# Kamlesh Kumar & Anr v. State of U.P

- **Citation:** (2021) 1 ILRA 524
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-05
- **Case number:** Criminal Appeal No. 44 of 2020
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-kumar-anr-v-state-of-u-p-46779
- **Pages:** 12

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Section
304(2)/34challenge to-conviction-enmity between
the appellant and deceased due to land
dispute-no
specific
role
assigned
to
appellant's father by the prosecution
witnesses to casue injury by lathi-father
acquitted-while the appellant caused only
one blow on the head of the deceased
without any premeditation with lathi at
the time of occurrence-accused has no
criminal history- the conviction of the
appellant is maintained-sentence of 4
years reduced to a R.I. of 3 years-(Para 1
to 38)

B. Apex Court evolved the theory of
proportionality in awarding the sentence,
subject to minimum sentence provided by
the Legislature. There are several factors,
which may be taken into consideration for
awarding
quantum
of
sentence,
for
example-
gravity
and
seriousness
of
offence, age and number of offenders,
number of deceased, injured persons
nature of weapons, nature of injuries,
criminal antecedents of accused, motive ,
cause intention of offence etc. (Para 32)

The appeal is partly allowed. (E-5)

List of Cases Cited:-

## Text

_Characters 0–39,882 of 40,536. This is a partial read: ask again with offset=39882 for what follows._

524 INDIAN LAW REPORTS ALLAHABAD SERIES
decree passed by the subordinate court is
not obeyed." (Emphasis by this Court)

9. From perusal of the aforesaid
judgment in the case of K.S. Raju
(supra), it is apparent that the power
exercised by the High Court under
Section 10 of the Act of 1971 can be
exercised where there is no provision
under the Criminal Procedure Code or the
Code of Civil Procedure for execution of
the orders or for compliance of such
orders meaning thereby that where there
is an effective remedy for enforcing the
order then the High Court would be
justified in declining to entertain the
contempt petition.

10. In the instant case, it is admitted
by learned counsel for the applicant that
an execution case has already been filed
by him. The Apex Court in the case of
K.S. Raju (supra) has already held that a
civil contempt can be filed under the
provisions of Section 10 of the Act of
1971 where there is no remedy for having
an order executed. As in the instant case
it is admitted that an execution case has
already been filed and the applicant has
already got a remedy of having the order
passed by the Prescribed Authority
executed
consequently
the
present
contempt
petition
would
not
be
maintainable.

11. Taking into consideration the
aforesaid facts and circumstances of the
case,
present
contempt
petition
is
dismissed.
----------
(2021)01ILR A524
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.01.2021

BEFORE
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 44 of 2020

Kamlesh Kumar & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Rajiva Dubey, Sumit Kumar Srivastava

Counsel for the Respondents:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Section
304(2)/34challenge to-conviction-enmity between
the appellant and deceased due to land
dispute-no
specific
role
assigned
to
appellant's father by the prosecution
witnesses to casue injury by lathi-father
acquitted-while the appellant caused only
one blow on the head of the deceased
without any premeditation with lathi at
the time of occurrence-accused has no
criminal history- the conviction of the
appellant is maintained-sentence of 4
years reduced to a R.I. of 3 years-(Para 1
to 38)

B. Apex Court evolved the theory of
proportionality in awarding the sentence,
subject to minimum sentence provided by
the Legislature. There are several factors,
which may be taken into consideration for
awarding
quantum
of
sentence,
for
example-
gravity
and
seriousness
of
offence, age and number of offenders,
number of deceased, injured persons
nature of weapons, nature of injuries,
criminal antecedents of accused, motive ,
cause intention of offence etc. (Para 32)

The appeal is partly allowed. (E-5)

List of Cases Cited:-

1. Masalti & ors. Vs St. of U.P.,(1965) AIR SC
202
1 All. Kamlesh Kumar & Anr. Vs. State of U.P.
525
2. Mohabbat Vs St. of M.P.,(2009) 13 SCC 630

3. Behari Prasad & ors. Vs St. of Bih.,(1996)
SCC (Cri.) 271

4. St. of M.P. Vs Saleem @ Chamaru,(2005) AIR
SC 3996

5. Ramashraya Chakravarti Vs St. of M.P.,(1976)
SC 392

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

1. This appeal under Section 374 (2)
Code
of
Criminal
Procedure,
1973
(hereinafter referred to as Code) has been
preferred against the judgment and order
dated
20.01.2020,
passed
by
VIth
Additional Sessions Judge, Lakhimpur
Kheri, in Sessions Trial No.207/1992
arising out of Case Crime No.71/90, Police
Station-Phardhan, District-Kheri, whereby
the appellants-Kamlesh Kumar and Chotey
Lal (hereinafter referred to as appellants)
have been convicted and sentenced for the
offence under Section 304 (2) read with 34
I.P.C. for four years rigorous imprisonment
each.

