# Devendra Kumar v. State

- **Citation:** (2019) 2 ILRA 430
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Jail Appeal No. 5871 of 2003
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-v-state-44771
- **Pages:** 12

## Headnote

A. Indian Evidence Act, 1872 - Sections
118 and 134 - Neither number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of his relationship with the
victim. The whole prosecution case can
2 All. Devendra Kumar Vs State
431
be proved by a single witness if evidence
is natural and trustworthy.
It is a general rule that Court can and may act
on the testimony of a single witness provided
he is wholly reliable. There is no legal
impediment in convicting a person on the sole
testimony of a single witness. Test is whether
evidence has a ring of truth, cogent, credible
and trustworthy or otherwise. Witnesses are
closed relatives of victim, their testimonies
cannot be discarded. (Para 31 & 41)
B. Indian Evidence Act, 1872 - Section 118 -
Marginal variations in the statement of a
witness cannot be dubbed as improvements
as the same may be elaborations of the
statements made earlier. Natural, minor
contradictions
and
discrepancies
in
comparison to the statement recorded
during examination-in-chief which do not go
to the root of case, to be overlooked.
Jail Appeal dismissed (E-2)
List of Cases Cited: -

## Text

430 INDIAN LAW REPORTS ALLAHABAD SERIES
crime but find no iota of evidence to hold
accused-appellant guilty.

32. We are surprised as to how
without any incriminating circumstances
and evidence, Trial Court has sentenced
accused-appellant in a serious offence.
Sentencing of accused-appellant in this
manner erodes a public faith on judicial
system.

33. Considering the entire facts and
circumstances and evidence led by the
prosecution, in entirety, we do not find
any cogent and convincing evidence
against accused-appellant to connect him
with present crime and, in our considered
opinion, accused-appellant is entitled to
be acquitted.

34. Appeal is, accordingly, allowed.
Impugned judgment and order dated
07.12.2011 passed, in Sessions Trial No.
27 of 2009 (State v. Sewak, Case Crime
No. 320 of 2008), under Section 304 IPC,
Police Station Shivpur, District Varanasi,
is hereby set aside. Appellant is acquitted
of charges levelled against him. He is in
jail and shall be released forthwith, if not
wanted in any other case.

35. Keeping in view provisions of
Section 437-A Cr.P.C., appellant is
directed to furnish a personal bond and
two sureties before Trial Court to its
satisfaction, which shall be effective for a
period of six months, along with an
undertaking that in event of filing of
Special Leave Petition against instant
judgment or for grant of leave, appellant
on receipt of notice thereof shall appear
before Hon'ble Supreme Court.

36. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action.

37. Before parting, we provide that
Sri Radhey Shyam Yadav, Amicus Curiae
for appellant in present Jail Appeal, shall
be paid counsel's fee as Rs. 11,500/-. 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.
----------

(2019)10ILR A 430

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

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

Jail Appeal No. 5871 of 2003
&
Criminal Appeal No. 5422 of 2003

Devendra Kumar ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Mohd. Afzal (A.C.)

