# Lal Mohan v. State of U.P

- **Citation:** (2019) 1 ILRA 369
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-05
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-mohan-v-state-of-u-p-44464
- **Pages:** 12

## Headnote

A. Evidence - of relative. Mere relationship
is not sufficient to discard otherwise
trustworthy ocular testimony. (Para 30)
370 INDIAN LAW REPORTS ALLAHABAD SERIES
It is settled that merely because witnesses are
close relatives of victim, their testimony 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.(Para 31)

B. Motive. Where direct evidence is
worthy of credence, motive does not
carry
much
weight
-
Thus
merely
because that there was no strong motive
to commit the offence, prosecution case
cannot be disbelieved. (Para 34)

C. Delay in FIR - There is no hard and
fast rule that any length of delay in
lodging FIR would automatically render
the prosecution case doubtful. (Para 40)
If prosecution explains the delay, Court should not
reject prosecution story solely on this ground.
Therefore, the entire incident, as narrated by
witnesses, has to be construed and examined to
decide whether there was an unreasonable and
unexplained delay which goes to the root of the
case of prosecution. Even if there is some
unexplained delay, court has to take into
consideration whether it can be termed as
abnormal.(Para 45)

D. Punishment for a crime must not be
irrelevant but must conform to and be
consistent with the atrocity and brutality
which the crime has been perpetrated,
enormity of the crime warranting public
abhorrence and it should respond to the
society's cry for justice against criminals.
(Para 48)

Jail Appeal partly allowed. Conviction
under Section 304 I.P.C. modified.
Chronological list of Cases Cited: -

## Text

1 All. Lal Mohan Vs. Stae of U.P.
369
proportionate to gravity of offence. Object of
sentencing should be to protect society and to
deter the criminal in achieving avowed object
of law. Further, it is expected that courts
would operate the sentencing system so as to
impose
such
sentence
which
reflects
conscience of society and sentencing process
has to be stern where it should be. The Court
will be failing in its duty if appropriate
punishment is not awarded for a crime which
has been committed not only against
individual victim but also against society
to which criminal and victim belong.
Punishment to be awarded for a crime
must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it
should 'respond to the society's cry for
justice against the criminal'. [Vide:
Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323, Sham Sunder
vs. Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v.
State of Rajasthan, (1996) 2 SCC 175].

68. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence, weapon used in commission of
murder and the manner in which it was
executed or committed, we find that
punishment
imposed
upon
accusedappellants by Trial Court in impugned
judgment and order is not excessive and it
appears fit and proper and no ground
appears to interfere in the matter on the
point of punishment imposed upon him.

69. We, therefore, find no merit in
appeal. Present jail appeal lacks merit and
is accordingly, dismissed and judgement
and order dated 04.03.2006 passed by
Additional
Sessions
Judge
(FTC-I),
Kushinagar at Padrauna in Sessions Trial
No.56 of 2002, under Sections 302 and
324 IPC, is maintained and confirmed.

70. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

71. Before parting, we provide that
Ms. Nishi Mehrotra, Advocate, who has
appeared as Amicus Curiae for appellant in
present Jail Appeal, shall be paid counsel's
fee as Rs. 10,000/- for his valuable
assistance. State Government is directed to
ensure payment of aforesaid fee through
Additional Legal Remembrancer, posted in
the office of Advocate General at Allahabad,
without any delay and, in any case, within
one month from the date of receipt of copy of
this judgment.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.09.2019

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

JAIL APPEAL No. 1144 OF 2017

Lal Mohan ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Jay Ram Pandey, Sri Rajesh
Kumar.
Counsel for the Opposite Party:
Sri Rishi Chadha (A.G.A.), Sri Vikas Sahai
(A.G.A.).

