# Pramod Kumar v. State

- **Citation:** (2019) 2 ILRA 465
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-05
- **Case number:** Varanasi in Session Trial No. 62 of 2013
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-v-state-44782
- **Pages:** 14

## Headnote

Sri Syed Ali Murtaza (A.G.A.)

A. Evidencery value of relatives-If the
witnesses are close relative of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is
not a factor that affects credibility of
witnesses. (Para 35)
B. Importance of motive and direct
witness-If direct witness is worthy then
motive does not carry much weight. Only
on the ground that there was no strong
motive, prosecution case cannot be
disbelieved. (Para 36)
The
minor
contradictions
on
trivial
matter does not affect the core of
prosecution. (Para 47)
Jail Appeal dismissed (E-2)

List of Cases Cited: -

## Text

_Characters 0–39,873 of 42,646. This is a partial read: ask again with offset=39873 for what follows._

2 All. Pramod Kumar Vs State
465
Puran, (1990) 4 SCC 731, M.P. v.
Saleem, (2005) 5 SCC 554, Ravji v. State
of Rajasthan, (1996) 2 SCC 175].

55. Hence, applying the principles laid
down in the aforesaid judgments and having
regard
to
the
totality of
facts
and
circumstances of case, nature of offence and
the manner in which it was executed or
committed, we find that punishment imposed
upon accused-appellant-Bindhyavasini Gond
by Trial Court in impugned judgment and
order is not excessive and it appears fit and
proper and no question arises to interfere in
the matter on the point of punishment
imposed upon him.

56. In view of above discussion, the
appeal lacks merit and is, accordingly,
dismissed. Impugned judgement and
order
dated
31.7.2013
passed
by
Additional Session Judge, Court No.7,
Varanasi in Session Trial No. 62 of 2013
(State v. Bindhyavasini Gond) under
Sections 302 and 201 IPC, Police Station
Rohaniya,
District
Varanasi,
is
maintained and confirmed.

57. Lower Court record along with
the copy of this judgment be sent
immediately
to
Court
and
Jail
Superintendent concerned for necessary
compliance and to apprise the accused
forthwith. Compliance report be also
submitted to this Court.
----------

(2019)10ILR A 465

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. 1677 of 2014

Pramod Kumar ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Archana Singh (A.C.)

Counsel for the Opposite Party:
Sri Syed Ali Murtaza (A.G.A.)

A. Evidencery value of relatives-If the
witnesses are close relative of victim,
their testimonies cannot be discarded.
Relationship with one of the parties is
not a factor that affects credibility of
witnesses. (Para 35)
B. Importance of motive and direct
witness-If direct witness is worthy then
motive does not carry much weight. Only
on the ground that there was no strong
motive, prosecution case cannot be
disbelieved. (Para 36)
The
minor
contradictions
on
trivial
matter does not affect the core of
prosecution. (Para 47)
Jail Appeal dismissed (E-2)

