# Mumtaz v. State of U.P

- **Citation:** (2019) 2 ILRA 513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-12
- **Case number:** Jail Appeal No. 6034 of 2017
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mumtaz-v-state-of-u-p-44801
- **Pages:** 12

## Headnote

A. Indian Evidence Act, 1872 - Section
118 and 134 - Neither any number of
witness is required to prove a fact nor
evidence of a witness can be rejected
only on the ground of his relationship
with the victim. The whole prosecution
case can be proved by a single witness if
evidence is natural and trustworthy.
Jail Appeal dismissed (E-2)
List of Cases Cited: -

## Text

2 All. Mumtaz Vs State of U.P.
513
offence
and,
therefore,
impugned
judgment of Court below does not deserve
to be interfered on this score also.

65. In the result, appeal is dismissed.
Impugned judgment and order dated
31.05.2013 passed by Sri Ajay Kumar,
Additional District and Sessions Judge,
Court
No.
16,
Meerut
convicting
Appellant-Rajesh, under Sections 302 IPC
is hereby confirmed/affirmed.

66. Copy of this order along with
lower Court record be sent to Court
concerned forthwith.

67. A copy of this order be also sent
to Appellant through concerned Jail
Superintendent.

68. Sri Saurabh Sachan, learned Amicus
Curiae has assisted the Court very diligently.
We provide that he shall be paid counsel's fee
as Rs.11,000/-. State Government is directed
to ensure payment of aforesaid fee through
Additional Legal Remembrancer posted in the
office of Advocate General at Allahabad to Sri
Saurabh Sachan, Amicus Curiae, without any
delay and, in any case, within 15 days from
the date of receipt of copy of this judgment.
----------

(2019)10ILR A 513

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE

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

Jail Appeal No. 6034 of 2017

Mumtaz ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Vimlendu Tripathi (A.C.)

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

A. Indian Evidence Act, 1872 - Section
118 and 134 - Neither any number of
witness is required to prove a fact nor
evidence of a witness can be rejected
only on the ground of his relationship
with the victim. The whole prosecution
case can be proved by a single witness if
evidence is natural and trustworthy.
Jail Appeal dismissed (E-2)
List of Cases Cited: -
1. Hanumant Govind Nargundkar & anr. Vs St.
of M.P. AIR 1952 SC 343
2. Hukam Singh Vs St. of Raj. AIR 1977 SC 1063
3. Sharad Birdhichand Sarda Vs St. of Mah.
AIR 1984 SC 1622
4. Ashok Kumar Chatterjee Vs St. of M.P. AIR
1989 SC 1890
5. C. Chenga Reddy & ors.Vs St. of A.P. (1996)
10 SCC 193
6. Bodh Raj @ Bodha & ors. Vs St. of J & K
(2002) 8 SCC 45
7. Shivu & anr. Vs Registrar General, HC of
Kar. & anr. (2007) 4 SCC 713
8. Tomaso Bruno Vs St. of U.P. (2015) 7 SCC 178
9. Dharnidhar Vs St. of U.P. (2010) 7 SCC 759
10. Ganga Bhawani Vs Rayapati Venkat Reddy
& ors. (2013) 15 SCC 298
11. Bhagalool Lodh & anr. Vs St. of UP AIR
2011 SC 2292
12. Dhari & ors. Vs St. of U.P. AIR 2013 SC
308
514 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Rajendra KumarIV, J.)

1. Accused-appellant stood for trial
in Sessions Trial No. 54 of 2010 (State v.
Mumtaz, Case Crime No. 24 of 2010),
under Sections 302, 376 and 201 IPC,
Police
Station
Mugalsarain,
District
Chandauli, pending in the Court of
Additional District and Sessions Judge,
FTC, Court No.1, Chandauli and came to
be convicted by said Court, vide judgment
and order dated 31.08.2016, sentencing
him under Section 302 IPC to undergo
imprisonment for life and fine of Rs.
5,000/-, Section 201 IPC to undergo five
years' imprisonment and fine of Rs.
1000/-. Sentence under Sections 302 and
201 shall run concurrently. In default of
payment of fine, he shall further undergo
three months additional imprisonment,
Trial
Court
has
acquitted
accusedappellant
under
Section
376
IPC.
Appellant sought interference of this
Court by filing this Jail Appeal from Jail
through Jail Superintendent concerned.

