# Moti v. State

- **Citation:** (2019) 1 ILRA 583
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-16
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moti-v-state-44527
- **Pages:** 11

## Headnote

either in Evidence Act or in Code of
Criminal Procedure, 1973 or in IPC any
particular time has been specified for
lodging of F.I.R. Even, in Section 154 of
Code of Criminal Procedure, 1973 which
deals with lodging of the F.I.R., no
particular time has been prescribed for
lodging F.I.R. Sometimes an inordinate
delay, caused in lodging the F.I.R. If
justified and natural, it does not affect
credibility of prosecution and sometimes
even
a
prompt
F.I.R.
may
affect
credibility of prosecution. (Para 23)

B. Interested witness. Only on the
ground that witnesses are relative or
kith and kins of deceased, their evidence
cannot be disbelieved.(Para 28)

C. Criminal jurisprudence - if prosecution
case has been found trustworthy and
reliable wherein involvement of accused
has been proved beyond reasonable
doubt, the burden shifts on accused to
prove the plea of general exception
insanity, taken by him.(Para 32)

D. It is settled principle of sentencing and
penology that undue sympathy, in awarding
the sentence, with accused is not required.
The object of sentencing in criminal law
should be to protect the society and also to
deter the criminals by awarding appropriate
sentence. (Para 37)

Appeal dismissed.

Chronological list of Cases Cited: -

## Text

1 All. Moti Vs. State
583
fine of Rs. 25000/- and in default, for an
additional imprisonment of six months.

47. With the above modification,
this criminal appeal is finally disposed of.

48. The accused-appellant Mhanta
Dhar, if on bail shall surrender forthwith
before the learned trial court to be sent to
jail to undergo the sentence.

49. The office is directed to transmit
back the lower court record to the learned
trial court along with the copy of this
judgment for information and necessary
compliance.
-------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

JAIL APPEAL No. 2210 OF 2011

Moti ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Sita Ram Sharma (A.C.)

Counsel for the Opposite Party:
Sri M.C. Joshi

A. Delayed FIR - Nowhere in any statute
either in Evidence Act or in Code of
Criminal Procedure, 1973 or in IPC any
particular time has been specified for
lodging of F.I.R. Even, in Section 154 of
Code of Criminal Procedure, 1973 which
deals with lodging of the F.I.R., no
particular time has been prescribed for
lodging F.I.R. Sometimes an inordinate
delay, caused in lodging the F.I.R. If
justified and natural, it does not affect
credibility of prosecution and sometimes
even
a
prompt
F.I.R.
may
affect
credibility of prosecution. (Para 23)

B. Interested witness. Only on the
ground that witnesses are relative or
kith and kins of deceased, their evidence
cannot be disbelieved.(Para 28)

C. Criminal jurisprudence - if prosecution
case has been found trustworthy and
reliable wherein involvement of accused
has been proved beyond reasonable
doubt, the burden shifts on accused to
prove the plea of general exception
insanity, taken by him.(Para 32)

D. It is settled principle of sentencing and
penology that undue sympathy, in awarding
the sentence, with accused is not required.
The object of sentencing in criminal law
should be to protect the society and also to
deter the criminals by awarding appropriate
sentence. (Para 37)

Appeal dismissed.

Chronological list of Cases Cited: -
1. Masalti and others Vs. State of U.P., 1965
SC 202,

2. Mohabbat Vs. State of M.P., (2009) 13 SCC
630,

3. State of Madhya Pradesh Vs. Saleem @
Chamaru, AIR 2005 SC 3996 (E-2)
(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. This jail appeal under Section 383
Code of Criminal Procedure, 1973,
(hereinafter referred to as "Code") has
been filed against judgment and order
dated 20.1.2011 passed by Additional
Session Judge, Court No. 2, Bareilly in
S.T. No. 37 of 2009 (State Vs. Moti)
arising out of Case Crime No. 597 of
584 INDIAN LAW REPORTS ALLAHABAD SERIES
2008, under Section 302 I.P.C., P.S.
Faridpur,
District
Bareilly,
whereby
appellant-accused
Moti
(hereinafter
referred to as "appellant") has been
convicted under Section 302 IPC for a
sentence of life imprisonment along with
fine of Rs. 1000/-. In case of default in
payment of fine, he has further been
directed
to
undergo
rigorous
imprisonment for 3 months.