List of Cases Cited: -
1. Dalip Singh Vs St. of Punj. AIR,1953, SC 364,
2. Dharnidhar VS St. of U.P. (2010) 7 SCC 759,
3. Ganga Bhawani Vs Rayapati Venkat Reddy
& ors. (2013) 15 SCC 298
4. Lokesh Shiva Kumar Vs St. of Kar. (2012) 3
SCC 196
5. Sampath Kumar Vs Insp. of Police,
Krishnagiri (2012) 4 SCC 124
6. Sachin Kumar Singhraha Vs St. of M.P.
7. Smt. Shamim Vs St. of (NCT of Delhi)
466 INDIAN LAW REPORTS ALLAHABAD SERIES
8. State Represented by Inspector of Police Vs
Saravanan & anr. AIR 2009 SC 152
9. Arumugam Vs St. AIR 2009 SC 331
10. Mahendra Pratap Singh Vs St. of U.P.
(2009) 11 SCC 334
11. Dr. Sunil Kumar Sambhudayal Gupta &
ors. Vs St. of Mah. JT 2010 (12) SC 287
12. Pradeep Narayan Madqaonkar & ors. Vs
St. of Mah. 1995 (4) SCC 255
13. Balbir Singh Vs St. (1996) 11 SCC 139
14. Paras Ram Vs St. of Har. 1992 (4) SCC 662
15. Sama Alana Abdulla Vs St. of Guj. (1996) 1
SCC 427
16. Anil alias Andya Sadashiv Nandoskar Vs St.
of Mah. (1996) 2 SCC 589
17. Subhash Singh Thakurshyam Vs St.
(Through CBI) (1997) 8 SCC 732
18. St. of U.P. Vs Zakaulla 1998 Cri. L.J. 863
19. Girja Prasad Vs St. of M.P. (2007) 7 SCC 625
20. Sumer Singh Vs Surajbhan Singh & ors.
(2014) 7 SCC 323
21. Sham Sunder Vs Puran (1990) 4 SCC 731
22. M.P. Vs Saleem (2005) 5 SCC 554
23. Ravji Vs St. of Raj. (1996) 2 SCC 175

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

1.

Accused-appellant
Pramod
Kumar has preferred this jail appeal under
Section 383 Cr.P.C. from Jail through
Senior
Superintendent
Central
Jail,
Fatehgarh against judgment and order
dated 08.08.2012 passed by Additional
Sessions Judge / Special Judge (E.C. Act),
Kanpur Nagar in Sessions Trial No. 1434
of 2007, Case Crime No. 504 of 2007,
under Section 302 IPC and Sessions Trial
No. 1433 of 2007, Case Crime No. 510 of
2007, under Section 4/25 Arms Act,
Police Station Govind Nagar, District
Kanpur Nagar. By impugned judgement,
appellant has been convicted under
Section 302 I.P.C. and sentenced to
undergo rigorous imprisonment for life
with fine of Rs. 20,000/- and in default of
payment of fine, three months simple
imprisonment and further he has been
convicted and sentenced under Section
4/25 Arms Act to undergo one year
rigorous imprisonment with fine of Rs.
5,000/- and in default of payment of fine
one month simple imprisonment.

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.-3 Manoj Kumar submitted a
written report Ex.Ka-1 in Police Station
Govind Nagar, District Kanpur Nagar
stating that there was a quarrel between
his brothers Vinod Kumar (now deceased)
and Promod Kumar (Accused) regarding
eating items like sugar and rice. On
15.9.2007 at about 9:00 PM in the night, a
dispute occurred between two brothers for
sugar and tea and suddenly, accusedappellant Promod Kumar started beating
victim Vinod Kumar. While quarreling,
both came out of the house on the road.
When Informant PW-3, with the help of
neighbours tried to rescue him, accusedappellant Promod Kumar assaulted 3-4
knife blows to his brother Vinod Kumar
and ran away. While taking the victim
Vinod Kumar to hospital, he succumbed
to injuries on the way. Written report
Ex.Ka-1 further recites that dead body of
Vinod Kumar is lying in front of the
house.
2 All. Pramod Kumar Vs State
467

4. On the basis of written report
Ex.Ka-1, Chick F.I.R. Ex.Ka-2 was
prepared by PW-4 Head Constable Yasho
Verma at Case Crime No.504 of 2007 and
case was registered against accusedappellant under Section 302 I.P.C. An
entry of case was made in General Diary
(herein after referred to as 'GD'), copy
whereof is Ex.Ka-3.