2. Prosecution story, in brief, as
borne out from First Information Report
(hereinafter referred to as 'FIR') and
factual matrix of the case is that PW-1,
Alimuddin, submitted a written report,
Ex. Ka-1, in the Police Mugalsarain,
District
Chandauli,
stating
that
his
daughter (victim name withheld by us),
used to go to read Arbi language and learn
Power-loom work in the house of
Mumtaz, who is neighbour of victim. On
the fateful day i.e. 19.01.2010, at about
3:00 pm, victim had gone to house of
accused-appellant to read Arabi language
and to learn Power-loom work, as usual.
When she did not return back from the
house of accused-appellant, PW-1 went to
house of accused-appellant to search his
daughter. He found that house of accusedappellant was locked. Then he made a
drastic search of his daughter in the
village but found no where. In the next
morning, he again went to the house of
accused-appellant and saw that dead body
of his daughter was lying on the earth in
the north street adjacent to the door and
window of Mumtaj's house. Dead body
bore sign of injuries around the face and
her both hands were tied with her Scarf in
front. He suspected that his daughter has
been murdered after committing rape by
accused-appellant.
He
informed
the
Policed Station concerned and submitted
an application requesting to register an
FIR against accused-appellant.

3. On the basis of written report
Ex.Ka-1, chick FIR, Ex.Ka-17 was
registered by PW-8, Kanhaiya Lal Pathak,
as Case Crime No. 24 of 2010 under
Sections 376, 302 and 201 IPC against
accused-appellant. Entry of case was
made by him in General Diary. Copy
whereof is Ex. Ka-18.

4. Immediately after registration of
case,
PW-7,
Ratan
Singh
Yadav
commenced investigation, proceeded to
spot, visited the place of incident, prepared
site plant Ex.Ka-12, recorded statement of
witnesses, took Scarf (Dupatta) in his
possession, prepared memo thereof Ex.Ka3, took blood stained and simple earth,
pieces of brick in his possession and got
prepared memo by PW-6.

5. PW-6, SI Sobha Pandey, on the
direction of the then SHO Ratan Singh
Yadav PW-7, held inquest over the dead
body of victim and prepared inquest
report Ex.Ka-2 and other papers relating
thereto, sealed the dead body and sent to
mortuary for postmortem.
2 All. Mumtaz Vs State of U.P.
515

6. PW-5, Dr. Vinod Kumar Singh
conducted autopsy over dead body of
victim, aged about 14 years, daughter of
Allimuddin, resident of Muhammadpur
Malokhar, Police Station Mugalsarain,
District
Chanduali
and
prepared
postmortem report Ex. Ka-4, expressing
his opinion that death was possible about
one day prior to postmortem due to
hemorrhage on account of ante-mortem
injuries. Doctor found following antemortem injuries on the body of deceased,
which read as under :-

i. No blood from nose, ear and
urethra.

ii. No bleeding from vaginal
orifice

iii. Lacerated wound 7cm x 6cm
right corner of mouth including upper
half lip and lower half lip with cheek
exposing teeth.

iv. Abrasion on right side of
neck with left eyebrow. Contusion 4cm x
2cm on forehead.

7. PW-7 after receiving the
postmortem report of victim, tried to
apprehend the accused but could not
succeed. Later, on 02.02.2010 Police
arrested accused-appellant at Railway
Station, Mugalsarain, at about 8:15 pm,
recorded his statement. After completing
all formalities of investigation, submitted
charge-sheet Ex.Ka-13 against accusedappellant.

8. Case, being exclusively triable by
Court of Sessions, was committed to
Sessions
Judge,
wherefrom,
it
was
transferred to Additional District and
Sessions
Judge,
FTC,
Court
No.1,
Chandauli for disposal in accordance with
law.

