# Inayatullah v. State of U.P

- **Citation:** (2019) 1 ILRA 612
- **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/inayatullah-v-state-of-u-p-44530
- **Pages:** 13

## Headnote

Evidence
Act
-
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.
(Para35)

B. No prosecution case is fool proof 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 beignored.
 (Para 45)

C. Section 313 Cr.P.C- Power to examine
the accused-Court has to see whether in
broad narration given by witnesses, if
there is any material contradiction so as
to render evidence so self-contradictory
as to make it untrustworthy. Minor
variations 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. (Para 46)

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. (Para -47)

D. Recovery - No independent witness.
Held:- prosecution not obliged to produce
independent witness in support

of recovery involving police. Presumption
that every person acts honestly applies as
much in favour of a Police Official as any
other person. There is no rule of law which
lays down that no conviction can be
recorded on the testimony of Police Officials
even if such evidence is otherwise reliable
and trustworthy. (Para 37)

CHRONOLOGICAL LIST OF CASES CITED: -
1:-(2012) 3 SCC 196Lokesh Shivakumar v.
State of Karnataka,

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

3:- (2010) 7 SCC 759 Dharnidhar v. State of UP

4:- (2010) 1 SCC 1999 Jayabalan v. U.T. of
Pondicherry
1 All. Inayatullah Vs. State of U.P.
613
5:-,2013(15) SCC 298 Ganga Bhawani v.
Rayapati Venkat Reddy and Others

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

7:- 1995(4) SCC 255 Pradeep Narayan
Madqaonkar & others vs. State of Maharashtra

8:- 1996 (11) SCC 139 Balbir Singh vs. State

9:- 1992(4) SCC 662 Paras Ram vs. State of
Haryana, 1996 (1)SCC 427 Sama Alana
Abdulla vs. State of Gujarat, 1996 (2) SCC 589
Anil alias Andya Sadashiv Nandoskar vs. State
of Maharashtra

10:- 1998 Cri. L.J. 863 State of U.P. v.
Zakaullah

11:-. (2007) 7 SCC 625 Girja Prasad Vs.State
of M.P

12:-, (2012) 4 SCC 124, Sampath Kumar v.
Inspector of Police, Krishnagiri

13:- Sachin Kumar Singhraha v. State of
Madhya Pradesh

14:- Smt. Shamim v. State of (NCT of Delhi)

15:-AIR 2009 SC 152 State Represented by
Inspector of Police v.Saravanan & AIR 2009 SC
331 Anr.; Arumugam v. State,; (2009) 11SCC
3

## Text

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612 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2019

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

Jail Appeal No. 6648 OF 2017

Inayatullah ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Ms. Abida Syed (A.C.)

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

A.
Evidence
Act
-
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.
(Para35)

B. No prosecution case is fool proof 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 beignored.
 (Para 45)

C. Section 313 Cr.P.C- Power to examine
the accused-Court has to see whether in
broad narration given by witnesses, if
there is any material contradiction so as
to render evidence so self-contradictory
as to make it untrustworthy. Minor
variations 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. (Para 46)

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. (Para -47)

D. Recovery - No independent witness.
Held:- prosecution not obliged to produce
independent witness in support

of recovery involving police. Presumption
that every person acts honestly applies as
much in favour of a Police Official as any
other person. There is no rule of law which
lays down that no conviction can be
recorded on the testimony of Police Officials
even if such evidence is otherwise reliable
and trustworthy. (Para 37)

CHRONOLOGICAL LIST OF CASES CITED: -
1:-(2012) 3 SCC 196Lokesh Shivakumar v.
State of Karnataka,

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

3:- (2010) 7 SCC 759 Dharnidhar v. State of UP

4:- (2010) 1 SCC 1999 Jayabalan v. U.T. of
Pondicherry
1 All. Inayatullah Vs. State of U.P.
613
5:-,2013(15) SCC 298 Ganga Bhawani v.
Rayapati Venkat Reddy and Others

