# Lal Chand Gupta v. State

- **Citation:** (2019) 3 ILRA 513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-27
- **Case number:** Jail Appeal No. 2710 of 2012
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-chand-gupta-v-state-44812
- **Pages:** 14

## Headnote

Evidence
Law-Indian
Evidence
Act,1872 - Ocular evidence - direct
evidence - Incident took place in day
light - presence of injured witnesses
cannot be easily ignored - testimony of
514 INDIAN LAW REPORTS ALLAHABAD SERIES
an injured witness is accorded a special
status in law - Non-availability of blood
at the door of deceased does not falsify
prosecution case - where direct evidence
is trustworthy, it can be believed. Then
motive does not carry much weight.
Merely because witnesses are close
relatives
of
the
deceased,
their
testimonies cannot be discarded - Court
has to adopt a careful approach and
analyse evidence to find out whether it
is cogent and credible evidence - medical
evidence is totally compatible
with
ocular version - discrepancies, variation
and contradiction in the prosecution
case do not go to the root of case -
accused-appellant committed murder of
deceased and caused injuries to PW-1
and 2 at the time, date and place as
stated by prosecution - PW-1 and PW-2
are natural witnesses - prosecution is
not obliged to produce an independent
witness - prosecution has been able to
prove its case beyond reasonable doubt -
punishment should be proportionate to
gravity of offence - Trial Court has
rightly
convicted
and
sentenced
him.(Para
19,28,31,34,35,38,43,
45,
51,
53,54)

Jail appeal dismissed (E-7)

List of cases cited:-

## Text

_Characters 0–39,990 of 43,134. This is a partial read: ask again with offset=39990 for what follows._

3 All. Lal Chand Gupta Vs. State
513

128. In Gopal Singh Vs. State of
Uttarakhand, 2013 (3) JT 444, court
said that:

"Just punishment is the collective
cry of the society. While the collective cry has
to
be
kept
uppermost
in
the
mind,
simultaneously the principle of proportionality
between the crime and punishment cannot be
totally brushed aside. The principle of just
punishment is the bedrock of sentencing in
respect of a criminal offence"

129. In Hazara Singh Vs. Raj
Kumar and another, 2013 (9) SCC 516,
Court observed:

"We also reiterate that undue
sympathy to impose inadequate sentence
would do more harm to the justice
system
to
undermine
the
public
confidence in the efficacy of law. It is the
duty of every court to award proper
sentence having regard to the nature of
the offence and the manner in which it
was executed or committed. The Court
must not only keep in view the rights of
the victim of the crime but also the
society at large while considering the
imposition of appropriate punishment."

(Emphasis added)

130. A feeble attempt was made by
learned counsel for appellant to suggest
that punishment awarded under Sections
376 and 201 I.P.C. may also be reduced
but neither he could give any valid
justification for the same nor we find any
such reason to dilute sentence awarded to
appellant by Court below under Sections
376 and 201 I.P.C. Therefore, judgment
of Court below in respect to sentence
awarded for offences under Sections 376
and 201 I.P.C. is hereby confirmed.

131. In view of above discussions,
Reference No. 6 of 2011 is hereby
rejected. Capital Cases (Appeals) No.
2330 of 2011 and 4173 of 2011 are partly
allowed and judgment of Trial Court
stands modified only in respect of
punishment awarded for offence under
Section 302 I.P.C. and substituted by life
imprisonment. The punishment imposed
for the offences under Sections 376 and
201 I.P.C. are maintained.

132. Let a copy of this judgment
along with the Trial Court record be sent
to the Court concerned for compliance.
Copy of the judgment be also sent to
accused-appellant
through
Jail
Superintendent concerned for intimation.
Compliance report be also submitted to
this Court.
----------
(2019)11ILR A513

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2019

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

Jail Appeal No. 2710 of 2012

Lal Chand Gupta ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri I.P. Singh (A.C.)

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

A.
Evidence
Law-Indian
Evidence
Act,1872 - Ocular evidence - direct
evidence - Incident took place in day
light - presence of injured witnesses
cannot be easily ignored - testimony of
514 INDIAN LAW REPORTS ALLAHABAD SERIES
an injured witness is accorded a special
status in law - Non-availability of blood
at the door of deceased does not falsify
prosecution case - where direct evidence
is trustworthy, it can be believed. Then
motive does not carry much weight.
Merely because witnesses are close
relatives
of
the
deceased,
their
testimonies cannot be discarded - Court
has to adopt a careful approach and
analyse evidence to find out whether it
is cogent and credible evidence - medical
evidence is totally compatible
with
ocular version - discrepancies, variation
and contradiction in the prosecution
case do not go to the root of case -
accused-appellant committed murder of
deceased and caused injuries to PW-1
and 2 at the time, date and place as
stated by prosecution - PW-1 and PW-2
are natural witnesses - prosecution is
not obliged to produce an independent
witness - prosecution has been able to
prove its case beyond reasonable doubt -
punishment should be proportionate to
gravity of offence - Trial Court has
rightly
convicted
and
sentenced
him.(Para
19,28,31,34,35,38,43,
45,
51,
53,54)

