# Anil Kumar @ Dhulliya v. State of U.P

- **Citation:** (2020) 1 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-21
- **Case number:** Jail Appeal No. 2372 of 2013
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-dhulliya-v-state-of-u-p-45259
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code -
Section 302 - Appeal against conviction.

It is settled that merely because witnesses are
close relatives of victim, their testimonies
cannot be discarded. Relationship with one of
the parties is not a factor that affects credibility
of witness, more so, a relative would not
conceal actual culprit and make allegation
against an innocent person. (para 30)

The witness testimony and the consistency of
the prosecution version as a whole. (para 35)

However, minor contradictions, inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a ground
on which the evidence can be rejected in its
entirety. (para 38)

So far as motive is concerned, it is well settled
that where direct evidence is worthy, it can be
believed, then motive does not carry much
weight. (39)

In view of facts and legal position discussed
hereinabove, we find that Trial Court has
rightly analyzed evidence led by prosecution
and found accused guilty and convicted him for
having committed murder. (para 48)

Appeal is rejected. (E-2)

List of cases cited: -

## Text

154 INDIAN LAW REPORTS ALLAHABAD SERIES
Gajendra Singh (PW-2) is son of
deceased Nathu Singh and beside that,
three
other
independent
witnesses
produced in evidence by prosecution did
not support the prosecution story. The
evidence adduced by Gajendra Singh is
also in huge contradiction with the facts
stated in the Dying Declaration. In
entirety of the case, it was necessary to
have some corroboration of the evidence
adduced by Gajendra Singh, son of
deceased
Nathu
Singh,
which
is
conspicuously
absent.
A
reasonable
doubt thus exists in accepting the
prosecution case.

18. For the reasons given above,
this appeal deserves acceptance. Hence
is allowed. The conviction recorded and
the sentence awarded in the judgment
impugned dated 9th September, 1983
passed
by
learned
Special
Judge/Additional Sessions Judge, Jalaun
at Orai, in Sessions Trial No. 68 of 1981
and Sessions Trial No. 6 of 1983 is set
aside. The accused Sarnam Singh is
acquitted from all the charges for which
he was tried. He has already been
released
from
State
custody
on
furnishing bail bonds and sureties, the
same are hereby discharged.
----------
(2020)1ILR A154

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 2372 of 2013

Anil Kumar @ Dhulliya ...Appellant
Versus
State of U.P. ...Opposite Party
Counsel for the Appellant:
From Jail, Atul Kumar Singh, Sri Archana
Singh (Amicus Curiae)

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code -
Section 302 - Appeal against conviction.

It is settled that merely because witnesses are
close relatives of victim, their testimonies
cannot be discarded. Relationship with one of
the parties is not a factor that affects credibility
of witness, more so, a relative would not
conceal actual culprit and make allegation
against an innocent person. (para 30)

The witness testimony and the consistency of
the prosecution version as a whole. (para 35)

However, minor contradictions, inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a ground
on which the evidence can be rejected in its
entirety. (para 38)

So far as motive is concerned, it is well settled
that where direct evidence is worthy, it can be
believed, then motive does not carry much
weight. (39)

In view of facts and legal position discussed
hereinabove, we find that Trial Court has
rightly analyzed evidence led by prosecution
and found accused guilty and convicted him for
having committed murder. (para 48)

Appeal is rejected. (E-2)

List of cases cited: -

1. Dalip Singh Vs. St. of Punjab, AIR,1953, SC 364

2. Dharnidhar Vs. St. of UP (2010) 7 SCC 759

3. Ganga Bhawani Vs. Rayapati Venkat Reddy
& ors., 2013(15) SCC 298

4. Bhagalool Lodh & anr. v. St. of UP, AIR 2011 SC
2292
1 All. Anil Kumr @ Dhullia Vs. State of U.P.
155
5. Dhari & ors. Vs. St. of U. P., AIR 2013 SC
308

