# Lal Bahadur & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 353
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-18
- **Case number:** Criminal Appeal No. 870 of 1987
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-bahadur-ors-in-jail-v-state-of-u-p-44742
- **Pages:** 7

## Headnote

A. Indian Penal Code, 1860 -Sections 302
- Appeal against conviction.
B. Evidencery value of relatives-A close
relative cannot be categorized as an
'interested' witness. He is a 'natural'
witness. His evidence, however, must be
scrutinized carefully. (Para 23)
The deceased died after six days of the
incident, no fracture of head was found,
appeal would fall under Section 326 of IPC and
not under section 302 of IPC. (Para 26).
Criminal Appeal partly allowed (E-2)
List of Cases Cited: -

## Text

2 All. Lal Bahadur & Ors. Vs State of U.P.
353
aforesaid amount before the concerned
Court below, it shall be paid to the wife of
deceased Shiv Raj, if surviving, or to his
legal heirs. In case, the accused appellants
fail to deposit the said amount of
compensation within the aforesaid time,
they shall undergo additional jail sentence
of one year and the Court below shall
proceed
to
recover
the
amount
of
compensation in the light of judgment of the
Apex Court reported in Kumaran Vs State
of Kerala and another.

28. So far as the question of
sentence to be imposed upon accused
no.7-Ashok is concerned, his case is
referred to the concerned Juvenile Justice
Board to pass appropriate orders, as he
has already been declared a juvenile by
the Board.

29. Since the accused-appellants are
reported to be on bail, they be taken into
custody forthwith for serving remaining
sentence in terms of this judgment.

30. Let a copy of this judgment be
sent to the concerned trial Court forthwith
for compliance.

31. The appeal is partly allowed.
----------

(2019)10ILR A 353

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 870 of 1987

Lal Bahadur & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Gulab Chand, Sri Surendra Singh, Sri
Raj Kumar Sharma.

Counsel for the Opposite Party:
A.G.A., Sri Amit, Sri Ravindra Kumar, Sri
Raman Babu.

A. Indian Penal Code, 1860 -Sections 302
- Appeal against conviction.
B. Evidencery value of relatives-A close
relative cannot be categorized as an
'interested' witness. He is a 'natural'
witness. His evidence, however, must be
scrutinized carefully. (Para 23)
The deceased died after six days of the
incident, no fracture of head was found,
appeal would fall under Section 326 of IPC and
not under section 302 of IPC. (Para 26).
Criminal Appeal partly allowed (E-2)
List of Cases Cited: -
1. Anil Rai Vs St. of U.P. & Bihar (2001) 7 SCC 318
2. St. of U.P. Vs Jagdeo Singh (2003) 1 SCC 456
3. Bhagalool Lodh & anr. Vs St. of U.P. (2011)
13 SCC 206
4. Dahari & ors. Vs St. of U.P. (2012) 10 SCC 256
5. Raju @ Balachandran & ors. Vs St. of T.N.
(2012) 12 SCC 701
6. Ganga Bhawani Vs Rayapati Venkat Reddy
& ors. (2011) 15 SCC 298 Jodhan vs. St. of
M.P. (2015) 22 SCC 52
7. Bur Singh & anr. Vs St. of Punj. (2208) 16
SCC 65
8. Sudhakar Vs St. AIR 2018 SC 1372
9. Ganapathi Vs St. of T.N. AIR 2018 SC 1635
354 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Harbans Kaur & anr. Vs St. of Har. 2005
AIR SCW 2074
11. Namdeo Vs St. of Mah. 2007 AIR SCW 1835
12. Sonelal Vs St. of M.P. 2008 AIR SCW 7988
13. Dharnidhar Vs St. of U.P. & ors. connected
appeals (2010) 7 SCC 759
14. Ankush Shivaji Gaidwad Vs St. of Mah.
(2013) 6 SCC 770
15. Kumaran Vs St. of Ker. & anr. (2017) 7
SCC 471

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of
impugned judgement and order dated
24.3.1987 passed by Sessions Judge,
Etawah in Sessions Trial No. 4 of 1985
convicting the accused persons, namely,
Lal Bahadur, Sher Singh and Shashtri
under Section 302 read with Section 34 of
IPC and accused Jai Dutt under Section
302 of IPC and sentencing them to
undergo life imprisonment.