2. Brief facts, arising out of this
appeal, are that appellant, Informant- Ram
Sharan (PW-1) and deceased Kuwar Sen,
all are residents of village Ausadh, P.S.
Faridpur,
District-
Bareilly.
Ram
Swaroop, father of appellant, had leased
out his agricultural land to Kuwar Sen
(deceased). Due to that reason appellant
and his real brother Om Prakash were
inimical with deceased Kuwar Sen. On
13.6.2008, at about 2:30 p.m., Kuwar Sen
(deceased) was taking rest beneath Pakad
tree, situated in front of his house.
Appellant and his real brother Om
Prakash, armed with lathi/danda, came to
Kuwar Sen. Om Prakash exhorted that as
deceased Kuwar Sen poses himself as
superior; kill him. Thereafter appellant
attacked on Kuwar Sen by lathi and
caused grievous injuries to him. Informant
Ram Sharan (PW-1) raised alarm. On his
alarm and scream made by deceased
Kuwar Sen, Brijesh Kumar (PW-2) and
Praveen Kumar (PW-3) rushed towards
the place of occurrence, saw the incident
and they also raised alarm. Meanwhile,
appellant and Om Prakash fled away from
place of occurrence by hurling abuses.
Ram Sharan (PW-1) was carrying his
brother
Kuwar
Sen
(deceased)
for
treatment but Kuwar Sen died on the way.

3. First Information Report, Ex.ka-1
(hereinafter referred to as "F.I.R.") of the said
incident was lodged by Ram Sharan (PW-1)
at P.S. Faridpur, District Bareilly on 14.6.2008
at 00:20 a.m. Case Crime No. 597 of 2008
under Section 304 IPC was registered and said
information was entered in General Diary
(Ex.ka-10) by Constable Gajendra Singh,
Chik F.I.R. (Ex.ka-9) was prepared by him on
same day and time. The investigation of case
was handed over to S.I. Tejveer Singh (PW-5)
who rushed to place of occurrence, visited the
same and prepared site plan (Ex.Ka-7). He
took the sample of blood stained and plain
earth from place of occurrence and also took a
stick (danda), weapon used in offence and
prepared recovery memo (Ex.Ka-5 and Ka-6).
He rushed to Community Health Centre,
Faridpur (hereinafter referred to as "C.H.C.")
where dead body of deceased was lying,
prepared inquest report (Ex.Ka-3) and sent
dead body of deceased Kuwar Sen for post
mortem to DistrictHospital, Bareilly with
relevant papers.

4. Dr. Lok Nath Deepak (PW-6)
conducted autopsy on dead body of
deceased on 14.6.2008 at 2:45 p.m.
According to him deceased had died one
day before; Post mortem staining was
present at the back of deceased; rigor
mortis was also present on lower and
upper limb of the body excluding neck;
blood clot was found in the nostril and
mouth of deceased. At the time of post
mortem following ante mortem injuries
were found:-

(I) lacerated wound 7 cm x 3 cm
on the right side forehead upper part 3 cm
above mid of right eyebrow, margin
irregular clot blood present, brain deep,
brain coming out of wound.

(ii) Lacerated wound 5 cm x 11⁄2
cm on the left side forehead upper part, 4
cm above mid of eyebrow irregular clot
blood present, bone deep.
1 All. Moti Vs. State
585

5. During investigation PW-5, S.I.
Tejveer Singh recorded statement of
witnesses
and
upon
conclusion
of
investigation, involvement of Om Prakash
was not found hence charge sheet (Ex.ka8) was submitted only against appellant
Moti, before C.J.M. Bareilly, who took
cognizance of offence. As offence was
exclusively triable by Court of Session,
he, after providing copies of relevant
documents, as required by Section 207 of
Code, committed the case for trial to
Court of Session, Bareilly.

6. The case was transferred for trial
to Additional Session Judge, Bareilly who
framed charges against appellant as
under:-

"मैं रीता कौवशक, अपर सत्र न्यायाधीश (फ़ास्ट ट्रैक)
कक्ष सां. 4, बरेली आप अभियुक्त मोती पर विम्ि आरोप आरोवपत
करती ह ूँ :-

1 . यह वक वििाांक 13.6.2008 को समय करीब 2:30
पी. एम. बहि स्थाि ग्राम औसढ अांतगफत थािाक्षेत्र र्रीिपुर वजला
बरेली में आपिे िािी मुकिमा राम सरि के भाई कुांिरसेि को लाठी डांडों
से मारपीटकर वसर में गांभीर उपहवत काररत वकया वजससे उसकी मृत्यु हो
गई और इस प्रकार आपिे ऐसा कायफ वकया जो वक भा.ि.सां. की धारा
302 के तहत िण्डिीय अपराध है और इस न्यायालय के प्रसांज्ञाि में हैं.