6. Sampath Kumar Vs. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124

7. Sachin Kumar Singhraha Vs. St. of M.P. in
Criminal Appeal Nos. 473-474 of 2019

8. Criminal Appeal No. 56 of 2018, Smt.
Shamim Vs. St. of (NCT of Delhi)

9. State Represented by Inspector of Police Vs.
Saravanan & anr., AIR 2009 SC 152

10. Arumugam Vs. State, AIR 2009 SC 331

11. Mahendra Pratap Singh Vs. St. of U.P.,
(2009) 11 SCC 334

12. Dr. Sunil Kumar Sambhudayal Gupta & ors.
Vs. St. of Mah., JT 2010 (12) SC 287

13. Lokesh Shivakumar Vs. St. of Karnataka,
(2012) 3 SCC 196

14. Namdeo Vs. St. of Mah. (2007) 14 SCC 150

15. Kunju @ Balachandran Vs. St. of T.N., AIR
2008 SC 1381

16. Jagdish Prasad Vs. St. of M.P., AIR 1994 SC
1251

17. Vadivelu Thevar Vs. St. of Madras, AIR
1957 SC 614
18. Yakub Ismailbhai Patel Vs. St. of Guj.
(2004) 12 SCC 229

19. St. of Har. Vs. Inder Singh & ors. (2002) 9
SCC 537

20. Sumer Singh Vs. Surajbhan Singh and
others, (2014) 7 SCC 323

21. Sham Sunder Vs. Puran, (1990) 4 SCC 731

22. M.P. Vs. Saleem, (2005) 5 SCC 554

23. Ravji Vs. St. of Raj., (1996) 2 SCC 175

(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. Present jail appeal has been
directed by accused-appellant Anil Kumar
@ Duhlliya against the judgement and
order
dated
07.10.2010
passed
by
Additional District & Sessions Judge, Fast
Track Court No.1, Mainpuri in Session
Trial No.127 of 2007 (State Vs. Anil
Kumar @ Dhulliya) under Section 302
IPC,
P.S.
Kurra,
District
Mainpuri
whereby
Trial
Court
has
convicted
accused Anil Kumar @ Dhulliya under
Section 302 I.P.C. and sentenced him to
imprisonment for life with a fine of
Rs.50,000/- under Section 302 IPC; and in
default of payment of fine, five years
additional simple imprisonment.

2. Brief facts of the case emerging in
First
Information
Report
(hereinafter
referred to as "FIR") is that on the fateful
day i.e. 30.01.2003 at about 5:00 PM,
accused-appellant Anil Kumar @ Dhullia
came to the house of Informant, PW-1 Ram
Das with licensed gun of his maternal uncle
Dafedar Singh of village Baghuia, Safai,
District Etawah who was also with him. Anil
Kumar @ Dhullia asked about Rajuwa son
of
Informant,
whereupon,
victim,
Informant's wife Smt. Premwati standing
nearby, questioned him as to why they
wanted to kill his son. She said that Rajuwa
is not in the house. Accused Dafedar Singh
told that she was talking much and Anil
Kumar @ Dhullia opened fire at her with the
licensed gun which hit on her chest. As a
result of gunshot she fell down on earth and
died instantaneously. The incident was
witnessed by Shiv Shanker and Jaipal also.
Motive of the incident was said to be a
quarrel between Informant and accused that
took place over the matter of children prior
to one year of the incident.

3. PW-1 Ram Das presented a
written Tehrir of incident, Ex.Ka-1 in the
156 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Station Kurra, District Mainpuri.
On the basis of written Tehrir Ex.Ka-1,
Chick F.I.R., Ex.Ka-12 was registered by
PW-5 Constable Ganga Ram as Case
Crime No. 19 of 2003, under Section 302
I.P.C. against accused-appellant and one
Dafedar Singh (died during trial). Entry of
case was made by him in General Diary,
copy whereof is Ex.Ka-13.

4. S.I. Jagat Singh (not examined)
held inquest over the dead body of Smt.
Premwati and prepared inquest report
Ex.Ka-8 and other papers relating thereto.
Body was sealed

5. PW-3 Dr. P.K. Pathak, conducted
autopsy over the dead body of Smt.
Premwati on 31.01.2003 and prepared post
mortem report Ex.Ka-2, expressing his
opinion that death of victim was possible
one day before the post mortem due to
haemorrhage and coma on account of ante
mortem firearm injuries. Doctor found four
ante mortem injuries on the person of the
deceased which read as under :-

(i) Fire arm wound of entry size
3 cm x 2 cm x chest cavity deep on left
upper chest. 8 cm below tip of shoulder.