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

7:- 1995(4) SCC 255 Pradeep Narayan
Madqaonkar & others vs. State of Maharashtra

8:- 1996 (11) SCC 139 Balbir Singh vs. State

9:- 1992(4) SCC 662 Paras Ram vs. State of
Haryana, 1996 (1)SCC 427 Sama Alana
Abdulla vs. State of Gujarat, 1996 (2) SCC 589
Anil alias Andya Sadashiv Nandoskar vs. State
of Maharashtra

10:- 1998 Cri. L.J. 863 State of U.P. v.
Zakaullah

11:-. (2007) 7 SCC 625 Girja Prasad Vs.State
of M.P

12:-, (2012) 4 SCC 124, Sampath Kumar v.
Inspector of Police, Krishnagiri

13:- Sachin Kumar Singhraha v. State of
Madhya Pradesh

14:- Smt. Shamim v. State of (NCT of Delhi)

15:-AIR 2009 SC 152 State Represented by
Inspector of Police v.Saravanan & AIR 2009 SC
331 Anr.; Arumugam v. State,; (2009) 11SCC
334 Mahendra Pratap Singh v. State of Uttar
Pradesh,; and JT 2010 (12) SC 287 Dr. Sunil
Kumar Sambhudayal Gupta &Ors. v. State of
Maharashtra,

16:- 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]. (E-7)

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

1. This jail appeal under Section 383
Cr.P.C. has been filed by accusedappellant Inayatullah through Senior
Superintendent of Jail, Gorakhpur against
judgment and order dated 08.01.2015
passed by Sri P.K. Srivastava, Additional
Sessions Judge, Court No. 03, Gorakhpur
in Session Trial No. 178 of 2012, under
Section 302 IPC. By the impugned
judgment accused-appellant has been
convicted under Section 302 IPC and
sentenced
him
with
Rigorous
Imprisonment (hereinafter referred to as
'RI') for life imprisonment and fine of Rs.
10,000/-. In the event of default in
payment of fine, he has to undergo further
two year's Simple Imprisonment.

2. The facts emanating from First
Information Report (hereinafter referred
to as "FIR") and the material available on
record may briefly be stated as under for
adjudication of this appeal: -

3. A written report Ex. Ka-1 was
presented before Station Officer of Police
Station Gorakhnath, District Gorakhpur
by Informant PW-1 Ranjeet stating that he
is resident of Village Manbela (Bangla),
Post Office Jhungiya Bazar, Police
Station Chiluatal, District Gorakhpur. He
had a fruits shop near Fertilizer Gate,
Jhungiya, and adjacent to it there was fruit
shop of accused-appellant Inayatullah
also. Father of Informant Shri Lal Ji
Nishad used to sit on the Fruit shop. Few
days earlier, an altercation had taken
place between father of Informant and
accused-appellant Inayatullah @ Bhonu
for the reason that sale in the shop of the
informant was much more, on account of
which, accused-appellant bore jealousy
with his father, which often resulted in
altercation. Accused-appellant used to
threaten Informant's father to settle the
score. On 03.10.2011, in the morning,
when
Informant's
father
along-with
informant was going to Fal-mandi (fruit
614 INDIAN LAW REPORTS ALLAHABAD SERIES
market), Gorakhpur for purchase of fruits
and they hardly reached Kaurihawa by
tempo at about 08:30 A.M., accusedappellant Inayatullah @ Bhonu met and
stopped tempo. After stopping the tempo,
he
called
Informant's
father
for
conversation. Informant's father alighted
from tempo and went to him, and
indulged in conversation. All of sudden
accused-appellant took out a knife and
started stabbing his father. As a result
thereof
he
fell
down.
Thereafter,
Informant got down from tempo, ran
towards his father but by that time,
accused-appellant had fled away from the
place of occurrence along-with knife.
Informant sent message of the incident at
his home. In the meantime, police reached
the place of occurrence and with their
help, Informant took his father to
DistrictHospital, where he breathed his
last. Dead body of deceased was lying in
the hospital.

4. On the basis of written report,
Ex.Ka-1, PW-3 Head Moharrir Pramod
Kumar registered a case at Case Crime
no. 475 of 2011, under Section 302 IPC at
Police
Station
Gorakhnath,
District
Gorakhpur and prepared Chick FIR
Ex.Ka-3. Simultaneously, he also made
entry of the incident in General Diary
(hereinafter referred to as "GD"), a copy
of which is Ex.Ka-4.