2. The prosecution case, in brief, is
that the appellant-Kamlesh Kumar is son of
the appellant-Chotey Lal, resident of
Village-Rousa,
P.S.-Fardhan,
DistrictLakhimpur
Kheri.
The
deceased-Ram
Avtar was neighbour to the appellants.
There was enmity between the deceasedRam Avtar and the appellants due to land
dispute. On 22.05.1990 at about 2:00 p.m.,
Ram Kishore (P.W.-2), brother of the
informant, Ram Kishan (P.W.-1) and
Rajesh
Kumar,
son
of
Ram
Avtar
(deceased) had gone to take water from
hand pump. At the time of occurrence, Ram
Kishore (P.W.-2) was operating the hand
pump and Rajesh Kumar was taking water
with hollowed palm (Chhullu). Meanwhile,
Sunita, daughter of the appellant-Chotey
Lal, came there and put soil (dust) in the
hollowed palm (Chullu) of Rajesh Kumar
and thereafter hot talk started between
them. Meanwhile, the appellants-Kamlesh
Kumar, Chotey Lal and co-accused-Ram
Vilas (since deceased) appeared with lathi
and started to beat Rajesh Kumar and Ram
Kishore (P.W.-2). Upon hearing a noise,
Ram Avtar and Maya Devi (P.W.-3) came
there to save Rajesh Kumar and Ram
Kishore (P.W.-2) but the appellants and coaccused-Ram Vilas (since deceased) also
beaten them. Appellant-Kamlesh Kumar
attacked on the head of the deceased-Ram
Avtar with lathi, whereby he fell down and
became unconscious. The said occurrence
was seen by Rama Kant son of Girija
Dayal, Sarafat Ali son of Karim and
Kanhaiya Lal son of Kunj Bihari, resident
of Parsehra Khurd, P.S.-Neemgaon and
when so many people raised alarm, the
appellants
and
co-accused-Ram
Vilas
(since deceased) by threatening fled away
from the place of occurrence towards their
house.

3. Ram Kishan (P.W.-1) got the first
information report (Ext.Ka-1), prepared by
one Parmesh Chandra Tiwari and carried
the injured persons including Ram Avtar by
tractor to police station-Fardan and lodged
the report. On the basis of the said
information, case crime No.71 of 1990,
under Sections-308, 323, 504 and 506
I.P.C. was registered on 22.05.1990 at 3:45
p.m. by Constable-Narendra Nath Tiwari.
The
injured
persons,
including
the
deceased-Ram Avtar were sent for medico
legal examination and for treatment to
District Hospital, Lakhimpur Kheri where
Ram Avtar was admitted due to critical
condition but he died after sometime. The
medico legal examination of other injured
526 INDIAN LAW REPORTS ALLAHABAD SERIES
person namely Rajesh Kumar and Ram
Kishore (P.W.-2) and Maya Devi (P.W.-3)
was conducted by Emergency Medical
Officer on 23.05.1990 between 00:30 a.m.
to 00:50 a.m. The death information report
of the deceased was sent to concerned
police station. S.I.-Munna Lal Bajpayee
conducted the inquest proceeding and
prepared the inquest report (Ext.-Ka-2) in
the presence of punch witnesses including
Ram Kishan (P.W.-1). The dead body of
the deceased was sealed and was sent for
post-mortem
examination
to
District
Hospital, Lakhimpur Kheri.

4. Dr. Y. B. Chand (P.W.-4)
conducted the post-mortem examination of
the deceased-Ram Avtar on 23.05.1990 at
about 4:00 p.m. and prepared the postmortem report (Ext.-Ka-3). According to
him, the deceased was aged about forty
years and had died one day before, rigor
mortis passed off from both upper limbs
and post-mortem staining was present on
back of deceased. According to him
further, the following ante mortem injury
was found at the time of examination :

"(1) Lacerated would 1 c.m. x 1⁄2 cm x
bone deep on the right side of the head 4
cm above to right eye brow.

(2) Contused swelling 15 cm x 5 cm on
the left side of head and above left ear."

5. According to P.W.-4, clotted blood
was present around the bony part of the
head of the deceased and both the temporal
and parietal as well as occpital bones were
fractured in many pieces ; membrane and
brain tissues were lacerated. According to
him, the said ante mortem injury would
have been caused by blunt object i.e. lathi
on 22.02.1990 at about 2:00 p.m. and
deceased had died due to shock and
haemorrhage as a result of ante mortem
injuries.

6.