Jail appeal dismissed (E-7)

List of cases cited:-

1. Abdul Sayeed Vs St. of M.P. (2010) 10 SCC 259

2. St. of U.P. Vs Kishan Chand (2004) 7 SCC 629

3. Lokesh Shivakumar Vs St. of Kar. (2012) 3
SCC 196

4. Dilip Singh Vs St. of Pun. AIR (1953), SC 364.

5. Dharnidhar Vs St. of U.P. (2010) 7 SCC 759
6. Ganga Bhawani Vs Rayapati Venkat Reddy
& ors. (2013) 15 SCC 298

7. Sampath Kumar Vs Inspector of Police,
Krishna giri, (2012) 4 SCC 124

8. Sachin Kumar Singhraha Vs St. of M.P.

9. Smt. Shamim Vs St. of (NCT of Delhi)
10. State Represented by Inspector of Police
Vs Saravanan & anr., AIR (2009) SC 152;

11. Arumugam Vs St. AIR (2009) SC 331;

12. Mahendra Pratap Singh Vs St. of U.P.
(2009) 11 SCC 334; and

13. Dr. Sunil Kumar Sambhudayal Gupta &
ors. Vs St. of Mah. JT (2010) 12 SC 287

14. Sumer Singh Vs Surajbhan Singh & ors.
(2014) 7 SCC 323,

15. Sham Sunder Vs Puran (1990) 4 SCC 731,

16. M.P. Vs Saleem, (2005) 5 SCC 554,

17. Ravji Vs St. of Raj. (1996) 2 SCC 175

(Delivered by Hon'ble Rajendra KumarIV, J.)

1. Accused-appellant-Lal Chand
Gupta faced trial in Sessions Trial No.
110 of 2009 (State v. Lal Chand Gupta,
Case Crime No. 1343 of 2008) under
Sections 302, 307, 504 and 506 IPC,
Police Station Gagha, District Gorakhpur,
which came to be heard and decided by
Additional Sessions Judge (Ex-cadre-2),
Court No.14, Gorakhpur, vide judgment
dated 17.03.2012, Trial Court convict
accused-appellant under Sections 302,
324 and 504 IPC and sentenced him to
undergo life imprisonment with a fine of
Rs. 5000/- under Section 302 IPC, 3 years
under Section 324 IPC with a fine of
Rs.2000/- and one year under Section 504
IPC but acquitted of charge under Section
506 IPC. All the sentences shall run
concurrently.
Accused-appellant
has
sought interference of this Court in the
present Jail Appeal filed from Jail through
Jail Superintendent concerned.

2. Factual matrix of the case as
borne out from First Information Report
3 All. Lal Chand Gupta Vs. State
515
(hereinafter referred to as "FIR") as well
as material placed on record, in brief, is
that PW-1, Shatrughan Vishwakarma,
presented a written report Ex.Ka-1 in
Police Station Gagha, District Gorakhpur
stating that a goat of accused-appellant
was grazing in his field. His brother,
victim Govind Vishwakarma, brought the
goat and tied it at the door. He (PW-1),
victim Govind Vishwakarma, and Ganesh
Sharma (PW-2) of same village went to
the
house
of
accused-appellant
for
complaint. Accused was beating his wife,
when they reached the house of accused.
They enquired, why he was beating his
wife. His goat was grazing in his field,
which was apprehended and taken away,
whereupon, accused started abusing and
extending threat to take life. When he
objected to abusing, accused-Lal Chand
Gupta took out knife and with intention to
kill, stabbed in chest of victim. When
PW-1 and PW-2 tried to capture him, he
attacked them also with intention to kill.
Victim rushed to house and fell down.
PW-1 and PW-2 also received injuries in
the
said
incident.
While
making
arrangement to hospital, victim-Govind
Vishwakarma succumbed to injuries.
Incident took place at about 5:00 p.m.
Dead body was lying on the spot. Incident
was witnessed by Lok Nath and many
persons of village.

3. On the basis of a written report
Ex.Ka-1, a chick F.I.R. Ex.Ka-2 was
registered by PW-3, HC Ramkesh, as
Case Crime No.1343 of 2008 under
Sections 302, 307, 504 and 506 IPC
against accused. Entry of case was made
in General Diary, copy whereof is Ex.Ka3.

