# Badri & Ors. (In Jail) v. State

- **Citation:** (2021) 7 ILRA 147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-01
- **Case number:** Criminal Appeal No. 2752 of 1983
- **Bench:** Manoj Kumar Gupta, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/badri-ors-in-jail-v-state-47068
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,1860-Sections
147,
302/149,
307/149-challenge
toconviction-accused
came
with
hand
grenade with common object to murder
informant and other family members over
the land dispute-informant's uncle was
issuless, he wanted to give his 6 beegha
land to informant- the accused/appellants
being cousins of informant was angry over
the matter-they succeeded in executing
their
plan
successfully-ocular
version
stands
corroborated
by
the
medical
evidence-presence of PW-5 and PW-6 was
natural, their testimony is consistent in
respect of time and place of occurrencemerely
because
witnesses
are
close
relatives of victim, their testimonies can
not be discarded-relationship with one of
the parties is not a factor that affects
credibility of witness-more so, a relative
would not conceal the actual culprit and
make
allegation
against
an
innocent
person-they were subjected to lengthy
cross examination, but the defence could
not
succeed
in
impeaching
their
creditworthiness by extracting anything
suspicious.(Para 2 to 41)

B. It is a settled legal proposition that the
evidence of closely related witness or
interested witness is required to be carefully
scrutinized and appreciated. 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
case the evidence has a ring of truth to it, is
cogent, credible and trustworthy, it can, and
certainly should, be relied upon.(Para 35 to
38)

The appeal is dismissed. (E-4)

List of Cases cited:

## Text

7 All. Badri & Ors. Vs. State
147

19. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by the learned
counsel for the applicant alongwith a self
attested identity proof of the said persons
(preferably Aadhar Card) mentioning the
mobile number (s) to which the said
Aadhar Card is linked before the concerned
Court/Authority/Official.

20. The concerned Court /Authority
/Official shall verify the authenticity of
such computerized copy of the order from
the
official
website
of
High
Court
Allahabad and shall make a declaration of
such verification in writing.
----------
(2021)07ILR A147
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 2752 of 1983

Badri & Ors. ...Appellants (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri Mohan Chandra, Sri Arunkumar Mishra,
Sri C.S. Saran, Sri Kundan Singh, Sri N.P.
Midha, Sri Ram Pal Singh, Sri Ratan Singh,
Sri S.K. Kulsrestha, Sri Sanjiv Ratan, Sri
Shailendra Prakash

Counsel for the Respondent:
D.G.A., Sri N.P. Middha, Sri Sanjiv Ratan

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,1860-Sections
147,
302/149,
307/149-challenge
toconviction-accused
came
with
hand
grenade with common object to murder
informant and other family members over
the land dispute-informant's uncle was
issuless, he wanted to give his 6 beegha
land to informant- the accused/appellants
being cousins of informant was angry over
the matter-they succeeded in executing
their
plan
successfully-ocular
version
stands
corroborated
by
the
medical
evidence-presence of PW-5 and PW-6 was
natural, their testimony is consistent in
respect of time and place of occurrencemerely
because
witnesses
are
close
relatives of victim, their testimonies can
not be discarded-relationship with one of
the parties is not a factor that affects
credibility of witness-more so, a relative
would not conceal the actual culprit and
make
allegation
against
an
innocent
person-they were subjected to lengthy
cross examination, but the defence could
not
succeed
in
impeaching
their
creditworthiness by extracting anything
suspicious.(Para 2 to 41)

B. It is a settled legal proposition that the
evidence of closely related witness or
interested witness is required to be carefully
scrutinized and appreciated. 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
case the evidence has a ring of truth to it, is
cogent, credible and trustworthy, it can, and
certainly should, be relied upon.(Para 35 to
38)

The appeal is dismissed. (E-4)

List of Cases cited:

1. Sampath Kumar Vs. Inspr. of Police,
Krishnagiri (2012) 4 SCC 124

2. Sachin Kumar Singhraha Vs St. of M. P.
(2019) CRLA 473-474
148 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Smt. Shamim Vs St. (NCT of Delhi)(2018)
CRLA 56