A. Evidence - of relative. Mere relationship
is not sufficient to discard otherwise
trustworthy ocular testimony. (Para 30)
370 INDIAN LAW REPORTS ALLAHABAD SERIES
It is settled that merely because witnesses are
close relatives of victim, their testimony 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.(Para 31)

B. Motive. Where direct evidence is
worthy of credence, motive does not
carry
much
weight
-
Thus
merely
because that there was no strong motive
to commit the offence, prosecution case
cannot be disbelieved. (Para 34)

C. Delay in FIR - There is no hard and
fast rule that any length of delay in
lodging FIR would automatically render
the prosecution case doubtful. (Para 40)
If prosecution explains the delay, Court should not
reject prosecution story solely on this ground.
Therefore, the entire incident, as narrated by
witnesses, has to be construed and examined to
decide whether there was an unreasonable and
unexplained delay which goes to the root of the
case of prosecution. Even if there is some
unexplained delay, court has to take into
consideration whether it can be termed as
abnormal.(Para 45)

D. Punishment for a crime must not be
irrelevant but must conform to and be
consistent with the atrocity and brutality
which the crime has been perpetrated,
enormity of the crime warranting public
abhorrence and it should respond to the
society's cry for justice against criminals.
(Para 48)

Jail Appeal partly allowed. Conviction
under Section 304 I.P.C. modified.
Chronological list of Cases Cited: -

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

2. Dharnidhar v. State of UP (2010) 7 SCC
759,

3. Ganga Bhawani v. Rayapati Venkat Reddy
and Others, 2013(15) SCC 298,
4. Lokesh Shivakumar v. State of Karnataka,
(2012) 3 SCC 196,

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

6. Criminal Appeal No. 56 of 2018, Smt.
Shamim v. State of (NCT of Delhi),

7. Ravinder Kumar &Anr. Vs. State of Punjab",
(2001) 7SCC 690,

8. Amar Singh Vs. Balwinder Singh &Ors.
(2003) 2 SCC 518,

9. Tara Singh V. State of Punjab AIR (1991) SC
63: -

10. Sahebrao &Anr. Vs. State of Maharashtra
(2006) 9 SCC 794,

11. Palani V State of Tamilnadu, Criminal
Appeal No. 1100 of 2009,

12. Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323,

13. Sham Sunder vs. Puran, (1990) 4 SCC 731,

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

15. Ravji v. State of Rajasthan, (1996) 2 SCC
175]. (E-2)

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

1. Against judgment and order dated
04.02.2017 passed by Additional Sessions
Judge, F.T.C.-2, Ballia in Sessions Trial
No.242 of 2013, Crime No.125 of 2003,
under Sections 326 and 304 IPC, Police
Station Garwar, District Ballia, accusedappellant has preferred present jail appeal
under Section 383 Cr.P.C. from Jail
through
Superintendent
District
Jail,
Ballia. By impugned judgement, appellant
has been convicted under Section 304
I.P.C.
and
sentenced
to
undergo
imprisonment for life with fine of Rs.
1 All. Lal Mohan Vs. Stae of U.P.
371
10,000/- and in default of payment of
fine, three months imprisonment but
acquitted under Section 326 I.P.C.

2. Factual matrix of case as
emerging from First Information Report
(hereinafter referred to as "FIR") as well
as material placed on record is as follows.

3. P.W.-1 Sri Ram submitted a
written report Ex.Ka-1 in Police Station
Garwar, District Ballia stating that on
10.8.2003 at about 8:30 PM, his
daughter-in-law Smt. Vimla Devi with
her daughter Gudia aged about one and
half year was returning home from his
Dera (a structure being built in the
agricultural field to stay for short
duration). As usual when she reached the
place between Dera and home, accused
Lal Mohar came with petrol and
sprinkled petrol on both of them and set
them on fire. Due to burn, his daughterin-law started crying, then to rescue
them, he (PW-1) and many persons of
the village rushed there and took them to
DistrictHospital,
Ballia
for
medical
treatment. Gudia succumbed to injuries
whose post mortem was conducted on
11.8.2003 in Ballia. Later on Vimla Devi
succumbed to death due to burn injuries.

4. On the basis of written report
Ex.Ka-1, Chick F.I.R. Ex.Ka-3 was
registered
by
PW-4,
Satya
Narain
Mandal, as Case Crime No.125 of 2003
against accused-appellant under Section
304, 326 I.P.C. An entry of case was
made in General Diary (herein after
referred to as 'GD') on the same day, copy
whereof is Ex.Ka-6.

5. Km. Gudia and Smt. Vimla Devi
were medically examined by Dr. Jitendra
Kumar
Singh
on
10.8.2003
in
DistrictHospital, Ballia.