Counsel for the Opposite Party:
A.G.A., Sri Rishi Chadha

A. Indian Evidence Act, 1872 - Sections
118 and 134 - Neither number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of his relationship with the
victim. The whole prosecution case can
2 All. Devendra Kumar Vs State
431
be proved by a single witness if evidence
is natural and trustworthy.
It is a general rule that Court can and may act
on the testimony of a single witness provided
he is wholly reliable. There is no legal
impediment in convicting a person on the sole
testimony of a single witness. Test is whether
evidence has a ring of truth, cogent, credible
and trustworthy or otherwise. Witnesses are
closed relatives of victim, their testimonies
cannot be discarded. (Para 31 & 41)
B. Indian Evidence Act, 1872 - Section 118 -
Marginal variations in the statement of a
witness cannot be dubbed as improvements
as the same may be elaborations of the
statements made earlier. Natural, minor
contradictions
and
discrepancies
in
comparison to the statement recorded
during examination-in-chief which do not go
to the root of case, to be overlooked.
Jail Appeal dismissed (E-2)
List of Cases Cited: -
1. Namdeo Vs St. of Mah. (2007) 14 SCC 150
2. Kunju @ Balachandran Vs St. of T.N. AIR
2008 SC 1381
3. Jagdish Prasad Vs St. of M.P. AIR 1994 SC 1251
4. Vadivelu Thevar Vs St. of Mad. AIR 1957 SC 614
5. Yakub Ismailbhai Patel Vs St. of Guj. (2004)
12 SCC 229
6. State of Haryana Vs Inder Singh & ors.
(2002) 9 SCC 537
7. Dalip Singh Vs St. of Punj. AIR 1953 SC 364
8. Dharnidhar Vs St. of U.P. (2010) 7 SCC 759
9. Ganga Bhawani Vs Rayapati Venkat Reddy
& ors. (2013) 15 SCC 298
10. Sampath Kumar Vs Insp. of Police,
Krishnagiri (2012) 4 SCC 124
11. Sachin Kumar Singhraha Vs St. of M.P.
(2019) 8 SCC 371
12. Smt. Shamim Vs St. of (NCT of Delhi)
(2018) 10 SCC 509
13. St. Represented by Insp. of Police Vs
Saravanan & anr. AIR 2009 SC 152
14. Arumugam Vs St. AIR 2009 SC 331
15. Mahendra Pratap Singh Vs St. of U.P.
(2009) 11 SCC 334
16. Dr. Sunil Kumar Sambhudayal Gupta &
ors. Vs St. of Mah. JT 2010 (12) SC 287
17. Sumer Singh Vs Surajbhan Singh & ors.
(2014) 7 SCC 323
18. Sham Sunder Vs Puran (1990) 4 SCC 731
19. M.P. Vs Saleem (2005) 5 SCC 554
20. Ravji Vs St. of Raj. (1996) 2 SCC 175
(Delivered by Hon'ble Rajendra Kumar-IV, J.)

1. Both the aforesaid appeals arise out of
a common judgement and order dated
01.10.2003 passed by Sri Rang Nath Pandey,
Additional Sessions Judge, F.T.C. No.3,
Muzaffar Nagar in Session Trial No.30 of
2003 (State versus Devendra and Rajpal),
Police Station Bhaurakala, District Muzaffar
Nagar convicting accused persons under
Sections 364-A/34 and sentencing them to
undergo rigorous imprisonment for life and
also to pay a fine of Rs.1000/- each. In the
event of default of payment of fine, they have
to undergo three months additional rigorous
imprisonment. Therefore, both these appeals
are being decided by this common judgement.

2. From record, it appears that
initially Jail Appeal No. 5871 of 2003 was
filed through Superintendent, District Jail,
Muzaffar Nagar on behalf of accused
Devendra and the same was admitted on
18.11.2003. Thereafter on 29.10.2003,
Criminal Appeal No.5422 of 2003 was
filed by Advocate Nasiruzzaman on
432 INDIAN LAW REPORTS ALLAHABAD SERIES
behalf of same accused Devendra, which
was admitted by this Court on 30.10.2003
and in this criminal appeal accusedappellant Devendra has been granted bail
vide order dated 18.12.2003.

3. It is also relevant to mention here
that co-accused Rajpal has filed Criminal
Appeal
No.5057
of
2003.
During
pendency of appeal Rajpal died, therefore,
his appeal has abated vide order dated
12.02.2019 by this Court.

4 . Brief facts giving rise to the
present appeal may be stated as under:-

5. A written report Ex.Ka-1 dated
02.10.2002 was presented by PW-1
Virendra Kumar Sharma at Police Station
Bhaurakala, District Muzaffar Nagar,
stating that his servant Devendra Kumar
was living in his house for one and half
months.
Accused-appellant
and
one
Rajpal son of Munshi Kumhar, at about
08:00 AM on 02.10.2002, had kidnapped
his grand-daughter Mini (daughter of
Sanjeev Kumar), aged about one and half
years for ransom. Karan Sing and
Jagendra of the same village witnessed
them with Mini, boarding in the bus.
Thereafter at about 09:00 AM, accusedappellant Devendra made a phone to
Shahdeen at his PCO Phone No.58081
and told that he was leaving service and
his shirt is hung in his Baithak, in the
pocket whereof, there is a letter. On being
intimated by Shahdeen, Informant took
out the letter from his shirt and read it,
wherein Rs.2,00,000/- was demanded.

6. On the basis of said written report
Ex.ka-1;
chick
FIR
Ex.Ka-13
was
prepared by Constable Clerk Satyaveer
Tyagi and registered the case as Case
Crime No.88 of 2002, under Section 364A IPC; entry of the case was made in
General Diary (hereinafter referred to as
"GD") by the same Clerk, copy whereof is
Ex.Ka-14.