4. Yogesh Singh Vs Mahabeer Singh & ors.
(2017) 11 SCC 195

5. Lokesh Shivakumar Vs St. of Karn. (2012) 3
SCC

6. Dalip Singh Vs St. of Punj. (1953) AIR SC 364

7. Dharnidhar Vs St. of U.P. (2010) 7 SCC 759

8. Jayabalan Vs U.T .of Pondicherry (2010) 1
SCC 199

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

10. Bhagalool Lodh & anr. Vs St. of U.P.(2011)
AIR SC 2292

11. Dhari & ors. Vs St. of U.P.(2013) AIR SC 308

12. Anil Rai Vs St. of Bih. (2001) SCC 456

13. Raju@ Balachandran & ors. Vs St. of T.N.
(2012) 12 SCC 701

14. Jodhan Vs St. of M.P.(2015) 11 SCC 52

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

1. The present Criminal Appeal has
been filed by accused-appellants, namely,
Badri, Babu Ram, Jawahar Singh, Natthu
and
Subedar
against
the
common
judgement and order dated 21.10.1983
passed by IV Additional Sessions Judge,
Etah, in Sessions Trial No.515 of 1983 and
Sessions Trial No. 507 of 1983, under
Sections 147, 302/149 and 307/149 IPC,
Police Station, Mirehchi, District Etah,
convicting
accused-appellants
and
sentencing
them
to
undergo
life
imprisonment.

2. Factual matrix of case as emerging
from First Information Report (hereinafter
referred to as "FIR") as well as material
placed on record is as follows.

3. A written report, Ex.Ka-7, dated
15.05.1983 was presented in Police Station
Mirehchi, District Etah by Informant PW-5,
Tolwar Singh, alleging that on 14.05.1983
at about 7:00 p.m., he (informant), his
brother-in-law Tota Ram and his uncle
(Tau) Chhviram were sitting on respective
cot on Chabutara (platform) in front of his
house.
His
mother
Smt.
Ramdevi
(deceased) was also sitting on the earth of
Chabutara. A lantern was lighting on the
peg. Accused persons, namely, Badri, Babu
Ram, Jawahar Singh, Natthu and Subedar
came from the side of one Khumano with
intention to kill them (informant side),
threw hand grenade due to which there was
a huge explosion and he, (complainant
himself), his uncle and his mother sustained
serious injuries. His mother sustained much
injuries in her head and died on spot. All
the accused persons were recognized by
informant, his brother-in-law Tota Ram and
his Tau in the light of lantern. The F.I.R.
further recites that his uncle Chhaviram
was issue-less and lived with him. He
wanted to give six Beegha land of his share
to the informant Tolwar Singh, because of
this accused Badri who happens to be his
cousin was angry with Chhaviram.

4. On receipt of written report Ex.Ka7, Chik F.I.R. Ex.Ka-3 was prepared by
constable concerned, who registered the
case under Sections 302 and 307 IPC as
Case Crime No. 59 of 1983. An entry of
case was made in General Diary on the
same day at 6:00 a.m., a copy whereof is
Ex.Ka-4 on record.

5. Immediately after registration of
case, PW-7, Sri Bal G. Sonkar, started
investigation, took copies of relevant
7 All. Badri & Ors. Vs. State
149
papers, proceeded to spot, directed S.I.
Jagdish Prasad for conducting inquest
Ex.Ka.-8
and
other
relevant
papers.
Investigating Officer prepared site plan
Ex.Ka-12, took lantern in his possession,
collected bloodstained and simple earth
from spot and prepared Fards thereof
Ex.Ka-13 and 14. Dead body of deceased
Ramdevi was sent for post-mortem.