After
conclusion
of
the
investigation, charge sheet was submitted
against the appellants and co-accused-Ram
Vilas (since deceased) by Investigating
Officer,
S.H.O.-Harpal
Singh,
under
Sections-304, 323, 504 & 506 I.P.C.,
before the concerned Magistrate, who took
the cognizance of the offence and since the
offence was exclusively triable by the
Court of Sessions, after providing the copy
of relevant police papers, as required under
Section 207 of the Code, committed the
case to the Court of Sessions, Lakhimpur
Kheri for trial.

7. The learned trial Court after
hearing the counsel for both the parties
framed charges for the offence under
Sections 304, 323, 504 and 506 I.P.C.
against the appellants including the coaccused-Ram Vilas (since deceased) from
which they denied and claimed for trial.

8. The prosecution in order to prove
its case, examined Ram Kishan (P.W.-1),
Ram Kishore (P.W.-2), Maya Devi (P.W.-
3) and Dr. Y. B. Chand (P.W.-4).

9. During trial, co-accused-Ram Vilas
(since deceased) had died and after
conclusion of the trial, the statement of the
appellants were recorded under Section 313
of the Code wherein they denied the
prosecution story as well as evidence
produced by the prosecution and stated that
they are innocent and had been falsely
implicated. They further stated that after
purchasing the house and landed property
by them from one Ram Chandra, uncle of
the informant filed civil suit for the said
property, which was decreed in favour of
1 All. Kamlesh Kumar & Anr. Vs. State of U.P.
527
the appellants and due to that enmity, they
had been falsely implicated.

10. Learned trial Court after hearing
the learned counsel for both the parties and
considering the material available on
record,
convicted
and
sentenced
the
appellants as above by the impugned
judgment. Aggrieved by the said judgment,
the appellants have preferred this appeal.

11.

Heard
Sri
Sumit
Kumar
Srivastava,
learned
counsel
for
the
appellants and Sri G. D. Bhatt, learned
A.G.A. for the State.

12. Learned counsel for the appellants
has submitted that the appellants are
innocent and have been falsely implicated.
Learned counsel further submitted that the
scriber of F.I.R. was not examined by the
prosecution.
Learned
counsel
further
submitted that alleged place of occurrence
is surrounded by the Abadi where so many
people were supposed to be present at the
place of occurrence but none of the
independent witnesses were examined by
the prosecution. Learned counsel further
submitted that doctor who examined the
injuries of Ram avtar (deceased) before his
death, injuries of P.W.-2 and P.W.-3, was
not examined by the prosecution. Learned
counsel further submitted that no allegation
has been made against the appellant-Chotey
Lal, his son and another co-accused-Ram
Vilas (since deceased) to cause any injury
to the deceased but the trial Court has
convicted the appellant-Chotey Lal also.
Learned counsel further submitted that
Investigating Officer has also not been
produced by the prosecution and, as such,
the appellants have been denied their
valuable
right
to
cross-examine
the
Investigating Officer. Learned counsel
further submitted that the trial Court,
without considering the evidence and
material available on record, convicted the
appellants in cursory manner and the
impugned judgment is illegal and is liable
to be set aside.

13. Per Contra, learned A.G.A.,
vehemently opposing the submissions made
by the learned counsel for the appellants, has
submitted that the occurrence was happened
nearby the house of the prosecution
witnesses,
as
such,
the
presence
of
prosecution witnesses, at the place of
occurrence, is natural. Learned A.G.A.
further submitted that the first information
report (Ext.Ka-1) was prepared by one
Parmeshchandra Tiwari whose name has also
been mentioned as scriber of the written
report. Learned A.G.A. further submitted that
there is no delay in lodging the F.I.R. as well
as in medico legal examination and since the
deceased had become unconscious at the time
of occurrence and died during his treatment,
his ante-mortem injury was proved by Dr. Y.
B. Chand (P.W.-4), non examination of other
medico legal expert, who had seen the
injuries of the deceased, will not affect the
prosecution story. Learned A.G.A. further
submitted that the prosecution case is
supported by Ram Kishan (P.W.-1), Ram
Kishore (P.W.-2), brothers of the deceased
and Maya Devi (P.W.-3) wife of deceased
whose presence at the time of occurrence
were natural and reliable and only on the
ground that no independent witness was
examined by the prosecution, their testimony
cannot be disbelieved. Learned A.G.A.
further submitted that the judgment passed by
trial Court is well reasoned, well discussed
and requires no interference, the appeal is
liable to be dismissed.