5. Immediately, after registration of
case, PW-7 Nirankar Singh, the then
Inspector In-charge of Police Station
Govind Nagar, commenced investigation
and recorded statement of PW-3 Manoj
Kumar, proceeded to spot, recorded
statement of PW-2, Jhamman Lal; and
PW-1 Smt. Jyoti Shakya; collected blood
stained and simple earth from spot and
prepared site plan Ex.Ka-7. On the same
day at about 9:15 PM, he arrested
accused-appellant Pramod Kumar siting
near
a
temple,
recorded
disclosure
statement and recovered blood stained
knife, allegedly used in the commission of
offence, from bushes near the eucalyptus
tree at the pointing out of accusedappellant before Babloo and Ashok
Kumar (not examined), sealed it in a
cover of cloth, got prepared recovery
memo Ex.Ka-8, prepared site map of
recovery Ex.Ka-9.

6. On the basis of recovery memo,
chick F.I.R. Ex.Ka-5 was registered being
Case Crime No. 510 of 2007 under
Section 4/25 Arms Act against accusedappellant Promod Kumar. Investigation of
Case Crime no. 510 of 2007 was done by
PW-10.

7. PW-8 S.I. Ramveer Singh, on the
direction of Inspector In-charge, PW-7,
held inquest over the dead body of Vinod
Kumar, prepared inquest report Ex.Ka-11
and other papers relating thereto; handed
over the dead body to Constable Hoti Lal
and Ram Dhani for post mortem and sent
it to District Hospital, Kanpur Nagar.

8. PW-7 after recording statement of
witnesses,
completed
all
necessary
formalities of investigation and submitted
charge sheet Ex.Ka-10 against accusedappellant before the Court of C.J.M.
concerned.

9. PW-10, Sri Om Prakash Dwivedi
under took investigation of Case Crime
No. 510 of 2007 and after completing
entire
formalities
of
investigation,
submitted charge sheet under Section 4/25
Arms Act.

10. Case under Section 302 I.P.C.
being exclusively triable by Court of
Sessions and case under Section 4/25
Arms Act being connected with Section
302
I.P.C.,
learned
Chief
Judicial
Magistrate after making compliance of
under Section 207 Cr.P.C. committed
both cases to Court of District Judge,
Kanpur Nagar for trial wherefrom it was
transferred to the Court of Special Judge
(E.C. Act), Kanpur Nagar.

11. Trial Court framed charges
against accused-appellant on 17.01.2008
under Sections 302 IPC and Section 4/25
Arms Act to which accused denied and
claimed trial. Charges read as under :-

vkjksi

eSa ih0 ds0 tSu fo'ks"k U;k;k/kh'k
bZ0lh0,sDV dkuiqj uxj vki izeksn dqekj ij
fuEu vkjksi yxkrk gwW&

izFke ;g fd fnukad 15-9-2007 dks
le; yxHkx jkf= 9 cts edku ua0 8@6 yscj
468 INDIAN LAW REPORTS ALLAHABAD SERIES
dkyksuh ds njokts ds lkeus vUrxZRk Fkkuk
xksfoUn uxj dkuiqj uxj vkius vk'k;iwoZd
fouksn dqekj dks pkdqvksa ls ekjdj gR;k dh
vkSj bl izdkj vkius Hkk0na0fo0 dh /kkjk 302
ds vUrxZRk n.Muh; vijk/k fd;k tks fd esjs
izlaKku esa gSA

,rn~}kjk vkidks funsZf'kr fd;k tkrk
gS fd mijksDr vkjksi vUrxZRk vkidk fopkj.k
bl U;k;ky; }kjk fd;k tk;sA

Charge

I, P.K. Jain, Special Judge E.C.
Act Kanpur Nagar, charge you i.e.
Pramod Kumar with following charge:-

First, that you intentionally
committed murder of Vinod Kumar by
assaulting him with knives at about night
9 o'clock on 15.9.2007, in front of the
door of House No. 8/6 Labour Colony
under Police Station Govind Nagar,
Kanpur Nagar, and in this manner you
have committed an offence under Section
302 of the I.P.C. which is in my
cognizance.

You are hereby directed that
you are to be tried by this Court for the
aforementioned charge.