6. P.W. 4 Dr. K.K. Singh conducted
post-mortem over the dead body of
deceased Smt. Ramdevi and prepared postmortem report Ex.Ka-6. Doctor noted the
anti-mortem injuries found on the dead
body of deceased as under :-

(i) 3 lacerated wounds of skull
cavity deep of the dimension of 8 cm. x 6
cm., 4 cm. x 2 cm. and 5 cm. x 2 cm. On
occipital parietal region of left half. 7
cm. Medial and back of ear.

(ii) Multiple wound of entry of
various sizes measuring from 1 cm. x 1⁄2
cm. x skin deep muscle deep and 1⁄2 cm. x
1⁄2 cm. x skin deep on the left shoulder in
an area of 8 cm. x 8 cm.

(iii) Multiple wounds of entry
in an area of 10 cm. x 10 cm. On the
shoulder of supra scapular region of
right back varying 3⁄4 cm. x 1⁄2 cm. x
tissues deep to 1⁄2 cm. x 1⁄2 cm. x skin
deep.

Doctor opined that death of Smt.
Ramdevi was possible at 7:00 p.m. on
14.05.1983 due to coma as result of antemortem injuries.

7. PW-1, Dr. S.P. Varshney, the then
Medical Officer, District Hospital, Etah,
medically examined the injured Tolwar
Singh P.W.-5 and Chhaviram PW-6 on
15.05.1983 and prepared injurty reports.

(a) Injuries of Tolwar Singh
P.W.-5 are as under :

(i) Superficial burn over contused
base in an area 16 cm x 7 cm on back of
right elbow and upper forearm with peeling
of cuticle.

(ii) Superficial burn on front of
Rt. Arm in upper part size 4 cm. x 2 cm.
Superficial layer of skin is absent with
contused base. No black area are around
the wound present.

(iii) Superficial burn in an area of
15 cm. x 6 cm. On Rt. Side of abdomen in
lower part. Skin has not peeled off.

(iv) Superficial (multiple) burn in
an area of 18 cm. x 8 cm. On front and
outer side of Rt. Thigh upper half skin has
not peeled off.

(b) Injuries of Chhaviram P.W.-6
are as under :

(i) Superficial burn are (multiple)
on left side of whole of chest 30 cm. x 18
cm. With some lacerated wound of .5 cm. x
.5 cm. x skin deep. Skin has not peeled off.

(ii) Multiple small area of burn of
the 1 cm. x .75 cm on back side of Lt. arm
in an area of 20 cm. x 5 cm.

(iii) Superficial burn with the L/w
1 cm. x 1 cm. to 0.5 cm. x .75 cm. No
blackening of skin present on the back of
the hip and upper thigh in an area of 25
cm. x 10 cm.

8. Investigating Officer of case, after
completing
entire
formalities
of
investigation
submitted
charge
sheets
Ex.Ka-15 and 16 against the accused
persons before C.J.M. concerned. C.J.M.
took cognizance on the charge sheets and
after necessary compliance under Section
207 Cr.P.C. and case, being triable by
Court of Session, was committed to the
Court of Session for trial.
150 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It appears that trial was transferred
from the Court of Sessions Judge, Etah to IV
Additional Sessions Judge, Etah, who, after
examining the entire evidence collected by
Investigating Officer, hearing both the
parties, framed charges against the accusedappellants under Sections 147, 302/149 and
307/149 I.P.C.

10. Charges were read over and
explained to accused-appellants, who denied
the charges, pleaded not guilty and claimed to
be tried.

11. In order to substantiate its case,
prosecution
has
examined
total
seven
witnesses, out of whom, Informant PW-5
Tolwar
Singh,
PW-6
Chhaviram,
are
witnesses of fact, whereas PW-1 Dr. S.P.
Varshney, PW-2 Constable Vijay Bahadur,
PW-3 Constable Satyaman Singh, PW-4 Dr.
K.K. Singh and PW-7 S.O. Bal G. Sonkar are
formal witnesses.

12. On closure of prosecution
evidence, statement of accused-appellants
under Section 313 Cr.P.C. was recorded by
Trial Court explaining entire evidence and
other incriminating circumstances. Accused
denied prosecution case in toto and said
that they have been falsely implicated in
this case and witnesses are giving false
evidence.