7. Abducted victim (Mini) was
recovered from the possession of accused
Devendra by PW-4 Sushil Kumar at Old
Delhi, Railway Station.

8. Immediately after registration of
case, investigation was undertaken by
PW-5
SI
M.M.
Chaudhary
who
commenced investigation, took necessary
papers; recorded statements of witnesses;
went to spot and prepared site plan
Ex.Ka-3; recorded statement of accusedappellant who was taken to Police Station
by complainant himself; thereafter took
letter written by Devendra in his custody,
prepared fard thereof Ex.Ka-4; recorded
statement of Sushil Sharma, Shardar
Amar Jeet Singh, Chandralal, Neeraj,
Shahdeen, Sanjay @ Sanjeev and Neetu
@ Neeraj; sent letter written by accused
Devendra, his specimen writing to FSL,
Agra for examination.

9.

After
completing
entire
formalities of investigation, PW-5 SI
M.M. Chaudhary submitted charge sheet,
Ex.Ka-12, in the Court of Magistrate
against Rajpal and accused-appellant
Devendra under Section 364-A IPC.

10. Cognizance of the offence was
taken by Magistrate concerned. After
making compliance of Section 207
Cr.P.C., Magistrate committed the case of
accused persons to Sessions Judge,
Muzaffar Nagar for trial, who framed
charge against the accused persons,
namely,
Devendra
and
Rjpal
on
31.01.2003 as under:
2 All. Devendra Kumar Vs State
433

"I S.P. Verma, Sessions Judge,
Muzaffar Nagar do hereby charge you 1.
Devendra S/o Sohan Prasad Teli, 2.
Rajpal S/o Munshi Kumhar as follows:

That you on 02.10.2002 at about
8.00 AM from the house of complainant
Virendra
Kumar
S/o
Hukamchand
situated in Village Adampur, Police
Station Bhora Kalan, District Muzaffar
Nagar in furtherance of common intention
kidnapped Mini (aged about one and a
half years) daughter of Sanjeev Kumar in
order that said Mini might be murdered
or might be so disposed of as to be put in
danger of being murdered for ransom and
thereby committed an offence punishable
under Section 364-A/34 of the IPC and
within my cognizance.

And I hereby direct that you be
tried by this Court on the said charge."

11. The accused-appellant denied
the charge levelled against him, pleaded
not guilty of charge and claimed trial.

12. To substantiate its case,
prosecution examined as many as five
witnesses, out of whom PWs-1 to 4 are
witnesses of fact and PW-5 is formal
witnesses of Police i.e. Investigating
Officer. PW-1 Vinok Kumar Sharma is
Informant who presented Ex.Ka-1 in the
Police Station concerned; PW-2 Jagendra
who has seen the accused-appellant taking
the victim in his lap; PW-3 Intimated
Informant about the phone made by
accused-appellant
and
PW-4
Sushil
Kumar
who
caught
hold
accusedappellant at Old Delhi, Railway Station
with victim and recovered her from the
possession of accused-appellant.

13 . Subsequent to closure of
prosecution
witnesses,
statements
of
accused-appellant under Section 313
Cr.PC. was recorded by Trial Court,
explaining
entire
evidence
and
incriminating
circumstances.
In
the
statement
accused-appellant
denied
prosecution story in toto as usual. In
response of question no.9, accusedappellant admitted that he was taken to
Police Station and further he stated that he
was falsely implicated in the present case.
Accused-appellant examined DW-1, Dr.
K.D. Sanwaliya, Medical Officer of
District Hospital, Muzaffar Nagar who
conducted medico examination of accused
and found seven blunt object injuries on
his person, prepared medical report
Ex.Kha-1. Doctor found all the injuries of
simple nature except injury no.7 which
was kept under observation.

14. On appraisal of evidence on
record and after hearing learned State
counsel and counsel for accused, learned
Trial Judge recorded verdict of conviction
and
sentence
against
the
accusedappellant, as stated above.

15. Feeling aggrieved with the
impugned judgment and order dated
01.10.2003, accused-appellant is before
this Court through Jail appeal No. 5871 of
2003 and Criminal appeal No. 5422 of
2003, challenging his conviction and
sentence.