5. After registration of Case,
Investigation was initiated by PW-4,
Anand Kumar Shahi, the then Station
Officer (hereinafter referred to as 'SO') of
Police
Station
Gorakhnath,
District
Gorakhpur. He visited the place of
occurrence; prepared site plan Ex.Ka-5 on
pointing out of Informant; recorded
statement
of
witness
Dharamveer;
collected blood stained and simple soil of
place of occurrence and prepared recovery
memo Ex.Ka-6 in respect thereof. He
arrested accused-appellant and recovered
weapon used in the murder, he prepared
recovery memo Ex.Ka-2 in respect of
knife. He also prepared site plan Ex.Ka-7
of the place of recovery of knife.
Investigating Officer (hereinafter referred
to as "IO") prepared inquest Ex.Ka-13 as
also necessary documents i.e. letter to
R.I.; document form 33; letter of C.M.O.;
Photo Nash and Chalan Nash etc. are
marked as Ex.Ka-8 to 12 on record.

6. Autopsy on the dead body of Lal
Ji Nishad was conducted by Dr. A.N.
Trigun, PW-5, on 30.10.2011 at 3:30 P.M.
According to him, deceased was aged
about 50 years and his body was average
built, rigor mortis was present, eyes and
mouth were closed. He found following
ante-mortem injuries on his person which
reads as under :-

1. Incised wound of size 21⁄2 cm
x 0.8 cm, bone deep, present on left side
of face 31⁄2 cm below left lower eyelid.
Blood clot present.

2. Incised wound of size 21⁄2 cm
x 0.8 cm x muscle deep, present on left
face. 0.6 cm lateral to left angle of mouth.

3. Incised wound of size 5 cm x
21⁄2 cm into bone deep, present on left side
of neck just below left ear.

4. Incised wound of size 4 cm x
1.5 cm x cavity deep present on left side of
chest, 12 cm below left axilla. On opening
cavity
underlying
lung
was
found
punctured and about 1 liter blood and
clotted blood present in chest cavity.

5. Incised wound of size 3 cm x 1 1⁄2
cm into muscle deep present on left side of
lower abdomen just above left iliac crest.

7. On internal examination, heart
weighed 50 gms. and was empty; stomach
1 All. Inayatullah Vs. State of U.P.
615
contained 100 gms. matter; small intestine
was empty; large intestine contained
faecal matter and gases; liver weighed
1250 gms. with gall bladder half filled;
kidney weighed 200 gms.

8. Doctor opined that duration of
death was about half a day and caused due
to shock and hemorrhage as a result of
ante-mortem injuries. He prepared postmortem Ek.Ka-14.

9. In the meantime, first I.O. was
transferred
and
investigation
was
continued by S.O. Amar Singh who after
completion of investigation submitted
charge-sheet Ex.Ka-14 in Court against
the accused-appellant under Section 302
IPC.

10. Cognizance of the offence was
taken
by
Chief
Judicial
Magistrate
(hereinafter
referred
to
as
"CJM"),
Gorakhpur on 02.01.2012. Since the case
was triable by Court of Sessions, learned
CJM committed matter to Sessions Judge,
where it was registered as Sessions Trial
no. 178 of 2012. Session Trial was
transferred to the Court of Additional
Sessions Judge, Court No. 03, Gorakhpur
who framed charge against the accusedappellant on 28.08.2012. The charge reads
as under :-

"eSa vej ukFk flag] vij l= U;k;k/kh'k
d{k la[;k 3 xksj[kiqj vki buk;rqYykg mQZ Hkksuw
dks fuEu vkjksi ls vkjksfir djrk gwW%&

izFke %& ;g fd fnukad 3@10@11 dks
le; djhc 8&30 cts lqcg] cgn LFkku& dkSfM+gok]
Fkkuk&xksj[kiqj] ftyk& xksj[kiqj esa vki us oknh
eqdnek jathr ds firk yky th fu"kkn dh pkdw ls
ekj dj gR;k dj fn;sA bl izdkj vkius ekuo c/k
dk vijk/k fd;k tks Hkk0 na0 la0 dh /kkjk&302 ds
rgr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds
izlaKku esa gSA