4. Under the direction of PW-8,
R.K. Ravi held inquest over dead body of
deceased-Govind Vishwakarma, prepared
panch-nama Ex.Ka-5 and other papers
relating thereto. Body was duly sealed
and sent to District Hospital Gorakhpur
for postmortem.

5. PW-7, Dr. Gyan Chandra,
conducted autopsy over dead body of
deceased-Govind
Vishwakarma
and
prepared postmortem report Ex.Ka-7
under his signature, expressing his
opinion that death of deceased was
possible on 27.11.2008 at about 5:00 p.m.
due to shock and hemorrhage as a result
of ante-mortem injuries found on the
person of deceased which might have
been caused by some sharp cutting
weapon like knife. Doctor found antemortem injuries on the body of deceased
as under :-

(I) Incised wound 4 cm x 2 cm
x bone deep over left side chest, 14 cm
below the left clavicle.

6. PW-6, Dr. D.P. Singh, conducted
medical examination of PW-1 Shatrughan
Vishwakarma and prepared medico-legal
report Ex.Ka-6. Doctor found a linear
abrasion of 3 cm, incised, obliquely
situated over left side of chest, and opined
that it might have been caused by some
sharp weapon on 27.11.2008 at about
5:00 p.m. and was simple in nature.

7. PW-10, Doctor Chadra Prakash
conducted
medical
examination
of
Ganesh Sharma, PW-2 and prepared
injury report Ex.Ka-12. Doctor found one
penetrating wound 3.5cm x 0.5cm x
3.5cm present over left side back about
8.0 cm below left scapula.

8. PW-8, Ravinder Kumar Ravi,
commenced
investigation,
recorded
516 INDIAN LAW REPORTS ALLAHABAD SERIES
statement
of
PW-1,
Shatrughan
Vishwakarma,
and
other
witnesses,
visited spot, prepared site plan Ex.Ka.-9,
collected blood stained and simple earth
from spot, prepared memo thereof Ex.Ka8. On 04.12.2008, he arrested accused and
on his pointing, recovered blood stained
knife, allegedly used in commission of
offence, from bushes of Bamboo near his
house, prepared memo thereof Ex.Ka-4.
Investigating Officer recorded statement
of other witnesses and after completion of
necessary formalities, submitted chargsheet, Ex.Ka-11, against accused under
Sections 302, 307, 504 and 506 IPC
before
Chief
Judicial
Magistrate,
concerned.

9. Case, being exclusively triable by
Court of Sessions, was committed by
Chief Judicial Magistrate to Sessions
Court wherefrom, it was transferred to
Additional Sessions Judge (FTC), Court
No.3,
Gorakhpur
for
disposal
in
accordance with law.

10. Trial Court, after considering the
entire material on record, framed charges
against accused-appellant under Section
302 IPC on 28.05.2009 and under
Sections 307, 504 and 506 IPC on
04.08.2009, which read as under:

" आर प

मैं, अजय कुमार श्रीवास्तव अपर
सत्र
न्यायाधीि
/एफ०िी०सी०
क ०नं०3,
ग रखपुर आप श्री लालचन्द गुिा क र्नम्न
आर प से आर र्पत र्कया गया।

प्रथमः-यह र्क र्िनांक 27.11.2008
क समय करीब 5.00 बजे िाम बहिग्राम-
क हडा, थाना- गगहा, र्जला- ग रखपुर में
बकरी चरने के र्ववाि क ले करके वािी
मुकिमा ित्रुध्न के भाई ग र्वन्द र्वश्वकमाि क
जान से मारने की र्नयत से चाकू से उसके
सीने में मारना और उसक पकडने के र्लये
वािी मुकिमा व गणेि िमाि गये त उनक भी
चाकू से मार कर गम्भीर च िे पहुचाये। उक्त
च िे से वािी मुकिमा के भाई ग र्वन्द
र्वश्वकमाि क प्राण घातक च िे आने के कारण
उसकी मृत्यु ह गयी। इस प्रकार आप ने धारा-
302 भा०िं०सं० के अन्तगित िण्डनीय अपराध
र्कया ज इस न्यायाय के प्रसंज्ान में है।

एति् द्वारा मै आप क र्निेर्ित
करता हाँ र्क उपर क्त आर प का परीक्षण इसी
न्यायालय द्वारा र्कया जायेगा। "

"I, Ajay Kumar Srivastava,
Additional Sessions Judge / FTC No. 3,
Gorakhpur do hereby charge you Shri Lal
Chand Gupta with the following offence:

First: That on 27.11.2008 at
around 5 pm within the limits of Village
Kohda, PS Gagha, District Gorakhpur;
you, on account of a dispute regarding
grazing the goat, stabbed a knife into the
chest
of
complainant
Shatrughan's
brother Govind Vishwakarma with the
intent to kill him; and when the
complainant and Ganesh Sharma went to
catch hold of you, you also caused grave
injuries by attacking them with the knife.
As a result of the critical injuries so
caused, the complainant's brother Govind
Vishwakarma died. In this way, you have
committed an offence punishable u/s 302
of IPC, which is within the cognizance of
this court.