16. We have heard Sri Mohd. Afzal,
learned Amicus Curiae for appellant and
Sri Rishi Chhadha, learned AGA for State
at length and have gone through the
record
carefully
with
the
valuable
assistance of learned Counsel for parties.
434 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Learned Counsel appearing for
appellant has challenged conviction and
sentence of accused-appellant, advancing
his submissions, in the following manners
:-

i. Entire evidence has not been
produced from the side of prosecution,
witnesses present at the time of arrest has
not been produced, therefore, presumption
under Section 114(g) of the Indian
Evidence
Act,
1872
goes
against
prosecution.

ii. Prosecution story is doubtful,
not worthy to credence; Prosecution had
not produced independent witness; PWs 1
to 4 are interested witnesses and they
cannot be termed as independent.

iii.
There
are
many
contradiction
in
the
statement
of
witnesses rendering prosecution story
doubtful.

iv.
Accused-appellant
has
falsely been implicated by Informant to
exploit him, being resident of Jharkhand.

v. Trial Court did not appreciate
the evidence available on file in right
perspective as per law. Accused-appellant
is liable to be acquitted.

18. Per contra, learned AGA
opposed submissions and urged that
applicant is named in FIR; FIR is prompt;
accused-appellant was seen with victim
by PW-2 at Bus stop of the village; he has
been apprehended with victim by PW-4
and his friends at Old Delhi, Railway
Station on the very same day; and
accused-appellant was taken to Police
Station by PWs 1 to 4; there are sufficient
evidence to connect accused-appellant
with

19. Although time, date and place of
occurrence could not be disputed from the
side
of
defence
but
according
to
Advocate, he is not responsible for
kidnapping of victim. Even otherwise
from the evidence of PWs 1 to 4 time,
date and place stand established.

20. Only question remains for
consideration
is
"whether
accusedappellant kidnapped victim or not and
Trial Court has rightly convicted the
accused-appellant or not?"

21. We now proceed to consider
rival submissions on merit. It will be
appropriate
to
briefly
consider
the
evidence of prosecution as well as
defence available on record and some
important decisions on the point.

22. PW-1 Virendra Kumar Sharma
deposed that accused-appellant Devendra
Kumar was his servant who came to him
one and half month prior to incident and
accused Rajpal was resident of Adampur,
Police
Station
Bhaurakala,
District
Muzaffar Nagar. At about 08:30 AM on
02.10.2002, both the accused persons
kidnapped his grand-daughter Mini, aged
about one and half years for ransom.
Karan Singh and Jagender, resident of
same village, noticed them taking his
grand-daughter to Shamli by Mini Bus.
Accused-appellant Devendra made a
phone to him through STD of Shahdeen
that he was going, leaving animals, and
told that his shirt was hung in the Baithak
and read the letter which is in the pocket.
He took out the letter from the pocket of
shirt and read over, by which an amount
of Rs.2,00,000/- was demanded. The said
2 All. Devendra Kumar Vs State
435
letter recited that if information was given
to Police, his grand-daughter would have
been killed. He traced out his daughter
every where i.e. Shamli Railway Station
and Bus Stop but found no where. He
phoned his son who was residing in Delhi
at that time telling about the incident and
submited written report Ex.Ka-1 in Police
Station Bhaurakala. That day his son
Sushil
Kumar
and
his
friends
apprehended accused
Devendra with
victim Mini on Old Delhi, Railway
Station and took accused-appellant to
village. He further deposed that Police got
signature
of
accused
Devendra
for
comparison of ransom letter before him.
Later on victim was handed over to him
by Police after completion of legal
formalities.

23. PW-2 Jagendra deposed that on
the fateful day at about 08:30 PM, he
went to Bus Stop of his village for
shaving, Rajpal was standing there. After
10
-15
minutes,
accused
Devendra
reached there with a girl aged about one
and half years in his lap. Both whispered
and boarded the bus leading to Shamli. He
came back to his house after shaving.
When at about 09:30 AM there was a
noise in the village that grand-daughter of
Virendra has been kidnapped, he went to
house of Informant and told him that
accused Devendra and Rajpal proceeded
towards Shamli by Bus taking child.

24. PW-3 Shahdeen deposed that on
the fateful day at about 09:15 AM, he
received
a
telephone
at
his
PCO
No.58081 by which he was told from
other hand that he was the servant of
Sanjay Sharma and his Kurta was hung in
his Baithak, in pocket thereof, there was a
letter which should be read by them. He
further deposed that he told this fact to
father of Sanjay and came back to his
PCO. He did not know what was written
in the letter.