(ii) Fire arm wound of exit size
1.5 cm x 1 cm x chest cavity deep x
communicating to injury no. 1 on right
side of chest, 9 cm below axilla in mid
axillary line.

(iii) Fire arm wound of entry size
1.5 cm x 1 cm x bone deep on right upper arm
lateral aspect, 9 cm above the elbow joint.

(iv) Fire arm wound of exit size
4 cm x 0.7 cm x bone deep &
communicating to injury no. 3 inner aspect
of right upper arm, 7 cm below axilla.

6. PW-4 S.I. Ram Pratap Singh,
undertook investigation of case; recorded
statement of Informant PW-1 Ram Das;
PW-2 Shiv Shanker and other witnesses;
got prepared panchayatnama by S.I. Jagat
Singh; recorded statement of inquest
witnesses and visited spot; prepared site
plan Ex.Ka-3; collected empty cartridge,
blood stained and simple earth from spot;
prepared memos thereof Ex.Ka-4 and 5
respectively and tried to search accused
persons. On 31.01.2003, he arrested
accused-appellant Anil Kumar @ Dhullia
in injured position from his own house,
recorded
his
statement
and
after
compelting
entire
formalities
of
investigation,
submitted
charge
sheet
Ex.Ka-7 against accused persons in the
Court of C.J.M. concerned.

7. Case, being exclusively triable by
Court of Sessions, was committed by
C.J.M. to Sessions Court for trial.

8. Trial Court charged accusedappellant Anil Kumar @ Dhulliya and
Dafedar Singh on 11.5.2007 under Section
302/ IPC which reads as under :-

Charge

"I, Neeraj Nigam, Additional
Sessions Judge Court No. 6, Mainpuri,
hereby charge you :- 1. Anil Kumar @
Dhulliya and 2. Dafeydar Singh as follows
:-

That you on 30.01.2003 at about
5 p.m. in the evening infront of the house
of Girand Singh in village Mohanpur,
Mauja Besak, under police station Kura,
district Mainpuri, committed murder of
complainant's wife Premwati intentionally
and knowingly by firing, and thereby
committed an offence punishable under
Section 302 I.P.C. And within the
cognizance of this Court.

And I hereby direct that you be
tried upon the said charge by this Court."
1 All. Anil Kumr @ Dhullia Vs. State of U.P.
157

9. Accused-appellant pleaded not
guilty and claimed to be tried.

10. In order to substantiate its case,
prosecution examined as many as five
witnesses, out of whom PW-1 Ram Das and
PW-2 Shiv Shanker are witnesses of fact
whereas PW-3 Dr. P.K. Pathak, PW-4 S.I.
Ram Pratap Singh and PW-5 Constable
Ganga Ram are formal witnesses.

11. Subsequent to closure of
prosecution
evidence,
statement
of
accused-appellant
under
Section
313
Cr.P.C. was recorded by Trial Court
explaining entire evidence and other
incriminating
circumstances.
In
the
statement under Section 313 Cr.P.C.,
accused-appellant denied prosecution story
in toto. Entire prosecution story is said to
be wrong and concocted. In response of
question no. 7, he answered that victim
was shot dead by Ram Das, Raju @
Ratnesh
and
he
has
been
falsely
implicated. Accused-appellant did not
chose to lead any evidence in defence.

12. PWs-1 and 2 are the eye witnesses,
who supported prosecution case deposing that
they saw accused-appellant opening fire on
victim Smt. Premwati due to which she fell
down and died. PW-3 Dr. P.K. Pathak
conducted post mortem and proved post
mortem report, PW-4 S.I. Ram Pratap Singh is
the Investigating Officer, who undertook
investigation, collected empty cartridge, blood
stained and simple earth from spot, prepared
memos thereof and after completing entire
formalities of investigation, submitted charge
sheet against the accused. PW-5 Constable
Ganga Ram registered chick F.I.R. and
prepared G.D.