9. Trial Court framed charges on
23.08.2010
against
accused-appellant
under Sections 302, 376 and 201 IPC,
which reads as under :-

"vkjksi

eSa] fnyhi dqekj] l= U;k;k/kh'k ]
pUnkSyh vki vfHk;qDr eqerkt dks fuEufyf[kr
:i ls vkjksfir djrk gwW%&

izFker~ %& ;g fd fnukad 19-01-2010
dks nksigj esa fdlh le; cgn~ xzke eqgEeniqj&
eyk[kj] Fkkuk& eqxyljk;] tuin& pUnkSyh es
vki ;g tkurs gq;s fd oknh vyheqn~nhu dh
iq=h xqyDlk dqekjh mez 14 o"kZ dk xyk nckus
ls mldh e`R;q gks ldrh gS] vkius xqyDlk
dqekjh dk xyk nck dj o pksVs igqapk dj
mldh gR;k dkfjr dj nh vkSj bl izdkj
vkius Hkk- n- la- dh /kkjk &302 ds vUrxZr
n.Muh; vijk/k fd;k tks bl U;k;ky; ds
izlaKku esa gSA

f}rh;r~%& ;g fd mijksDr frfFk]
le; o LFkku ij vkius oknh vyheqn~nhu dh
iq=h xqyDlk dqekjh mez 14 o"kZ ds lkFk
tcjnLrh mldh bPNk ds fo:) cykRdkj
fd;kA bl izdkj vkius Hkk- na- la- dh /kkjk &
376 ds vUrxZr n.Muh; vijk/k fd;k tks bl
U;k;ky; ds izlaKku esa gSA

r`rh;r~%& ;g fd mijksDr frfFk]
le; o jkf= djhc 10-00 cts xqyDlk dqekjh
dh gR;k djds lk{; dks foyksfir djus ds
mn~ns'; ls mlds 'ko dks xyh esa Qsad fn;k
vkSj bl izdkj vkius Hkk- na- la- dh /kkjk & 201
ds vUrxZr n.Muh; vijk/k fd;k tks bl
U;k;ky; ds izlaKku esa gSA

vkSj eSa] ,rn~}kjk vki dks funsZ'k nsrk
gwW fd mijksDr vkjksi dks vki dk ijh{k.k bl
U;k;ky; }kjk fd;k tk;A
516 INDIAN LAW REPORTS ALLAHABAD SERIES

fnukad vxLr 23] 2010 bZ0

mijksDr vkjksi vfHk;qDr dks i<+dj
lquk;k o le>k;k x;kA vfHk;qDr us mDr
vkjksiks dks vLohdkj fd;k rFkk ijh{k.k dh
;kpuk fd;kA

"I,
Dilip
Kumar,
Sessions
Judge, Chandauli, charge you, Mumtaz,
with the following:-

First:That at any time on the
noon of 19.01.2010 within the limits of
village - Muhammadpur - Malakhar, PS -
Mughalsarai, District - Chandauli, you,
while knowing that constricting the throat
of the complainant Alimuddin's daughter
Gulaxa Kumari, aged 14 years, may
cause her death, strangulated her and
inflicted injuries, causing her death;
thereby
you
committed
an
offence
punishable under Section 302 IPC, which
is in the cognizance of this court.

Second:That on the aforesaid
date, time and place, you against her
consent forcibly committed rape on the
complainant
Alimuddin's
daughter
Gulaxa Kumari, aged 14 years, thereby
you committed an offence punishable
under Section 376 IPC, which is in the
cognizance of this court.

Third: That on the aforesaid
date and place, you, having committed the
murder of Gulaxa Kumari, disposed of the
body at round 10:00 p.m. in a street with
the intention to destroy the evidence,
thereby
you
committed
an
offence
punishable u/s 201 IPC, which is in the
cognizance of this court.

I, hereby, direct you that for the
aforesaid charges, you be tried by this
court.

The aforesaid charges were
read over and explained to the witnesses.
The accused persons denied the said
charges and sought trial. "

(English Translation by Court)

10. Accused-appellant pleaded not
guilty and claimed trial.

11. In order to substantiate its case,
prosecution examined as many as eight
witnesses in the following manner :-

Sr.
No.
Name
of
PWs
Nature
of
witness
Paper proved

1
Alimuddin
Facts
Ex. Ka-1 and
2
2
Rukaina Bibi Facts
Nil
3
Noor Ali

Facts
Nil
4
Julfekar
Ansari
Formal

Ex.Ka-3
5
Dr.
Vinod
Kumar Singh
Formal

Ex.Ka-5
6
Shobha
Pandey
Formal

Ex.Ka-2, 3, 9,
10 and 11.
7
Ratan Singh
Yadav

Formal

Ex.Ka-3,
9,
10, 11, 12, 13,
16, 17 and 18.
8
K.L. Pathak Formal

Ex.Ka-17 and
18.