14. I have considered the rival
submissions made by learned counsel for
both the parties and perused the record.
528 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Ram Kishan (P.W.-1) has stated
that on the day of occurrence at about 2:00
p.m., Ram Kishore (P.W.-2) and Rajesh
Kumar had gone to take water on public
hand pump. Ram Kishore (P.W.-2) was
operating hand pump and Rajesh Kumar
was drinking water with hallowed palm
(Chullu) and in the meantime, Sunita,
daughter of appellant-Chotey Lal, came
there and put dust in the palm (Chullu) of
Rajesh Kumar which ensued to hot
altercation between them. He further stated
that thereafter the
appellants-Kamlesh
Kumar, Chotey Lal and co-accused-Ram
Vilas (since deceased) appeared there with
lathi and by hurling abuses, they started to
beat Rajesh Kumar and Ram Kishore
(P.W.-2). He further stated that his sisterin-law, (bhabhi) Maya Devi and brotherRam Avtar (deceased) came there to
intervene the dispute but all the appellants
and other co-accused also beat them. He
further stated that the appellant-Kamlesh
Kumar had caused injury by lathi on the
head of Ram Avtar (deceased), who
became unconscious. He further stated that
upon hearing the noise, Rama Kant, Srafat
Ali and Kanhaiya came there but appellants
and co-accused fled away. He further stated
that after the occurrence, he carried the
injured, by tractor-trolly of one Parmesh
Chandra, to police station and got the
written information (Ext.-Ka-1) prepared
by Parmesh Chandra and after putting his
signature, filed at concerned police station.
He further stated that injured were carried
to hospital for treatment where Ram Avtar
(deceased) was admitted but died during
his treatment. He further stated that inquest
report (Ext.-Ka-2) was prepared in police
station.

16. Ram Kishore (P.W.-2), supporting
the prosecution story, as stated by Ram
Kishan (P.W.-1) has also stated that at the
time of occurrence, he was operating the
public hand pump ; Rajesh Kumar was
drinking
water
with
hallowed
palm
(Chullu) and meanwhile, daughter of
appellant-Chotey Lal came there from toilet
and put her dirty palm in the plam of
Rajesh Kumar which ensued hot altercation
between
them.
Thereupon
appellantsChotey Lal, Kamlesh and co-accused-Ram
Vilas (since deceased) came there and
started to beat them by kicks and fits. He
further stated that menawhile, his elder
brother-Ram Avtar (deceased) and his
sister-in-law, Maya Devi (P.W.-3) came
there. He further stated that the appellants
along with co-accused also beat them. He
further stated that co-accused-Ram Vilas
(since deceased) had caused injury to him
by lathi on his right arm and the appellantKamlesh Kumar had caused injury on head
of the Ram Avtar (deceased) by lathi. He
further stated that on hearing the noise,
Ramakant, Parmesh Chandra, Saraft Ali
and Kanhaiya also reached at the place of
occurrence but the appellants and coaccused fled away from the place of
occurrence. Stating that all injured persons
were carried to police station by his
brother-Ram
Kishan
(P.W.-1)
where
information was given and thereafter
medico
legal
examination
was
also
conducted at hospital, he further stated that
Ram Avtar had died after 1-1/2 hours.

17.

Maya
Devi
(P.W.-3),
corroborating the prosecution story as
stated by P.W.-1 and P.W.-2, has stated
that on the hearing noise, when she reached
with her husband (deceased) at public hand
pump, she saw that the appellants-Kamlesh
Kumar and Chotey Lal and co-accusedRam Vilas (since deceased) were beating
by lathi to her son Rajesh Kumar and
brother-in-law (devar) Ram Kishore (P.W.-
2). She further stated that meanwhile her
1 All. Kamlesh Kumar & Anr. Vs. State of U.P.
529
another
brother-in-law
(devar),
Ram
Kishan (P.W.-1) also reached there and he
was also beaten by the appellants and coaccused-Ram Vilas (since deceased). She
further stated that the appellant-Kamlesh
Kumar had caused injury on the head of her
husband (deceased) by lathi whereby he
fell down and became unconscious. She
also stated that the appellant-Chotey Lal
slapped and beaten her by lathi. She further
stated that her brother-in-law got the first
information report (Ext.-Ka-1) written by
one Parmesh Chandra and carried all
injured persons including deceased to
concerned police station where information
was lodged and their injuries were
examined but her husband died during his
treatment.

18. Admittedly, in this case, neither
Investigating Officer, who investigated the
case nor constable who lodged the first
information report on the basis of the
written report (Ext.-Ka-1), filed by Ram
Kishan (P.W.-1), was examined by the
prosecution. The alleged occurrence was
happended on 22.05.1990 at about 2:00
p.m. as stated by prosecution witnesses i.e.
P.W.-1, P.W.-2 and P.W.-3. According to
these witnesses, just after the occurrence
they reached the concerned police station to
lodge the F.I.R. and for medical treatment
and the F.I.R. was lodged on same day.
Inquest report (Ext.-Ka-2) was prepared on
23.05.1990 at about 12:30 a.m. wherein it
had been specifically mentioned that the
report of the said occurrence was lodged on
22.05.1990 at about 17:45 p.m. at police
station Fardhan, District-Lakhimpur Kheri
under Sections-308, 323, 504, 506 I.P.C.
Thus, in this case, there is no delay in
lodging the F.I.R. So far as the non
examination
of
scriber
of
F.I.R.
is
concerned, it is well settled of law that if
the prosecution case is supported by eyewitnesses and F.I.R. was lodged without
any delay, the non examination of the
scriber will not affect the veracity of the
prosecution case.