13. Trial Court, after hearing learned
counsel for the parties and appreciating
entire evidence oral and documentary,
found
accused-appellant
guilty
and
convicted and sentenced him as stated
above.

14.

Feeling
aggrieved
and
dissatisfied with impugned judgement and
order of conviction, accused-appellant
preferred present appeal through Jail.

15. We have heard Smt. Archana
Singh, learned Amicus Curiae appearing
for appellant and Sri Ratan Singh, learned
A.G.A for State-respondent at length and
have gone through the record carefully.

16. Learned counsel for appellant
assailing impugned judgement and order
of
conviction
of
accused-appellant,
advanced his general submissions in
following manner in the :-

(i) PW-1 happens to be husband
of victim Smt. Premwati and interested
witness.

(ii) Presence of PW-2, alleged
eye witness, on spot is not natural.

(iii) Medical evidence does not
comform with the ocular evidence, hence,
accused-appellant is entitled to benefit of doubt.

(iv)
There
are
major
contradiction
and
omission
in
the
statement
of
prosecution
witnesses
rendering prosecution case doubtful.

(v) There is no motive to
accused to commit murder of Smt.
Premwati because there was no enmity
between accused and victim.

(vi)
Entire
witnesses
of
prosecution have not been produced in
evidence from the side of prosecution,
hence presumption under Section 114 (g)
Indian Evidence Act goes against it.

(vii)
Trial
Court
has
not
appreciated the prosecution evidence in
158 INDIAN LAW REPORTS ALLAHABAD SERIES
right perspective. Prosecution could not
succeed
to
prove
its
case
beyond
reasonable doubt and Trial Court erred in
passing the impugned judgement.

17. Learned AGA vehemently opposed
the arguments advanced by learned counsel for
appellant and submitted that accused-appellant
is named in F.I.R. He has sufficient motive to
commit murder of victim. PW-2 is neighbour
and his presence on spot at the time of incident
is quite natural. There was no reason or
occasion to PW-2 to give false evidence
against accused. Accused-appellant put a
different story that victim was murdered by
Informant and his son but he gave no evidence
in this regard. Prosecution succeeded to prove
its case beyond reasonable doubt and Trial
Court rightly convicted the accused-appellant.

18. Although, time, date, place of
incident and murder of victim Smt.
Premwati could not be denied from the
side of defence but according to his
Advocate,
accused-appellant
is
not
responsible to commit murder of Smt.
Premwati. Even otherwise, from the
evidence of PW-1, 2, 3 and 4, time, date
and place of incident and murder of victim
Smt. Premwati stand established.

19. Thus, only question remains for
consideration of this Court is, "whether
accused-appellant caused death of Smt.
Premwati by fire arm injury and Trial
Court has rightly convicted him?"

20. Now we may proceed to consider
rival submissions of learned counsel for
parties and evidence of prosecution as well
as some important decisions.

21. PW-1 Ram Das deposed that his
wife Smt. Premwati was murdered on
30.01.2003 at about 5:00 PM. At the time
of incident, he was standing in front of a
house towards north near the temple. His
wife, victim Smt. Premwati, and his
daughters-in-law were also standing there
at that time. Accused-appellant Anil
Kumar @ Dhullia having licensed gun of
his maternal uncle Dafedar Singh and his
maternal uncle (other accused) - Dafedar
Singh came there abused and asked about
his (Informant's) son Rajuwa, saying that
they would eliminate him, whereupon
victim inquired, what his son had done to
them that they would eliminate him. On
the provocation of co-accused Dafedar
Singh, accused-appellant Anil Kumar @
Dhullia opened fire with the gun putting
the same on the left side of chest of victim,
due to which she fell down on earth and
died. Incident was witnessed by PW-2
Shiv Shanker and Jaipal and his daughtersin-law also. He further deposed that there
was a dispute between accused-appellant
Anil Kumar @ Dhullia and his son
Ratnesh @ Raju one year prior to incident
and since then accused-appellant Anil
Kumar @ Dhullia bore internal grudge
with the family of Informant and for that
reason, he murdered the victim. The
witness proved written report as Ex.Ka-1.