13. Trial Court, after hearing counsel
for parties and appreciating entire evidence
on record has found accused-appellants guilty
and convicted and sentenced them as stated
above.

14. During the pendency of appeal,
appellant nos. 3 and 4 died and their appeals
have already been abated by this Court vide
order dated 03.08.2016. Appeal is pending on
behalf of surviving appellants.

15. We have heard Sri Arun Kumar
Mishra, learned counsel for the appellants,
Sri Arunendra Kumar Singh, learned
A.G.A. for State and have gone through the
entire record with the valuable assistance of
learned counsel for the parties.

16. Learned counsel appearing for
appellants has challenged conviction of
accused-appellants,
advancing
his
submissions in the following manner :

i. The accused-appellants are
innocent and they have been falsely
implicated in the present case on account of
land dispute.

ii. There is no sufficient motive to
accused-appellants to commit murder of
deceased Smt. Ramdevi and to cause
injuries to other injured persons.

iii. There is no source of light so
as to enable the witnesses to recognize the
assailants.

iv. There is no public witness in
support
of
prosecution
while
public
witnesses are alleged to have been present
on spot. Both the witnesses are interested
and they have the motive for false
implication of accused appellants because
of land dispute.

v. There are major and material
contradiction in the statement of witnesses
so as to disbelieve the prosecution case.

vi. The medical evidence does not
go with the prosecution case, hence,
prosecution case is not worthy to credence.

17. Per contra learned AGA
opposed submissions by submitting that
this is the case of direct evidence,
therefore, motive has no importance.
Although there was a motive to the
accused-appellants to commit the murder
because of accused Badri is the cousin of
informant and nephew of Chhaviram and
7 All. Badri & Ors. Vs. State
151
Chhaviram lived with informant. It was
the perception in the mind of accused
Badri
that
Chhaviram
might
have
transferred his property in favour of
Tolwar Singh so he wanted to finish
Chhaviram so that he may get the
property of Chhaviram. It was further
submitted
by
learned
AGA
that
Chhaviram and Tolwar Singh supported
the prosecution case. Indisputably, Smt.
Ramdevi succumbed to injury caused to
her in incident and there was no reason to
witnesses to falsely implicate the accused
persons and medical evidence is in
support of prosecution story. Witnesses
are injured, therefore, their presence on
spot cannot be doubted.

18. Although, time, date, place and
nature of injuries found on the person of
deceased have not been disputed or
challenged by accused-appellants but
what is argued is that accused-appellants
are not responsible for present crime.
From evidence of PW-5 and PW-6 and
injury report Ex. Ka-1 and 2, inquest
report Ex.Ka-8, post mortem report
Ex.Ka.-6, time, date and place of incident
stand established.

19. Thus the only question remains
for consideration is "whether accusedappellants caused death of Ramdevi by
throwing hand grenade on the victims and
Trial Court has rightly convicted them or
not?"

20. We now proceed to consider
rival submissions on merits.

21. Before adverting to rival
contention, we would like to consider
briefly the evidence of prosecution, PW-5
Tolwar Singh, who happens to be
informant, eye witness and injured,
deposed that Chhaviram was his real
uncle. He was issue-less and lived with
him. He wanted to give six beegha land
of his share to him, due to which accused
Badri felt bad. On the fateful day, at
about 7:00 p.m., he (informant), his
brother-in-law (Bahnoi) Tota Ram and
his uncle Chhaviram were sitting on their
respective
cots
on
the
platform
(Chabutara) in front of his house, his
mother Ramdevi was also sitting there on
the earth. Lantern was lighting on the
peg.
Then
accused-appellants
Badri,
Babu Ram, Jawahar Singh, Natthu and
Subedar came there with hand grenade
and threw on them for killing, due to
explosion of which he and Chhaviram
sustained
injuries
and
his
mother
Ramdevi succumbed to injuries received
in incident. Accused Badri was also
injured due to explosion. All the accused
persons ran way from the spot. Statement
further states that at about 3:00 a.m. in
the same night, he got Tehrir Ex.Ka.-7
scribed by Tota Ram and presented it
before police station at 6:00 A.M. He and
Chhaviram were medically examined in
district hospital, Etah.