2.

As
per
prosecution
case,
complainant Bhojraj hired a tractor of one
Sharma for ploughing his agricultural
field. There was some dispute regarding
payment to the owner of said tractor and a
complaint was made by the owner of the
tractor to Pulandar Singh who allegedly
abused the deceased. After about 4-5 days
of the above incident when the deceased
was working in his agricultural field, all
the four accused reached there and started
abusing him. It is further alleged that Ram
Autar (decease) was beaten by the
accused persons. Accused Jai Dutt was
having
'Moosal'
(pestle)
with
him,
accused Lal Bahadur was having spear,
whereas the remaining two accused Sher
Singh and Shashtri were having clubs
with them. The incident of 'marpeet' was
witnessed by PW-1, Bhoj Raj and PW-2
Sone Lal. The incident occurred on
20.12.1983 at 7:00 A.M. and the matter
was reported to the police at 10:15 A.M.
by PW-1, Bhoj Raj against all the accused
persons. Based on this report, offence
under Sections 323, 504, 506 of IPC was
registered against all the accused persons.
Injured Ram Autar was immediately
shifted to a hospital at Lucknow where, he
succumbed to his injuries on 26.12.1983
at about 9:45 p.m.

3. Inquest on the dead body of the
deceased was conducted on 27.12.1983
vide Ex. Ka.1 and body was sent for
postmortem which was conducted on the
same day vide Ex. Ka. 12 by PW-8, Dr.
P.R Mishra.

4. As per postmortem report,
following injuries were found on the body
of the deceased:

(I) Scabbed abraded contusion 8
cm x 6 cm on the left side of head 5 cm
above in left eye brow.

(II) Scabbed abraded contusion
9 cm x 5 cm on the left scapula region.

(III) Scabbed abraded contusion
6 cm x 5 cm on the left side of buttock.

(IV) Abraded contusion 4 cm x
9 cm on the 5th lumber spine.

(V) Infected wound 1.5 cm x 0.5 cm
muscle deep on the frond & mid of left leg.

(VI) Multiple scabbed abraded
contusion in an area 18 cm x 2 cm on the
upper half of left leg.
2 All. Lal Bahadur & Ors. Vs State of U.P.
355

(VII) Scabbed abrasion on an
area of 22 cm x 2 cm on the front of right
leg.

The cause of death of the
deceased was due to comma as a result of
head injury.

5. Initially charge was framed
against all the accused persons under
Section 302/34 of IPC but later amended
charge was framed against accused Jai
Dutt, under Section 302 of IPC and
against the remaining accused persons, it
was framed under Section 302/34 of IPC.

6. So as to hold accused persons
guilty, prosecution has examined nine
witnesses. Statements of the accusedappellants were also recorded under
Section 313 of Cr.P.C. in which, they
pleaded
their
innocence
and
false
implication.

7. By the impugned judgment, the
trial Judge has convicted all the four
accused persons under Section 302/34 and
302 of IPC and sentenced them as
mentioned in paragraph no. 1 of this
judgment. Hence this appeal.

8. During pendency of present
appeal, accused-appellant Lal Bahadur
has expired and, therefore, appeal in his
respect is abated. Appeal in respect of
accused-appellant Sher Singh has already
been abated on account of his death. The
present appeal now confines only in
respect of accused Jai Dutt and Shashtri.

9. Learned counsel for the appellants
submits:

(I) that PW-1, Bhoj Raj and
PW-2, Sone Lal have not seen the actual
occurrence, they are not eye-witnesses to
the incident and are planted witnesses.

(II) that both PW-1 and PW-2
are interested witnesses and, therefore,
they
have
falsely
implicated
the
appellants.

(III) that prosecution is not sure
about the place of occurrence and three
different places have been shown as place
of occurrence.

(IV) that the deceased died
because of injury no.1 sustained by him
on his head but no fracture on the head
was noticed by the autopsy surgeon.

(V) that only fracture of fibula
bone has been found by the radiologist
PW-7, Dr. R.K. Chaudhary vide Ex. Ka11.