अतः आपको वििेवशत वकया जाता हैं वक उक्त आरोप
के वलए आपका विचरण इस न्यायालय द्वारा वकया जाये.

आरोप अवभयुक्त को पढ़कर सुिाया ि समझाया गया
वजससे उसिे इिकार वकया और विचरण वक माूँग वकया."

"I Reeta Kaushik, Additional
Session Judge, (Fast Track) Court no. 4,
Bareilly hereby charge you Moti as
follows:-

That you, on or about 13.6.2008
at 2:30 p.m. Within the area of village
Ausar, P.S. Faridpur, Bareilly caused
death of Kuwar Sen, brother of Ram
Sharan by causing grievous injury at head
by lathi/danda and thereby committed an
offence punishable under Section 302 IPC
and within the cognizance of this Court.

I hereby direct you that you be
tried by this Court on the said charge.

Charges were read with and
explained to the accused who pleaded not
guilty and claimed to be tried."
(translated by Court)

7. In order to prove its case,
prosecution has examined six witnesses
wherein Ram Sharan (PW-1), Brijesh
(PW-2), Praveen Kumar (PW-3) are eye
witnesses whereas Roop Singh (PW-4),
S.I. Tejveer (PW-5) and Dr. Lok Nath
Deepak (PW-6) are formal witness.

8. After the prosecution evidence,
statement of appellant was recorded under
Section 313 of Code wherein he denied
prosecution case and evidence and alleged
that he had been implicated due to enmity
and village party bandi. He was given an
opportunity to lead evidence in his
defence but no evidence was produced by
him before Trial Court. Thereafter,
learned Additional Session Judge, after
hearing counsel for both parties found
accused-appellant guilty of offence under
Section 302 I.P.C. and, accordingly,
convicted and sentenced as above.

9. Aggrieved by impugned judgment
and order, appellant has preferred this appeal.

10. We have heard Sri Sita Ram
Sharma, Advocate (Amicus Curiae) for
appellant and Sri M.C. Joshi, learned
A.G.A. for State.

11. It has been contended by learned
Amicus Curiae that accused appellant is
innocent and has falsely been implicated;
F.I.R. has been lodged after 10 hours by due
deliberation and consultation; Inquest report
is not supported by statement of eye
witnesses; in the inquest report it has been
586 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned that deceased had died due to
injury caused by lathi/danda and stone
whereas use of stone in the occurrence has
not been stated. Learned counsel further
contended that statement of PW-1 is selfcontradictory in regard of time of recovery
and also as to how dead body of deceased
was sent to hospital. Appellant was not
mentally fit at the time of occurrence. It is
further submitted that at the time of
occurrence so many people were present,
according to prosecution, but prosecution has
examined only interested witnesses and has
not examined independent witness.

12. Per contra learned A.G.A. has
submitted that prosecution case is fully
proved by reliable evidence; delay caused
in lodging F.I.R. is self-explanatory,
natural
and
justified;
there
is
no
contradiction in the statement of eye
witnesses; presence of eye witness is
natural at the place of occurrence, their
statements are reliable and trustworthy;
prosecution has succeeded to prove its
case beyond any reasonable doubt hence
impugned judgement and order passed by
Trial Judge requires no interference and
appeal is liable to be dismissed.

13. We have considered rival
submissions of learned counsel for parties
and have gone through entire record.

14. Ram Saran (PW-1) is the real
brother of deceased Kuwar Sen. He has been
examined before Trial Court on 11.12.2009.
According to him, appellant and his brother
Om Prakash are sons of Ram Swaroop and
residents of his village. Ram Swaroop had let
out his land for cultivation to his brother
Kuwar Sen. On that account, Om Prakash
and appellant used to remain annoyed with
deceased Kuwar Sen. He has further stated
that 11⁄2 years ago, at about half past two in
afternoon, his brother Kuwar Sen was lying
beneath Pakad tree, out side his house. At
that time, appellant came with thick wooden
stick in his hand and another accused Om
Prakash came with lathi and as they arrived,
appellant Moti assaulted Kuwar Sen with
wooden stick as a result whereof serious
injury was caused on the head of Kuwar Sen.
He has further stated that on hearing noise,
he, Brijesh (PW-2) and Praveen (PW-3)
rushed towards place of occurrence and
challenged them; both, accused Om Prakash
and appellant Moti fled away. He has further
stated that he took his brother Kuwar Sen in
wounded state to Faridpur by bullock cart
but Kuwar Sen died on the way. Thereafter,
he took deceased Kuwar Sen's body to P.S.
Faridpur where he dictated report (Ex.Ka-1)
to unknown person and got it written, and
after signing it, he lodged the same at P.S.
Faridpur. This witness has verified and
proved F.I.R. (Ex.K-1).