 (English
Translation
By
Court)
vkjksi

eSa] ih0 ds0 tSu] fo'ks"k U;k;k/kh'k
bZ0lh0,sDV] dkuiqj uxj vki& izeksn dqekj
'kkD; dks fuEu izdkj ls vkjksfir djrk gw¡%&

izFke% ;g fd fnukad 16@9@2007
le; yxHkx 21%15 cts nknkuxj jsyos dzkflax
ds igys ;wdhfyIVl ds isM+ ds ikl >kM+h ls
vUrxZr Fkkuk xksfoUn uxj] dkuiqj uxj esa
vkidh fu'kknsgh ij fouksn dqekj dh gR;k esa
iz;qDr pkdw vkids ikl ls cjken gqbZ] ftldh
yEckbZ izfrcfU/kr yEckbZ ds vUrxZr vkrh gS
vkSj bl izdkj vkius vk;q/k vf/kfu;e dh /kkjk
25@4 ds v/khu n.Muh; vijk/k fd;k tks fd
esjs izlaKku esa gSA

,rn~}kjk vkidks funsZf'kr fd;k tkrk
gS fd mijksDr vkjksi ds vUrxZr vkidk
fopkj.k bl U;k;ky; }kjk fd;k tk;sA
Charge

I, P.K. Jain, Special Judge E.C.
Act Kanpur Nagar, charge you - Pramod
Kumar Shakya with following charge:-

First : That, on 16/9/2007 at
about 21.15 Hrs, the knife used in the
murder of Vinod Kumar has been
recovered from your custody on pointing
out by you, from the shrubs near
eucalyptus tree before Railway Crossing
Dada Nagar under Police Station Govind
Nagar, Kanpur Nagar whose length falls
under the prohibited length and therefore
you committed an offence punishable
under Section 25/4 of the Arms Act which
is in my cognizance.

You are hereby directed that
you are to be tried by this Court for the
aforementioned charge.

 (English Translation By Court)

12. Accused-appellant denied the
charges and pleaded not guilty and
claimed to be tried.

13. Both the cases, being connected
to each other, came to be heard and
decided together.

14. In order to substantiate its case,
prosecution examined as many as ten
witnesses out of whom PW-1 Smt. Jyoti
2 All. Pramod Kumar Vs State
469
Shakya, PW-2-Jhamman Lal and PW-3Manoj Kumar, are witnesses of fact. Rest
are formal witnesses. PW-1 Smt. Jyoti
Shakya is the wife of deceased Vinod
Kumar; PW-2 Jhamman Lal is father of
deceased as well as accused; PW-3 is
Informant
and
brother
of
accusedappellant; PW-4 Head Constable Yasho
Verma registered the case under Section
302 I.P.C. against the accused on the basis
of written report Ex.Ka-1; PW-5 Dr.
Yogesh Dayal, Medical Officer, who
conducted autopsy over the dead body of
deceased;
PW-6
C.P.
Asha
Ram
registered the case at Crime No. 510 of
2007 under Section 4/25 Arms Act
against the accused; PW-7 Nirankar
Singh, C.O. Ghaziabad, the then Inspector
In-charge of Police Station Kanpur Nagar
is the Investigating Officer who submitted
charge sheet; PW-8 S.I. Ramveer Singh
held inquest over the dead body of
deceased
Vinod
Kumar,
under
the
direction of PW-7 the then Inspector; PW9 Constable Bhikhari Lal is the witness,
who has taken docket to FSL for
examination and PW-10 S.I. Om Prakash
Dwivedi is the Investigating Officer of
Case Crime No.510 of 2007 under
Section 4/25 Arms Act and submitted
charge sheet against accused-appellant.

15. Subsequent to closure of
prosecution
evidence,
Trial
Court
recorded statement of accused under
Section
313
Cr.P.C.
explaining
all
incriminating and other evidence and
circumstances. In the statement under
Section 313 Cr.P.C., accused denied
prosecution story in toto and claimed false
implication on account of enmity. In
response of question no. 24, he answered
that deceased was addict to drugs and a
man of bad habits; he usually used to
quarrel other persons in the vicinity due to
which, he has been murdered by some one
else; accused was not present in the house
at the time of incident; he has been falsely
implicated in the present case and he is
completely innocent. Accused did not
choose to adduce any evidence.