(VI) that deceased died after six
days of the incident and, therefore,
considering the injuries sustained by him,
even if the entire prosecution case is taken
as it is, at best, offence under Section 326
of IPC is made out against the accused
persons.

10. On the other hand, supporting
the impugned judgment, it has been
argued by the State Counsel that the
conviction of
the
appellants
is
in
accordance with law and there is no
infirmity in the same. It has been further
argued that when the incident occurred in
the presence of family members alone,
question of examining any independent
witness does not arise and no fault can be
attributed to the prosecution.

11. We have heard learned counsel
for the parties and perused the record.
356 INDIAN LAW REPORTS ALLAHABAD SERIES

12. PW-1, Bhoj Raj is the informant
and father of the deceased. While
supporting the prosecution case, he has
stated that he had taken the services of
one Sharma for ploughing his agricultural
field with his tractor and there was some
dispute in payment. He states that brother
of accused-appellant Sher Singh, namely,
Pulandar intervened in the matter and had
threatened his son Ram Autar and on the
date of incident, all the accused persons
carrying weapons in their hands reached
to the place of occurrence and caused
injuries to Ram Autar. He has clarified
that accused Lal Bahadur was having
spear, Jai Dutt was having Moosal
(pestle), whereas Sher Singh and Shashtri
were carrying clubs in their hands. In the
cross-examination, this witness remained
firm and nothing could be elicited from
him to doubt his credibility.

13. PW-2, Sone Lal is the other eyewitness to the incident and his statement
is almost identical to that of PW-1, Bhoj
Raj. He too has categorically stated that
all the accused persons caused injuries to
Ram Autar and Ram Autar was taken to a
hospital at Lucknow where after about six
days, he succumbed to his injuries.

14. PW-3, Kshetra Pal Singh (Head
Constable), recorded the FIR.

15. PW-4, Dr. P.C. Dubey, has
proved the admission of injured ram
Autar in a hospital at Lucknow.

16. PW-5, S.I., Kashi Ram Gupta,
conducted inquest.

17. PW-6, Dr. B.L. Katiyar, did
MLC of injured Ram Autar vide Ex.
Ka.10 at PHC Bidhuna and has noticed
following nine injuries:

(I) Lacerated wound 1.5 cm x
0.2 cm x 0.2 cm on the left side of head 7
cm above the left ear, margins irregular,
direction oblique & downwards.

(II) Red contusion 8 cm x 6 cm
on the back of upper arm, 10 cm above
the elbow joint.

(III) Red contusion 4 cm x 2 cm
on the back of left forearm, 8 cm below
the elbow joint.

(IV) Red contusion 6 cm x 6 cm
on the dorsal aspect of left hand 4 cm
below the wrist joint.

(V) Abrasion 3 cm x 1.5 cm on
the back of right elbow joint.

(VI) An incised wound 1 cm x
0.2 cm x 0.3 cm on the front of left leg, 23
cm below the knee joint, margins clean
cut, direction oblique & downwards,
blood clotted.

(VII) An incised wound 2 cm x
0.5 cm x 0.2 cm on the left leg front side,
5 cm below the injury no. 6, margins
clean
cut,
direction
oblique
&
downwards, blood clotted.

(VIII) A traumatic swelling 16 cm
x 10 cm on the left ankle joint, deformity &
tenderness present, movement restricted,
advised X-ray A P & L view.

(IX) An incised wound 1 cm x
0.2 cm x 0.2 cm on the front of right leg 4
cm below the knee joint, margins clean
cut, direction oblique & downwards,
blood clotted.

18. PW-7, Dr. R.K. Chaudhary, is a
radiologist who proved the report Ex. Ka.
2 All. Lal Bahadur & Ors. Vs State of U.P.
357
11 and a fracture of fibula bone was found
by him.

19. PW-8, Dr. P.R. Mishra,
conducted postmortem on the body of the
deceased. According to him except injury
no.1, none of the injury was found on the
vital part of the body of deceased. He
further states that he has not found any
fracture on the head of the deceased.