,rn~okjk eSa vki dks funsZf'kr djrk gwW
fd vki dk mijksDr vkjksi ds vUrxZr ijh{k.k bl
U;k;ky; n~okjk fd;k tk;A"

"I, Amar Nath Singh, Additional
Sessions Judge, Court No. 03, Gorakhpur
charge you Inayatullah @ Bhonu as
under:-

Firstly - That on 30.10.2011 at
about 08:30 A.M. at Kaurihava, Police
Station Gorakhnath, District Gorakhpur
you committed murder of Lal Ji Nishad
father of informant Ranjeet by stabbing
knife. Thus you have committed offence of
homicide, punishable under Section 302
IPC and within the cognizance of this
Court.

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

11. Accused-appellant pleaded not
guilty and claimed trial.

12. In order to prove guilt of
accused-appellant, prosecution examined
as many as six witnesses, out of whom,
PWs-1 and 2 are witnesses of fact. Rest
are formal witnesses of Police and Health
Department.

13. PW-1 is son of deceased and an
eye witness. PW-2 Chhote Lal is younger
brother of deceased Lal Ji Nishad and
Uncle of PW-1 Informant. He had
reached the place of occurrence getting on
information from his nephew PW-1
Informant.
Formal
witnesses
PW-3
Constable Pramod Kumar had registered
FIR and prepared Chick report Ex.Ka-3.
He has also prepared copy of GD entry
dated 03.10.2011, copy of which is
Ex.Ka-4. PW-4 is first IO who has
appeared to prove site plan Ex.Ka-5;
recovery memo Ex.Ka-6 in respect of
616 INDIAN LAW REPORTS ALLAHABAD SERIES
sample of blood stained and plain earth;
recovery memo Ex.Ka-7 regarding knife;
inquest Ex.Ka-13 and documents Ex.Ka-8
to 12 with respect to sending the dead
body of deceased Lal Ji Nishad to District
Hospital for post-mortem, i.e., letter to RI,
document in form 33, Photo Nash, and
Chalan Nash. He has also sent recovered
items in the docket to Forensic Science
Laboratory for chemical examination.
PW-5 Dr. A.N. Trigun had conducted
autopsy on the dead body of Lal Ji Nishad
and proved post-mortem report Ex.Ka-14.
PW-6 Constable Rajinder Singh has
verified signature of SI Amar Singh, the
then SO of Police Station Gorakhnath,
who has submitted Charge-sheet Ex.Ka16.

14. After closure of prosecution
evidence,
accused-appellant
was
examined under Section 313 Cr.P.C. on
25.11.2014. He has stated prosecution
story to be false and concocted and that
witnesses were deposing falsely and
proceedings taken by police is ex-parte
and bears no truth. He has stated to be
implicated falsely on account of enmity.

15. On appreciation of evidence
available on record and after hearing both
the parties, learned Additional Sessions
Judge recorded the verdict of conviction
and
sentence
against
the
accusedappellant as stated above.

16. Feeling aggrieved, accusedappellant has approached this Court
through Senior Superintendent of Jail,
Gorakhpur
assailing
the
impugned
judgement.

17. We have heard Ms. Abida Syed,
learned Amicus Curiae for appellant and
Sri Ratan Singh, learned AGA for State at
length and have gone through the record
carefully with the valuable assistance of
learned Counsel for parties.

18.

Learned
Amicus
Curiae
appearing for appellant, refuting the
impugned
judgment
of
conviction,
advanced his argument in the following
manner :-

i. There is no strong motive to
accused-appellant to commit murder of
Informant's father.

ii. There is no public witness of
incident. PW-1 is real son of the
deceased.

iii. No independent witness
came forward to support prosecution case.

iv. Medical evidence does not
go with ocular evidence.

v.

There
are
major
contradictions
in
the
evidence
of
prosecution, which may
render the
prosecution case doubtful.

vi. Prosecution has miserably
failed to prove its case beyond all shadow
of reasonable doubt and Trial Court was
wrong in convicting accused-appellant by
its judgment, therefore, accused-appellant
is liable to be acquitted getting benefit of
doubt.

19.