22. PW-2 Shiv Shanker deposed that
on 30.1.2003 at about 5:00 PM, he was
standing on the Chabutara of his house and
saw that accused-appellant Anil Kumar @
Dhullia having single barrel licensed gun
of his maternal uncle Dafedar in his hand,
came there along with his said maternal
uncle. Both accused persons started
abusing PW-1 Ram Das and his son.
Victim, Smt. Premwati, was also standing
near Ram Das. Both accused persons
asked where Rajuwa son of Informant was
and they would eliminate him. There-upon
victim Smt. Premwati asked them what her
son had done and why they wanted to kill
1 All. Anil Kumr @ Dhullia Vs. State of U.P.
159
him and that he was not in the house. On
this, accused-appellant got annoyed and on
the provocation made by Dafedar Singh,
accused-appellant Anil Kumar @ Dhullia
opened fire on victim (wife of PW-1) with
gun as a result of which victim fell down
and died on spot. Accused-appellant Anil
Kumar @ Dhullia ran away towards his
house firing in air.

23. Both witnesses PWs-1 and 2
have withstood lengthy cross-examination
but nothing material could be extracted in
cross-examination so as to disbelieve their
testimony.
Certainly
some
minor
contradictions occurred but they are not of
such nature which may affect the root of
prosecution story or render prosecution
case doubtful.

24. PW-1 Ram Das is husband of
victim and eye witness of case. Incident
took place at about 5:00 PM on
30.01.2003 at the door of Informant where
PW-1 and victim were standing. PW-2 is
neighbour and he was also standing on
Chabutara of his house at the time of
incident. Presence of both the witnesses
appears natural at the time of incident.
PW-2
is
independent
eye
witness.
Accused-appellant suggested nothing as to
why PW-2 deposed against him. Only
suggestion was put before the witness
from the side of accused that he was
deposing falsely against him due to
meeting with Ram Das and this suggestion
was denied by the witness.

25. PW-4 S.I. Ram Pratap Singh
recovered empty cartridge from the spot.
Thus, from the evidence of PWs-1, 2 and
4, it is established that accused-appellant
Anil Kumar @ Dhullia, on the provocation
made by other co-accused Dafedar Singh
(Now dead), opened fire on the victim
which hit in her chest due to which she fell
down and died on spot.

26. So far as other argument of
learned counsel for the accused-appellant
is that PW-1 is not an eye witness and
being husband of victim, he is interested,
is concerned, we are not convinced with
the same for the reason that argument is
totally and thoroughly misconceived. It is
well-settled
preposition
of
law
that
evidence of interested witness cannot be
out rightly discarded on the ground that he
is an interested witness. Mere relationship
is not sufficient to discard otherwise
trustworthy ocular testimony.

27. In Dalip Singh v. State of
Punjab, AIR,1953, SC 364. Court held as
under :-

"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. 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
160 INDIAN LAW REPORTS ALLAHABAD SERIES
must be limited to and be governed by its
own facts."

28. In Dharnidhar v. State of UP
(2010) 7 SCC 759, Court has observed as
follows :-

"There is no hard and fast rule
that family members can never be true
witnesses to the occurrence and that they
will always depose falsely before the
Court. It will always depend upon the facts
and circumstances of a given case. In the
case of Jayabalan v. U.T. of Pondicherry
(2010) 1 SCC 199, this Court had
occasion to consider whether the evidence
of interested witnesses can be relied upon.
The Court took the view that a pedantic
approach cannot be applied while dealing
with the evidence of an interested witness.
Such evidence cannot be ignored or
thrown out solely because it comes from a
person closely related to the victim"

29. In Ganga Bhawani v. Rayapati
Venkat Reddy and Others, 2013(15) SCC
298, Court has held as under :-

"11.
It
is
a
settled
legal
proposition that the evidence of closely
related witnesses is required to be
carefully scrutinised and appreciated
before any conclusion is made to rest upon
it, regarding the convict/accused in a
given case. Thus, the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to
the deceased. In case the evidence has a
ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon.