20. PW-9, S.I. Govind Singh, is an
Investigating Officer, has duly supported
the prosecution case.

21. Close scrutiny of the evidence
makes it clear that on 20.12.1983 in the
evening, four accused persons have
entered the field of the complainant and
started abusing deceased Ram Autar. All
the accused persons were having different
weapons with them, as mentioned above
in their evidence. All of them started
beating the deceased resulting number of
injuries on his body. Ram Autar was
immediately taken to a hospital and later
considering his serious condition, he was
taken to hospital at Lucknow where, after
about six days, he succumbed to his
injuries
on
26.12.1983.
In
the
postmortem, only one head injury has
been found by the autopsy surgeon but
there was no fracture on his head. The
incident has been witnessed by PW-1,
Bhoj Raj and PW-2, Sone Lal and both
these witnesses have duly supported the
prosecution case.

22. We find no force in the
argument of the defence that only
interested witnesses have been examined.
Law in this respect is very clear.

It is well settled principle of law
that the evidence of an interested witness
should not be equated with that of a
tainted evidence or that of an approver so
as to require corroboration as a matter of
necessity. All that the Courts required as a
rule of prudence, not as a rule of law, was
that the evidence of such witness should
be scrutinized with a little care. It has to
be realized that related and interested
witness would be the last persons to
screen the real culprits and falsely
substitute innocent ones in their places.
Indeed there may be circumstances where
only interested evidence may be available
and no other, e.g. when an occurrence
takes place at midnight in the house when
the only witnesses who could see the
occurrence may be the family members.
In such cases, it would not be proper to
insist that the evidence of the family
members should be disbelieved merely
because of their interestedness. But once
such witness was scrutinized with a little care
and the Court was satisfied that the evidence
of the interested witness have a ring of truth
such evidence could be relied upon even
without corroboration. Thus, the evidence
cannot be disbelieved merely on the ground
that the witnesses are related to each other or
to the deceased. In case the evidence has a
ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should, be
relied upon. (See Anil Rai vs. State of Bihar
(2001) 7 SCC 318; State of U.P. vs. Jagdeo
Singh (2003) 1 SCC 456; Bhagalool Lodh
& Anr. vs. State of U.P. (2011) 13 SCC
206; Dahari & Ors. vs. State of U.P. (2012)
10 SCC 256; Raju @ Balachandran &
Ors. vs. State of Tamil Nadu (2012) 12
SCC 701; Gangabhavani vs. Rayapati
Venkat Reddy & Ors. (2013) 15 SCC 298;
Jodhan vs. State of M.P. (2015) 11 SCC
52).

23. The Supreme Court in the matter
of Bur Singh and Anr. vs. State of
358 INDIAN LAW REPORTS ALLAHABAD SERIES
Punjab, (2008) 16 SCC 65 has held that
merely because the eyewitnesses are
family members their evidence cannot per
se be discarded. When there is allegation
of interestedness, the same has to be
established. Mere statement that being
relatives of the deceased they are likely to
falsely implicate the accused cannot be a
ground to discard the evidence which is
otherwise cogent and credible. Further,
the Supreme Court in the matter of
Sudhakar vs. State, AIR 2018 SC 1372
and Ganapathi vs. State of Tamil Nadu,
AIR 2018 SC 1635 relying in its earlier
judgments held as under:

"18. Then, next comes the
question 'what is the difference between a
related
witness
and
an
interested
witness?. The plea of "interested witness",
"related witness" has been succinctly
explained by this Court that "related" is
not equivalent to "interested". The witness
may be called "interested" only when he
or she derives some benefit from the
result of a litigation in the decree in a
civil case, or in seeing an accused person
punished. In this case at hand PW 1 and 5
were not only related witness, but also
'interested witness' as they had pecuniary
interest in getting the accused petitioner
punished.
[refer
State
of
U.P.
v.
Kishanpal and Ors., (2008) 16 SCC 73] :
(2008 AIR SCW 6322). As the prosecution
has relied upon the evidence of interested
witnesses, it would be prudent in the facts
and circumstances of this case to be
cautious while analyzing such evidence. It
may be noted that other than these
witnesses, there are no independent
witnesses available to support the case of
the prosecution."