12. On closure of prosecution
evidence, statement under Section 313 of
accused-appellant was recorded. In his
statement,
accused-appellant
denied
prosecution story in toto. Entire story is
said to be wrong, he claimed false
implication but did not choose to lead any
defence evidence.
2 All. Mumtaz Vs State of U.P.
517

13. Ultimately, case came to be
heard and decided by Additional District
and Sessions Judge, FTC, Court No.1,
Chandauli, who after hearing learned
counsel for parties and analysing entire
evidence (oral and documentary) led by
prosecution,
found
accused-appellant
guilty, convicted and sentenced, as stated
above.

14. Sri Vimlendu Tripathi, learned
Amicus
Curiae
assailed
order
of
conviction
and
sentence
advancing
following submissions :-

i. There is no eye witness of
murder of victim. Case of prosecution
rests upon circumstantial evidence.

ii. PW-1, 2 and 3 are not
independent witness. They are relatives of
deceased, therefore, their evidence cannot
be termed as independent witness.

iii. There is no strong motive to
accused-appellant to commit murder of
victim.

iv. There is no complete chain
in the circumstantial evidence leading the
guilt of the accused-appellant.

v.
There
are
material
contradictions
in
the
statements
of
witnesses rendering prosecution doubtful.

vi. Prosecution failed to prove
its case beyond reasonable doubt. All link
of circumstantial is not proved.

vii.
Trial
Court
has
not
appreciated
the
evidence
in
right
perspective and has drawn a wrong
conclusion regarding the guilt of the
accused-appellant.

15.

Learned
AGA
opposed
submissions and submitted that accusedappellant is named in FIR; and sufficient
motive has been shown in FIR as well as
statements against accused-appellant. It
was further submitted that dead body of
victim was recovered in the street
adjacent to the house of accusedappellant.
Immediate
after
incident,
accused-appellant was found absent in the
house. He was arrested at Railway Station
by Police. Fleeing away of accusedappellant
from
his
own
house
immediately after the incident is an
important
circumstance
against
him.
Prosecution has proved complete chain of
circumstances leading to the guilt of
accused-appellant. Trial Court rightly
convicted accused-appellant and sought
dismissal of appeal.

16. Dead body of victim was found
in the street adjacent to the house of
accused-appellant in the next morning of
her disappearance; hands of victim were
tied with her own scarf could not be
disputed by the accused-appellant but
according to learned counsel for accusedappellant, he is not responsible for
committing murder of victim. Even
otherwise from the statement of PW-1, 2,
3, 5 and 6, recovery of dead body adjacent
to
house
of
accused-appellant
and
assassination of victim stands proved.

17. Only two questions remain for
consideration; (i) "Whether accusedappellant committed murder of victim or
not?; and (ii) "Trial Court rightly
convicted him under Sections 302 and
201 IPC or not?"

18. Now, we may proceed to
consider rival submissions of learned
counsel for parties and evidence, in brief,
518 INDIAN LAW REPORTS ALLAHABAD SERIES
available on record as well as some
important decisions on this point.

19. Only evidence against the
accused-appellant to connect him with
present case is that (i) the last seen theory
as set forth by PW-1, 2 and 3 of victim in
association of accused-appellant one day
prior to detection of dead body; (ii)
disappearance of accused-appellant from
his house immediately after the incident;
(iii) detection of dead body of the victim
in street adjacent to his house; (iv)
recovery of Lungi with blood and semens
allegedly belong to accused-appellant
from the place of occurrence.

