonged to her. She had not seen any person inflicting a brick blow to Sukh Ram. She was permitted to be cross-examined. She denied that Asha Rani went to the back side of the house and picked up a brick, and threw it towards Sukh Ram, who sustained an injury. She denied the previous statement recorded by the police. 25. Savitri Devi (PW6) was the labourer. She also did not support the prosecution’s case. She stated that Sukh Ram had employed her and her husband to remove the material. Jai Devi, whom she identified by pointing, came to the spot. She and Sukh Ram argued. Sukh Ram slapped Jai Devi, who fell. Asha Rani did not hit Sukh Ram with a brick. She was permitted to be cross- examined. She denied that the accused Asha Rani went towards the back side of the house and threw a brick towards Sukh Ram, who sustained an injury. She denied the previous statement recorded by the police. P a g e | 30 ( 2025:HHC:27298 ) 26. It was submitted that independent witnesses have not supported the prosecution case, and the prosecution case cannot be relied upon because of this fact. This submission is not acceptable. It is apparent from the testimonies of these witnesses that they were contradicted by their previous statements, which were duly proved by the testimony of ASI Luder Singh (PW20). Therefore, the witnesses are shown to have made two inconsistent statements- one before the police and one before the Court, and his credit has been shaken under Section 155(3) of the Indian Evidence Act. It was laid down by the Hon'ble Supreme Court in Sat Paul v. Delhi Admn., (1976) 1 SCC 727 that where a witness has been thoroughly discredited by confronting him with the previous statement, his statement cannot be relied upon. However, when he is confronted with some portions of the previous statement, his credibility is shaken to that extent, and the rest of the statement can be relied upon. It was observed: “52. From the above conspectus, it emerges clearly that even in a criminal prosecution, when a witness is cross- examined and contradicted with the leave of the court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether, as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be P a g e | 31 ( 2025:HHC:27298 ) believed regarding a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.” 27. This Court has also laid down in Ian Stilman versus. State 2002(2) Shim. L.C. 16 that where a witness has been cross- examined by the prosecution with the leave of the Court, his statement cannot be relied upon. It was observed: “12. It is now well settled that when a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution, such a witness loses credibility and cannot be relied upon by the defence. We find support for the view we have taken from the various authorities of the Apex Court. In Jagir Singh v. The State (Delhi Administration), AIR 1975 Supreme Court 1400, the Apex Court observed: "It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit this witness altogether and not merely to get rid of a part of his testimony". 28. Therefore, the prosecution case cannot be doubted simply because the independent witnesses have not supported it. P a g e | 32 ( 2025:HHC:27298 ) 29. It was submitted that the learned Public Prosecutor had given up the witnesses Bhagwan Dass, Meena Devi, Prem Lal, Sudesh Kumari and Labh Devi. Therefore, an adverse inference should be drawn against the prosecution for their non- examination. This submission cannot be accepted. It was held in Hukam Singh vs. State of Rajasthan 2000 (7) SCC 490 that the Public Prosecutor is under no obligation to examine all the witnesses. If the statement of a witness is repetitive, the public prosecutor can give him up. It was observed: “13…..If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution for relieving itself of the strain of adducing repetitive evidence on the same point but also help the court considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice. P a g e | 33 ( 2025:HHC:27298 ) 30. It was further held that the Public Prosecutor is not obliged to examine a witness who will not support the prosecution. It was observed at page 495: “13. When the case reaches the stage envisaged in Section 231 of the Code the Sessions Judge is obliged “to take all such evidence as may be produced in support of the prosecution”. It is clear from the said section that the Public Prosecutor is expected to produce evidence “in support of the prosecution” and not in derogation of the prosecution case. At the said stage, the Public Prosecutor would be in a position to take a decision as to which among the persons cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. That principle applies when there are too many witnesses cited if they all had sustained injuries at the occurrence. The Public Prosecutor in such cases is not obliged to examine all the injured witnesses. If he is satisfied by examining any two or three of them, it is open to him to inform the Court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice. 14. The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor's duty to the Court may require him to produce witnesses from the latter category, also subject to his discretion to limit to one or two among them. But if the P a g e | 34 ( 2025:HHC:27298 ) Public Prosecutor got reliable information that anyone among that category would not support the prosecution version, he is free to state in court about that fact and skip that witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor fairly. He can interview the witness beforehand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in court. 15. A four-judge Bench of this Court had stated the above legal position thirty-five years ago in Masalti v. State of U.P. [AIR 1965 SC 202: (1965) 1 Cri LJ 226]. It is contextually apposite to extract the following observation of the Bench: “It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the court.” 