15. Brijesh (PW-2) has stated that on
13.6.2008 he was present at his house and
on that day at about 2:30 p.m., he heard a
noise. On the said noise he came out and
saw that Kuwar Sen was lying on a cot,
beneath Pakad tree, situated in front of his
house and also saw that appellant
assaulted
at
Kuwar
Sen
by
lathi
whereupon Kuwar Sen got injured. He
has further stated that at the time of
occurrence Om Prakash (another accused)
was not present and only appellant was
present who had caused injury by lathi to
Kuwar Sen. Verifying an affidavit dated
23.6.2008 (Ex.K-2), he has further stated
that he had given that affidavit, signed by
him at Police Station. According to him
Kuwar Sen died due to injury caused by
appellant. He has further stated that on
14.6.2008, inquest of deceased Kuwar
Sen was conducted before him and his
dead body was sealed by Police and sent
1 All. Moti Vs. State
587
for post mortem. He has also proved the
inquest report (Ex.K-3).

16. Praveen Kumar (PW-3) has stated
that Kuwar Sen was known to him, who was
resident of his village. According to him, it
was June, 2008 at about 2:30 p.m., he was
sitting at house of Brijesh (PW-2). He has
further stated that upon hearing alarm, he and
Brijesh (PW-2) rushed and saw that deceased
Kuwar Sen was lying on a cot, beneath Pakad
tree, and appellant Moti was causing injury on
the head of Kuwar Sen by a thick wooden
stick. According to him, at the place of
occurrence, family members of Kuwar Sen,
his mother and his brother Ram Saran (PW-1)
also had come. He has further stated that as he
rushed to place of occurrence appellant Moti
fled away by throwing korhi (thick wooden
stick) and thereafter Kuwar Sen was taken for
treatment by his family members but he died.
He has also stated that death of Kuwar Sen
was caused due to injuries, caused by
appellant on the head of Kuwar Sen.

17. Roop Singh (PW-4) is witness of
recovery memo (Ex.Ka-5) of blood
stained and plain earth, taken into custody
by
Investigating
Officer
(hereinafter
referred to as "I.O.") during investigation.
He has stated that during investigation of
case, I.O. had taken sample of plain and
blood stained earth, from place of
occurrence, before him and one Rishi Pal
of his village; I.O. has also recovered and
taken into custody Korhi (thick wooden
stick), weapon of offence, from place of
occurrence, who had prepared recovery
memo (Ex.K-5) and (Ex.K-6); and at the
time of recovery, he had also put his
signature on those documents.

18. S.I. Tejveer Singh (PW-5), I.O.
of the case, has stated that on 13.6.2008 he
was posted as S.S.I. at P.S. Faridpur,
District Bareilly. On that day he under took
investigation of Case Crime No. 597 of
2008 under Section 304 IPC. During
investigation he had perused and copied
the relevant Police papers, inspected place
of occurrence on pointing out of Informant
and prepared site plan (Ex.K-7). He has
further stated that inquest report (Ex.K-3),
recovery memo of sample of blood stained
and plain earth (Ex.K-5) and recovery
memo of wooden stick (Ex.ka-6), were
prepared by him. According to him, he had
prepared inquest report at C.H.C. Faridpur
because at that time dead body of deceased
was in that hospital. He has further stated
that upon investigation, he had filed a
charge sheet (Ex.ka-8) only against
appellant because involvement of another
accused Om Prakash @ Chet Ram was not
found. Constable Gajendra Singh was
posted with him. He is well acquainted
with his hand writing. Chik FIR (Ex.Ka-9)
and G.D. Report No.5, 00:20 a.m. dated
14.6.2008 (Ex.Ka-10) had been prepared
and signed by Constable Gajendra Singh.
This witness has also proved G.D. Report
No. 24, (Ex.Ka-11) dated 14.6.2008, report
regarding depositing of wooden stick,
sample of plain and blood stained earth
and arrest of appellant. He has also
identified recovered wooden stick, weapon
of offence, (material Ex.1)