19. So far as the submissions made by
learned counsel for the appellants that the
place of occurrence is surrounded by Abadi
where so many people were supposed to be
present at the place of occurrence but none
of
the
independent
witnesses
were
examined, is concerned, it is settled
principle of law that testimony of relative
witnesses, if their presence on spot are
natural and their statement are trustworthy,
should be preferred on the testimony of
other witness, because relative witnesses do
not implicate false person, leaving real
culprit and if it is alleged by accused
person, they have to show as why the
prosecution witness has falsely implicating
him by leaving real culprit.

20. It is very pertinent to quote at this
very stage the law laid down in Masalti
and others vs. State of U. P., AIR 1965 SC
202, wherein Court said as under :

"...............But it would, we think, be
unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. Often
enough, where factions prevail in villages
and murders are committed as a result of
enmity between such factions, criminal
Courts have to deal with evidence of a
partisan type. The mechanical rejection of
such evidence on the sole ground that it is
partisan would invariably lead to failure of
justice. No hard and fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be
530 INDIAN LAW REPORTS ALLAHABAD SERIES
rejected because it is partisan cannot be
accepted as correct.........."

21. Similarly, in Mohabbat vs. State
of M.P., (2009) 13 SCC 630, Court held as
under :

"...........Relationship is not a factor to
affect credibility of a witness. It is more
often than not a relation would not conceal
actual culprit and make allegations against
an innocent person. Foundation has to be
laid if plea of false implication is made. In
such cases, the Court has to adopt a careful
approach and analyse evidence to find out
whether it is cogent and credible."

22. Now coming to the facts and
circumstances of this case, in the first
information report, it has been mentioned
that at the time of occurrence, Ram Kishore
(P.W.-2) was present with his nephewRajesh Kumar and Maya Devi (P.W.-3)
and Ram Avtar (deceased) had also
appeared to intervene the occurrence. It is
also mentioned that hearing the noise,
Ramakant, Ram Kishore (P.W.-2), Sarafat
Ali and Kanhaiya Lal had also appeared at
the place of occurrence and saw the
occurrence. Ramakant, Sarafat Ali and
kanhaiya Lal were not examined. Ram
Kishore (P.W.-2) has stated that these
witnesses had been influenced by the
appellants for Rs.2000/- and were not
willing to give evidence. During trial, Ram
Kishan (P.W.-1), Ram Kishore (P.W.-2)
and Maya Devi (P.W.-3) were examined as
eye-witnesses. They are nearest relative i.e.
brother and wife of deceased. Their
presence at the place of occurrence cannot
be said as unnatural. The occurrence was
taken in broad day light near the house of
these witnesses as well as appellants. These
prosecution witnesses in their crossexamintaion had specifically stated that at
the time of occurrence, they reached the
place
of
occurrence
and
saw
the
occurrence. Nothing has been come out in
their cross-examination which creates any
doubt regarding their presence at the place
of occurrence. It can not be expected that
prosecution witness, leaving the real culprit
of broad day light occurrence, would
falsely implicate the other person for death
of their nearest relative.

23. In my view in the light of law laid
down by Hon'ble Supreme Court in Masalti
(supra)
and
Mohabbat
(supra),
the
testimony of prosecution witnesses cannot
be discarded only on the ground that they
are
relative
of
the
deceased
and
independent witnesses were not examined.

24. So far as the next argument of
learned counsel for the appellants that
medico legal expert, who examined the
injuries of Ram Avtar (deceased) for the
first time before his death was not
examined, is concerned, Ram Kishan
(P.W.-1)
had
stated
that
after
the
occurrence the injured were carried to
hospital and Ram Avtar got admitted in
hospital. In cross-examination, he had
clearly stated that they had carried Ram
Avtar
to
district-Lakhimpur
(District
headquarter) and reached there at 5:00-6:00
p.m. where the Ram Avtar had died after
one hour. Record shows that after death of
deceased Ram Avtar, his dead body was
sent for post-mortem examination. Dr. V.
K. Dixit (P.W.-4) conducted the postmortem and stated that deceased had died
due to head injuries, caused on 22.05.1990
at 2:00 p.m. Thus, the prosecution case, so
far it relates with cause of death of
deceased-Ram Avtar, is supported with
medical evidence and there is force in the
submission
of
learned
counsel
for
appellants.
1 All. Kamlesh Kumar & Anr. Vs. State of U.P.
531

