# Dharam Veer @ Kaiya and Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 1 ILRA 230
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-22
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharam-veer-kaiya-and-ors-in-jail-v-state-of-u-p-44445
- **Pages:** 13

## Headnote

A. Indian Penal Code, 1860-Sections
302/34 IPC - Appellants sentenced to
life imprisonment - Motive - Weight ofWhere direct evidence is worthy of
acceptance - absence of strong motive
does not carry much weight.
 (Para 26 and 27)

B. Relatives of victim as prosecution
witnesses
and
non-examination
of
independent witnesses - It is settled law
that merely because witnesses are close
relatives of the victim, their testimonies
cannot be discarded. However, in such a
case the Court has to adopt a careful
approach and analyse the evidence to
find out whether it is cogent and credible
evidence. (Para 28,29,30,31 and 32)

C. Section 134 Evidence Act 1872 - Nonexamination
of
wife
of
the
first
informant, mentioned as a witness in the
F.I.R, by the prosecution in the trial.
Held - Prosecution is not obliged to
adduce all witnesses mentioned in the
F.I.R or in the charge-sheet. Law is well
settled that the Court can and may act
on the testimony of a single witness
provided the witness is wholly reliable
but if there are doubts about the
testimony, the Court will insist on
corroboration. It is the quality and not
quantity that is material.
(Para 33, 34,35,36,37,38)

D.
Contradictions,
discrepancies
and
variations in the case of prosecution- All
witnesses supported the prosecution
case.
Despite
lengthy
crossexaminations, no material exists to
disbelieve their statements or render
their statements doubtful. Held - minor
contradictions,
inconsistencies,
embellishments
or
improvements
on
trivial matters which do not effect the
core of the prosecution case, should not
be made a ground on which the evidence
can be rejected in its entirety.
(Para 39,40,41,42,43and 44)

E. Question of awarding sentence and
consideration
of
aggravating
and
mitigating
circumstances-Settled
legal
position
that
appropriate
sentence should be awarded after
giving due consideration to the facts
1 All. Dharam Veer @ Kaia and Ors. Vs. State of U.P.
231
and circumstances of each case, nature of
the offence and the manner in which it was
executed
or
committed.
Object
of
sentencing should be to protect 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 the individual
victim but also against the society to which
criminal and victim belong. Hence, applying
the aforesaid principles and having regard
to the totality of facts and circumstances of
the case, motive, nature of the offence,
weapon used in commission of murder and
the manner in which it was executed or
committed, the punishment awarded by the
Trial Court is just and proper and requires
no interference. Resultantly both appeals
dismissed.(Para 51,52 and 53)
Case law discussed/relied upon: -

## Text

_Characters 0–39,771 of 41,382. This is a partial read: ask again with offset=39771 for what follows._

230 INDIAN LAW REPORTS ALLAHABAD SERIES
answer substantial question of law-(d) in
this appeal since judgments in appeal
have to be set aside on the ground of lack
of
jurisdiction
and
whenever
any
adjudication is initiated in a competent
Court of jurisdiction, it will always be
open to such Court to examine all relevant
aspects therein. Therefore, I refrain from
answering substantial question of law-(d)
either way.

31. In the result, appeal is allowed.
Impugned judgments dated 12.05.1978
passed by Munsif, Basti and dated
19.10.1982 passed by 1st Additional
District Judge, Basti are set aside.
Original Suit No. 213 of 1972 is
dismissed as not maintainable.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2019

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

CRIMINAL APPEAL No. 4281 OF 2002
&
JAIL APPEAL No. 6316 OF 2003

Dharam Veer @ Kaiya and Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri K.K. Dwivedi, Sri B.K. Solanki, Sri R.P.
Dwivedi, Sri Yogesh Srivastava, Sri Noor
Mohammad.

Counsel for the Opposite Party:
A.G.A., Sri Hemendra Pratap Singh.