19. Dr. Lok Nath Deepak (PW-6)
has stated that on 14.6.2008 he was
posted
as
Senior
Consultant
at
DistrictHospital, Bareilly. On that day at
about 2:45 p.m. he had conducted autopsy
on corpse of Kuwar Sen s/o Ahvaran
Singh age about 35 years r/o Ausadh, P.S.
Faridpur, District Bareilly who was sent
by S.O. Faridpur with nine relevant Police
papers. The corpse was identified by
Constable
Brahma
Pal
Singh
and
Constable Girish Kumar, P.S. Faridpur.
588 INDIAN LAW REPORTS ALLAHABAD SERIES
(the condition of corpse and details of
ante mortem injuries, found at the time of
post mortem examination, has been
mentioned in preceding paragraph of the
judgment). According to him deceased
had died one day before; in internal
examination of the dead body, frontal,
temporal and parietal bones of both left
and right side of head were fractured;
membranes of brain and brain were
lacerated; base of brain was fractured;
stomach and heart were empty; death was
caused due to coma (shock) caused by
ante mortem head injury; and at the time
of post mortem; he had prepared post
mortem report (Ex.Ka 12) in his own
hand writing and signature.

20. In this case appellant Moti, in his
statement under Section 313 of Code, has
denied his involvement in the said
occurrence as alleged by prosecution
witnesses but has not produced any
evidence in his defence. Thus it has to be
seen whether prosecution has succeeded
to establish its case against appellant
accused beyond reasonable doubt or not.

21. So far as submission of learned
Amicus Curiae, that FIR has been lodged
after 10 hours after due deliberation and
consultation, is concerned, record shows
that alleged occurrence had taken place on
13.6.2008 at 2:30 p.m. and F.I.R. was
lodged on 14.6.2008 at 00:20 a.m. In Chik
FIR (Ex.Ka-9) the distance of place of
occurrence from P.S. Faridpur has been
shown as 4-5 km. It has been specifically
stated by PW-1 in his cross-examination
that
he
had
proceeded
just
after
occurrence with Kuwar Sen from the
place of occurrence; reached at Police
Station at about 3:00 p.m. and lodged
F.I.R. According to him, at that time
Kuwar Sen was alive; he had rushed, with
Kuwar Sen, to Bareilly at about 3:00 p.m.
from
Faridpur,
and
reached
at
GangaCharanHospital, Bareilly but before
admission,
Kuwar
Sen
had
died.
According to him, thereafter, he returned
with deceased Kuwar Sen to Police
Station and reached there at about 4:00
p.m.; when he reached at Police Station,
Daroga Ji (Police Inspector) directed him
to keep the dead body at Godam and
report was lodged at 11:00 p.m. Thus it is
clear that Ram Saran (PW-1), after
occurrence, firstly had carried his injured
brother Kuwar Sen to hospital, in order to
save his life, but when he could not
succeed to save his life, after his death, he
had gone to Police Station to lodge F.I.R.
S.I. Tejveer Singh (PW-5) has also stated
that he had conducted inquest of deceased
Kuwar Sen at C.H.C. because at that time
dead body of deceased was lying there.

22. Record shows that this witness is
rustic and illiterate; he got the F.I.R.
written by unknown person on his
dictation and filed the same. Thus it is
clear
that
after
occurrence,
PW-1,
Informant, firstly, had gone to Police
Station where his report was not lodged
and it appears that he was given advice to
provide medical treatment to Kuwar Sen,
who was alive at that time and on such
advice he had proceeded to hospital for
treatment but after death of Kuwar Sen he
again returned to Police Station.

23. In such situation we are of view
that there is no inordinate delay and the
delay, if any caused, has been selfexplained and justified in view of peculiar
facts and circumstances of the case.
Nowhere in any statute either in Evidence
Act or in Code or in IPC any particular
time has been specified for lodging of
F.I.R. Even, in Section 154 of Code
1 All. Moti Vs. State
589
which deals with lodging of the F.I.R., no
particular time has been prescribed for
lodging F.I.R. Sometimes an inordinate
delay, caused in lodging the F.I.R., if
justified and natural, does not affect
credibility of prosecution and sometimes
even
a
prompt
F.I.R.
may
affect
credibility of prosecution. It depends upon
facts and circumstances of each case. It is
settled principle of law that if a plea is
raised by defence to shake credibility of
prosecution case, on account of delay in
lodging F.I.R., it has to be shown by
defence counsel that due to such delay in
lodging F.I.R. as to what manipulation in
evidence of prosecution case had been
committed by prosecution witnesses. If
defence counsel fails to prove any fact as
to what inherent laches or loopholes in
prosecution case was cured due to delay
caused in lodging F.I.R., delay in lodging
same, will not be treated material. In this
case no such fact has been alleged by
defence counsel before Trial Court during
examination of PW-1. Thus delay in
lodging F.I.R. is just and natural. Hence
submission of learned Amicus Curiae has
no force.