16. The said decision was followed in Bava Hajee Hamsa v. State of Kerala [(1974) 4 SCC 479: 1974 SCC (Cri) 515: AIR 1974 SC 902]. In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri) 1033], Krishna Iyer J., speaking for a three-judge Bench had struck a note of caution that while a Public Prosecutor has the freedom “to pick and choose” witnesses he should be fair to the court and the truth. This Court reiterated the same position in Dalbir Kaur v. State of Punjab [(1976) 4 SCC 158: 1976 SCC (Cri) 527]. 31. It was laid down by the Hon’ble Supreme Court in Pohlu v. State of Haryana, (2005) 10 SCC 196, that the intrinsic worth of the testimony of witnesses has to be assessed by the Court and if P a g e | 35 ( 2025:HHC:27298 ) the testimony of the witnesses appears to be truthful, the non- examination of other witnesses will not make the testimony doubtful. It was observed: - “[10] It was then submitted that some of the material witnesses were not examined and, in this connection, it was argued that two of the eye-witnesses named in the FIR, namely, Chander and Sita Ram, were not examined by the prosecution. Dharamvir, son of Sukhdei, was also not examined by the prosecution, though he was a material witness, being an injured eyewitness, having witnessed the assault that took place in the house of Sukhdei, PW 2. It is true that it is not necessary for the prosecution to multiply witnesses if it prefers to rely upon the evidence of eyewitnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two eye witnesses, namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained.” 32. This position was reiterated in Rohtash vs. State of Haryana 2013 (14) SCC 434, and it was held that the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. It was observed: 14. A common issue that may arise in such cases where some of the witnesses have not been examined, though the P a g e | 36 ( 2025:HHC:27298 ) same may be material witnesses, is whether the prosecution is bound to examine all the listed/cited witnesses. This Court, in Abdul Gani & Ors. v. State of Madhya Pradesh, AIR 1954 SC 31, has examined the aforesaid issue and held, that as a general rule, all witnesses must be called upon to testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of the public prosecutor, and though a court ought to and no doubt would take into consideration the absence of witnesses whose testimony would reasonably be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism, as may be levelled at the absence of possible material witnesses. 15. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a similar view has been reiterated, observing that a court cannot normally compel the prosecution to examine a witness which the prosecution does not choose to examine and that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials. 16. In Masalti v. the State of U.P., AIR 1965 SC 202, this Court held that it would be unsound to lay down as a general rule, that every witness must be examined, even though, the evidence provided by such witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. In such cases, it is always open to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 Cr. P.C. (See also: Bir Singh & Ors. vs. State of U.P., (1977 (4) SCC 420) P a g e | 37 ( 2025:HHC:27298 ) 17. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328, this Court reiterated a similar view and held that if the eye- witness(s) is deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case. 18. In Raghubir Singh v. State of U.P., AIR 1971 SC 2156, this Court held as under: "10. … Material witnesses considered necessary by the prosecution for unfolding the prosecution's story alone need to be produced without unnecessary and redundant multiplication of witnesses. The appellant's counsel has not shown how the prosecution's story is rendered less trustworthy as a result of the non-production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the prosecution. Incidentally, we may point out that the accused too have not considered it proper to produce those persons as witnesses for controverting the prosecution version....." 19. In Harpal Singh v. Devinder Singh & Ann, AIR 1997 SC 2914, this Court reiterated a similar view and further observed: "24. … Illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non- examination of a witness even if it is a material witness....." 20. In Mohanlal Shamji Soni v. Union of India &Anr., AIR 1991 SC 1346, this Court held: "10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the P a g e | 38 ( 2025:HHC:27298 ) Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence, and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. Nonetheless, if either of the parties withholds any evidence which could be produced and which, if produced, would be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. .. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or another proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." 21. In Banti @ Guddu v. State of M.P. AIR 2004 SC 261, this Court held: "12. In trials before a Court of Session, the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973, enjoins him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused.......If that version is not in support of the prosecution's case, it would be unreasonable to insist on the Public Prosecutor to P a g e | 39 ( 2025:HHC:27298 ) examine those persons as witnesses for the prosecution. 13. When the case reaches the stage envisaged in Section 231 of the Code, the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear from the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution's case. At the said stage, the Public Prosecutor would be in a position to take a decision as to which among the presences cited are to be examined. If there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects.......This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. The time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice. 14. It is open to the defence to cite him and examine him as a defence witness." 