A. Indian Penal Code, 1860-Sections
302/34 IPC - Appellants sentenced to
life imprisonment - Motive - Weight ofWhere direct evidence is worthy of
acceptance - absence of strong motive
does not carry much weight.
 (Para 26 and 27)

B. Relatives of victim as prosecution
witnesses
and
non-examination
of
independent witnesses - It is settled law
that merely because witnesses are close
relatives of the victim, their testimonies
cannot be discarded. However, in such a
case the Court has to adopt a careful
approach and analyse the evidence to
find out whether it is cogent and credible
evidence. (Para 28,29,30,31 and 32)

C. Section 134 Evidence Act 1872 - Nonexamination
of
wife
of
the
first
informant, mentioned as a witness in the
F.I.R, by the prosecution in the trial.
Held - Prosecution is not obliged to
adduce all witnesses mentioned in the
F.I.R or in the charge-sheet. Law is well
settled that the Court can and may act
on the testimony of a single witness
provided the witness is wholly reliable
but if there are doubts about the
testimony, the Court will insist on
corroboration. It is the quality and not
quantity that is material.
(Para 33, 34,35,36,37,38)

D.
Contradictions,
discrepancies
and
variations in the case of prosecution- All
witnesses supported the prosecution
case.
Despite
lengthy
crossexaminations, no material exists to
disbelieve their statements or render
their statements doubtful. Held - minor
contradictions,
inconsistencies,
embellishments
or
improvements
on
trivial matters which do not effect the
core of the prosecution case, should not
be made a ground on which the evidence
can be rejected in its entirety.
(Para 39,40,41,42,43and 44)

E. Question of awarding sentence and
consideration
of
aggravating
and
mitigating
circumstances-Settled
legal
position
that
appropriate
sentence should be awarded after
giving due consideration to the facts
1 All. Dharam Veer @ Kaia and Ors. Vs. State of U.P.
231
and circumstances of each case, nature of
the offence and the manner in which it was
executed
or
committed.
Object
of
sentencing should be to protect 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 the individual
victim but also against the society to which
criminal and victim belong. Hence, applying
the aforesaid principles and having regard
to the totality of facts and circumstances of
the case, motive, nature of the offence,
weapon used in commission of murder and
the manner in which it was executed or
committed, the punishment awarded by the
Trial Court is just and proper and requires
no interference. Resultantly both appeals
dismissed.(Para 51,52 and 53)
Case law discussed/relied upon: -

1. (2012) 3 SCC 196, Lokesh Shivakumar v.
State of Karnataka

2. AIR, 1953, SC 364, Dalip Singh v. State of
Punjab

3. (2010) 7 SCC 759, Dharnidhar v. State of
Punjab

4. 2013 (15) SCC 298, Ganga Bhawani v.
Rayapati Venkat Reddy &Ors.

5. (2007) 14 SCC 150, Namdeo v. State of
Maharashtra

6. AIR 2008 SC 1381, Kunju @ Balachandran
v. State of Tamil Nadu.

7. (2004) 12 SCC 229, Yakub Ismailbhai Patel
v. State of Gujarat.

8. (2002) 9 SCC 537, State of Haryana v.
Inder Singh and Others.

9. (2012) 4 SCC 124, Sampath Kumar v.
Inspector of Police, Krishnagiri.

10. Criminal Appeals Nos. 473-474 of 2019
decided on 12.03.2019,
11.Sachin Kumar Singraha v. State of Madhya
Pradesh.

12. Criminal Appeal No. 56 of 2018, Smt.
Shamim vs. (State of NCT of Delhi) decided on
19.09.2018.

13. AIR 2009 SC 152 State Represented by
Inspector of Police V. Saravanan &Anr.

14. AIR 2009 SC 331, Arumugam v. State.

15. (2009) 11 SCC 334, Mahendra Pratap
Singh v. State of Uttar Pradesh.

16 .JT 2010 (12) SC 287, Dr. Sunil Kumar
Sambhudayal
Gupta
&Ors.
V.
State
of
Maharashtra.

17. (2014) 7 SCC 323, Sumer Singh v.
Surajbhan Singh &Ors.

18. (1990) 4 SCC 731, Sham Sunder v. Puran.

19. (2005)5 SCC 554, M.P v. Saleem.

20. (1996) 2 SCC 175, Ravji v. State of
Rajasthan (E-3)

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

1. Both the aforesaid appeals arise
out of a common judgement and order
dated 03.09.2002 passed by Sri Vijay
Kumar,
Additional
Sessions
Judge,
Hathras in Session Trial No. 169 of 2001
(State versus Dharamveer @ Kaiya and
others), Police Station Shahpau, District
Hathras convicting all the accusedappellants under Sections 302 read with
34 IPC and sentencing each of them to
undergo rigorous imprisonment for life
and also to pay a fine of Rs.2000/- each.
In the event of default of payment of fine,
they have to undergo six
months
additional rigorous imprisonment.