24. So far as submission of learned
Amicus Curiae that there is contradiction
between inquest report and statement of
eye
witnesses
regarding
nature
of
weapons and injury is concerned, inquest
report (Ex.ka-3) shows that inquest
proceeding was conducted on 14.6.2008
between 6:00 a.m. to 8:00 a.m. In this
report, it has been mentioned that several
blood stained injuries were present on
head and face of deceased; blood was
oozing out from right nostril; head was
drenched with blood. According to
opinion of panch (five persons present at
the time of inquest), death of deceased
would have been caused due to injuries by
lathi/danda and stones. These members of
inquest report, except PW-2, Brijesh, are
not eye witnesses. In our view, if they had
estimated regarding weapons used in
occurrence, stone also in addition to
lathi/danda (wooden stick), it would not
affect the statement of eye witnesses.
According to eye witnesses (Ram Saran,
PW-1, Brijesh, PW-2 and Praveen, PW-3)
death of deceased was caused due to
injuries caused by appellant by lathi. This
fact is also corroborated by Dr. Lok Nath
Deepak (PW-6) who in cross-examination
has stated that injuries of deceased would
have been caused by a blunt object, for
example, lathi of 3' Inches diameter.
According to this witness it may also be
caused by a weapon (lathi) of 6-7' Inches
diameter.

25. It is settled principle of law that
any opinion, regarding cause of death or
nature of injury expressed in inquest
report, has no preferential evidentiary
value on the statement of eye witnesses or
medical evidence. The purpose of inquest
report is only to send the dead body for
post mortem examination, to ascertain
cause of death. Thus the submission of
learned Amicus Curiae has no force.

26. So far as submission of learned
Amicus Curiae that statement of Ram
Saran (PW-1) is contradictory as to how
the dead body of deceased was sent to
hospital is concerned, record shows that
PW-1 in examination-in-chief has stated
that he had taken away his brother
deceased Kuwar Sen, in injured condition,
to Faridpur by bullock cart and on the
way to Faridpur, he died. In crossexamination he has stated that he had
reached at 3:00 p.m. at Police Station and
at that time Kuwar Sen was alive; from
Faridpur he proceeded to Bareilly with
590 INDIAN LAW REPORTS ALLAHABAD SERIES
Kuwar Sen to GangaCharanHospital but
before admitting him for treatment,
Kuwar Sen had died. He has further stated
that he had returned with dead body of
Kuwar Sen by D.C.M. (mini truck) to P.S.
Faridpur. Although this witness, in
examination-in-chief,
has
stated
that
Kuwar Sen had died on the way to
Faridpur, later on, in cross-examination
he stated that he (deceased) had died at
Bareilly. Thus in cross-examination, he
clarified the place where deceased had
breathed last. We are of view that there is
no contradiction in statement of this
witness because it might be that when he
reached at Faridpur, someone had advised
or good sense had prevailed to Ram Saran
(PW-1) to take his brother Kuwar Sen to
hospital for treatment as he might alive at
that time. Thus taking away by bullock
cart to Faridpur and thereafter by D.C.M.
(mini truck) for hospital, is natural
conduct of this witness. Thus submission
of learned Amicus Curiae in this regard
has no force.

27. So far as submission of learned
Amicus Curiae that there is contradiction
between statement of witnesses regarding
time of recovery of weapons is concerned,
from perusal of recovery memo of
wooden
stick
(weapon
of
offence)
(Ex.Ka-6), it appears that weapon of
crime was recovered by Police on
14.6.2008. In this recovery memo exact
time of recovery has not been mentioned.
PW-5, S.I. Tejveer Singh (I.O.) has also
not stated exact time of recovery of
weapon. In cross-examination he has
stated that he had reached at the place of
occurrence and inspected it at 2:30 a.m.
and recovered blood stained and plain
earth and also wooden stick (danda) in
presence of Rishi Pal and Roop Singh.
Roop Singh (PW-4) who is witness of
recovery memos Ex.ka-5 and Ka-6, has
stated that Police had recovered blood
stained and plain earth on next day of the
occurrence. This witness has also not
stated the exact time of recovery of
weapon used in offence (wooden stick).
Learned counsel for defence has also not
put any question to this witness during his
cross-examination regarding exact time of
recovery of weapon, used in offence. As
per prosecution case, as stated by
witnesses,
alleged
occurrence
was
happened on 13.6.2008 and recovery of
weapon, used in offence, was made on
14.6.2008. Thus in our view there is no
contradiction on timing of recovery of
weapons which may affect either recovery
of weapon of offence or veracity of
prosecution case. The submission, made
by learned Amicus Curiae, has no force.