It is hereby directed that you be
tried by this court for the aforesaid
offence."

(English Translation by Court)

"मै, अजय कुमार श्रीवास्तव, अपर
सत्र
न्यायाधीि
/एफ०िी०सी०
क ०नं०3
ग रखपुर आप श्री लालचन्द गुिा क र्नम्न
आर प से आर र्पत करता हाँ।
3 All. Lal Chand Gupta Vs. State
517

प्रथमः-
यह
र्क
र्िनांकः
27.11.2008 क समय करीब 5.00 बजे बहि
ग्राम-क हडा, थाना- गगहा, र्जला- ग रखपुर में
बकरी चरने के र्ववाि क लेकर के वािी
मुकिमा ित्रुध्न के भाई ग र्वन्द िमाि क जान
से मारने की र्नयत से चाकू से उसके सीने में
मारा और जब पकडने के र्लये वािी मुकिमा
ित्रुध्न एवं गणेि िमाि गये त उनक भी चाकू
से जान मारने की र्नयत से मारे पीिे,र्जससे
उनक प्राण घातक च िे आई। इस प्रकार आप
ने धारा-307 भा०ि० सं० के अन्तगित िण्डनीय
अपराध र्कया ज इस न्यायालय के प्रसंज्ान में
है।

नितीयः- यह र्क उपर क्त र्िनांक,
समय व स्थान पर आप ल ग ने वािी मुकिमा
व उसके भाई तथा उसके पररवार के ल ग क
अपमार्नत करने के आिय से गाली गुिा
र्िये, र्जससे उसकी सामार्जक प्रर्तष्ठा र्गरी,
इस प्रकार आपने धारा- 504 भा०ि०सं० के
अन्तगित िण्डनीय अपराध र्कया, ज इस
न्यायालय के प्रसंज्ान में है।

तृतीयः- यह र्क उपर क्त र्िनांक,
समय व स्थान पर आपने वािी मुकिमा व
उसके भाई तथा उनके पूरे पररवार के ल ग
क भर्वष्य में भयभीत रहने के आिय से जान
माल की धमकी र्िये र्जससे वे ल ग हमेिा
आतंर्कत रहते है। इस प्रकार आप ने धारा
506 भा०िं०सं० का अपराध र्कया है।

एति् द्वारा मै आप ल ग क
र्निेर्ित करता हाँ र्क उपर क्त आर प का
परीक्षण इसी न्यायालय द्वारा र्कया जायेगा।"

"I, Ajay Kumar Srivastava,
Additional Sessions Judge / FTC No. 3,
Gorakhpur do hereby charge you Shri Lal
Chand Gupta with the following offences:

First: That on 27.11.2008 at
around 5 pm within the limits of Village
Kohda, PS Gagha, District Gorakhpur;
you, on account of a dispute regarding
grazing the goat, stabbed a knife into the
chest
of
complainant
Shatrughan's
brother Govind Vishwakarma with the
intent to kill him; and when the
complainant Shatrughan and Ganesh
Sharma went to catch hold of you, you
also attacked him with knife with the
intent to kill him; as a result of which he
sustained critical injuries. In this way,
you
have
committed
an
offence
punishable u/s 307 of IPC, which is
within the cognizance of this court.

Second: That on the aforesaid
date, time and place, you used filthy
language
in
order
to
insult
the
complainant, his brother and his family;
thus bringing their social status down. In
this way, you have committed an offence
punishable u/s 504 IPC, which is within
the cognizance of this court.

Third: That on the aforesaid
date, time and place, you, with an intent
to put the complainant, his brother and
all his family members to intimidation
even in the future, threatened to kill them
and to destroy their property; as a result
of which they are always under fear. In
this way, you have committed an offence
punishable u/s 506 IPC, which is within
the cognizance of this court.

It is hereby directed that you be
tried by this court for the aforesaid
offence."