25. PW-4 Sushil Kumar, uncle of
victim, deposed that incident was of
02.10.2002. At the time of incident, he
was in his house situated at Delhi, he
received a phone of his father that
Devendra had gone with Mini and tried to
search him. He along-with his younger
brother and his friends; first, went to Bus
Stop, later on Old Delhi Railway Station.
At about 01:30 PM when a train reached
at Station, after some moment, he saw
Devendra boarding the stairs with Mini.
He apprehended him with the help of his
friends. First of all, he took his niece in
his lap. He informed his father that we are
coming with Mini and proceeded at 05:30
PM to Village from Delhi and reached the
village at about quarter to ten along-with
his friends by Maruti Van of his friend
Amarjeet.

26. All four witnesses PWs 1 to 4
have been examined at length by defence
but nothing adverse material have come,
so as to disbelieve statements of witnesses
on oath, on the relevant points. Certainly
some minor contradictions and infirmities
occurred in their statements but they are
not of such nature which could dent or
render the prosecution doubtful.

27. Statement of PW-2 established
that accused was seen going with victim
Mini and boarding the bus leading to
Shamli. PW-3 proved that accused
Devendra made a call at his PCO
intimating that his shirt was hung in the
Baithak of Informant PW-1 and to see the
letter written by him kept in its pocket. He
informed about message to informant
PW-1. On the information of Shahdeen,
436 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-1 lodged an FIR against the accused
appellant about the kidnapping of his
grand-daughter. PW-4 on receiving the
information of kidnapping of his niece
Mini from his father, thereafter, made a
search for girl at Bus Stop and Railway
Stations along-with his friends and
younger brother. He further proved that
he saw the accused Devendra with Mini
boarding stairs and apprehended with the
help of his friends and took Mini from
accused Devendra. Thereafter he went to
his village by Maruti Van of his friend
with Mini and accused Devendra.

28. From the statements of PWs 1 to
4, it is fully established that accusedappellant Devendra kidnapped victim
Mini, grand-daughter of Informant PW-1,
for ransom at the relevant time and date as
stated by prosecution and he was
apprehended with victim at the Railway
Station of Old Delhi, on the same day.

29.

Learned
Amicus
Curiae
appearing for accused-appellant, argued
that it has come in the evidence of PW-4
that accused-appellant was captured by
him with the help of his friends and they
came to village by Maruti Van of
Amarjeet Singh but non of his friends
have come forward to support prosecution
story,
therefore,
presumption
under
Section 114(g) of the Indian Evidence
Act, 1872 goes against him.

30. So far as the argument of learned
Counsel for appellant regarding nonexamination of friends of PW-4 is
concerned, we are of the view that this
submission is thoroughly misconceived
for the reasons that prosecution is not
obliged to adduce witnesses as mentioned
in FIR or charge-sheet, in view of Section
134
of
Indian
Evidence
Act,1872
(hereinafter referred to as 'Act,1872').
Section 134 of Act, 1872, reads as under:-

"134. Number of witnesses.--No
particular number of witnesses shall in
any case be required for the proof of any
fact."

31. 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.

32. 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.

33. In Kunju @ Balachandran vs.
State of Tamil Nadu, AIR 2008 SC 1381
a similar view has been taken placing
reliance on earlier judgments including
2 All. Devendra Kumar Vs State
437
Jagdish Prasad vs. State of M.P., AIR
1994 SC 1251; and Vadivelu Thevar vs.
State of Madras, AIR 1957 SC 614.

34. 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."

35. 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 confidenceinspiring and beyond suspicion, thus,
leaving no doubt in the mind of the Court.

36. Learned Counsel for appellant
next contended that no independent
witness
has
been
produced
by
prosecution. PWs 1 to 4 are interested and
relative
to
victim,
therefore,
there
evidence could not be termed as reliable.

37. So far as the question of relative
witness and non-examination of any
independent witness is concerned, we are
not impressed with the submissions of
learned Counsel for appellant for the
reasons that it is often seen that in heinous
offences like murder, dacoity, kidnapping
etc., no villagers or independent witness
come forward to give evidence in support
of prosecution against accused-appellant
due to fear of evil.

38. So far as relative witness is
concerned, in Dalip Singh v. State of
Punjab, AIR,1953, SC 364, Court has
held :-

"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."

39. 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
438 INDIAN LAW REPORTS ALLAHABAD SERIES
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"

40. 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)."