20. Argument Nos. 1 and 3 of
learned counsel for accused-appellant are
being discussed altogether. Now, we
would like to proceed to consider the
statements of witnesses. PW-1 deposed
that his daughter (name withheld), aged
about 14 years used to go to learn the
work of Powerloom and study of Arabi
language to the house of accusedappellant-Mumtaz, where Smt. Jaida
(mother of accused-appellant) taught her
Arabi language and accused-appellant, in
his own house, taught her Power-loom
work. On the fateful day, as usual, his
daughter (victim) went to learn Arabi
language in the house of accusedappellant and came back by 12 O'clock in
the noon. Mother of accused-appellant
and his wife went their maternal home in
afternoon same day. On 19.01.2010,
accused-appellant came to his house and
took victim with him on the pretext of
study. When she did not come back late in
the evening, he along with his other
family members tried to search her but
despite drastic search, she was found no
where. House of accused-appellant was
locked from outside and there was nobody
in the house. Nest morning, they again
went to the house of accused-appellantMumtaz and found a dead body of his
daughter in the street adjacent to north
door of accused-appellant's house. It
appeared that she was raped by accusedappellant-Mumtaz and on being opposed
by her, murdered by accused-appellant,
who ran away from the spot after
throwing dead body in the street. He got
scribed report of incident by one Anil
Kumar Pandey and presented it to Police
Station concerned.

21. In his cross examination, he
deposed that when accused-appellant
came to his house to take his daughter, he
was present in the house with his other
family members.

22. PW-2, Rukaina Bibi (mother of
victim) deposed that her daughter used to
go to house of accused-appellant for
learing Power-loom work. On the fateful
day, his daughter, aged about 14 years,
went to house of accused-appellant to learn
Arabi language from Smt. Jaida (mother of
accused-appellant), which one day prior to
detection of dead body of victim. Accusedappellant-Mumtaz came to her house to
call victim and took her, on the pretext of
learning Arbi language, to his house. When
victim did not return back to her house by
late evening, they went to house of
accused-appellant-Mumtaz, where door
was locked outside and there was nobody
in the house. Despite drastic search, she
was found no where. In the next morning,
at about 7:00 Am, corpse of victim was
found in the street adjacent to the house of
accused-appellant. It was further deposed
that she was raped. Her Paijama bore
semen and there was injury on her face.
Her hands were tied with her own scarf.
She was assassinated in cruel manner.
2 All. Mumtaz Vs State of U.P.
519

23. PW-3, Noor Ali (brother of
victim) deposed that. as usual, at about
9:00 am, victim used to go to learn Arabi
language to the house of accusedappellant and come back at about 12:00
O'clock in the noon and again she had to
go at 1:00 pm and come back at 5:00 pm.
This was her usual time. On the fateful
day i.e. 19.01.2010, at about 9:00 am, her
sister (victim) went to house of accusedappellant to learn Arabi language and
came back at 12 O'clock in the noon. At
about 2:00 pm, accused-appellant came to
his house and took victim to his house on
pretext of learning Arabi language. When
victim did not come back to house by late
evening. They went to house of the
accused-appellant-Mumtaz and found his
house locked outside. Next morning, on
20.01.2010, dead body of victim was
found lying in street adjacent to accusedappellant's house. He came to know that
mother of accused-appellant had gone in
relation when accused took victim. He
further deposed that victim was cruelly
assassinated after rape.

24. PW-1, 2 and 3 withstood lengthy
cross-examination by learned counsel for
accused-appellant but nothing adverse
material could be brought so as to
discredit their statements. PW-1, 2 and 3
are natural witness. They must be present
at the time, when accused-appellant took
victim from her house on the pretext of
learning Arabi language. PW-1, 2 and 3
saw victim in association of accusedappellant last. Later on, she did not come
back and nobody has seen him alive till
detection
of
dead
body.
Accusedappellant offered a routine answer in his
statement under Section 313 Cr.P.C.,
although he did not admit fact of taking
victim with him. PW-1, 2 and 3
established that accused took with him
and they saw victim last, in the company
of accused-appellant. He did not offer any
proper explanation. On the other hand,
PW-1, 2 and 3 established that victim was
taken by accused-appellant from the
house. at 12:00 O'clock in the noon.
Accused-appellant was under obligation
to offer a proper explanation, what had
happened with victim and who murdered
her. It is also relevant to mention here that
accused-appellant disappeared from his
house till his arrest and his house remain
locked. This fact also finds support from
statement of PW-1, 2 and 3. Conduct of
accused-appellant fleeing away from his
house becomes relevant and is an
additional link evidence against him.
Dead body of victim and one Lungi,
allegedly belonged to accused-appellant,
have been recovered from street adjacent
to
house
of
accused-appellant
and
accused-appellant was not present in the
house, if the victim was murdered by
someone else, accused-appellant could
have informed first, but he did not do so.
Accused-appellant has also not offered
any explanation how his Lungi was found
there. All the circumstances indicate, guilt
of accused-appellant and proved that
accused-appellant is only and only person
who committed murder of victim and
threw the body in the street adjacent to his
house.