22. The said issue was also considered by this Court in R. Shaji (supra), and the Court, after placing reliance upon its judgments in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, and Kishan Chand v. State of Haryana JT 2013 (1) SC 222, held as under: "22. In the matter of the appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence, that is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The P a g e | 40 ( 2025:HHC:27298 ) test is whether the evidence has a ring of truth, is cogent, credible, trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus the quality and not quantity which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this does not carry any weight." 23. Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined, witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution, and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive." In an extraordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness if it is so warranted in the interests of justice. The evidence of the witnesses must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same. 33. This position was reiterated in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200: 2022 SCC OnLine SC 150, wherein it was observed at page 224: - P a g e | 41 ( 2025:HHC:27298 ) Non-examination of the witness 34. A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and their importance. If the court is satisfied with the explanation given by the prosecution, along with the adequacy of the materials, sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. The onus is on the part of party who alleges that a witness has not been produced deliberately to prove it. 35. The aforesaid settled principle of law has been laid down in Sarwan Singh v. State of Punjab [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369: 1976 SCC (Cri) 646]: (SCC pp. 377- 78, para 13) “13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the “pakodewalla”, hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion, the comments of the Additional Sessions Judge are based on a serious misconception of the correct legal position. The onus of proving the prosecution's case rests entirely on the prosecution, and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But P a g e | 42 ( 2025:HHC:27298 ) it is not the law that the omission to examine any and every witness, even on minor points, would undoubtedly lead to rejection of the prosecution's case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for the unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted, a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country, there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross-examination which they have to face before the courts. Therefore, nobody wants to be a witness in a murder or any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes.” (emphasis supplied) 36. This Court has reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar [Gulam Sarbar v. State of P a g e | 43 ( 2025:HHC:27298 ) Bihar, (2014) 3 SCC 401: (2014) 2 SCC (Cri) 195]: (SCC pp. 410- 11, para 19) “19. In the matter of the appreciation of evidence of witnesses, it is not the number of witnesses but the quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible, trustworthy or otherwise. The legal system has laid emphasis on the value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Even in probate cases, where the law requires the examination of at least one attesting witness, it has been held that the production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eyewitness if the same inspires confidence. (Vide Vadivelu Thevar v. State of Madras [Vadivelu Thevar v. State of Madras, 1957 SCR 981: AIR 1957 SC 614], Kunju v. State of T.N. [Kunju v. State of T.N., (2008) 2 SCC 151 : (2008) 1 SCC (Cri) 331], Bipin Kumar Mondal v. State of W.B. [Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91 : (2011) 2 SCC (Cri) 150], Mahesh v. State of M.P. [Mahesh v. State of M.P., (2011) 9 SCC 626 : (2011) 3 SCC (Cri) 783], Prithipal Singh v. State of Punjab [Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 : (2012) 1 SCC (Cri) 1] and Kishan Chand v. State of Haryana [Kishan Chand v. State of Haryana, (2013) 2 SCC 502 : (2013) 2 SCC (Cri) 807] .)” 34. Witness Bhagwan Dass was given up as he was won over. Meena Devi, Prem Lal, Sudesh Kumari and Labh Devi were given up because they were repetitive. Since the Public Prosecutor P a g e | 44 ( 2025:HHC:27298 ) is not supposed to examine the witness against the prosecution case and multiply the witnesses by the examination of similar witnesses, therefore, the prosecution case cannot be doubted because of the non-examination of the witnesses. 35. Dr. Anuj Sharma (PW10) examined Sukh Ram. He found swelling on the face and genitalia, which was increasing progressively. He referred the patient to the regional hospital. As per his opinion, the injuries were caused by the blunt weapon. He stated in his cross-examination that he did not observe any mark of visible injury. The symptoms noticed by him could be caused by blunt trauma, a fall or a disease. It was submitted that the testimony of the Medical Officer shows that the injury could have been caused by way of a fall, and this is sufficient to doubt the prosecution’s case. This submission cannot be accepted. The statement made by the Medical Officer suggests an alternative possibility which does not make the prosecution case suspect. It was laid down by the Hon’ble Supreme Court in Ramakant Rai v. Madan Rai, (2003) 12 SCC 395: 2003 SCC OnLine SC 1086 that when the testimonies of the witnesses are found credible, the medical evidence pointing to alternative possibilities is not sufficient to discard the prosecution’s case. It was observed at page 404: P a g e | 45 ( 2025:HHC:27298 ) 22. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence, the importance and primacy of the quality of the trial process. Eyewitnesses' accounts would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged, making any other evidence, including the medical evidence, the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the “credit” of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. 36. Therefore, the prosecution’s case cannot be rejected due to alternative possibilities in the medical evidence. 