(English Translation by Court)

11. Accused denied charges levelled
against him and claimed trial.

12. In order to substantiate its case,
prosecution examined as many as ten
witnesses in the following manner :

Sr.
No.
Name of PW
Nature of
witness
Paper
proved
1
Shatrughan
Fact
Ex.Ka-1
518 INDIAN LAW REPORTS ALLAHABAD SERIES
Vishwakarma
& Ex. Ka2
2
Ganesh Sharma
Fact
Ex.Ka-11
3
HC Ramkesh
Formal
Ex.Ka-2
& Ex. Ka3
4
Dwarika
Nath
Vishwakarma
Formal
Ex.Ka-4
(recovery
memo)
5
Jitendra Vishwakarma
Formal
Ex.Ka-5
(inquest)
6
Dr. DP Singh
Formal
Ex.Ka-6
7
Dr. Gyan Chandra
Formal
Ex.Ka-7
8
Ravindra Kumar Ravi
(IO)
Formal
Ex.Ka-4,
Ex.Ka-8
and
Ex.Ka-11
9
Vijay
Kumar
(constable)
Formal
Ex. Ka-10
10 Dr. Chandra Prakash
Formal
Ex.Ka-12
(Injury
report)

13. Subsequent to closure of
prosecution
evidence,
statement
of
accused under Section 313 Cr.P.C. was
recorded
by
Court
explaining
all
incriminating circumstances and other
evidence. Accused denied prosecution
story in toto and all formalities of
investigation were said to be wrong. He
claimed false implication on account of
enmity and statement of witnesses were
said to be wrong. In response of question
6, accused answered that informant and
his brother (deceased) had come with
knife and Danda to his house, assaulted
him, due to which he sustained injury on
his head and they wanted to take his life
by cutting his neck. Complainant side
must have suffered injuries while making
defence. Accused examined DW-1, Jai
Kirshna Mishra, in defence.

14. After hearing counsel for parties
and analyzing entire evidence led by
prosecution on record, Trial Court has
found
accused-appellant
guilty
and
convicted him, as stated above. Feeling
aggrieved and dissatisfied with impugned
judgment and order of conviction and
sentence, present appeal has been filed
through Jail.

15. We have heard Sri I.P. Singh,
Amicus Curiae for accused-appellant and
Sri Nikhil Chaturvedi, learned A.G.A for
State-respondents, at length, and have
gone through record carefully with
valuable assistance of learned counsel for
parties.

16.

Learned
Amicus
Curiae
appearing for accused-appellant took us
through record and challenged conviction
and
sentence
of
accused-appellant,
advancing
his
submissions,
in
the
following manners :-

i. There is no independent
witness of the incident. PW-1 is a relative
witness. No independent witness came
forward to support prosecution case. PW1 and deceased themselves had come to
the house of accused-appellant to take his
life.

ii. There is no motive to
accused-appellant to commit murder of
Govind Vishwakarma and cause injuries
to PW-1.

iii.
There
are
several
contradictions
rendering
prosecution
doubtful.

iv. Prosecution story inspires no
confidence.

v. Witnesses are not natural.
Prosecution has failed to prove its case
beyond
reasonable
doubt.
Accused-
3 All. Lal Chand Gupta Vs. State
519
appellant is entitled to benefit of doubt
and deserves acquittal.

vi.
Trial
Court
did
not
appreciate prosecution evidence with full
care and cautious.

vii. Medical evidence also does
not go with prosecution version.

17. Per contra learned AGA
supported
impugned
judgment
and
submitted that it is a day light murder and
a case of direct evidence, in which, victim
sustained knife injuries and succumbed to
death. PW-1 and 2 also received injuries
in the same incident, that is why, their
presence on the spot cannot be doubted.
Even
otherwise,
accused-appellant
himself admitted to be present on the spot
on the date of incident. Thus, Trial Court
has rightly convicted and sentenced him.

18. Although time, date, place of
incident and murder of victim, could not
be disputed from the side of defence but
according to learned counsel for accusedappellant, he is not responsible for
committing
murder
of
Govind
Vishwakarma and causing injuries to PW1 and 2. From statements of PW-1, 2, 6
and 7 and defence witness also time, date,
place of incident and presence of
deceased on the spot stand proved.

19. Admittedly, this is a case of
direct
evidence,
in
which,
Govind
Vishwakarma was murdered and PW-1
and 2 were injured. Incident took place in
day
light.
Accused-appellant
and
complainant, being resident of same
village, are known to each other.
Accused-appellant has himself admitted
his presence on the date of incident in his
statement under Section 313 Cr.P.C.

20. Thus, two questions are up for
consideration of this Court i.e. "Whether
accused-appellant
is
responsible
for
committing murder of victim-Govind
Vishwakarma and causing serious injuries
to PW-1 and PW-2" and "Whether Trial
Court has rightly convicted accusedappellant or not?"