6. Immediately, after registration of
case, investigation was undertaken by S.I.
Jagdish Yadav. He proceeded to spot and
held inquest over the dead body of Vimla
Devi and sent it for post mortem, visited
spot, prepared site plan Ex. Ka-7.

7. PW-8, Dr. P.K. Rai, conducted
autopsy over the dead body of Km. Priya
(Gudiya) aged about one and half year
and found ante-mortem superficial to
deep burn injuries. In the opinion of
doctor, death might have been caused at
about 7:10 AM on 11.8.2003 and death
was possible due to shock on account of
ante-mortem burn injuries.

8. PW-6 Dr. R.N. Upadhyay,
conducted autopsy over the dead body of
deceased Vimla Devi and found antemortem burn injuries over the dead body
except upper portion of abdomen, right
shoulder, head and upper portion of thigh.
Doctor opined that death would have been
caused due to infection and ante-mortem
burn injuries.

9. PW-7 S.I. Atma Ram, after
completing
investigation
submitted
charge
sheet
Ex.Ka-13
against
the
appellant under Section 304 and 326
I.P.C.

10. Case, being triable by Court of
Sessions,
was
committed
by
Chief
Judicial Magistrate to Court of Sessions
for trial after compliance of Section 207
Cr.P.C.

11. Trial Court framed charges
against accused-appellant on 16.9.2013
372 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sections 326 and 304 IPC. Charges
read as under:

vkjksi

eSa lh0 ,e0 frokjh 1⁄4,p0ts0,l01⁄2 l=
U;k;k/kh'k] cfy;k vki vfHk;qDrx.k%&

1& yky eksgj iq= Jhjke Hkj

lkfdu ds'k:vk Fkkuk lq[kiqjk ftyk
cfy;kA

ds fo:) fuEufyf[kr vkjksi fojfpr
djrk gWw %&

1& ;g fd fnukad 10-08-2003 dks le;
djhc 8-30 cts lkfdu dqYgkMk ekStk jrlM+ [kqnZ
Fkkuk xM+okj ftyk cfy;k es vkius oknh Jhjke dh
cgw foeyk nsoh vkSj foeyk nsoh dh iq=h xqfM;k mez
Ms< o"kZ ds 'kjhj ij isVaksy fNM+ddj lykbZ ls vkx
yxk fn;k] ftls foeyk nsoh vkSj xqfM;k ty x;hA
bl izdkj vkius [krjukd vk;q/kksa }kjk LosPN;k
migfr dkfjr fd;k tks /kkjk& 326 Hkkjrh; n.M
lafgrk ds rgr n.Muh; gS vkSj bl U;k;ky; ds
izlaKku esa gSA

2& ;g fd mijksDr fnuakd] le; vkSj
LFkku ij vkius oknh Jhjke dh cgw foeyk nsoh dh
iq+=h xqfM;k mez Ms< o"kZ ds 'kjhj ij isVaksy
fNM+ddj lykbZ ls vkx yxk fn;k] ftlls os nksuks
ty x;h vkSj tyus ds dkj.k Ms< o"khZ; xqfM;k dh
e`R;q gks x;hA bl izdkj vkius gR;k dh dksfV esa u
vkus okyk vkijkf/kd ekuo o/k dkfjr fd;k tks
/kkjk& 304 Hkkjrh; n.M lafgrk ds vUrxZr n.Muh;
gS vkSj bl U;k;ky; ds izlaKku esa gSA

rnSo vkidks dks fufnZ"V fd;k tkrk gS
fd vkidk fopkj.k mDr vkjksiksa esa U;k;ky; }kjk
fd;k tk,xkA

C H A R G E

I, C.M. Tiwari (HJS), Sessions
Judge, Ballia, do hereby charge you the
accused (1) Lal Mohar S/o Shriram Bhar
R/o Keshrua, PS Sukhpura, District Ballia
with the following offence:

1. That on 10.08.2003 at around
8:30 o'clock at Kulhara, Village Ratsarh
Khurd, PS Gadwar, District Budaun, you
sprinkled petrol on the bodies of the
complainant Shriram's daughter-in-law
Vimla Devi and her 11⁄2-year-old daughter
Gudia and set them afire with a
matchstick, as a result of which Vimla
Devi and Gudia got burnt. In this way,
you have voluntarily caused grievous hurt
by
dangerous
weapons
which
is
punishable u/s 326 IPC and is within the
cognizance of this court.