41. It is settled that merely because
witnesses are closed 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
whether
it
is
cogent
and
credible
evidence.

42. Learned Counsel for appellant
further contended that there are many
contradictions
in
the
statements
of
witnesses which rendered prosecution
doubtful and accused-appellant is entitled
to benefit of doubt and deserves acquittal.

43. , we have analysed entire
evidence
in
consonance
with
the
submissions raised by learned counsel's.
All the witnesses, PWs 1 to 4 have
supported prosecution case. All the four
witnesses
withstood
lengthy
crossexamination but nothing adverse material
could be brought on record so as to
disbelieve their statements. There is
nothing in cross-examination which may
render
their
statements
doubtful.
Naturally some minor contradictions and
discrepancies have occurred in their
examination-in-chief but they do not go to
the root of case.

44.

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.

45 . 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
2 All. Devendra Kumar Vs State
439
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.

46 . 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.

47. 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 is 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.

48. 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
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 a
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 &
440 INDIAN LAW REPORTS ALLAHABAD SERIES
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].

49. ore, we are satisfied that
prosecution has successfully proved its
case beyond reasonable doubt against
accused-appellant and Trial Court has
rightly
convicted
him
for
having
committed an offence under Section 364A read with 34 IPC.

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

51. 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 of
court to constantly remind itself that right
of victim, and be it said, on certain
occasions 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
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].

52. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence, weapon used in commission of
murder and the manner in which it was
executed or committed, we find that
punishment
imposed
upon
accusedappellant by Trial Court in impugned
judgment and order is not excessive and it
appears fit and proper and no ground
appears to interfere in the matter on the
point of punishment imposed upon him.

53. In view of above discussion,
both the appeals lack merit and are
dismissed.

54. Accused-appellant is on bail, he shall
be taken in custody forthwith to serve out the
sentence awarded by learned Trial Court.

55. Lower Court record alongwith a
copy of this judgment be sent back
2 All. Sita Ram Sharma Vs State of U.P.
441
immediately to District Court concerned
for compliance and further necessary
action and to apprise the accusedappellant through Jail Authority.

56. Before parting, we provide that
Mohd.
Afzal,
Advocate,
who
has
appeared as Amicus Curiae for appellant
in present Jail Appeal, shall be paid
counsel's fee as Rs. 10,000/-. 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.
----------

(2019)10ILR A 441

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Jail Appeal No.2623 of 2015

Sita Ram Sharma ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Vinay Saran (A.C.,)

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

A. Indian Evidence Act, 1872 - F.I.R. is
not a substantive piece of evidence.

B. Criminal Penal Code, 1973 - Section
154 - There is no time limit to lodge a
F.I.R - But, if it is lodged after a long
unexplained delay and after counseling
and consultation, it demolishes the
plinth of prosecution's castle.

In this case, F.I.R. has been lodged after
seven years of the alleged occurrence. Victim
has not lodged F.I.R. at Police Station. She
had made a complaint to C.W.C., Varanasi
only and that complaint was forwarded to
police. (Para 32)
C. Criminal Procedure Code, 1973 - Section
177 & 178 - Place of Trial - Every offence
must be tried by a Court within whose
local jurisdiction it was committed - If a
court
has
no
jurisdiction
to
take
cognizance and proceed with trial, whole
proceeding of such trial is a nullity (para
40) If jurisdiction is not conferred by any
Statute/Act,
Court
cannot
acquire
jurisdiction, suo moto or on the application
of the victim or any party dealing with the
case. (Para 42 & 43)

The appellant is resident of Village Nimiyatar,
P.S. Dugariya, District Gaya (Bihar), he
prosecuted at Varanasi. Neither investigation
was conducted in place of occurrence nor
evidence was produced regarding place of
occurrence which shows that serious prejudice
has been caused to appellant.
Jail Appeal allowed (E-2)
List of Cases Cited: -
1. Thulia Kali Vs St. of T.N. (1972) SCC (Cri.) 543
2. Manoj Kumar Sharma Vs St. of CG. (2016) 3
SCC (Crl.) 407.
3. Shri Rajendra Ramchandra Kavalekar Vs St.
of Mah. & anr. AIR 2009 SC 1792

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. T he present jail appeal, under
Section 383 Code of Criminal Procedure,
1973 (hereinafter referred to as ''Code')
has been filed by accused-appellant Sita