2. From the record it appears that
initially Criminal Appeal No.4281 of 2002
232 INDIAN LAW REPORTS ALLAHABAD SERIES
was filed under Section 374(2) Cr.P.C. by all
the
three
accused-appellants,
namely,
Dharam Veer @ Kaiya, Radhey Shyam and
Choiya @ Khajan Singh, which was
admitted by this Court on 01.10.2002.
Subsequently Radhey son of Gauri Shanker
Pal also filed Jail Appeal No.6316 of 2003,
under Section 383 Cr.P.C., through Senior
Superintendent Central Jail, Agra which was
admitted on 09.12.2003. It is also on record
that vide order dated 30.03.2016 this Court
granted bail to Dharam Veer @ Kaiya
appellant in Criminal Appeal No.4281 of
2002 and Radhey (mentioned as appellant
no.2 in Criminal Appeal No.4281 of 2002
and also appellant in Jail Appeal No.6316 of
2003). The prayer for bail of appellant
Choiya @ Khajan Singh was declined.

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

4. A written report Ex.Ka-1 dated
15.04.2000 was presented by PW-1 Vinod
Kumar, before Station Officer of Police
Station Shahpau, District Hathras, stating
that
accused-appellants
Kaiya
@
Dharamveer, Radhey and Choiya @
Khajan Singh (brother-in-law of Tula
Ram, resident of village Samai) were
creating nuisance in drunken state after
taking liquor. Chandrapal Sharma uncle
of PW-1, Informant, tried to prevent them
whereupon the aforesaid three persons
hurled abuses and also pelted stones.
Certain persons intervened and got the
matter subsided. In the night intervening
14/15 April, 2000 at about 2:00 AM, the
aforesaid accused-appellants indulged in
filthy abuses after consuming liquor.
Uncle of PW-1 when resisted, they got
inclined to fight. In the meantime,
villagers approached there and took them
away from the scene of occurrence
persuading and pushing them. While
departing, accused-appellants were saying
that on the occasion of Holi also he (uncle of
Informant) had quarrelled, so they will not
spare him. At about 2:30 AM, on 14/15
April, 2000 the aforesaid three accused
persons reached the Baithak of Chandrapal
Sharma. Kaiya and Radhey, each, had a
knife with them while Choiya had a Danda.
Suddenly, all of them assaulted Chandrapal
Sharma with their respective weapons.
Hearing his shrieks, Informant, his wife
Gayatri, Mukesh son of deceased Chandrapal
Sharma and one Puran Chandra Sharma
reached the Baithak. Seeing them, the three
accused-appellants fled away from the scene.
Chandrapal Sharma was groaning badly and
while making arrangement for carrying him
to the Hospital, he breathed his last.

5. On the basis of said report, PW-8
Head Constable Nasir Khan prepared
chick report Ex.Ka-13 and made an entry
of the same in General Diary (hereinafter
referred to as "GD") at report No.7 at 6:45
AM on 15.04.2000. A copy of relevant
GD entry as Ex.Ka-14 is on record.
Investigation of case was undertaken by
PW-7 SI Ashok Kumar Singh, the then
Station Officer of Police Station Shahpau,
who visited the spot and prepared inquest
Ex.Ka-2
in
respect
of
deceased
Chandrapal
Sharma
in
his
own
handwriting. He prepared site plan Ex.Ka6; recovery memo Ex.Ka-3 in respect of
articles found in the pocket of deceased
and recovery memo Ex.Ka-4 pertaining to
blood stained shirt. He also recorded
statements
of
Informant
and
other
witnesses of village. Subsequently, he
sent the clothes and articles recovered
from the person of deceased for Forensic
Examination.

6. Autopsy on the dead body of the
deceased
Chandrapal
Sharma
was
1 All. Dharam Veer @ Kaia and Ors. Vs. State of U.P.
233
conducted by PW-6, Dr. Nepal Singh, on
15.04.2000 at about 4:20 PM. According
to him, deceased was aged about 50 years,
and at the time of post-mortem about half
a
day
had
passed.
On
External
examination, he noticed that rigor mortis
was present all over the body and eyes
were closed. He found following antemortem injuries on the body of the
deceased:-

1. Lacerated wound 4cm x 1cm
cartilage deep, front and upper part of left
ear.

2. Lacerated wound 3cm x
1cm x bone deep on left side far head
just lateral to left forehead just lateral
to left eyebrow, surrounded by swelling
8cm x 4cm, bone underneath was
fractured.