2. That on the aforesaid date,
time and place, you sprinkled petrol on
the bodies of the complainant Shriram's
daughter-in-law Vimla Devi and her 11⁄2year-old daughter Gudia and set them
afire with a matchstick, as a result of
which Vimla Devi and Gudia got burnt,
and 11⁄2-year-old Gudia died due to burns.
In this way, you have committed culpable
homicide not amounting to murder, which
is punishable u/s 304 IPC and is within
the cognizance of this court.

It is hereby directed that you,
the accused, be tried by this court for the
aforesaid offences.
 (English Translation By Court)

12.

Accused-appellant
denied
charges, pleaded not guilty and claimed
trial.

13. In order to substantiate its case,
prosecution examined as many as nine
witnesses, out of whom PW-1 Sri Ram,
PW-2-Manish and PW-9 Muneeb Rajbhar
are witnesses of fact; PW-3 Radhey
Shyam (Panch witness of inquest), PW-4
Head Constable, Satya Narain Mandal,
PW-5 Dr. Anoop Kumar Singh proved
signature of Dr. Jitendra Kumar Singh,
PW-6 Dr. R.N. Upadhyay, conducted
autopsy of Vimla Devi, PW-7 S.I. Atma
Ram Yadav and PW-8 Dr. P.K. Rai
conducted post mortem on the dead body
of Km. Gudia, are formal witnesses.

14. On closure of prosecution
evidence, statement of accused-appellant
under Section 313 Cr.P.C. was recorded
by Court explaining entire evidence and
other incriminating circumstances. In
1 All. Lal Mohan Vs. Stae of U.P.
373
statement under Section 313 Cr.P.C.,
accused-appellant
denied
prosecution
story in toto and desired to produce
defence evidence. In response of question
no. 6, accused-appellant said that he was
innocent and has not committed any crime
but did not adduce any evidence.

15. Trial Court after appreciating
entire evidence led by prosecution on
record and hearing counsel for parties,
found appellant guilty and convicted him
as stated above. Feeling aggrieved with
impugned
judgement
of
conviction,
present appeal has been filed through Jail.

16. We have heard Sri Rajesh Kumar,
learned counsel for appellant and Sri Rishi
Chaddha, learned A.G.A for State-respondent
at length and have gone through the record
available on file carefully.

17. Learned counsel for appellant
assailing
impugned
judgement
of
conviction of accused-appellant, advanced
his submissions, in the following manner
:-

(i) There is no independent
witness. PWs-1, 2 and 9 are related to
deceased
persons,
therefore,
their
evidence is not sufficient to base the
conviction.

(ii) Witnesses of prosecution did
not see accused committing crime.

(iii) There is no motive to
accused-appellant to commit the present
crime.

(iv) Medical evidence does not
support prosecution case.

(v)
There
are
major
contradictions in evidence of witnesses
rendering prosecution case doubtful.

(vi) F.I.R. was lodged by
complainant with inordinate delay but no
explanation.

(vii) Prosecution has failed to
prove its case beyond reasonable doubt
and Trial Court did not appreciate
evidence properly and only convicted
accused-appellant.

(viii) Punishment awarded by
Trial Court is harsh and excessive and he
must
be
dealt
with
sympathetic
consideration.

18. Learned AGA for State opposed
submissions and stated that accused is named
in F.I.R.; relation of witnesses with victim or
accused is not a ground to discard the
evidence of relatives; PWs.1, 2 and 9 are
witnesses of fact, supported prosecution case
and it is a case of direct evidence, prosecution
has established his case beyond reasonable
doubt and Trial Court has rightly convicted
accused-appellant.

19. Although time, date, place and
nature of injuries as well as death of
victims could not be disputed from the
side of accused-appellant but according to
Advocate for accused-appellant, he is not
responsible for causing death of Vimla
Devi and Gudiya by causing burn injuries.
Even otherwise, from the evidence of
prosecution, death of Vimla Devi stands
established due to burn injuries.