21. We now proceed to consider
briefly, evidence of prosecution and some
relevant judgments.

22.

PW-1
deposed
that
on
27.11.2008, at about 5:00 pm, a goat of
accused-appellant was grazing in his
field. His brother, Govind Vishwakarma
(victim), caught and tied it in his house.
When
PW-1,
Govind
Vishwakarma
(victim) and Ganesh Sharma (PW-2) went
to the house of accused-appellant to make
a complaint, they saw that accusedappellant was beating his wife whereupon
they objected and asked why he was
beating his wife and told him that his goat
was grazing in his field and they tied it at
the
door.
Accused-appellant
started
abusing and threatening them of taking
their life. When they objected him for
abusing, accused-appellant, with intention
to kill, took out knife, and stabbed in
chest of victim. He and Ganesh Sharma
tried to apprehend accused-appellant but
accused
attacked
them
with
knife,
resultantly, PW-1 himself, and Ganesh
Sharma (PW-2) received knife injuries.
Victim rushed to his house, fell down in
Varandah and succumbed. Many persons
of village have seen the incident. It is
further deposed that he got scribed Tehrir,
Ex. Ka-1, by one Sadhu Saran Sharma
(not examined), put his signature and
presented to Police Station concerned.
Witness got injured while saving his
brother in incident.
520 INDIAN LAW REPORTS ALLAHABAD SERIES

23. PW-2, Ganesh Sharma, deposed
that on 27.11.2008, a goat of accusedappellant was grazing in the field of victim
whereupon he caught and tied it on the door
of his house. Thereafter, at 5:00 pm, he
(witness), victim Govind Vishwakarma,
Satrughan Vishwakarma, PW-1, went to the
house of accused-appellant for making
complaint and witnessed that he was
beating his wife. They asked him why he
was beating his wife that they took his goat
who was grazing in the field. Accusedappellant started abusing in filthy language
and threatened them. When victim objected
him for abusing, accused stabbed knife in
chest of victim. He and Shatrughan, PW-1,
rushed to save him, accused-appellant
attacked them with knife. He received
injury on his back. Accused-appellant ran
away towards Banswari. Victim, Govind
Vishwakarma, succumbed to death in his
house. He was also medically examined in
Sadar Hospital. Incident was witnessed by
Lok Nath Sharma and many persons also.

24. Both PW-1 and PW-2 withstood
lengthy cross examination but nothing
material could be brought so as to
disbelieve their testimony. Evidently,
PW-1 and PW-2 got injured in the same
incident, hence their presence cannot be
doubted.

25. PW-6, Dr. D.P. Singh, deposed
that on 28.11.2008, he was posted, as
Medical Officer; medically examined
Shatrughan Vishwakarma; and found a
linear abrasion of 3 cm incised obliquely
situated over the left side of chest and
opined that it might have been caused by
some sharp weapon on 27.11.2008 at
about 5:00 p.m. and was simple in nature.

26. PW-10, Dr. Chand Prakash,
deposed that on 27.11.2008, while posting
in
District
Hospital
Gorakhpur,
he
medically examined Ganesh Sharma and
found one penetrating wound 3.5 x 0.5
cm x 3.5 cm present over left side back
about 8.0 cm below left scapula.

27. Evidently, PW-1 and 2 sustained
injuries in the same incident. PW-1,
Shatrughan Vishwakarma, sustained one
injury caused by sharp object and PW-2,
Ganesh Sharma, sustained penetrating
wound caused by sharp pointed object.
All the injuries are simple in nature and
fresh. Injury report Ex.Ka-6 and 12
respectively corroborate this fact which
also find support from the evidence of Dr
D.P. Singh, PW-16, and Dr. Chandra
Prakash, PW-10.

28. It is settled that presence of
injured
witnesses
cannot
be
easily
ignored. Normally an injured witness
would enjoy greater credibility because
he has suffered himself,thus, there will no
occasion for such a person to state an
incorrect version of occurrence or to
involve anybody falsely and in the
bargain, protect real culprit. We need not
discuss more elaborately the weightage
that should be attached by this Court to
the testimony of injured persons since this
aspect of criminal jurisprudence is no
more res-inegra.

29. In Abdul Sayeed Vs. State of
Madhya Pradesh, (2010) 10 SCC 259,
Court held as under :-

"28. The question of the weight
to be attached to the evidence of a witness
that was himself injured in the course of
the occurrence has been extensively
discussed by this Court.