25. So far as the submission of
learned counsel for the appellants regarding
non examination of Investigating Officer, is
concerned, in this case, the prosecution has
failed to examine the Investigating Officer
and other police officials. Record shows
that
application
for
summoning
the
Investigating
Officer,
filed
by
the
prosecution, was rejected by the trial Court.
Thus it can not be said that prosecution had
knowingly
failed
to
examine
the
Investigating Officer. It is settled principle
of
criminal
jurisprudence
that
any
particular or specific number of witness is
not required to prove the prosecution case.
Investigating Officer, in prosecution case,
specially based on direct evidence of
eyewitness,
normally
is
only
formal
witness. His examination is necessary only
in such cases where material contradiction
has been occurred between the statement of
witnesses, recorded during trial and their
statement, under Section 161 of the Code,
recorded by the Investigating Officer or
where prosecution has relied on such
evidence which was collected, recovered or
observed by Investigating Officer himself
during
investigation
and
his
non
examination causes failure of justice or
adverse effect to accused. Hon'ble Supreme
Court in Behari Prasad and others vs.
State of Bihar, 1996 SCC (Crl.) 271,
where
the
prosecution
case
was
in
conformity
with
F.I.R.
and
medical
evidence but Investigating Officer was not
examined, has held as under :

"..........In the facts of the case, it
appears to us that the involvement of the
accused in committing the murder has
been clearly established by the evidences
of the eyewitnesses. Such evidences are in
conformity with the case made out in FIR
and also with the medical evidence.
Hence,
for
non-examination
of
Investigating Officer, the prosecution case
should not fail. We may also indicate here
that it will not be correct to contend that if
an Investigating Officer is not examined
in a case, such case should fail on the
ground that the accused were deprived of
the opportunity to effectively crossexamine the witnesses for the prosecution
and to bring out contradictions in their
statements before the police. A case of
prejudice likely to be suffered by an
accused must depend on the facts of the
case
and
no
universal
strait-jacket
formula should be laid down that nonexamination of Investigating Officer per
se vitiates a criminal trial. These appeals,
therefore, fail and are dismissed. The
appellants who have been released on bail
should be taken into custody to serve out
the sentence." (Emphasis supplied)

26. Coming to the facts and
circumstances of this case again, the
prosecution case is based on direct ocular
evidence of three eye-witnesses, whose
presence on the place of occurrence were
natural, and is also supported with medical
evidence
of
P.W.-4.
During
their
examination before trial Court, no material
contradiction was put by defence counsel
from
their
statement
recorded
under
Section 161 of the Code. Furthermore,
Investigating Officer had not collected or
recovered
any
material
evidence
for
prosecution case. Learned counsel for the
appellants has failed to show that how the
appellants had been prejudiced by non
examination of Investigating Officer. Thus,
the submission of learned counsel for the
appellants has got no force.

27. Now the question arises whether
the prosecution has succeeded to prove its
case against both the appellants. In this
case, the appellants along with another co-
532 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-Ram Vilas (since deceased) were
implicated in the said occurrence. Coaccused-Ram Vilas (since deceased) had
died during the trial. In first information
report (Ext.-Ka-1) no specific role has been
assigned to the appellant-Chhote Lal and
co-accused-Ram Vilas (since deceased). It
has been alleged that both the appellants
including co-accused-Ram Vilas (since
deceased) hurled abuses and beaten the
Rajesh Kumar and Ram Kishore (P.W.-2)
and when Ram Avtar (deceased) and his
wife Maya Devi (P.W.-3) tried to intervene
the occurrence, they were also beaten by
them. Meanwhile, the appellant-Kamlesh
Kumar caused fatal injury on the head of
the deceased whereupon he fell down and
became unconscious. It is also pertinent to
note at this juncture that Rajesh Kumar was
not examined by the prosecution and doctor
who examined the injuries of Rajesh
Kumar, Ram Kishore (P.W.-2) and Maya
Devi (P.W.-3) was also not examined by
the prosecution. Ram Kishan (P.W.-1),
(informant) had neither received any
injuries nor stated that the appellants and
co-accused-Ram Vilas (since deceased) had
made any attempt to cause any injury to
him. In cross-examination, he has clearly
admitted that at the time of occurrence, he
was at his house and upon hue and cry
when he rushed to place of occurrence, saw
that injured after receiving injuries were
lying on the road. He has also stated that
during the occurrence, fatal injury to
deceased was caused by only appellantKamlesh Kumar. He also admitted that
only one injury was caused on the head of
the deceased except that no injury was
caused to him (deceased). Ram Kishore
(P.W.-2) in examination-in-chief, has not
stated that the appellant-Chhotey Lal was
carrying lathi. He did not specially state
that appellant-Chhotey Lal had caused any
injury to any person by lathi. Stating that
appellants and co-accused Ram Vilas (since
deceased) had beaten him by fits and kicks
and co-accused-Ram Vilas had beaten him
by lathi, he further stated that only the
appellant-Kamlesh Kumar had caused
injury on the head of the deceased
whereupon he fell down and became
unconscious. Maya Devi (P.W.-3), in her
examination-in-chief, has stated that only
the appellant-Chotely Lal had slapped and
beaten by lathi to her. She has not stated on
which part of the body the said injury was
caused
by
the
appellant-Chotey
Lal.
Although, she further stated that due to
injury she became unconscious but no
prosecution witness had stated that Maya
Devi (P.W.-3) had received such grievous
injury whereby she became unconscious.
Thus, it is clear that there is serious
contradiction between the statement of
prosecution witnesses regarding the role of
the appellant-Chotely Lal as no specific
role has been assigned to him by the
prosecution witnesses to cause injury by
lathi. Admittedly, co-accused-Ram Vilas
(since deceased) had died during trial. Both
the appellants-Chhotey Lal and Kamlesh
have been convicted under Section 304-II
I.P.C. i.e. only for causing the death of
deceased-Ram Avtar. None of them have
been convicted and sentenced for offence
under Sections-323 or 307 I.P.C. for
causing
any
injuries
to
prosecution
witnesses. The appellant-Chotey Lal is
father of the appellant-Kamlesh Kumar and
his presence, at the time of occurrence, to
participate in the said occurrence and to
cause the death of Ram Avtar (deceased)
and to cause any injury to other prosecution
witnesses is doubtful, particularly, when
the prosecution has failed to prove the
medico legal evidence (injury report) of
injured prosecution witnesses. Thus, the
prosecution has failed to prove its case
beyond reasonable doubt against the
1 All. Kamlesh Kumar & Anr. Vs. State of U.P.
533
appellant-Chotey Lal but in view of the
facts and circumstances of this case, the
prosecution has succeeded to prove its case
against the appellant-Kamlesh Kumar who
has been convicted and sentenced by the
trial Court for offence under Section 304
(II) I.P.C. Thus, the conviction of the
appellant-Kamlesh Kumar, requires no
interference.