(Vide: Bhagalool Lodh & Anr.
v. State of UP, AIR 2011 SC 2292; and
Dhari & Ors. v. State of U. P., AIR 2013
SC 308)."

30. It is settled that merely because
witnesses are close relatives of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is not
a factor that affects credibility of witness,
more so, a relative would not conceal
actual culprit and make allegation against
an innocent person. However, in such a
case Court has to adopt a careful approach
and analyse the evidence to find out that
whether it is cogent and credible evidence.

31. Next argument of learned counsel
for the accused-appellant is that medical
evidence is not compatible with the oral
version and accused-appellant is entitled to
benefit of doubt.

32. We have scrutinised oral
evidence and medical evidence in this
regard. PWs-1 and 2 are eye witnesses of
incident, who supported prosecution case
stating that they saw accused-appellant
opening fire on victim who sustained
serious fire arm injuries due to which she
fell down and died on spot. There is no
contradictions in the statement of PWs-1
and 2 which may dent their ocular version.
A part from this, PW-3, conducted post
mortem of victim and deposed that he
found four ante-mortem fire arm injuries
on the person of deceased, expressing his
opinion that death was possible one day
prior
to
the
post
mortem
due
to
haemorrhage and coma on account of antemortem fire arm injuries. Thus, medical
report is compatible with ocular version
and we are not impressed with the
argument advanced by learned counsel for
the accused-appellant and reject the same.

33. In so far as discrepancies,
variations
and
contradictions
in
prosecution case are concerned, we have
analysed entire evidence in consonance
1 All. Anil Kumr @ Dhullia Vs. State of U.P.
161
with
submissions
raised
by
learned
counsel's and find that the same do not go
to the root of case and accused-appellant
are not entitled to benefit of the same.

34.

In
Sampath
Kumar
v.
Inspector of Police, Krishnagiri, (2012)
4 SCC 124, Court has held that minor
contradictions are bound to appear in the
statements
of
truthful
witnesses
as
memory sometimes plays false and sense
of observation differs from person to
person.

35. In Sachin Kumar Singhraha v.
State of Madhya Pradesh in Criminal
Appeal Nos. 473-474 of 2019 decided on
12.3.2019, Supreme Court has observed
that Court will have to evaluate evidence
before it keeping in mind the rustic nature
of depositions of the villagers, who may
not depose about exact geographical
locations with mathematical precision.
Discrepancies of this nature which do not
go to the root of the matter do not
obliterate otherwise acceptable evidence.
It need not be stated that it is by now well
settled that minor variations should not be
taken into consideration while assessing
the reliability of witness testimony and the
consistency of the prosecution version as a
whole.

36. We lest not forget that no
prosecution case is foolproof and the same
is bound to suffer from some lacuna or the
other. It is only when such lacunae are on
material aspects going to the root of the
matter, it may have bearing on the
outcome
of
the
case,
else
such
shortcomings are to be ignored. Reference
may be made to a recent decision in
Criminal Appeal No. 56 of 2018, Smt.
Shamim v. State of (NCT of Delhi),
decided on 19.09.2018.

37. When such incident takes place,
one cannot expect a scripted version from
witnesses to show as to what actually
happened and in what manner it had
happened. Such minor details normally are
neither noticed nor remembered by people
since they are in fury of incident and
apprehensive of what may happen in
future. A witness is not expected to
recreate a scene as if it was shot after with
a scripted version but what material thing
has happened that is only noticed or
remembered by people and that is stated in
evidence. Court has to see whether in
broad narration given by witnesses, if
there is any material contradiction so as to
render evidence so self contradictory as to
make it untrustworthy. Minor variation or
such omissions which do not otherwise
affect trustworthiness of evidence, which
is broadly consistent in statement of
witnesses, is of no legal consequence and
cannot defeat prosecution.