3. Incised wound 1cm x 0.5cm x
muscle deep on left side forehead, just
above left eyebrow.

4. Incised wound 3cm x 1cm x
bone cavity deep on left side head 4cm
above behind left eyebrow. Underneath
bone fractured.

5. Incised wound 3cm x 0.5cm x
bone deep on left side head, 2cm away
behind from injury no. 4.

6. Lacerated wound 0.5cm x
0.3cm x muscle deep on middle of left
eyebrow.

7. Traumatic swelling 5cm x
3cm on right eye.

7. On internal examination frontal
and parietal bone of head was found
fractured; membranes were lacerated;
brain was lacerated with haematoma; both
lungs were congested; right side chamber
of heart was full and left side empty;
stomach
contained
100
gm
food;
gallbladder was congested and half full;
spleen and kidneys were congested;
urinary bladder was empty. In the opinion
of doctor, death was caused due to coma
as a result of head injury. Doctor prepared
post-mortem report Ex.Ka-5.

8. After conclusion of investigation,
PW-7 SI Ashok Kumar Singh submitted
charge sheet Ex.Ka-12 in Court against all
the
three
accused-appellants
under
Section 302 IPC.

9. Cognizance of the offence was
taken by Chief Judicial Magistrate,
Hathras on 14.06.2006. Since the case
was exclusively triable by Court of
Sessions, the same was committed by
Chief Judicial Magistrate, Hathras to the
Court of Sessions for trial on 21.07.2001,
where it was registered as Sessions Trial
No. 169 of 2001. Subsequently Sessions
Trial was transferred to the Court of
Additional Sessions Judge, Hathras, who
framed charge against the accusedappellants Kaiya @ Dharamveer, Radhey
and Choiya on 01.11.2001 as under:

"मै विजय कुमार, अपर सत्र न्यायाधीश, हाथरस
आप कईया उर्फ धमफिीर, राधे ि चोइया पर विम्ि आरोप लगाता ह ूँ-

प्रथम- यह वक वििाांक14/15.4.2000 की रावत्र
में समय करीब िो बजे स्थाि बहि ग्राम रसगिाां अांतगफत थािा
सहपऊ जिपि हाथरस की सीमा में आप लोग िे अपिे सामान्य
आश्य को अग्रसाररत करते हुये िािी मुकिमा वििोि कुमार के चाचा
चन्र पाल पर छुरा, चाकू ि डांडो से हमला करके घायल वकया
वजससे बाि में चन्र पाल की मृत्यु हो गयी। इस प्रकार आपिे धारा
302/34 भारतीय िांड सांवहता के अांतगफत िांडिीय अपराध काररत
वकया जो मेरे प्रसांज्ञाि में है।

और मै एति् द्वारा आपको वििेश विया जाता है वक
आपका विचारण उक्त आरोप में मेरे न्यायालय द्वारा वकया जायेगा।"

"I Vijay Kumar, Additional
Sessions Judge, Hathras charge you
Kaiya @ Dharamveer, Radhey and
Choiya as follows:
234 INDIAN LAW REPORTS ALLAHABAD SERIES

First:
That
in
the
night
intervening 14/15 April, 2000 at about
2:00 AM in furtherance of your common
intention you caused death of Chandrapal
uncle of Vinod Kumar by inflicting with
Knives and Danda in the Baithak of
deceased Chandrapal Sharma wherein
the territory of village Rashgawan under
Police Station Sahpau, District Hathras.
Thus you have committed an offence
punishable under Section 302 read with
34 IPC and within the cognizance of this
Court.

I hereby direct you be tried for
the aforesaid charge by this Court."
(English Translation by Court)

10. The accused pleaded not guilty
and claimed trial.

11. To substantiate its case,
prosecution examined as many as eight
witnesses, out of whom PWs-1, 2 and 3
are witnesses of fact. Rest are formal
witnesses
of
Police
and
Health
Department. PW-1 Vinod Kumar is
nephew of deceased Chandrapal Sharma
and PW-3 Mukesh Kumar is deceased
son, PW-2 Puran Chandra Sharma is
cousin of deceased and resident of same
village. They have given factual account
of the incident.