28. Now coming to the question of
sentence, whether the sentence passed by
the trial Court is just proper, or not ?.

29. Learned counsel for the appellant
has submitted that the appellant-Kamlesh
Kumar has no criminal history and at the
time of occurrence, he was just 25 years old
and according to prosecution story, only
one injury was caused to the deceased by
the appellant-Kamlesh Kumar. Learned
counsel
further
submitted
that
the
occurrence was happened in the year 1990
i.e. thirty years ago and at present, he is
aged about 55 years and therefore, a lenient
view is required to be adopted in awarding
the sentence to the appellant-Kamlesh
Kumar.

30. The appellant-Kamlesh Kumar
has been convicted for the offence under
Section 304-II and sentenced for four years
rigorous imprisonment.

31. From perusal of Section 304 II
I.P.C., it transpires that accused convicted
under Section 304 II I.P.C. may be
sentenced for a term which may extend to
ten years or with a fine or both.

32. In India no guidelines has been
provided
by
the
Legislature
for
determination of quantum of sentence.
Judiciary, especially Hon'ble Supreme
Court,
has
evolved
the
theory
of
proportionality in awarding the sentence,
subject to minimum sentence provided by
the Legislature. There are several factors,
although not exhaustive, which may be
taken into consideration for awarding
quantum of sentence, for example; gravity
and seriousness of offence, age and
numbers of offenders, age and number of
deceased including injured persons, nature
of weapons used in offence, educational
and social background of accused, nature of
injuries caused to deceased or injured
persons, criminal antecedents of accused,
motive, cause or intention of offence,
weapons carried by deceased or injured
persons if any, injuries caused to accused
person or any member of his side if any,
and duration of pendency of trial or appeal.

33. It is settled principle of sentencing
and penology that undue sympathy in
awarding the sentence with accused is not
required. The object of sentencing in
criminal law should be to protect the
society and also to deter the criminals by
awarding appropriate sentence. In this
regard
Hon'ble
Supreme
Court
has
observed in State of Madhya Pradesh vs.
Saleem @ Chamaru, AIR 2005 SC 3996
which is as under:-

"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 the criminal
and victim belong. The punishment to be
awarded for a crime must not be irrelevant
but it should conform to and be consistent
with the atrocity and brutality with which
the crime has been perpetrated, the
enormity of the crime warranting public
abhorrence and it should "respond to the
society's cry for justice against the
criminal''.
534 INDIAN LAW REPORTS ALLAHABAD SERIES

34. In Ramashraya Chakravarti vs.
State of Madhya Pradesh AIR 1976 SC
392, reducing the sentence of young
accused, aged about 30 years, convicted for
offence under Section 409 I.P.C., from two
years to one year, has observed as under:-