22. P.W. 6 Chhaviram, injured
witness, deposed that informant Tolwar
Singh and accused Badri are his real
nephews. He was issue-less. He was living
with Towar Singh from beginning. He
asked Towar Singh to give six beegha land
of his share three or four days prior to the
incident. Badri felt bad. On the fateful day,
at about 7:00 p.m., he (witness), Towar
Singh and Tota Ram were sitting on their
respective cots on chabutara in front of his
house. Smt. Ramdevi (deceased) was also
sitting on earth. Lantern (Lalteen) was also
152 INDIAN LAW REPORTS ALLAHABAD SERIES
lightning on peg. Then accused Badri,
Babu Ram, Jawahar Singh, Natthu and
Subedar came there with hand grenade and
threw on them. The hand grenade got burst
due to which, he, Tolwar Singh (P.W.-5)
and Ramdevi sustained injuries and Smt.
Ramdevi succumbed to injuries on spot. He
was medically examined. Accused Badri
was also injured. Accused persons ran
away.

23. Both the witnesses P.Ws.- 5 and 6
withstood lengthy cross-examination by
accused persons but no major or material
contradiction could be brought through the
same, which may dent prosecution case or
veracity of their statements. From the
statement of PW-5 and 6, complicity of
accused-appellants in the commission of
present offence stands proved.

24.

Certainly,
there
is
minor
contradictions or development in their
evidence but they are not of such nature so
as to disbelieve the entire story of
prosecution and they are not so serious and
sufficient that accused could be acquitted.
Each
and
every
contradiction
and
development appeared in cross examination
do not affect the root of case.

25. In so far as discrepancies,
variations
and
contradictions
in
the
prosecution case are concerned, we have
analysed entire evidence in consonance
with the submissions raised by learned
counsel's and find that the same do not go
to the root of case.

26. 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.

27. In Sachin Kumar Singhraha v.
State of Madhya Pradesh in Criminal
Appeal Nos. 473-474 of 2019 decided on
12.3.2019 Hon'ble Supreme Court has
observed that the Court will have to
evaluate the evidence before it keeping in
mind the rustic nature of the 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.

28. 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 of the Apex Court (3
Judges) in Criminal Appeal No. 56 of 2018,
Smt. Shamim v. State of (NCT of Delhi),
decided on 19.09.2018.

29. In Yogesh Singh vs. Mahabeer
Singh & Other, 2017 (11) SCC 195,
Supreme Court has held that minor
inconsistencies
or
insignificant
embellishments
in
the
statement
of
witnesses should yield to the fallibility of
human faculties and be ignored if the
evidence is otherwise trustworthy and
corroborates in material particulars: -
7 All. Badri & Ors. Vs. State
153

"29. It is well settled in law that
the minor discrepancies are not to be given
undue emphasis and the evidence is to be
considered from the point of view of
trustworthiness. The test is whether the
same inspires confidence in the mind of the
Court. If the evidence is incredible and
cannot be accepted by the test of prudence,
then it may create a dent in the prosecution
version. If an omission or discrepancy goes
to the root of the matter and ushers in
incongruities,
the
defence
can
take
advantage of such inconsistencies. It needs
no special emphasis to state that every
omission cannot take place of a material
omission
and,
therefore,
minor
contradictions,
inconsistencies
or
insignificant embellishments do not affect
the core of the prosecution case and should
not be taken to be a ground to reject the
prosecution evidence. The omission should
create
a
serious
doubt
about
the
truthfulness or creditworthiness of a
witness. It is only the serious contradictions
and omissions. (See Rammi @ Rameshwar
Vs. State of M.P. (1999) 8 SCC 649; Leela
Ram (dead) through Dulli Chand Vs. State
of Haryana and Another, (1999) 9 SCC
525; Bihari Nath Goswami Vs. Shiv Kumar
Singh & Ors., (2004) 9 SCC 186; Vijay @
Chinee Vs. State of Madhya Pradesh,
(2010) 8 SCC 191; Sampath Kumar Vs.
Inspector of Police, Krishnagiri, (2012) 4
SCC 124; Shyamal Ghosh Vs. State of West
Bengal, (2012) 7 SCC 646 and Mritunjoy
Biswas Vs. Pranab @ Kuti Biswas and
Anr., (2013) 12 SCC 796)."