Learned
AGA
opposed
submissions made on behalf of accusedappellant and submitted that it is a daylight murder; accused- appellant is named
in FIR, which has been promptly lodged
in the Police Station concerned; PW-1
was with his father (deceased) at the time
of incident, therefore, he is a natural
witness; non-examination of independent
witness does not help accused-appellant
because in the heinous offence, like
murder, nobody comes forward to support
the prosecution case due to fear of evil;
prosecution is not obliged to produce all
1 All. Inayatullah Vs. State of U.P.
617
witnesses in evidence and prosecution has
proved its case beyond reasonable doubt
against accused. Lastly, he prayed that
appeal must be dismissed confirming the
impugned judgment.

20. We have travelled the entire
evidence available on file with the
valuable assistance of the learned counsel
for the parties.

21. Although time, date and place of
occurrence and nature of injury found on
the person of deceased have not be
disputed from the side of the appellant but
according to advocate, accused-appellant
is
not
responsible
for
murder
of
Informant's father and he has been falsely
implicated in the present case. Even
otherwise from the evidence of PWs-2, 4
and 5, it is established that at the relevant
time, date and place, Informant's father
Lalji Nishad was assassinated and his
body was found lying on the place, as
stated by the prosecution.

22. Only question remains for
consideration
is
"whether
accusedappellant caused murder of Informant's
father Lalji Nishad by inflicting knife
blow on him and he is only responsible
for committing murder of Informant's
father (Lalji Nishad) or not and Trial
Court has rightly convicted accusedappellant
for
offence
of
murder
punishable under Section 302 IPC or
not?"

23. Here it would be appropriate for
us to briefly consider the evidence of
prosecution.

24. PW-1, happens to be eye
witness, has deposed that his father had a
fruit shop near fertilizer gate, Jhuggia and
adjacent to him, there was a fruit shop of
accused-appellant; sale in the shop of his
father was much more than that of
accused-appellant due to which, accusedappellant bore jealously with his father;
on 03.10.2012, at about 8:30 AM, he
along with his father was going to fruit
market, Gorakhpur by Tempo; when they
reached Kaudiyahwa Jamalpur by Temp
at about 8:30 AM, accused-appellantInayatullah, stopping Tempo, called upon
his father for conversation; during the
course of conversation accused-appellant
started stabbing in the stomach of his
father, due to which, he fell down on the
earth; while yelling he rushed to his
father,
accused-appellant
ran
away
towards Bargadwa weaving his knife; he
saw that his father got seriously injured
by that time; with the help of Police
personnel who arrived on spot, he took his
father to Sadar Hospital, Gorakhpur by
Tempo, where he was declared dead by
the doctor; he got scribed a Written
Tehrir, Ex.Ka-1, by one Ajay Kumar and
put his signature on it and presented it to
Police Station concerned; and on the basis
of Written Tehrir, case came to be
registered. He further deposed that some
days prior to incident, during conversation
accused-appellant threatened Informant's
father to take his life.

25. PW-1 is the only witness of the
fact, who has been produced by prosecution
in support of its case. He withstood a lengthy
cross examination but no adverse material
could be brought so as to disbelieve his
statement.
Certainly
some
minor
contradictions occurred in the statement but
they are not of such nature, which might be
sufficient to go the root of the case.

26. According to Advocate of
accused-appellant, PW-1 is not an eye
618 INDIAN LAW REPORTS ALLAHABAD SERIES
witness and his statement inspires no
confidence. According to him PW-1 in his
cross examination at page no.20 of paper
book admitted that he reached on spot, when
accused-appellant
ran
away
towards
Bargadwa, in this way witness has not seen
the incident. We are not impressed with the
argument advanced by learned Counsel for
accused-appellant and reject the same for the
reasons that PW-1 categorically stated in his
cross examination at page no.20 of paper
book that he had seen the accused-appellant
stabbing knife to his father. Accusedappellant stabbed 4 to 5 times in the stomach,
when he (accused-appellant) started stabbing
knife, he (witness) alighted from Tempo and
rushed to spot. Reading of statement will be
all together and not in pieces.