Relationship is not a factor to
affect credibility of a witness. There is no
proposition in law that relatives are to be
treated as untruthful witnesses. On the
contrary, reason has to be shown when a
plea of partiality is raised to show that the
witnesses had reason to shield the actual
culprit and falsely implicate the accused.
A witness who is a relative of deceased or
victim
of
the
crime
cannot
be
characterized as 'interested'. The term
'interested' postulates that the witness has
some direct or indirect 'interest' in having
the accused somehow or other convicted
due to animus or for some other oblique
motive. A close relative cannot be
characterized as an 'interested' witness.
He is a 'natural' witness. His evidence,
however, must be scrutinized carefully. If
on such scrutiny his evidence is found to
be
intrinsically
reliable,
inherently
probable
and
wholly
trustworthy,
conviction can be based on the 'sole
testimony of such witness. (See- Harbans
Kaur and another vs. State of Haryana,
2005 AIR SCW 2074; Namdeo vs. State
of Maharashtra, 2007 AIR SCW 1835;
Sonelal vs. State of M.P., 2008 AIR
SCW 7988; and Dharnidhar vs. State of
Uttar Pradesh and Others & other
connected appeals, (2010) 7 SCC 759).

24. PW-1, Bhoj Raj and PW-2, Sone
Lal appear to be wholly trustworthy and
we have no reason to disbelieve their
statements. Considering their statements,
which has been duly supported by the
medical and postmortem report of the
deceased, complicity of the appellants in
commission of offence has been duly
proved by the prosecution.

25. The next question which arises
for the consideration of this Court is as to
what offence has been committed by the
accused persons. Both the accusedappellants Jai Dutt and Shashtri have
2 All. Rajjan @ Yogesh Kumar Vs State of U.P.
359
actively participated in the 'marpeet' and
caused injuries to the deceased.

26. Considering all the aspects of the
case, in particular, the fact that the
deceased died after six days of the
incident, no fracture of head was found,
we are of the considered view that the act
of the appellants would fall under Section
326 of IPC and not under Section 302/34
of IPC or 302 of IPC. Accordingly, we
hold that appellants Jai Dutt and Shahstri
are liable to be convicted under Section
326 of IPC.

27. The next question which arises
for consideration of this Court is as to
what would be appropriate sentence to be
imposed upon the accused-appellants. The
incident occurred about 36 years back and
therefore, we are of the view that jail
sentence of two years would be sufficient
to meet the ends of justice and we order
accordingly.
In
addition
accusedappellants Jai Dutt and Shashtri are
directed to pay monetary compensation of
Rs. 1 lakh each to the objector Raman
Babu.

28. Taking cumulative effect of the
evidence and the facts, and further
considering the judgment of the Apex
Court in Ankush Shivaji Gaikwad vs.
State of Maharashtra, (2013) 6 SCC 770,
we are of the view that accused-appellants
Jai Dutt and Shashtri are liable to
compensate to objector, Raman Babu by
paying a compensation of Rs. 2,00,000/-
under
Section
357
of
Cr.P.C.
Accordingly, during this period of two
years, accused-appellants Jai Dutt and
Shashtri are directed to deposit Rs.
2,00,000/- before the trial court and, in
turn, the trial court shall disburse the said
amount to the objector, Raman Babu. In
case, accused-appellants fail to deposit the
compensation within stipulated time, they
shall undergo the additional jail sentence
of one year and the court below shall
proceed against them in the light of
judgment of the Apex Court reported in
Kumaran Vs State of Kerala and another
(2017) 7 SCC 471.

29. Accused-appellants Jai Dutt and
Shashtri are reported to be on bail. Their
bail bonds stand cancelled and they be
taken into custody immediately for
serving the remaining sentence.

30. The appeal is partly allowed.
----------

(2019)10ILR A 359

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 309 of 1999

Rajjan @ Yogesh Kumar
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ravindra Singh, Sri Akhilesh Singh, Sri
Dinesh Kumar Maurya, Sri Shivam Yadav.

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

A. Indian Penal Code, 1860 - Section 302
and 201 - Appeal against conviction-
There should not be any snap in the
chain of circumstances if the conviction