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

17. We have heard Smt. Archana
Singh, Advocate (Amicus Curiae) for
appellant and Sri Syed Ali Murtaza,
learned A.G.A for State-respondent at
length and have gone through the record
available on file carefully.

18.

Learned
Amicus
Curiae
appearing
for
appellant
assailing
impugned judgement of conviction of
accused-appellant, advanced submissions,
in the following manner :-

(i) PWs-1, 2 and 3 are interested
witnesses and they are not independent.

(ii) There is no strong motive to
accused to commit murder of his own real
brother. Motive as stated by prosecution
is not sufficient to commit the present
crime.

(iii) Medical report is not
compatible with the ocular version.

(iv) There are many major
contradiction in the statement of PWs
rendering
the
case
of
prosecution
doubtful.
470 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Knife which is said to be
used in the commission of offence is
allegedly recovered at the instance of
accused before public witness but they
have not been produced by prosecution in
support of recovery. In absence of public
witness recovery cannot be said to be
trustworthy and reliable.

(vi) Prosecution has failed to
prove its case beyond of shadow of
reasonable doubt and accused is entitled
to get benefit of doubt and liable to be
acquitted.

19. Learned AGA vehemently opposed
contentions of accused-appellant and submitted
that accused is named in F.I.R.; blood stained
knife, allegedly used in the commission of
offence, has been recovered from his
possession at the pointing out of applicant; PW2 Jhamman Lal, father of deceased as well as
accused and PW-3 real brother of deceased as
well as accused, have no reason to falsely
implicate accused in the present case like
murder; PW-1 being wife of deceased is
natural witness for the reasons, incident started
from house and happened on road; prosecution
witnesses are totally natural and reliable
witnesses and there is no scope to disbelieve
their testimony; and in the statement recorded
under Section 313 Cr.P.C., accused has taken a
plea of alibi but could not prove it and even did
not suggest as to why his father and real brother
were giving false evidence against him. He
sought dismissal of appeal.

20. We have considered rival
submissions of both parties and travelled
through evidence available on record with
the valuable assistance of learned counsel
for the parties.

21. Although time, date, place and
manner of injuries and death of victim as
stated by prosecution could not be
disputed from the side of defence but
according to Advocate for accusedappellant, he is not responsible for
causing murder of Vinod Kumar. Even
otherwise from the evidence of PWs-1, 2,
3 and 5, time, date and place of incident,
death of Vinod Kumar and manner of
injuries as stated by prosecution stand
proved.

22. Only question remains for
consideration
is,
"whether
accusedappellant has committed murder of Vinod
Kumar by inflicting knife blows on him
and Trial Court has rightly convicted
accused-appellant for causing death of
Vinod Kumar, punishable under Section
302 I.P.C.?"

23. We may now proceed to
consider the submissions of learned
counsel for the parties and evidence
briefly as well as legal points with few
important decisions.

24. PW-1 Smt. Jyoti Shakya
deposed that accused Pramod Kumar is
real brother of her husband (Vinod
Kumar) and Jhamman Lal PW-2 is her
father-in-law; on 15.9.2007 at about 9:00
PM in the night there was a dispute
between her husband Vinod Kumar and
accused-appellant
Pramod
Kumar
in
respect of tea leaf and sugar; due to
dispute being increased, accused Pramod
Kumar abused her husband and started
beating; she interfered and rescued both
but, thereafter, her husband and accused
came out of house on the road; she
(witness) also came out of her house;
while quarreling, accused-appellant took
out knife from house and started stabbing
in the stomach and chest of her husband
due to which her husband got seriously
2 All. Pramod Kumar Vs State
471
injured; on seeing persons coming there,
accused-appellant got escaped with knife;
while taking her husband to hospital in
injured position, he breathed last in the
way; report of incident was got registered
by PW-3, Manoj Kumar (her Dewar);
usually there had to be quarrel between
accused-appellant and her husband for
households items.