27. PW-4, SI Anand Kumar Sahi,
the then Station House Officer, Police
Station Gorakhnath deposed that he took
investigation of Crime No. 475 of 2011,
under Section 302 IPC, proceeded to spot,
recorded statement of Informant, visited
spot at the pointing of Informant,
prepared site plan, collected blood stained
and simple earth from the spot, arrested
accused-appellant
near
Bargadwa
Chauraha and took him into custody,
recorded his disclosure statement and on
his pointing out recovered a knife with
blood allegedly used in the incident,
before public witness Ajay Kumar and
Chhote Lal (not examined), prepared
recovery memo Ex.Ka-7.

28. PW-5 deposed that he was
posted as Medical Officer in Paniram,
Chargawan Block, District Gorakhpur. On
03.10.2011, he conducted autopsy over
the dead body of Lalji Nishad and found
five incised wound in his person. He
opined that death was possible due to
coma and hemorrhage on account of antemortem injuries at about 8:30 AM on
03.10.2011 and injuries found on the
person of deceased might have been
caused by knife. In this way, medical
evidence is compatible with the ocular
evidence.

29. It has come in statement of PW1 that accused ran away from the spot
weaving his knife and as per statement of
PW-4 accused-appellant was arrested and
on his pointing out knife with blood, which
was used in the commission of offence, was
recovered by Investigating Officer before
public witness. Accused was arrested by
Investigating Officer on the same day,
shortly after the incident, and there was a
sufficient motive to accused to commit the
crime on account of business rivalry. In
statement under Section 313 Cr.P.C.,
accused-appellant
stated
that
PW-1,
Ranjeet, has given false evidence against
him but he did not suggest anything as to
why he was giveing false statement against
him. He has not given any single
explanation as to why, he has been falsely
implicated in this case.

30. So far as argument made by
learned Amicus Curiae regarding the
motive is concerned, we do not impress
with the submission advanced by learned
Amicus Curiae for the appellant as it is
well settled that where direct evidence is
worthy, it can be believed, then motive
does not carry much weight. It is also
notable that mind set of accused persons
differs from each other. Thus merely
because that there was no strong motive
to
commit
the
present
offence,
prosecution case cannot be disbelieved.

31. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
held as under :-
1 All. Inayatullah Vs. State of U.P.
619

"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."

32. So far as the argument of
relative witness and non examination
of independent witness are concerned,
it is now well settled law laid down in
Dalip Singh v. State of Punjab,
AIR,1953, SC 364, wherein 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."

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

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

34. 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)."

35. It is settled that merely because
witnesses are closed relatives of victim, their
testimonies
cannot
be
discarded.
620 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

36. Learned Counsel for accusedappellant urged that recovery of knife
shown by police is not supported by any
independent
witness.
PW-4
in
his
statement stated that recovery of knife
was made in the presence of public
witnesses, namely, Ajay Kumar and
Chotey Lal but none of the public witness
have been produced by prosecution,
therefore, recovery shown by police
inspires no confidence.

37. In our view, submission
advanced by learned Counsel for accusedappellant is thoroughly misconceived, for
the reasons that prosecution is not obliged
to produce independent witness in support
of recovery involving police. Presumption
that every person acts honestly applies as
much in favour of a Police Official as any
other person. There is no rule of law
which lays down that no conviction can
be recorded on the testimony of Police
Officials even if such evidence is
otherwise reliable and trustworthy.

38. As a matter of rule, there can be
no legal proposition that evidence of
police officers, unless supported by
independent witnesses, is unworthy of
acceptance.
Non-examination
of
independent witness or even presence of
such witness during police raid would cast
an added duty on the court to adopt
greater
care
while
scrutinising
the
evidence of the police officers. If the
evidence of police officer is found
acceptable, it would be an erroneous
proposition
that
court
must
reject
prosecution version solely on the ground
that
no
independent
witness
was
examined.
In
Pradeep
Narayan
Madqaonkar &others vs. State of
Maharashtra 1995 (4) SCC 255, it was
held:

"Indeed, the evidence of the
official (police) witnesses cannot be
discarded merely on the ground that they
belong to the police force and are, either
interested in the investigation of the
prosecuting agency but prudence dictates
that their evidence needs to be subjected
to strict scrutiny and as far as possible
corroboration
of
their
evidence
in
material particulars should be sought.
Their desire to see the success of the case
based on their investigation, requires
greater
care
to
appreciate
their
testimony."