38. In all criminal cases, normal
discrepancies are bound to occur in the
depositions of witnesses due to normal
errors of observations, namely, errors of
memory due to lapse of time or due to
mental disposition such as shock and
horror at the time of occurrence. Where
the omissions amount to a contradiction,
creating a serious doubt about truthfulness
of the witness and other witnesses also
make
material
improvement
while
deposing in the court, such evidence
cannot be safe to rely upon. However,
minor
contradictions,
inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a
ground on which the evidence can be
rejected in its entirety. Court has to form
its opinion about the credibility of witness
and record a finding, whether his deposition
162 INDIAN LAW REPORTS ALLAHABAD SERIES
inspires confidence. Exaggerations per se do
not render the evidence brittle, but can be one
of the factors to test credibility of the
prosecution version, when entire evidence is
put in a crucible for being tested on the
touchstone of credibility. Therefore, mere
marginal variations in the statement of
witnesses cannot be dubbed as improvements
as the same may be elaborations of the
statements made by the witnesses earlier. Only
such
omissions
which
amount
to
contradictions in material particulars i.e. go to
the root of the case/materially affect the trial or
core of the prosecution's case, render the
testimony of the witness liable to be
discredited. [Vide: State Represented by
Inspector of Police v. Saravanan & Anr.,
AIR 2009 SC 152; Arumugam v. State, AIR
2009 SC 331; Mahendra Pratap Singh v.
State of Uttar Pradesh, (2009) 11 SCC 334;
and Dr. Sunil Kumar Sambhudayal Gupta
& Ors. v. State of Maharashtra, JT 2010
(12) SC 287].

39. So far as motive is concerned, it
is well settled that where direct evidence is
worthy, it can be believed, then motive
does not carry much weight. It is also
notable that mind set of accused persons
differs from each other. Thus merely
because that there was no strong motive to
commit the present offence, prosecution
case cannot be disbelieved.

40. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
has held as under :-

"As regards motive, it is well
established that if the prosecution case is
fully
established
by
reliable
ocular
evidence coupled with medical evidence,
the issue of motive looses practically all
relevance. In this case, we find the ocular
evidence led in support of the prosecution
case wholly reliable and see no reason to
discard it."

41. So far as non-examination of
witnesses is concerned, in view of Section 134
of Indian Evidence Act,1872 (hereinafter
referred to as 'Act,1872'), we do not find any
substance in the submission of learned counsel
for the appellant.

42. Law is well-settled that as a
general rule, Court can and may act on the
testimony of a single witness provided
he/she is wholly reliable. There is no legal
impediment in convicting a person on the
sole testimony of a single witness. That is
the logic of Section 134 of Act, 1872, but
if there are doubts about the testimony,
Court will insist on corroboration. In fact,
it is not the numbers, the quantity, but the
quality that is material. Time-honoured
principle is that evidence has to be
weighed and not counted. Test is whether
evidence has a ring of truth, cogent,
credible and trustworthy or otherwise.

43. In Namdeo v. State of
Maharashtra (2007) 14 SCC 150, Court
re-iterated the view observing that it is the
quality and not the quantity of evidence
which is necessary for proving or
disproving a fact. The legal system has
laid emphasis on value, weight and quality
of evidence rather than on quantity,
multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to
fully and completely rely on a solitary
witness and record conviction. Conversely,
it may acquit the accused inspite of
testimony of several witnesses if it is not
satisfied about the quality of evidence.

44. In Kunju @ Balachandran vs.
State of Tamil Nadu, AIR 2008 SC 1381
a similar view has been taken placing
1 All. Anil Kumr @ Dhullia Vs. State of U.P.
163
reliance on earlier judgments including
Jagdish Prasad vs. State of M.P., AIR
1994 SC 1251; and Vadivelu Thevar vs.
State of Madras, AIR 1957 SC 614.

45. In Yakub Ismailbhai Patel Vs.
State of Gunjrat reported in (2004) 12
SCC 229, Court held that :-

"The legal position in respect of
the testimony of a solitay eyewitness is
well settled in a catena of judgments
inasmuch as this Court has always
reminded that in order to pass conviction
upon it, such a testimony must be of a
nature which inspires the confidence of the
Court. While looking into such evidence
this Court has always advocated the Rule
of Caution and such corroboration from
other evidence and even in the absence of
corroboration if testimony of such single
eye-witness
inspires
confidence
then
conviction can be based solely upon it."