20. Thus the only questions for
consideration of this Court is, "whether
accused-appellant has caused death of
Vimla Devi and her daughter Gudia and
Trial Court has rightly convicted accusedappellant for causing death of Vimla Devi
and her daughter Gudia punishable under
Section 304 I.P.C.?"
374 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Now, we may proceed to
consider rival submissions of learned
counsel for the parties and briefly,
evidence
of
prosecution
and
some
important decisions.

22. PW-1, Sri Ram has deposed that
on 10.8.2003 at about 8:30 PM, he was in
his Dera; his daughter-in-law Vimla Devi
with her daughter Gudia aged about one
and half year was returning to home after
providing meal to him; when she reached
near sugar cane field of one Jai Narayan
Singh, accused-appellant Lal Mohar came
there with petrol in a plastic can and
sprinkled petrol on his daughter-in-law
Vimla Devi and grand daughter Gudia
and set them at fire; his younger son
Manish, PW-2, was with Vimla Devi at
that time; on hearing shrieks of Manish
and his daughter-in-law, he (PW-1) and
other persons of same village rushed to
rescue them whereupon accused-appellant
ran away but was identified in the light of
Torch; both injured persons were taken to
District Hospital, Ballia for medical
treatment in a serious position where
Gudia succumbed to burn injuries on the
next day during treatment in hospital and
Vimla Devi succumbed to injuries in
District Hospital, Ballia during treatment
after 18-19 days of incident.

23. PW-1 stated in his crossexamination that at the time of incident,
he was in his Dera, reached the place of
incident on hearing noise of villagers; his
Dera is at the distance of 10-20 Lattha
from the place of occurrence; and that his
daughter-in-law was being taken to
hospital from spot by the people of village
Tola and he was near his house. From this
statement made in cross-examination,
PW-1 does not appear to be an eye
witness although, he told that he has seen
accused running away from spot and
proved presence of PW-2 Manish with
Vimla Devi on spot.

24. PW-2 Manish deposed that on
10.8.2003 at about 8:30 PM, he was
returning to his house from Dera with his
Bhabhi Smt. Vimla Devi; when he
reached near sugar cane field of Jai
Narayan Singh, accused came out of
Sarpat (Long grass) with petrol in a
plastic can and poured petrol on victim
and Gudia and set them at fire; on making
noise his father and other villagers
reached there; Vimla Devi and her
daughter were taken to District Hospital,
Ballia
for
treatment
where
Gudia
succumbed to death in next morning and
Vimla Devi died in District Hospital,
Ballia after 17 days.

25. PW-9 Muneeb Rajbhar deposed
that on 10.8.2003 at about 8:30 PM, his
Bhabhi Vimla Devi along with her
daughter Gudia aged about one and half
year were going to home from Dera;
when she reached near sugar cane field of
one Jai Narayan Singh, accused-appellant
sprinkled petrol on them and set them at
fire; he was little behind the victim; on
hearing alarm raised by Vimla Devi and
his brother Manish (PW-2), he and his
father arrived at spot whereupon accusedappellant ran away from spot but he was
identified by him in the light of Torch; he
chased him but accused succeeded in
making good escape; Vimla Devi and
Gudia were taken to District Hospital,
Ballia where Gudia succumbed to death
on the next day but Vimla died after 17
days in hospital.

26. Both witnesses withstood
sufficient cross-examination from the side
of accused but no material could be
1 All. Lal Mohan Vs. Stae of U.P.
375
brought
so
as
to
disbelieve
their
statement.

27. PW-3 Radhey Shyam, is witness
of inquest, who proved inquest report of
Gudia as Ex.Ka-2; PW-4, H.C. Satya
Narayan Mandal proved registration of
F.I.R. on the basis of written report
Ex.Ka-1; PW-5 Dr. Anoop Kumar Singh
proved signature of Dr. Jitendra Kumar
Singh conducting medical examination of
Vimla Devi and Gudia, proved medico
legal reports' PW-6 Dr. R.N. Upadhyay,
conducted autopsy over the dead body of
Vimla Devi and proved post mortem
report as Ex.Ka-10; and PW-8 Dr. P.K.
Rai conducted post mortem report of Km.
Gudia and proved post mortem report
Ex.Ka-14.

28. Presence of PW-2 and PW-9
appeared quite natural on the spot and
there was no reason to them to falsely
implicate accused-appellant in the present
case. In the statement under Section 313
Cr.P.C. accused did not suggest anything
as to why witnesses deposed against him.