12. PW-4 SI Shailendra Singh is a
witness of inquest Ex.Ka-2, recovery
memo Ex.Ka-3 of articles and clothes of
deceased and recovery memo Ex.Ka-4 in
respect of blood stained shirt. He has also
proved
material
exhibits
i.e.
Ex-1
underwear, Ex-2 Banyan and Ex-3 shirt of
Choiya accused. PW-5 Constable Jabaran
Singh had taken the dead body of
deceased along with other Constable
Harendra Singh to the DistrictHospital for
post-mortem. PW-6, Dr. Nepal Singh had
conducted autopsy on the dead body of
Chandrapal Sharma and has proved postmortem report Ex.Ka-5. PW-7 SI Ashok
Kumar Singh is the Investigating Officer
and has proved Panchayatnama Ex.Ka-2,
site plan Ex.Ka-6, recovery memo Ex.Ka3 in respect of articles recovered from the
pocket of deceased, recovery memo
Ex.Ka-4 in respect of shirt of Choiya
sealed by him and charge sheet Ex.Ka-12.
PW-8
Head
Constable
Nasir
Khan
appeared before the Trial Court to prove
chick FIR Ex.Ka-13 and copy of GD
entry Ex.Ka-14.

13. On closure of prosecution
evidence,
statements
of
accusedappellants under Section 313 Cr.PC. was
recorded. All of them have stated that
they have been falsely implicated due to
enmity
and
the
entire
prosecution
evidence as well as investigation is false.
They did not adduce any evidence in
defence.

14. At the stage of arguments Trial
Court
found
that
in
charge
dated
01.11.2001 time of incident has been
mentioned at night 02:00 hours in place of
02:30 hours at night, therefore, Court
framed amended charge against the
accused-appellants on 29.08.2009. Since
entire evidence of both the parties had
already been adduced and no party
desired to produce any other evidence or
to cross examine the witness, therefore,
Trial Court proceeded the trial on
previous evidence.

15. 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 all the accusedappellants, as stated above.
1 All. Dharam Veer @ Kaia and Ors. Vs. State of U.P.
235

16. Feeling aggrieved with the
impugned judgment and order dated
03.09.2002, accused-appellants are before
this Court through Jail appeal No. 6316 of
2003 and Criminal appeal No. 4281 of
2002, challenging their conviction and
sentence.

17. We have heard Ms. Somya
Chaturvedi, Amicus Curiae for appellant
in Jail Appeal No. 6316 of 2003 as well as
Sri Noor Mohammad, learned Counsel for
appellants in Criminal appeal No. 4281 of
2002 and Sri Syed Ali Murtuza, learned
AGA for State at length and have gone
through the record carefully with the
valuable assistance of learned Counsel for
parties.

18. Learned Counsel appearing for
appellants has challenged conviction and
sentence of accused-appellants, advancing
their submissions, in the following
manners :-

(i) There is no motive to
accused-appellants to commit the present
crime.

(ii) There is no independent
witness of prosecution in support of its
case.

(iii) All the three witnesses are
relatives of deceased, therefore, their
evidence cannot be trustworthy.

(iv) Smt. Gayatri, named in FIR,
has not been produced from the side of
prosecution in support of its case,
therefore, presumption under Section 114
(G) of Indian Evidence Act goes against
prosecution.

(v) There are many major
contradictions which affect the root of
case and accused persons are entitled to
benefit of doubt.

(vi) Medical evidence does not
go with the prosecution version.

(vii) Trial Court has not rightly
convicted
accused-appellants
and
prosecution has failed to prove its case
beyond
reasonable
doubt.
Accusedappellants are liable to be acquitted.

19. Per contra learned AGA opposed
submissions and urged that PWs-1 to 3
are witnesses of fact, who had supported
prosecution case; witnesses are natural
and reliable; and medical evidence is
totally
compatible
with
the
ocular
evidence. The weapons involved in the
offence
have
been
recovered
by
Investigating Officer on pointing out of
accused-appellants.

20. Although time, date, place and
nature of injuries found on the person of
deceased could not be disputed from the
side of accused-appellants but according
to learned counsel for appellants, they are
not responsible for committing murder of
Chandrapal Sharma. Thus only the
question up for consideration is, "whether
accused-appellants committed murder of
Chandrapal Sharma by inflicting knife
and danda on his body and Trial Court
has rightly convicted them 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.