"In judging the adequacy of a sentence
the
nature
of
the
offence,
the.
circumstances of its commission, the age
and character of the offender, injury to
individuals or to society, effect of the
punishment on the offender, eye to
correction and reformation of the offender,
are some amongst many other factors
which would be ordinarily taken into
consideration by courts. Trial courts in this
country already over-burdened with work
have hardly any time to set apart for
sentencing reflection. This aspect is missed
or deliberately ignored by accused lest a
possible plea for reduction of sentence may
be considered as weakening his defence. In
a good system of administration of criminal
justice pre-sentence investigation may be of
great sociological value. Through out the
world humanitarianism is permeating into
penology and the courts are expected to
discharge their appropriate roles"

35. Admittedly, the occurrence was
happened thirty years back in the year 1990
and in the statement, recorded in the year
2000, under Section 313 of the Code, the
age of the appellant-Kamlesh Kumar was
recorded as thirty five years. In addition to
above, the appellant-Kamlesh Kumar, at
the time of occurrence, had suddenly
appeared without any premeditation with
lathi and had caused only one blow on the
head of the deceased. Learned counsel
further
submitted
that
the
appellantKamlesh Kumar has no criminal history.

36. Looking into the facts and
circumstances of the case, I am of the view
that the conviction of the appellantKamlesh Kumar for the offence under
Section 304-II requires no interference and
is accordingly maintained. But in view of
the law laid down by Hon'ble Supreme
Court in Saleem @ Chamaru (supra) and
Ramashraya (supra), the sentence of four
years awarded to the appellant-Kamlesh
Kumar for the said offence is reduced to a
rigorous imprisonment of three years.

37. The appellant-Kamlesh Kumar is
on bail. His bail bond is cancelled and
sureties are discharged. He is directed to
surrender forthwith before the concerned
lower Court to serve out the aforesaid
sentence. The period of sentence under
gone by the appellant, shall be set off as per
the provision of Section 428 of the Code.

38. So far as the appellant-Chhotey
Lal is concerned, the prosecution has failed
to prove its case beyond reasonable doubt
against him, therefore, he is acquitted. The
impugned judgment so far it relates with
conviction of appellant-Chhotey Lal is set
aside. His bail bond is cancelled and
sureties are discharged.

39. Keeping in view the provision of
Section 437-A of the Code, appellantChhotey Lal is hereby directed forthwith to
furnish a personal bond of a sum of
Rs.20,000/- each and two reliable sureties
each of the like amount before the trial
Court, which shall be effective for a period
of six months, along with an undertaking
that in the event of filing of Special Leave
Petition against this judgment or for grant
of leave, he, on receipt of notice thereof,
shall appear before Hon'ble Supreme Court.
1 All. Satya Narain & Ors. Vs. State of U.P.
535

40. Appeal is partly allowed and the
impugned judgment and order is modified
to above extent.

41. Let a copy of this judgment along
with lower court record be sent to the
concerned
trial
Court
for
necessary
information and compliance.
----------
(2021)01ILR A535
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1450 of 2003

Satya Narain & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Raza Zaheer, R.U. Verma, S.P. Singh, Sheo
Prakash Singh, Vijay Kumar Yadav

Counsel for the Respondent:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
First
Information
Report-
Ante-
Timing-
It
is
settled
principle of law that first information
report is the first version in the shape of
complaint,
lodged
by
the
aggrieved
persons at concerned police station, in
order to get the investigating agency into
motion and to take action against the
guilty person. If it is lodged promptly
without
any
unreasonable
delay,
it
strengthen the prosecution story whereas
if it is lodged after unreasonable and
unexplained delay, it loses the veracity of
the prosecution story.

Where the FIR is lodged belatedly and the
delay is unexplained and unreasonable , it can
be presumed by the court that the FIR is antetimed but the same depends upon the facts of
each case.

Admittedly the first information report is
not in writing of the (P.W.-1), though, he
was educated and was able to write the
same-The contradiction between F.I.R.
(Ext.-Ka-1)
and
statements
of
these
prosecution
witnesses
further
creates
doubt in the F.I.R. as well as prosecution
story. The time of occurrence, including
the time of lodging the F.I.R. is doubtful.
It is ante-timed, hence, the prosecution
story is doubtful.

An ante-timed FIR that fails to corroborate the
testimony of the witnesses renders the story of
the prosecution doubtful.

Admittedly no person had received any
injury although the P.W.-1 had stated that
two bombs were thrown upon them by the
appellants and the bombs were fallen and
exploded just 1-2 step away from himNeither causing any injury to any person
nor causing any damage to the crops in
the field where (P.W.-1) was harvesting,
further creates doubt in the prosecution
story.

The oral testimony of the witnesses of the
prosecution would be rendered doubtful where
the same lacks corroboration from the medical
evidence or other evidences.