Where
a
witness
to
the
occurrence has himself been injured in
3 All. Lal Chand Gupta Vs. State
521
the incident, the testimony of such a
witness is generally considered to be very
reliable, as he is a witness that comes
with a built-in guarantee of his presence
at the scene of the crime and is unlikely
to spare his actual assailant(s) in order to
falsely implicate someone. "Convincing
evidence is required to discredit an
injured witness." [Vide Ramlagan Singh
v. State of Bihar, Malkhan Singh v. State
of U.P., Machhi Singh v. State of
Punjab, Appabhai v. State of Gujarat,
Bonkay vs. State of Maharashtra, Bhag
Singh, Mohar v. State of U.P. (SCC p.
606b-c), Dinesh Kumar v. State of
Rajasthan, Vishnu v. State of Rajasthan,
Annareddy Sambasiva Reddy v. State of
A.P.
And
Balraje
v.
State
of
Maharashtra.]

29. While deciding this issue, a
similar view was taken in Jarnail Singh
v. State of Punjab, where this Court
reiterated the special evidentiary status
accorded to the testimony of an injured
accused and relying on its earlier
judgments held as under: (SCC pp. 72627, paras 28-29) "28. Darshan Singh (PW
4) was an injured witness. He had been
examined by the doctor. His testimony
could not be brushed aside lightly. He
had given full details of the incident as he
was present at the time when the
assailants reached the tubewell. In
Shivalingappa Kallayanappa v. State of
Karnataka this Court has held that the
deposition of the injured witness should
be relied upon unless there are strong
grounds for rejection of his evidence on
the basis of major contradictions and
discrepancies, for the reason that his
presence on the scene stands established
in case it is proved that he suffered the
injury during the said incident.

(Emphasis added)

30. In State of U.P. v. Kishan
Chand (2004) 7 SCC 629, referring the
judgement of Krishna vs State Of
Haryana on 12 July, 1994, a similar
view has been reiterated by Court,
observing that testimony of a stamped
witness has its own relevance and
efficacy. The fact that the witness
sustained injuries at the time and place of
occurrence, lends support to his testimony
that he was present during the occurrence.
In case the injured witness is subjected to
lengthy cross-examination and nothing is
elicited to discard his testimony, it should
be relied upon.

31. The law on the point can be
summarised to the effect that testimony of
an injured witness is accorded a special
status in law. This is as a consequence of
the fact that the injury to the witness is an
inbuilt guarantee of his presence at the
scene of crime. Such witness will not
want to let his actual assailant go
unpunished merely to falsely implicate a
third party for the commission of the
offence. Thus, the deposition of injured
witness should be relied upon unless there
are strong grounds for rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies therein.

32. According to learned counsel for
accused-appellant, evidently, dead body
was found at the door of Informant, while
blood was not found at the door of
deceased, therefore, dead body was
shifted from anywhere to the door of
deceased and it was not the prosecution
case.

33. Admittedly, dead body was
found at the door of deceased and inquest
report was prepared there. It has also
come in evidence of PW-8 that blood was
522 INDIAN LAW REPORTS ALLAHABAD SERIES
not found at the door of deceased but PW1 and PW-2 categorically stated in his
statement that accused-appellant stabbed
knife in front of his house; victim ran to
his house; fell down and succumbed to
injuries at his door. PW-8 stated that
blood stained was seen on the way
leading to informant' house from accusedappellant's house.

34. Non-availability of blood at the
door of deceased does not falsify
prosecution case for the reasons that
incident took place in front of accusedappellant's house, which was proved by
PW-1, PW-2 and PW-8 and victim rushed
to his house, where he fell down and died.
Therefore, submission of learned counsel
for accused-appellant is not acceptable
and we reject the same.

35. So far as motive is concerned, 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.
We do not find any substance in the
argument advanced by learned counsel
for appellant.

36. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
has held under :-

"As regards motive, it is well
established that if the prosecution case is
fully established by reliable ocular
evidence coupled with medical evidence,
the issue of motive looses practically all
relevance. In this case, we find the ocular
evidence led in support of the prosecution
case wholly reliable and see no reason to
discard it."

37. Next argument of learned
counsel for accused-appellant is that PW1 is real brother of victim and he is not an
independent
witness.
We
are
not
impressed upon with the same for the
reasons that testimony of related witness
cannot be discarded only on the ground of
relationship with victim or accused.

38. It is settled law that merely
because witnesses are closely relative to
deceased, 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 evidence to find out whether it is
cogent and credible evidence.

39. Testimony of eye witness
merely because he happens to be a
relative of the deceased cannot be
discarded as a 'close relative' would be
last one to screen out the real culprit and
implicate innocent person as held in Dilip
Singh v. State of Punjab, AIR,1953, SC
364. Court has held:-

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to
be tainted and that usually means unless
the witness has cause, such as enmity
against the accused, to wish to implicate
him falsely. Ordinarily, a close relative
would be the last to screen the real culprit
and falsely implicate an innocent person.
It is true, when feelings run high and
there is personal cause' for enmity, that
3 All. Lal Chand Gupta Vs. State
523
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."