22. PW-1 Vinod Kumar, nephew of
deceased
Chandrapal,
supported
prosecution case and deposed that on the
occasion
of
Holi
festival
accusedappellants namely, Dharam Veer @
Kaiya, Radhey Shyam and Choiya @
Khajan Singh were creating nuisance after
taking liquor. His (PW-1 Vinok Kumar)
uncle Chandrapal Sharma tried to prevent
236 INDIAN LAW REPORTS ALLAHABAD SERIES
them where upon all the three accused
pelted stones and hurdled abuses, certain
persons
intervened
and
got
matter
subsided. Thereafter in the intervening
night on 14/15 April, 2000 at about 02:00
AM all the three accused started abusing
in filthy languages after consuming
liquor. When his uncle (victim) resisted
them, they got inclined to fight. In the
meantime, villagers approached there and
took them away from the spot. While
departing there from accused-appellants
were saying that on the occasion of Holi
he (victim) had quarrelled. After half an
hour at about 02:30 AM accused persons
reached the Baithak of Chandrapal
Sharma where he (victim) slept and
started beating him with their respective
weapons.
On
hearing
his
shriek,
Informant himself, his wife Gyatari Devi,
PW-2 Puran Chandra and PW-3 Mukesh
Kumar
reached
the
Baithak
where
accused persons were beating his uncle
Chandrapal Sharma (victim). He further
deposed that accused-appellant Dharam
Veer @ Kaiya and Radhay Shyam had
knife (chura) while Choiya @ Khajan
Singh was having a danda. On seeing
them all the accused persons ran away
from spot, victim was groaning badly,
while making arrangement for carrying
victim to Hospital he succumbed to
injury. He has further deposed that a
written report Ex.Ka-1 regarding the
incidence was presented by him.

23. PW-2 Puran Chandra Sharma,
cousin of deceased Chandrapal Sharma,
deposed that in the intervening night of
14/15 April, 2000 at about 02:30 AM on
hearing the shriek of Chandrapal Sharma
came out of his house, PW-1Vinod, his
wife Gyatri Devi and PW-3 Mukesh met
him in the way while going towards the
Baithak of Chandrapal Sharma. They saw
that accused-appellants were assaulting
victim with their respective weapons.
Accused-appellants Radhey Shyam and
Dharam Veer @ Kaiya were having knife
(chura) and accused-appellant Choiya @
Khajan Singh was having danda in their
hand. On seeing them accused-appellants
ran away from spot. Chandrapal Sharma
received serious injuries and succumbed
to death. Before this incident, at about
02:00 AM in the night accused-appellants
had a quarrell and abused after taking
liquor.
Accused-appellants
extended
threat Chandrapal Sharma to see him. At
that time Vinod and his wife were present
there.

24. PW-3 Mukesh Kumar, happens
to be son of deceased deposed that on the
occasion
of
Holi
festival,
accusedappellants, after taking liquor were
abusing then he (PW-3) himself, Vinod,
his wife Gayatri and other villagers have
subsided the matter due to festival. In the
intervening night 14/15 April, 2000 at
about 02:00 AM all three accusedappellants
were
abusing
in
filthy
languages in front of Baithak whereupon
his father objected them. After half an
hour at about 02:30 AM in the night, he
heard shriek of his father, immediately
rushed to Baithak, Vinod and Puran
Chandra also came there, they saw that
accused-appellants were assaulting his
father with their respective weapons. On
seeing them, accused-appellants ran away
from spot towards Pipal Wali Gali, his
father was groaning badly. While making
arrangement of vehicle to Hospital his
father succumbed to death.

25. PWs-1, 2 and 3 withstood
lengthy cross-examination by defence but
nothing material could be brought so as to
disbelieve their statements on oath. PWs-
1 All. Dharam Veer @ Kaia and Ors. Vs. State of U.P.
237
1, 2 and 3 established that accused
persons assaulted victim Chandrapal
Sharma with their respective weapons and
caused serious injuries to him due to
which he succumbed to death.

26. So far as argument made by
learned Amicus Curiae regarding the
motive
is
concerned,
we
are
not
impressed with the submission advanced
by learned Amicus Curiae for the reasons
that 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 there was no strong
motive to commit offence, prosecution
case cannot be disbelieved.

27. 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."
(emphasis added)

28. 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 appellants for the
reasons that it is often seen that in heinous
offences like murder, no villagers or
independent witness come forward to give
evidence in support of prosecution against
accused-appellants due to fear of evil.