25. In her cross-examination, she
admitted that she studied M.A.; her cousin
sister was married to accused-appellant;
three days prior to the incident, Deepmala
wife of accused had gone to her maternal
house; when quarrel started, she (PW-1)
was in kitchen and making food; there
was a quarrel regarding sugar and tea leaf
and kitchen was just adjacent to room;
and her father-in-law was present at the
time of incident.

26. PW-2 Jhamman Lal, happens to be
father of accused-appellant as well as
deceased. He has deposed that on 15.9.2007
at about 9:00 PM, there was a dispute
between Vinod Kumar and Promod Kumar
regarding tea leafs and sugar; accusedappellant Pramod Kumar started abusing and
assaulting Vinod Kumar victim; his wife
Smt. Jyoti, PW-1, rescued them but both of
them came out of house; while quarreling,
Pramod Kumar took out knife from house;
by that time Jyoti also came out of house;
Pramod Kumar stabbed knife 3-4 times to
victim Vinod Kumar, due to which he got
injured; accused-appellant ran away from
spot with knife; Manoj Kumar took victim
Vinod Kumar to hospital but unfortunately
victim succumbed to injuries; dead body of
Vinod Kumar was taken to house.

27. PW-2 has admitted in crossexamination that he had four sons,
namely, Ashok Kumar, Pramod Kumar,
Vinod Kumar and Manoj Kumar; his
eldest son was living in Armapur, Kanpur
while rest three were living with him; and
at the time of occurrence, he, Vinod
Kumar, Pramod Kumar, Smt. Jyoti and
her son Prashant aged about four and half
years were present on spot.

28. PWs-1 and 2 withstood lengthy
cross-examination but no adverse material
could be brought so as to disbelieve their
statement. Their presence on the spot is
fully proved and natural. Statements of
these two witnesses are wholly reliable
and worthy to credence. There is nothing
on record to show, why PW-2 Jhamman
Lal, father of accused would depose
against his own son in the heinous offence
like murder. Even accused appellant did
not suggest anything in his statement
under Section 313 Cr.P.C. while PW-2
has given statement against him. He
simply said that statement of witnesses
are wrong. He took a plea of alibi but did
not prove it.

29. PW-3 Manoj Kumar supporting
prosecution case has deposed that on
15.9.2007 at about 9:00 PM he was
present in his office and arrived at his
house on getting information of incident;
Victim Vinod Kumar was lying in injured
position; he took him to hospital on
Tempo but on the way victim breathed
last; he came back to his house with dead
body and presented written report Ex.Ka1 in the Police Station. This witness is not
an eye witness, therefore, much more
discussion is not required.

30. So far as argument of learned
Amicus Curiae for accused-appellant in
respect of relation witnesses is concerned,
we are not impressed with submission
made by learned Amicus Curiae for
472 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellant for reasons that if
relation witnesses are found to be reliable,
natural and trustworthy, their evidence
cannot be discarded on the ground of their
relationship with deceased or accused.

31. Now, next thing to be considered
is that PWs.-1, 2 and 3 are family
members of deceased. PW-1 is wife of
deceased, and therefore, their evidence
should be treated to be trustworthy or not.
This
submission
is
thoroughly
misconceived. Mere relationship is not
sufficient to discard otherwise trustworthy
ocular testimony.

32. In Dalip Singh v. State of
Punjab, AIR,1953, SC 364. Court held
as under :-

"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."

33. 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"

34. 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)."

35. It is settled that merely because
witnesses are close relatives of victim,
2 All. Pramod Kumar Vs State
473
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 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.