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

"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"

41. In Ganga Bhawani v. Rayapati
Venkat Reddy and Others, 2013(15)
SCC 298, Court said :-

"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)."

42. So far as the genesis of
prosecution story and medical evidence is
concerned, PW-1 and PW-2 categorically
deposed that on the date of incident, goat
of accused was grazing in field of victim
who brought it and tied at the door of his
house and went to house of accused for
making complaint where above incident
took place.

43. PW-1 and PW-2 supported
prosecution case. PW-6, Investigating
Officer, found blood in Varandah of
accused.
In
this
way,
genesis
of
prosecution stands established. PW-6, Dr.
DP Singh, PW-7 Dr. Gyan Chandra, and
PW-8,
Dr.
Chand
Prakash,
proved
medical reports. All three doctors opined
that injury found on the person of
deceased injured might be caused by
sharp weapon, like knife, at the relevant
time and date as stated by prosecution,
therefore, medical evidence is totally
compatible with ocular version.

44. PW-1 and PW-2 are natural
witnesses
who
have
supported
prosecution. House of Informant is at the
distance of 50-60 mtr. away from
accused-appellant. Since goat of accused
was grazing in the field of deceased,
524 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore,
coming of
deceased
and
witnesses to the house of accusedappellant for making complaint and their
presence on spot cannot be easily
doubted. It is often seen that no villagers
come forward to give evidence in support
of prosecution against accused-appellant
in heinous offence, like murder, due to
fear of evil and it is settled principle of
law that prosecution is not obliged to
produce an independent witness.

45. 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 the same do not go to the
root of case.

46.
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.

47. In Sachin Kumar Singhraha v.
State of Madhya Pradesh in Criminal
Appeal Nos. 473-474 of 2019 decided on
12.3.2019, Supreme Court has observed
that Court will have to evaluate evidence
before it keeping in mind the rustic nature
of depositions of villagers, who may not
depose about exact geographical locations
with
mathematical
precision.
Discrepancies 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.

48. Lest we 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 of the
Apex Court (3 Judges) in Criminal
Appeal No. 56 of 2018, Smt. Shamim v.
State of (NCT of Delhi), decided on
19.09.2018.

49. 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.

50. In all criminal cases, normal
discrepancies are bound to occur in the
depositions of witnesses due to normal
3 All. Lal Chand Gupta Vs. State
525
errors of observations, namely, errors of
memory due to lapse of time or due to
mental disposition such as shock and
horror at the time of occurrence. Where
the omissions amount to a contradiction,
creating
a
serious
doubt
about
truthfulness of the witness and other
witnesses
also
make
material
improvement while deposing in the court,
such evidence cannot be safe to rely upon.
However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not affect the core of the prosecution case,
should not be made a ground on which
the evidence can be rejected in its
entirety. Court has to form its opinion
about the credibility of witness and record
a finding, whether his deposition inspires
confidence. Exaggerations per se do not
render the evidence brittle, but can be one
of the factors to test credibility of the
prosecution version, when entire evidence
is put in a crucible for being tested on the
touchstone of credibility. Therefore, mere
marginal variations in the statement of a
witnesses
cannot
be
dubbed
as
improvements as the same may be
elaborations of the statements made by
the witnesses earlier. Only such omissions
which
amount
to
contradictions
in
material particulars i.e. go to the root of
the case/materially affect the trial or core
of the prosecution's case, render the
testimony of the witness liable to be
discredited. [Vide: State Represented by
Inspector of Police v. Saravanan &
Anr., AIR 2009 SC 152; Arumugam v.
State, AIR 2009 SC 331; Mahendra
Pratap Singh v. State of Uttar Pradesh,
(2009) 11 SCC 334; and Dr. Sunil
Kumar Sambhudayal Gupta & Ors. v.
State of Maharashtra, JT 2010 (12) SC
287]. We therefore, find no force in this
submission also.

51. Considering entire facts and
circumstances of the case, statement of
PWs as well documentary evidence
produced
by prosecution
and
legal
proposition discussed herein before, we
have no hesitation to come to conclusion
that accused-appellant committed murder
of Govind Vishwakarma and caused
injuries to PW-1 and 2 at the time, date
and place as stated by prosecution and
prosecution has been able to prove its
case beyond reasonable doubt. Trial Court
has rightly convicted and sentenced him.
Appeal lacks merit and is liable to be
dismissed.

52. So far as sentence 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.

53. 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
marginalized. 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.