29. PW-1 and PW-2 established that
they noticed accused running from spot.
Statement of PWs.-1, 2 and 9 established
that accused-appellant sprinkled petrol on
Vimla Devi and her daughter Gudia and
set them at fire causing serious burn
injuries due to which they succumbed to
death in hospital in respective times.

30. Now, next thing to be considered
is that PWs.-1, 2 and 9 are relatives of
deceased have their evidence whether be
treated to be trustworthy or not. This
submission is thoroughly misconceived.
Mere relationship is not sufficient to
discard otherwise trustworthy ocular
testimony and it is now well settled law
laid down in Dalip Singh v. State of
Punjab, AIR,1953, SC 364 wherein
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 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."

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

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

32. In Ganga Bhawani v. Rayapati
Venkat Reddy and Others, 2013(15)
SCC 298, Court has held as under :-

"11. It is a settled legal
proposition that the evidence of closely
related witnesses is required to be
carefully scrutinised and appreciated
before any conclusion is made to rest
upon it, regarding the convict/accused in
a given case. Thus, the evidence cannot
be disbelieved merely on the ground that
the witnesses are related to each other or
to the deceased. In case the evidence has
a ring of truth to it, is cogent, credible
and trustworthy, it can, and certainly
should, be relied upon.

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

33. It is settled that merely because
witnesses are closed relatives of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is not
a factor that affects credibility of witness,
more so, a relative would not conceal the
actual culprit and make allegation against
an innocent person. However, in such a
case Court has to adopt a careful approach
and analyse evidence to find out whether
it is cogent and credible evidence.

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

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

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

36. According to Advocate for
appellant,
medical
evidence
is
not
compatible with ocular evidence. We are
not in agreement with the same for the
reasons that PW-2 and PW-9 supporting
prosecution case was deposed that accusedappellant came with petrol in Plastic Can
and poured on the victims and set them at
fire due to which Vimla Devi and Gudia
received serious burn injuries. Doctor
opined that death of both victims would
have been caused due to ante-mortem burn
injuries. In this way medical evidence is
totally compatible with oral version.

37. In so far as discrepancies,
variations
and
contradictions
in
prosecution case are concerned, we have
analysed entire evidence in consonance
with submissions raised by learned
counsel's and find that the same do not go
to the root of case and accused-appellant
are not entitled to get benefit of the same.
1 All. Lal Mohan Vs. Stae of U.P.
377

38.

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.

39. We lest not forget that no
prosecution case is foolproof and the
same is bound to suffer from some lacuna
or the other. It is only when such lacunae
are on material aspects going to the root
of the matter, it may have bearing on the
outcome
of
the
case,
else
such
shortcomings are to be ignored. Reference
may be made to a recent decision 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.

40. Learned counsel for the accusedappellant argued that PW-1 lodged F.I.R.
of the incident against accused-appellant
after four days of incident and he has not
given proper explanation. Delay in
lodging F.I.R. demolishes the prosecution
story, hence, accused-appellant is entitled
to get benefit of doubt. So far as delay in
F.I.R. is concerned, we are not in
agreement with the argument advanced by
learned counsel for the accused-appellant
for the reasons that delay has been
explained by informant in written report
Ex.Ka-1. It is well settled, if delay in
lodging FIR has been explained from the
evidence on record, no adverse inference
can be drawn against prosecution merely
on the ground that the FIR was lodged
with delay. There is no hard and fast rule
that any length of delay in lodging FIR
would
automatically
render
the
prosecution case doubtful.