36. So far as motive is concerned, it
is well settled that where direct evidence
is worthy, it can be believed, then motive
does not carry much weight. It is also
notable that mind set of accused persons
differs from each other. Thus merely
because that there was no strong motive
to
commit
the
present
offence,
prosecution case cannot be disbelieved.

37. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
has 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."

38. According to Advocate for
appellant,
medical
evidence
is
not
compatible with ocular evidence.

39. PW-5 Dr. Yogesh Dayal, deposed
that on 16.9.2007, he conducted autopsy over
the dead body of Vinod Kumar and found five
ante-mortem injuries which reads as under :-

(i) Abraded contusion 6cm x 0.5
cm on left side of face, just above the
ramus of mandibular.

(ii) Abraded contusion 17 cm x
7 cm on upper arm on tricep area.

(iii) Stab wound 2 cm x 1 cm x
abdominal cavity deep on front of
abdomen right side, 1 cm lateral to
umbilicus bleeding.

(iv) Stab wound 1 cm x 0.5 cm x
Abdominal cavity deep on lower abdomen
right side, 7 cm lateral to umbilicus,
bleeding.

(v) Stab wound, 2 cm x 1 cm x
muscle and bone deep present on back of
lower chest right side, 4 cm lateral to
vertebral coloum and 15 cm below the
interior angle of right scapula.

40. Doctor opined that death of
deceased might have occurred due to
shock and haemorrhage on account of
ante-mortem injuries and it was possible
1/2 days prior to post mortem. He further
opined that injury nos. 3, 4 and 5 were
possible to be caused by some sharp
edged weapon.

41. We are not in agreement with
the learned counsel for the appellant for
the reasons that PW-1, 2 and 3 supporting
prosecution case have deposed that
accused-appellant stabbed 3-4 knife blows
in the stomach of deceased Vinod Kumar
due to which deceased Vinod Kumar
received serious injuries and Doctor has
opined that death of victim would have
been caused due to ante-mortem injuries.
In this way medical evidence is totally
compatible with oral version.

42. In so far as discrepancies,
variations
and
contradictions
in
prosecution case are concerned, we have
analysed entire evidence in consonance
474 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

43.

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.

44. In Sachin Kumar Singhraha v.
State of Madhya Pradesh in Criminal
Appeal Nos. 473-474 of 2019 decided on
12.3.2019, Supreme Court has observed
that Court will have to evaluate evidence
before it keeping in mind the rustic nature
of depositions of 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.

45. om 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 in Criminal Appeal No. 56
of 2018, Smt. Shamim v. State of (NCT
of Delhi), decided on 19.09.2018.

46. When such incident takes place,
one cannot expect a scripted version from
witnesses to show as to what actually
happened and in what manner it had
happened. Such minor details normally
are neither noticed nor remembered by
people since they are in fury of incident
and apprehensive of what may happen in
future. A witness is not expected to
recreate a scene as if it was shot after with
a scripted version but what material thing
has happened that is only noticed or
remembered by people and that is stated
in evidence. Court has to see whether in
broad narration given by witnesses, if
there is any material contradiction so as to
render evidence so self contradictory as to
make it untrustworthy is Minor variation
or such omissions which do not otherwise
affect trustworthiness of evidence, which
is broadly consistent in statement of
witnesses, is of no legal consequence and
cannot defeat prosecution.