46. In State of Haryana v. Inder Singh
and Ors. reported in (2002) 9 SCC 537,
Court held that it is not the quantity but the
quality of the witnesses which matters for
determining the guilt or innocence of the
accused. The testimony of a sole witness must
be
confidence-inspiring
and
beyond
suspicion, thus, leaving no doubt in the mind
of the Court. entirety, we have no hesitation
to state that accused-appellant Anil Kumar @
Dhullia committed murder of victim Smt.
Premwati by opening fire on her chest with
licensee gun.

47. Considering the entire facts and
circumstances of the case, evidence of
prosecution in entirety, we have no
hesitation to state that accused-appellant
Anil Kumar @ Dhullia commited murder
of victim Smt. Premwati by opening fire
on her chest with lecensee gun.

48. In view of facts and legal
position discussed hereinabove, we find
that Trial Court has rightly analyzed
evidence led by prosecution and found
accused guilty and convicted him for
having
committed
murder
of
Smt.
Premwati, an offence punishable under
Section 302 IPC. Conviction and sentence
awarded by Trial Court is liable to be
maintained and confirmed. No interference
is warranted by this Court. Jail appeal
lacks merit and liable to be dismissed.

49. So far as sentencing of accusedappellant is concerned, it is always a
difficult task requiring balance of various
considerations. The question of awarding
sentence is a matter of discretion to be
exercised
on
consideration
of
circumstances aggravating and mitigating
in individual cases.

50. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation
upon court to constantly remind itself that
right of victim, and be it said, on certain
occasions or person aggrieved as well as
society at large can be victims, never be
marginalised. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further, it
is expected that courts would operate the
sentencing system so as to impose such
sentence which reflects conscience of
society and sentencing process has to be
stern where it should be. The Court will be
failing
in
its
duty
if
appropriate
punishment is not awarded for a crime
which has been committed not only
164 INDIAN LAW REPORTS ALLAHABAD SERIES
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it should
'respond to the society's cry for justice
against the criminal'. [Vide: Sumer Singh
vs. Surajbhan Singh and others, (2014)
7 SCC 323, Sham Sunder vs. Puran,
(1990) 4 SCC 731, M.P. v. Saleem,
(2005) 5 SCC 554, Ravji v. State of
Rajasthan, (1996) 2 SCC 175].

51. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, nature of offence
and the manner in which it was executed
or committed, we find that punishment
awarded to accused-appellant by Trial
Court in impugned judgment and order is
not excessive and it appears fit and proper
and no question arises to interfere in the
matter on the point of punishment imposed
upon him.

52. In view of above discussion, the
appeal lacks merit and is accordingly,
dismissed. Impugned judgement and order
dated 07.10.2010, is maintained and
confirmed.

53. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

54. Before parting, we provide that
Smt. Archana Singh, Advocate, who
assisted as Amicus Curiae, appearing for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 11,500/- for her
valuable assistance. State Government is
directed to ensure payment of aforesaid fee
through Additional Legal Remembrancer,
posted in the office of Advocate General at
Allahabad, without any delay and, in any
case, within one month from the date of
receipt of copy of this judgment.
----------
(2020)1ILR A164

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.11.2019

BEFORE
THE HON'BLE SIDDHARTH, J.

Criminal Appeal No. 2642 of 2009

Lutawan ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.K. Pandey, Sri Gaurav Kumar Shukla,
Sri Mirza Ali Zulfiquar

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code-Section
304-I/34 -S.C./S.T. Act, 1989 - Section
3(2)(V) - Appeal against conviction.

Sections 304-I, 304-II, 299, 300, 302 & 34
I.P.C. are discussed.

All the witnesses of fact have clearly stated before
the court below that the appellant exhorted his
son and he caused the fatal blow by sariya on the
head of the deceased. (para 18)

The leading feature of Section 34 I.P.C. is
participation in action. It has to be established
that participation was not merely in planning
but also in doing the individual offender must
have
participated
in
the
offence.
His
participation may be slight, but it should be
there.
(para
18)