41. In "Ravinder Kumar &Anr.
Vs. State of Punjab", (2001) 7SCC 690,
Court has held;

"The attack on prosecution
cases on the ground of delay in lodging
FIR has almost bogged down as a
stereotyped redundancy in criminal cases.
It is a recurring feature in most of the
criminal cases that there would be some
delay in furnishing the first information to
the police. It has to be remembered that
law has not fixed any time for lodging the
FIR. Hence a delayed FIR is not illegal.
Of course a prompt and immediate
lodging of the FIR is the ideal as that
would give the prosecution a twin
advantage. First is that it affords
commencement
of
the
investigation
without any time lapse. Second is that it
expels the opportunity for any possible
concoction of a false version. Barring
these two plus points for a promptly
lodged FIR the demerits of the delayed
FIR cannot operate as fatal to any
prosecution case. It cannot be overlooked
that even a promptly FIR is not an
unreserved guarantee for the genuineness
of the version incorporated therein. When
there is criticism on the ground that FIR
in a case was delayed the court has to
look at the reason why there was such a
delay. There can be a variety of genuine
causes for FIR lodgment to get delayed.
Rural people might be ignorant of the
need for informing the police of a crime
without any lapse of time. This kind of
unconversantness is not too uncommon
among urban people also. They might not
immediately think of going to the police
station. Another possibility is due to lack
of adequate transport facilities for the
informers to reach the police station. The
third, which is a quite common bearing, is
that the kith and kin of the deceased might
378 INDIAN LAW REPORTS ALLAHABAD SERIES
take some appreciable time to regain a
certain level of tranquility of mind or
sedativeness of temper for moving to the
police
station
for
the
purpose
of
furnishing the requisite information. Yet
another cause is the persons who are
supposed
to
give
such
information
themselves
could
be
so
physically
impaired that the police had to reach
them
on
getting
some
nebulous
information about the incident."

42. In Amar Singh Vs. Balwinder
Singh &Ors. (2003) 2 SCC 518, Court
held :

"In our opinion, the period
which elapsed in lodging the FIR of the
incident has been fully explained from the
evidence on record and no adverse
inference can be drawn against the
prosecution merely on the ground that the
FIR was lodged at 9.20 p.m. on the next
day. There is no hard and fast rule that
any delay in lodging the FIR would
automatically render the prosecution case
doubtful. It necessarily depends upon
facts and circumstances of each case
whether there has been any such delay in
lodging the FIR which may cast doubt
about the veracity of the prosecution case
and for this a host of circumstances like
the condition of the first informant, the
nature of injuries sustained, the number
of victims, the efforts made to provide
medical aid to them, the distance of the
hospital and the police station etc. have to
be taken into consideration. There is no
mathematical formula by which an
inference may be drawn either way
merely on account of delay in lodging of
the FIR."

43. In this connection it will also be
useful to take note of the following
observation made in Tara Singh V. State
of Punjab AIR (1991) SC 63:-

"The delay in giving the FIR by
itself cannot be a ground to doubt the
prosecution case. Knowing the Indian
conditions as they are, one cannot expect
these villagers to rush to the police
station immediately after the occurrence.
Human nature as it is, the kith and kin
who have witnessed the occurrence
cannot be expected to act mechanically
with all the promptitude in giving the
report to the police. At times being grief
stricken because of the calamity it may
not immediately occur to them that they
should give a report. After all it is but
natural in these circumstances for them to
take some time to go to the police station
for giving the report. Of course, in cases
arising out of acute factions there is a
tendency to implicate persons belonging
to the opposite faction falsely. In order to
avert the danger of convicting such
innocent persons the courts should be
cautious to scrutinize the evidence of such
interested witnesses with greater care and
caution and separate grain from the chaff
after subjecting the evidence to a closer
scrutiny and in doing so the contents of
the FIR also will have to be scrutinised
carefully. However, unless there are
indications of fabrication, the court
cannot reject the prosecution version as
given in the FIR and later substantiated
by the evidence merely on the ground of
delay.
These
are
all
matters
for
appreciation and much depends on the
facts and circumstance of each case."

44. In Sahebrao &Anr. Vs. State
of Maharashtra (2006) 9 SCC 794,
Court has held:

"The settled principle of law of
this Court is that delay in filing FIR by
1 All. Lal Mohan Vs. Stae of U.P.
379
itself cannot be a ground to doubt the
prosecution case and discard it. The delay
in lodging the FIR would put the Court on
its guard to search if any plausible
explanation has been offered and if
offered whether it is satisfactory."