39. In Balbir Singh vs. State 1996
(11) SCC 139, Court has repelled a
similar
contention
based
on
nonexamination of independent witnesses.
The same legal position has been
reiterated time and again by Court vide
Paras Ram vs. State of Haryana 1992
(4) SCC 662, Sama Alana Abdulla vs.
State of Gujarat 1996 (1) SCC 427, Anil
alias Andya Sadashiv Nandoskar vs.
State of Maharashtra 1996 (2) SCC
589.

40. In State of U.P. v. Zakaullah
1998 Cri. L.J. 863 in para-10, it is said:

"The necessity for "independent
witness" in cases involving police raid or
police search is incorporated in the statute
not for the purpose of helping the indicted
1 All. Inayatullah Vs. State of U.P.
621
person to bypass the evidence of those
panch witnesses who have had some
acquaintance with the police or officers
conducting the search at some time or the
other. Acquaintance with the police by itself
would not destroy a man's independent
outlook.
In
a
society
where
police
involvement is a regular phenomenon many
people would get acquainted with the
police. But as long as they are not
dependent on the police for their living or
liberty or for any other matter, it cannot be
said that those are not independent persons.
If the police in order to carry out official
duties, have sought the help of any other
person he would not forfeit his independent
character by giving help to police action.
The requirement to have independent
witness to corroborate the evidence of the
police is to be viewed from a realistic
angle. Every citizen of India must be
presumed to be an independent person
until it is proved that he was a dependent of
the police or other officials for any
purpose whatsoever."

41. Referring to some earlier
decisions, Court in Girja Prasad Vs.
State of M.P. (2007) 7 SCC 625 held:

"It is well-settled that credibility
of witness has to be tested on the
touchstone
of
truthfulness
and
trustworthiness. It is quite possible that in
a given case, a Court of Law may not
base conviction solely on the evidence of
Complainant or a Police Official but it is
not the law that police witnesses should
not be relied upon and their evidence
cannot
be
accepted
unless
it
is
corroborated in material particulars by
other
independent
evidence.
The
presumption that every person acts
honestly applies as much in favour of a
Police Official as any other person. No
infirmity attaches to the testimony of
Police Officials merely because they
belong to Police Force. There is no rule
of law which lays down that no conviction
can be recorded on the testimony of
Police Officials even if such evidence is
otherwise reliable and trustworthy. The
rule of prudence may require more
careful scrutiny of their evidence. But, if
the Court is convinced that what was
stated by a witness has a ring of truth,
conviction
can
be
based
on
such
evidence." (para 25)

42. 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 find that all the witnesses PWs 1, 2
and 3 support prosecution case. All the
three 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 cross
examination but they do not go to the root
of case.

43.

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.

44. 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
622 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

45. 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.

46. 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.

47. 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
1 All. Inayatullah Vs. State of U.P.
623
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].

48. 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
has
rightly
convicted him for having committed an
offence under Section 302 IPC.

49. 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.

50. It is settled legal position that
appropriate sentence should be awarded after
giving due consideration to the facts and
circumstances of each case, nature of offence
and the manner in which it was executed or
committed. It is obligation 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].

51. 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.

52. In view of above discussion, the
appeal lacks merit and is dismissed.
Impugned judgement and order dated
08.01.2015 passed by Additional Session
Judge, Court No.3, Gorakhpur in Session
Trial No. 178 of 2012 (State v.
Inayatullah) under Sections 302 IPC,
Police
Station
Gorakhnath,
District
Gorakhpur, is maintained and confirmed.
624 INDIAN LAW REPORTS ALLAHABAD SERIES

53. 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.

54. Before parting we provide that
Sri Abida Syed, learned Amicus Curiae
for appellant who assisted the Court very
diligently, 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, to him
without any delay and, in any case, within
one month from the date of receipt of
copy of this judgment.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.09.2019

BEFORE
THE HON'BLE ANIL KUMAR
THE HON'BLE SAURABH LAVANIA, J.

F.A.F.O. No. 261 of 2015

Pankaj Srivastava And Ors.