25. In case, in hand, there is no eye
witness of occurrence and case of
prosecution
rests
on
circumstantial
evidence. The normal principle in a case
based on circumstantial evidence is that
circumstances from which an inference of
guilt is sought to be drawn must be
cogently and firmly established; that those
circumstances should be of a definite
tendency unerringly pointing towards the
guilt
of
accused-appellant;
that
the
520 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances taken cumulatively should
form a chain so complete that there is no
escape from the conclusion that within all
human
probability
the
crime
was
committed by the accused-appellant and
he should be incapable of explanation on
any hypothesis other than that of the guilt
of the accused-appellant and inconsistent
with his innocence.

26. Hanumant Govind Nargundkar
& Anr. v. State of M.P., AIR 1952 SC
343, is the basic judgment of the Supreme
Court on appreciation of evidence, when
the case depends only on circumstantial
evidence, which has been consistently
relied in later judgments. In this case as
long back as in 1952, Hon'ble Mahajan, J
expounded various concomitant of proof
of a case based purely on circumstantial
evidence and said:

"... circumstances should be of
a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
proved...... it must be such as to show that
within all human probability the act
must have been done by the accused."

27. In Hukam Singh v. State of
Rajasthan, AIR 1977 SC 1063, Court
said, where a case rests clearly on
circumstantial evidence, inference of guilt
can be justified only when all the
incriminating facts and circumstances are
found to be incompatible with innocence
of accused-appellant or guilt of any other
person.

28. In Sharad Birdhichand Sarda
v. State of Maharashtra, AIR 1984 SC
1622, Court while dealing with a case
based on circumstantial evidence, held,
that onus is on prosecution to prove that
chain is complete. Infirmity or lacuna, in
prosecution, cannot be cured by false
defence or plea. Conditions precedent
before conviction, based on circumstantial
evidence, must be fully established. Court
described following condition precedent :-

(1) the circumstances from
which the conclusion of guilt is to be
drawn should be fully established. The
circumstances
concerned
'must
or
should' and not 'may be' established.

(2) the facts so established
should be consistent only with the
hypothesis of the guilt of the accused,
that is to say, they should not be
explainable on any other hypothesis
except that the accused is guilty.

(3) the circumstances should be
of a conclusive nature and tendency.

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done
by the accused. (emphasis added)

29. In Ashok Kumar Chatterjee v.
State of Madhya Pradesh, AIR 1989 SC
1890, Court said:

"...when a case rests upon
circumstantial evidence such evidence
must satisfy the following tests :-

(1) the circumstances from
which an inference of guilt is sought to be
2 All. Mumtaz Vs State of U.P.
521
drawn, must be cogently and firmly
established;

(2) those circumstances should
be of a definite tendency unerringly
pointing towards guilt of the accused;

(3) the circumstances, taken
cumulatively; should form a chain so
complete that there is no escape from
the conclusion that within all human
probability the crime was committed by
the accused and none else; and,

(4) the circumstantial evidence
in order to sustain conviction must be
complete and incapable of explanation
of any other hypothesis than that of the
guilt of the accused and such evidence
should not only be consistent with the
guilt of the accused but should be
inconsistent with his innocence."