45. From the above exposition of law,
it is manifest that prosecution version cannot
be rejected solely on the ground of delay in
lodging FIR. Court has to examine the
explanation furnished by prosecution for
explaining delay. There may be various
circumstances
particularly
number
of
victims, atmosphere prevailing at the scene
of incidence, the complainant may be scared
and fearing the action against him in
pursuance of the incident that has taken
place. If prosecution explains the delay,
Court should not reject prosecution story
solely on this ground. Therefore, the entire
incident, as narrated by witnesses, has to be
construed and examined to decide whether
there was an unreasonable and unexplained
delay which goes to the root of the case of
prosecution.
Even
if
there
is
some
unexplained delay, court has to take into
consideration whether it can be termed as
abnormal. Recently in Palani V State of
Tamilnadu, Criminal Appeal No. 1100 of
2009, decided on 27.11.2018, it has been
observed by Supreme Court that in some
cases delay in registration of FIR is
inevitable. Even a long delay can be
condoned if witness has no motive for falsely
implicating the accused.

46. Considering the entire facts and
circumstances of the case, statement of
witnesses, evidence of prosecution into
entirety and legal proposition discussed
herein before, we have no hesitation to
say that accused-appellant caused death of
Vimla Devi and Gudiaya by causing burn
injuries
and
committed
offence
punishable under Section 304 I.P.C. Trial
Court has rightly convicted accusedappellant, therefore, conviction of accused
appellant under Section 304 I.P.C. is
maintained
and
confirmed.
Criminal
appeal lacks merit and liable to be
dismissed on merit.

47. So far as sentence of accusedappellant is concerned, it is always a
difficult task requiring balancing of
various considerations. The question of
awarding
sentence
is
a
matter
of
discretion
to
be
exercised
on
consideration
of
circumstances
aggravating
and
mitigating
in
the
individual cases.

48. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation of
court to constantly remind itself that right
of victim, and be it said, on certain
occasions person aggrieved as well as
society at large can be victims, never be
marginalised. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further,
it is expected that courts would operate
the sentencing system so as to impose
such sentence which reflects conscience
of society and sentencing process has to
be stern where it should be. Court will be
failing
in
its
duty
if
appropriate
punishment is not awarded for a crime
which has been committed not only
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
380 INDIAN LAW REPORTS ALLAHABAD SERIES
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it
should 'respond to the society's cry for
justice against the criminal'. [Vide:
Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323, Sham Sunder
vs. Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v.
State of Rajasthan, (1996) 2 SCC 175].

49. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence and the manner in which it was
executed or committed. We partly allow
this appeal. We confirm appellant's
conviction under Section 304 I.P.C. and
modify order of sentence to under go
rigorous imprisonment for a period of
14 years and fine of Rs. 25,000/-. In
default of payment of fine, he shall further
undergo simple imprisonment for one
year imprisonment. He shall be entitled to
set off under Section 428 Cr.P.C.

50. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action and to apprise the accusedappellant through Jail Authority.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2019

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

JAIL APPEAL No. 8577 OF 2008

Preetam Singh ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From jail, Sri Jai Singh Parihar, Sri Noor
Mohammad, Sri Rajshree Malviya (A.C.)

Counsel for the Opposite Party:
Sri Rishi Chadha, A.G.A.

A. Section 302 and 201 IPC. Jail Appeal
against
conviction-
circumstantial
evidence - direct evidence and motive-
In circumstantial evidence, law postulates,
twin requirements to be satisfied. First, every
link in chain of circumstances, necessary to
establish the guilt of accused, must be
established by prosecution beyond reasonable
doubt; and second, all circumstances must be
consistent only with guilt of accused. (Para 24)

There cannot be any dispute as to the well
settled proposition that circumstances from
which conclusion of guilt is to be drawn must
or "should be" and not merely "may be" fully
established. (Para 25)

B. Infirmity or fault by investigating
agency. Whether benefits the accussed.
Held:-It is well settled that any infirmity
committed by Police Officer or faulty
investigation would not help accused.
Recovery of dead body is well supported
by public witnesses.(Para 35)

C. Motive - Whether necessary. Held:-
Where direct evidence is worthy of
credence, can be believed, then motive
does not carry much weight. Thus,
merely because that there was no strong
motive
to
commit
the
offence,
prosecution case cannot be disbelieved.
(Para 37)

D. Evidence Act-section 134 - whether
prosecution must produce all witnesses.
Held:- It is not necessary for the
prosecution to produce all the witnesses
in support its case. Quality of witnesses is
material not the quantity of witnesses. In fact,
it is not the numbers, the quantity, but the