29. So far as relative witness is
concerned, 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."

30. 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
238 INDIAN LAW REPORTS ALLAHABAD SERIES
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"

31. 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)."

32. 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 that
whether it is cogent and credible
evidence.

33. So far as the next argument of
learned Counsel for appellants regarding
non-examination of Gayatri Devi is
concerned, we of the view that this
submission is thoroughly misconceived
for the reasons that prosecution is not
obliged to adduce witness mentioned in
FIR or charge-sheet, in view of Section
134
of
Indian
Evidence
Act,1872
(hereinafter referred to as 'Act,1872'),

34. 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.

35. In Namdeo v. State of
Maharashtra (2007) 14 SCC 150, Court reiterated 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.

36. In Kunju @ Balachandran vs.
State of Tamil Nadu, AIR 2008 SC 1381
a similar view has been taken placing
1 All. Dharam Veer @ Kaia and Ors. Vs. State of U.P.
239
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.

37. 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."

38. 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.

39. So far as discrepancies, variation
and contradiction in the prosecution case
are concerned, we have analysed entire
evidence
in
consonance
with
the
submissions raised by learned counsel's
and all the witnesses PWs 1, 2 and 3
supported the prosecution case as eye
witnesses.
All
the
three
witnesses
withstood lengthy cross-examination but
nothing adverse material could be brought
on record so as to disbelieve their
statements. There is nothing in crossexamination which may render their
statements
doubtful.
Naturally
some
minor contradictions and discrepancies
have occurred in their examination-inchief but they do not go to the root of
case.

40.

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.

41. 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.

42. 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
240 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

43. 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.

44. 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 &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].

45. Learned Counsel for appellants
advanced his arguments by submitting
that medical evidence does not support
the ocular version, therefore, accusedappellants are entitled to benefit of doubt
and they are liable to be acquitted.

46. We have perused the medical
evidence along-with the ocular version.
PW.6 Dr. Nepal Singh deposed that on
15.04.2000,
he
was
posted
in
DistrictHospital, Mathura and on duty on
that day. At about 04:00 PM he conducted
the autopsy over the dead body of
1 All. Dharam Veer @ Kaia and Ors. Vs. State of U.P.
241
Chandrapal Sharma and found following
ante mortem injuries:

1. Lacerated wound 4 cm x 1 cm
cartilage deep, front and upper part of left
ear.

2. Lacerated wound 3 cm x 1 cm
x bone deep on left side far head just
lateral to left forehead just lateral to left
eyebrow, surrounded by swelling 8 cm x 4
cm, bone underneath was fractured.

3. Incised wound 1 cm x 0.5 cm
x muscle deep on left side forehead, just
above left eyebrow.

4. Incised wound 3 cm x 1 cm x
bone cavity deep on left side head 4 cm
above behind left eyebrow. Underneath
bone fractured.

5. Incised wound 3 cm x 0.5 cm
x bone deep on left side head, 2 cm away
behind from injury no. 4.

6. Lacerated wound 0.5 cm x
0.3cm x muscle deep on middle of left
eyebrow.

7. Traumatic swelling 5 cm x 3
cm on right eye.

47. Doctor opined that death might
have been occurred due to coma on
account of ante mortem injuries and death
was possible half day prior to postmortem. He proved post-mortem as
Ex.ka-5.

48. Pws 1, 2 and 3 categorically
stated in his testimonial statement that
accused-appellants assaulted victim with
lathi and knife. As per Doctor report there
were three injuries of sharp edged weapon
and four injuries of blunt object which
might be caused by danda. In this way
medical evidence is compatible with the
ocular version, therefore, we reject the
submissions of learned Counsel for
appellants.

49. In the entirety of the facts and
circumstances
and
legal
preposition
discussed herein before, we are satisfied
that prosecution has successfully proved
its case beyond reasonable doubt against
accused-appellants and Trial Court has
rightly
convicted
him
for
having
committed an offence under Section 302
read with 34 IPC. Both the appeals are
devoid of merit and liable to be dismissed.

50. So far as sentence of accusedappellants 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
242 INDIAN LAW REPORTS ALLAHABAD SERIES
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
accusedappellants 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 lacks merit and is
dismissed.

54. Lower Court record alongwith a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action and to apprise the accusedappellant through Jail Authority.

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