 (emphasis added)

30. In C. Chenga Reddy and
Others v. State of Andhra Pradesh,
1996(10) SCC 193, Court said:

"In
a
case
based
on
circumstantial evidence, the settled law is
that the circumstances from which the
conclusion of guilt is drawn should be
fully proved and such circumstances
must be conclusive in nature. Moreover,
all the circumstances should be complete
and there should be no gap left in the
chain of evidence. Further, the proved
circumstances must be consistent only
with the hypothesis of the guilt of the
accused and totally inconsistent with his
innocence. " (emphasis added)

31. In Bodh Raj @ Bodha and
Ors. v. State of Jammu and Kashmir,
2002(8) SCC 45 Court quoted from Sir
Alfred
Wills,
"Wills'
Circumstantial
Evidence" (Chapter VI) and in para 15 of
judgement said:

"(1) the facts alleged as the
basis of any legal inference must be
clearly proved and beyond reasonable
doubt
connected
with
the
factum
probandum;

(2) the burden of proof is
always on the party who asserts the
existence of any fact, which infers legal
accountability;

(3) in all cases, whether of
direct or circumstantial evidence the best
evidence must be adduced which the
nature of the case admits;

(4) in order to justify the
inference of guilt, the inculpatory facts
must be incompatible with the innocence
of
the
accused
and
incapable
of
explanation, upon any other reasonable
hypothesis than that of his guilt,

(5) if there be any reasonable
doubt of the guilt of the accused, he is
entitled as of right to be acquitted."
 (emphasis added)

32. The above principle in respect of
circumstantial
evidence
has
been
reiterated in subsequent authorities also in
Shivu
and
Another
v.
Registrar
General High Court of Karnataka and
Another, 2007(4) SCC 713 and Tomaso
Bruno v. State of U.P., 2015(7) SCC
178.

33. Learned counsel for accusedappellant argued that all the three witness
PW-1, 2 and 3 are relative of deceased,
522 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, they cannot be termed as
independent witness and they are not
worthy to credence. We are not impressed
with the argument of learned counsel for
accused-appellant and reject the same.
Argument made by learned counsel for
accused-appellant
is
thoroughly
misconceived for the reasons that PW-1, 2
and 3 being father, mother and brother of
deceased are natural witness. Their
presence must have been in the house,
when accused-appellant took victim from
house on the pretext of learning Arabi
language

34. 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 interested witness. Such evidence
cannot be ignored or thrown out solely
because it comes from a person closely
related to the victim"

35. 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)."

36. It is settled that merely because
witnesses are close 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 the evidence to find
out that whether it is cogent and credible
evidence.

37. In so far as motive is concerned,
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.

38. Next argument advanced by
learned counsel for accused-appellant, in
so far as discrepancies, variation and
contradiction in the prosecution case is
concerned, we have analysed entire
evidence
in
consonance
with
the
submissions raised by learned counsel for
2 All. Mumtaz Vs State of U.P.
523
the accused-appellant and find that the
same do not go to the root of case and
accused-appellant
is
not
getting
its
benefits.

39 . 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.

40. 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.

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

42. e, we are satisfied that
prosecution has successfully proved its
case beyond reasonable doubt against
accused-appellant and Trial Court has
rightly
convicted
him
for
having
committed an offence under Sections 302
and 201 IPC. Appeal is devoid of merit
and liable to be dismissed.

43. 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.

44. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to 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. 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
524 INDIAN LAW REPORTS ALLAHABAD SERIES
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].

45. 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 find that
punishment
imposed
upon
accusedappellant 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.

46. We, therefore, find no merit in
appeal. Present Jail Appeal lacks merit and
is, accordingly, dismissed. Judgement and
order dated 31.08.2016 passed by Additional
Sessions Judge, FTC Court No.1, Chandauli
in Session Trial No. 54 of 2010, (State v.
Mumtaz), arising out of Case Crime No. 24 of
2010, Police Station Mugalsarain, under
Sections 302 and 201 IPC, is maintained and
confirmed.

47. 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.

48. Before parting, we provide that
Sri Vimlendu Tripathi, Advocate, who
has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 11,500/- 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.
----------

(2019)10ILR A 524

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Criminal Revision No. 1089 of 1996

Umesh Chandra
 ...Complainant/Revisionist
Versus
The State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:
Sri B.R. Singh

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

A. Cr.P.C., 1973 - Section 397/401 -
Revisional Jurisdiction of High Court - is
supervisory
jurisdiction
exercised
to
correct the manifest error in the orders
of subordinate courts. It is distinct from
Appellate
jurisdiction
-
Acquittal
of
accused-Double
presumption
of
innocence in his favour - Revisional
powers of High Court to be exercised
only when the Court lacks jurisdiction or
has
excluded
evidence
which
was
admissible, or relied on inadmissible
evidence or material evidence has been