28. So far as submission of learned
Amicus Curiae that prosecution has
produced only interested witnesses and
has not produced independent witness, is
concerned, it is well settled principle of
criminal jurisprudence that only on the
ground that witnesses are relative or kith
and kins of deceased, their evidence
cannot be disbelieved. In such type of
cases, only requirement is that evidence
of such witnesses be dealt with much care
and caution.

29. In Masalti and others Vs. State
of U.P., 1965 SC 202, while dealing with
the
evidence
of
reliability
and
admissibility of interested witnesses,
Court has held as under :-

"...............But
it
would,
we
think, be unreasonable to contend that
evidence given by witnesses should be
discarded only on the ground that it is
evidence
of
partisan
or
interested
1 All. Moti Vs. State
591
witnesses. Often enough, where factions
prevail in villages and murders are
committed as a result of enmity between
such factions, criminal Courts have to
deal with evidence of a partisan type. The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice. No
hard and fast rule can be laid down as to
how
much
evidence
should
be
appreciated. Judicial approach has to be
cautious in dealing with such evidence;
but the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct....."

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

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

31. In this case prosecution has
produced Ram Saran (PW-1), Brijesh
(PW-2) and Praveen Kumar (PW-3). Only
PW-1 is brother of deceased. PW-2 and PW3 are neighbours of deceased. PW-2 has
stated in cross-examination that at the time of
occurrence he was at his house and his house
is situated just 1 meter away from place of
occurrence
whereas
PW-3,
in
crossexamination has stated that he was present at
the house of Brijesh (PW-2), at the time of
occurrence. Thus the presence of these
witnesses nearby place of occurrence, at the
time of occurrence, is quite natural. The
statement of these witnesses cannot be
discarded only on the ground that either they
are relative or neighbours of deceased.
Learned Amicus Curiae has not shown any
reason or justification as to why these
witnesses, whose presence has been found
natural, at the place of occurrence, are giving
false evidence leaving aside the real culprit.
In
absence
of
such
justification
or
explanation, evidence of these witnesses
cannot be discarded in the facts and
circumstances of this case. Hence submission
of the learned Amicus Curiae has no force.

32. So far as submission of learned
Amicus
Curiae
that
appellant
was
mentally sick at the time of occurrence,
hence, lenient view is required to be taken
against him as he has not caused alleged
incident intentionally, is concerned, in
this regard it is settled principle of
criminal jurisprudence that if prosecution
case has been found trustworthy and
reliable wherein involvement of accused
has been proved beyond reasonable doubt,
the burden shifts on accused to prove the
plea of insanity, taken by him. Record
shows that, after occurrence, appellant
had fled away from place of occurrence.
In the statement under Section 313 of
Code, he has not taken any plea regarding
his insanity. No evidence has been
produced by him in his defence to prove
the plea of insanity. Thus the plea raised
by learned Amicus Curiae, regarding
insanity of appellant, has no force.

33. In this case occurrence had taken
place in front of house of Kuwar Sen when
he was taking rest beneath tree, situated in
front of his house. PW-1 is his real brother
whereas PW-2 and PW-3 are neighbours of
deceased. They have reached the place of
occurrence just after hearing alarm raised by
deceased. It is day light occurrence. Presence
592 INDIAN LAW REPORTS ALLAHABAD SERIES
of these witnesses at the place of occurrence
has been found natural. They were put to
lengthy
cross-examination
by
learned
counsel for defence before Trial Court but
nothing could be extracted by way of crossexamination so as to create any doubt in their
testimony. Their statements are reliable and
trustworthy. F.I.R. has been lodged without
any delay. Delay if any, has been explained
and found natural. F.I.R. and post mortem
examination report of deceased are in
consonance
and
in
corroboration
of
statement of the witnesses produced by the
prosecution. According to statement and
examination of all witnesses, each and every
circumstance of case, proved by prosecution,
leads to only conclusion that this offence has
been caused by appellant Moti. There is
nothing on record to show that prosecution
witnesses had any animus with appellant so
as to implicate him falsely, absolving actual
assailant.
Trial
Court
has
elaborately
discussed prosecution evidence in the light of
arguments advanced by learned counsel for
prosecution as well as defence. The
impugned judgement and order requires no
interference and is liable to be affirmed.