30. Evidently, P.Ws.-5 and 6 are
injured in incident. Dr. S.P. Varshney
P.W.-1 examined their injuries and deposed
that on 15.5.1983, he was posted as
Medical Officer at District Etah. On the
very same day, he medically examined
Tolwar Singh and Chhaviram at about
1:45 p.m. and 2:00 p.m. respectively and
found injuries on their person, prepared
medical report mentioning their injuries.
Dr. found following injuries on the body of
Tolwar Singh :-

(i) Superficial burn over contused
base in an area 16 cm x 7 cm on back of
right elbow and upper forearm with peeling
of cuticle.

(ii) Superficial burn on front of
Rt. Arm in upper part size 4 cm. x 2 cm.
Superficial layer of skin is absent with
contused base. No black area are around
the wound present.

(iii) Superficial burn in an area of
15 cm. x 6 cm. On Rt. Side of abdomen in
lower part. Skin has not peeled off.

(iv) Superficial (multiple) burn in
an area of 18 cm. x 8 cm. On front and
outer side of Rt. Thigh upper half skin has
not peeled off.

He also examined Chhaviram and
found following injuries on his person.

(i) Superficial burn are (multiple)
on left side of whole of chest 30 cm. x 18
cm. With some lacerated wound of .5 cm. x
.5 cm. x skin deep. Skin has not peeled off.

(ii) Multiple small area of burn of
the 1 cm. x .75 cm on back side of Lt. arm
in an area of 20 cm. x 5 cm.

(iii) Superficial burn with the L/w
1 cm. x 1 cm. to 0.5 cm. x .75 cm. No
blackening of skin present on the back of
the hip and upper thigh in an area of 25
cm. x 10 cm.

31. From the statement of Dr. S.P.
Varshney P.W.-1, it transpires that both
P.Ws.-5 and 6 received injuries in incident.
154 INDIAN LAW REPORTS ALLAHABAD SERIES
It is well settled that presence of injured
witnesses cannot be easily ignored on spot
unless it is proved otherwise.

32. There is no suggestion from the
side of accused persons that witnesses were
not present on spot. In statement under
Section 313 Cr.P.C., it is simply stated that
they do not know why F.I.R. has been
lodged against them. They have nothing to
say. No evidence was adduced from the
side of accused person in his defence. In his
statement under Section 313 Cr.P.C.,
accused Badri Singh pleaded not guilty and
denied the prosecution case and evidence
of prosecution is said due to rivalry on
account of land dispute. No specific plea
has been taken by the accused persons why
they have been trapped in so serious matter.

33. So far as motive is concerned, it is
well settled, where direct evidence is
worthy to credence, 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.

34. In Lokesh Shivakumar v. State of
Karnataka, (2012) 3 SCC 196, Court 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."

35. Another limb of the argument is that
PW-5 and PW-6 are closely related to each
other and because of enmity they have falsely
implicated the accused. The law of the point
is well settled. The evidence of such witness
is to be closely scrutinized, with extra care
and caution. It cannot be rejected merely for
the reason that they are closely related to the
complainant. If on a careful scrutiny, their
testimony is found to be intrinsically reliable
and trustworthy, then nothing prevents the
court from placing reliance upon the same, it
is now well settled law laid down in Dalip
Singh v. State of Punjab, AIR,1953, SC
364, where Court has 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 must be limited to and be governed
by its own facts."

36. 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
7 All. Badri & Ors. Vs. State
155
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"

37. 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)."