37. Dr. Ankur Dharamani (PW16) conducted the postmortem examination of Sukh Ram, and in his opinion, the cause of death was due to asphyxia caused by antemortem blunt injury on the left side of the thoracic cavity, leading to sudden and massive surgical emphysema along with laceration of the left lung, leading to respiratory failure. As per his opinion, the piece of brick shown to him was sufficient to cause blunt trauma, and the possibility of using the brick as a weapon of offence could not be ruled out. He stated in his cross-examination that the P a g e | 46 ( 2025:HHC:27298 ) postmortem report was prepared based on rough notes prepared at the time of the postmortem. He had not seen the rough notes on the date of the deposition. He found a hematoma over the left posterior lateral thoracic region. There was no external injury on the dead body. External injury could appear from throwing the stone with full force, but it was not necessarily true. He admitted that the brick was Kaccha and had cracks on its side. The injury could have been caused by way of a fall on a hard surface. 38. The statement of this witness also shows that the death could have taken place due to the antemortem injury caused by the piece of brick (Ex-P1). He admitted that the injury could have been caused by way of a fall, but it was merely an alternative hypothesis, which is not sufficient to doubt the prosecution’s case. 39. Dr. Piyush Kapila (PW21) examined the brick and conducted the postmortem report, and as per him, there was a possibility of fracture of ribs and laceration of the left lung with the brick, which could have caused death in the ordinary course of nature. He stated in his cross-examination that he could not say that the brick could not have been pelted by a weak lady. Only the postmortem report parcel containing the brick was shown to him. P a g e | 47 ( 2025:HHC:27298 ) 40. The statement of this witness also corroborates the testimonies of the prosecution witnesses that the injury sustained by Sukh Ram could have been caused by using the brick. 41. It was suggested to the prosecution witnesses that Sukh Ram ran after Asha Rani and fell in the process. This suggestion was falsified by the statement of Dr. Supriya Atwal (DW3), who stated that she had examined Sukh Ram on 05.09.2009, and issued a certificate (Ex-DW2/A) stating that Sukh Ram was 100% visually disabled. She stated that Sukh Ram was able to count the fingers close to his face. The fact that Sukh Ram was unable to count the figures unless these were brought close to his face makes it highly improbable that he would be in a position to run after Asha Rani to chase her. Hence, the defence evidence makes the suggestions given to the witnesses highly doubtful that Sukh Ram chased the accused, Asha Rani, and fell in the process. 42. The testimony of the informant and her mother corroborated each other on material particulars. It was duly proved by their testimonies that Asha Rani picked up a brick and hurled it towards Sukh Ram, who sustained an injury and died due to the injury sustained by her. P a g e | 48 ( 2025:HHC:27298 ) 43. Learned Trial Court held that throwing a brick towards Sukh Ram shows that Asha Rani knew that a bodily injury would be caused, which was sufficient to cause death, and the learned Trial Court convicted the accused for the commission of an offence punishable under Section 304-II. It is difficult to uphold this reasoning. 44. It is the specific case of the prosecution that a Kaccha brick was thrown towards Sukh Ram. A kaccha brick does not cause death of the person, especially when it hits the ribs. Therefore, the inference cannot be drawn that the injury was caused with the knowledge that death would be caused. It was laid down in Dnyaneshwar Dagdoba Hivrekar v. State of Maharashtra, 1982 SCC OnLine Bom 305, that causing an injury on the head does not lead to the inference that the assailant knew the death would be caused. Similarly, it was held in Marcelino Fernandes v. State, 1970 SCC OnLine Bom 21, that causing injury to the head does not suggest a knowledge that death would be caused. Similar is the judgment in Shailesh v. State of Maharashtra, 1994 SCC OnLine Bom 597. In the present case, the injury was inflicted not on the vital part and not with a deadly weapon; therefore, the knowledge on the part of Asha Rani to cause death cannot be inferred. She can P a g e | 49 ( 2025:HHC:27298 ) only be held liable for causing simple hurt to Sukh Ram. Hence, the conviction recorded by the learned Trial Court is altered to an offence punishable under Section 323 of the IPC. 45. It is undisputed that Sukh Ram was demolishing the house which was given to Garibi Devi. This fact was admitted by the informant and her mother. Jai Devi is the daughter of Garibi Devi, and she had a legitimate cause to protest. It is also proven that an argument ensued between Jai Devi and Sukh Ram. Asha Rani threw the brick towards Sukh Ram when the arguments were continuing. These facts show that the incident had taken place in the heat of a moment without any premeditation; therefore, the accused, Asha Rani, is sentenced to undergo simple imprisonment for six months, pay a fine of ₹1,000/- and in default of payment of fine to undergo further simple imprisonment for 01 month for the commission of an offence punishable under Section 323 of IPC. She is entitled to the benefit of set off for the period of imprisonment undergone by her during the investigation/pendency of the trial. 46. In view of above, the present appeal is partly allowed and the accused Asha Rani is convicted of the commission of an P a g e | 50 ( 2025:HHC:27298 ) offence punishable under Section 323 of IPC, and sentenced to undergo simple imprisonment for 06 months, pay a fine of ₹1,000/- and in default of payment of fine to undergo further simple imprisonment for 01 month. Subject to this modification, rest of the judgment of the learned Trial Court is upheld. Modified jail warrant be prepared accordingly. (Rakesh Kainthla) Judge 12th August 2025 (Shamsh Tabrez)