34. Now the question arises, whether
sentence awarded by Trial Court is just
and proper or not.

35. Learned Amicus Curiae has
submitted that according to prosecution
witness, injuries have been caused only
by lathi and not by any deadly weapon,
hence,
accused-appellant
may
be
convicted under Section 304 I.P.C. and
not under Section 302 I.P.C.

36. From perusal of post mortem report,
it is clear that all injuries were caused only on
the head of deceased Kuwar Sen. Injuries
were so grievous that bones of head were so
fractured that brain was coming out. No other
injury except head injuries was found on the
body of deceased. At the time of occurrence
deceased was unarmed. In our opinion
causing grievous injuries only on vital part
(head) of deceased amounts that appellant had
caused injuries with intention to cause death
of deceased. Looking into facts and
circumstance of this case as well as nature of
injuries caused by appellant, we are of the
view that conclusion of Trial Court that
appellant-accused is liable for offence of
murder, punishable under Section 302 I.P.C.,
requires no interference.

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

"The Court will be failing in its
duty if appropriate punishment is not
awarded for a crime which has been
committed not only against the individual
victim but also against the society to which
the criminal and victim belong. The
punishment to be awarded for a crime must
not be irrelevant but it should conform to
and be consistent with the atrocity and
brutality with which the crime has been
perpetrated, the enormity of the crime
warranting public abhorrence and it should
''''respond to the society's cry for justice
against the criminal''."

38. Accused-appellant has been
convicted only for life imprisonment and
fine of Rs. 1000/-. For offence under
Section 302 I.P.C. an accused may be
1 All. Arvind Parmar @ Bunty and Ors. Vs. State of U.P.
593
punished either with death sentence or
with imprisonment for life and also with
fine. Thus appellant has been convicted
for minimum sentence which requires no
interference.

39. In the light of above discussion.
This jail appeal is hereby dismissed.
Impugned judgment and order dated
20.1.2011 passed by Additional Session
Judge, Court No. 2, Bareilly in S.T. No.
37 of 2009 (State Vs. Moti) is maintained
and affirmed.

37. Sri Sita Ram Sharma, learned
Amicus Curiae has assisted the Court very
diligently. We provide that he shall be
paid counsel's fee as Rs. 10,000/-. State
Government is directed to ensure payment
of aforesaid fee through Additional Legal
Remembrance
posted
in
office
of
Advocate General at Allahabad, to Sri
Sita Ram Sharma, Amicus Curiae without
any delay and, in any case, within 15 days
from the date of receipt of copy of this
judgment.

38. Let a copy of this judgment
along with lower court record be sent to
Additional Session Judge, Court No. 2,
Bareilly for necessary information and
compliance.

39. Compliance report be sent to this
Court. Copy of this judgment be also
supplied to accused-appellant through
Superintendent of Jail, concerned.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

CRIMINAL APPEAL No. 5206 OF 2018
Arvind Parmar @ Bunty and Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ram Datt Dauholia, Sri Nanhe Lal
Tripathi

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

A. IPC - Sections 457, 380, 411, 413 and
511 of IPC. Not an iota of evidence
regarding
commission
of
offence
punishable under Section 380 IPC or 457
IPC, except their alleged confessions,
that too, when they were apprehended
by the Police. Not admissible in evidence
 (Para17)

B. To complete offence, under Section
457 IPC, the ingredient is that burglar,
or house breaker by night, should have
an
intention
to
commit
theft.
For
conviction, under Section 457 IPC, the
accused
must
be
proved
to
have
committed lurking house-trespass or
house breaking.
That
charge
must
be substantiated
by
evidence. It cannot be assumed from nothing.
If a person is charged of house breaking and
theft
and
the
commission
of
theft
is
established,
it
would
not
follow
that
commission of other offence of house-breaking
has also been established. When evidence
does not justify a finding that the accused,
who entered inside the house, had same
intention to commit an offence, it is not
trespass.(Para19)
B.
Evidence
Act
-
Section
114
-
Presumption can be drawn only when
the accused, when asked, is unable to
explain his possession. That in order to
constitute lurking house-trespass, the
offender must take some active means to
conceal his presence. (Para-20)

C. Under Section 380 IPC - Essential
ingredient for offence, punishable under