38. In Yogesh Singh (Supra), the
Supreme Court summarized the legal position
on the above issue as follows:

"28. A survey of the judicial
pronouncements of this Court on this point
leads to the inescapable conclusion that the
evidence of a 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.
(See Anil Rai Vs. State of Bihar, (2001) 7 SCC
318; State of U.P. Vs. Jagdeo Singh, (2003) 1
SCC 456; Bhagalool Lodh & Anr. Vs. State of
U.P., (2011) 13 SCC 206; Dahari & Ors. Vs.
State of U. P., (2012) 10 SCC 256; Raju @
Balachandran & Ors. Vs. State of Tamil Nadu,
(2012) 12 SCC 701; Gangabhavani Vs.
Rayapati Venkat Reddy & Ors., (2013) 15
SCC 298; Jodhan Vs. State of M.P., (2015) 11
SCC 52)."

39. We have held that the presence of
PW-5 and PW-6 was natural. Their testimony
is consistent in respect of time and place of
occurrence, the manner it took place and the
persons instrumental in the same. They were
subjected to lengthy cross examination, but
the defence could not succeed in impeaching
their creditworthiness by extracting anything
suspicious.

40. 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 the 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.

41. The result of above discussion is
that there is clinching evidence to prove the
prosecution case. The ocular version stands
156 INDIAN LAW REPORTS ALLAHABAD SERIES
corroborated by the medical evidence. The
accused had come with hand grenade and
in prosecution of the common object
murdered Smt. Ramdevi and caused
injuries to the injured. They succeeded in
executing their plan successfully. They
were rightly found guilty of offences by the
Trial Court. There is no mitigating
circumstance or evidence for taking a
different
view
on
the
quantum
of
punishment. The appeal is devoid of merit
and
is
dismissed.
If
the
surviving
appellants are on bail, they shall be taken in
custody forthwith to serve out their
sentence.

42. Let a copy of this judgment be
sent to the trial court concerned.
----------
(2021)07ILR A156
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.02.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 2929 of 1981

Smt. Nirmala Devi
 ...Appellant (On Interim Bail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri B.P. Gupta, Sri A.N. Mulla, Sri Atul
Pandey, Sri I.N. Mulla, Sri Jitendra Pal
Singh, Sri R.P. Tiwari, Sri Rahul Mishra, Sri
S.P. Tiwari

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law-
Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal
Code,
1860-Section
161
&
Prevention
of
Corruption
Act,
1988Section
5(2)-challenge
to-convictionreduction of substantive sentence-accused
a lady doctor who is now 70 year old took
bribe while serving in the government
hospital-accused suffering from old age
ailments and mental incarceration for
about 41 years-hence, it would certainly
be special reasons for reducing the
substantive sentence but enhancing the
fine,
while
maintaining
the
conviction.(Para 1 to 26)

The appeal is partly allowed. (E-5)

List of Cases cited:

1. Ashok Kumar Vs St. (Delhi Administration)
(1980) 2 SCC 282

2. Sharvan Kumar Vs St. of U.P.(1985) 3 SCC
658

3. Ajab & ors .Vs St. of Mah. (1989) Supp. 1
SCC 601

4. V.K. Verma Vs CBI, (2014) CRLA No. 404

(Delivered by Hon'ble Ajit Singh, J.

1. Heard the learned counsel for
appellant and Sri Rajesh Mishra, learned
AGA appearing for the State and perused
the record of this case.

2. This criminal appeal has been
preferred against the judgment and order
dated 19.11.1981 passed by IInd Additional
Sessions Judge (Special Judge), Moradabad
in Sessions Trial No. 460 of 1979
convicting the appellant under Section 161
of I.P.C. and sentencing her to one month's
Rigorous
Imprisonment
and
further
convicting and sentencing her under
Section
5(2)
of
the
Prevention
of
Corruption Act to one month's Rigorous
Imprisonment
(under
the
impugned
judgment and order). Both the above
sentences
were
directed
to
run
concurrently.