47. In all criminal cases, normal
discrepancies are bound to occur in the
depositions of witnesses due to normal
errors of observations, namely, errors of
memory due to lapse of time or due to
mental disposition such as shock and
horror at the time of occurrence. Where
the omissions amount to a contradiction,
creating a serious doubt about truthfulness
of the witness and other witnesses also
make
material
improvement
while
deposing in the court, such evidence
cannot be safe to rely upon. However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements
on
trivial matters which do not affect the
core of the prosecution case, should not
be made a ground on which the evidence
can be rejected in its entirety. Court has to
form its opinion about the credibility of
witness and record a finding, whether his
deposition
inspires
confidence.
Exaggerations per se do not render the
2 All. Pramod Kumar Vs State
475
evidence brittle, but can be one of the
factors
to
test
credibility
of
the
prosecution version, when entire evidence
is put in a crucible for being tested on the
touchstone of credibility. Therefore, mere
marginal variations in the statement of a
witnesses
cannot
be
dubbed
as
improvements as the same may be
elaborations of the statements made by
the witnesses earlier. Only such omissions
which
amount
to
contradictions
in
material particulars i.e. go to the root of
the case/materially affect the trial or core
of the prosecution's case, render the
testimony of the witness liable to be
discredited. [Vide: State Represented by
Inspector of Police v. Saravanan &
Anr., AIR 2009 SC 152; Arumugam v.
State, AIR 2009 SC 331; Mahendra
Pratap Singh v. State of Uttar Pradesh,
(2009) 11 SCC 334; and Dr. Sunil
Kumar Sambhudayal Gupta & Ors. v.
State of Maharashtra, JT 2010 (12) SC
287].

48. So far as next argument of
learned counsel for the appellant is
concerned, according to him, public
witness in support of recovery of knife
has not been produced from the side of
prosecution and absence of public witness
recovery become doubtful.

49. We would like to consider
briefly the evidence of Officer, who made
recovery and some important decisions on
this subject. PW-7, Nirankar Singh, I.O.
in his statement in chief deposed that he
arrested accused Pramod Kumar sitting
near a temple at about 9:15 PM. In his
disclosure statement, he admitted his guilt
and on his pointing out one blood stained
knife was recovered from bushes near
eucalyptus tree. It is true that recovery is
said to be made before public witness as
but no public witness has been produced
from the side of prosecution to prove
recovery. Witness PW-7 was lengthy
cross-examined by accused counsel but
nothing on record to show that witness
had any occusation to falsely implicate
the accused.

50. As a matter of rule, there can be
no legal proposition that evidence of
police officers, unless supported by
independent witnesses, is unworthy of
acceptance.
Non-examination
of
independent witness or even presence of
such witness during police raid would cast
an added duty on the court to adopt
greater
care
while
scrutinising
the
evidence of the police officers. If the
evidence of police officer is found
acceptable, it would be an erroneous
proposition
that
court
must
reject
prosecution version solely on the ground
that
no
independent
witness
was
examined.
In
Pradeep
Narayan
Madqaonkar & others vs. State of
Maharashtra 1995 (4) SCC 255, it was
held:

"Indeed, the evidence of the
official (police) witnesses cannot be
discarded merely on the ground that they
belong to the police force and are, either
interested in the investigation of the
prosecuting agency but prudence dictates
that their evidence needs to be subjected
to strict scrutiny and as far as possible
corroboration
of
their
evidence
in
material particulars should be sought.
Their desire to see the success of the case
based on their investigation, requires
greater
care
to
appreciate
their
testimony."

51. Balbir Singh vs. State 1996
(11) SCC 139, the Court has repelled a
476 INDIAN LAW REPORTS ALLAHABAD SERIES
similar
contention
based
on
nonexamination of independent witnesses.
The same legal position has been
reiterated time and again by Apex Court
vide Paras Ram vs. State of Haryana
1992 (4) SCC 662, Sama Alana Abdulla
vs. State of Gujarat 1996 (1) SCC 427,
Anil alias Andya Sadashiv Nandoskar
vs. State of Maharashtra 1996 (2) SCC
589.

52.

In
Subhash
Singh
Thakurshyam vs State (Through CBI)
(1997) 8 SCC 732, a Two Judge Bench of
the Apex Court comprising of Hon'ble M.
Mukherjee and Hon'ble K. Thomas JJ, in
para 90 observed:

"....We should not forget that the
time of the raid was during the odd hours
when possibly no pedestrian would have
been trekking on the road nor any
shopkeeper remaining in his shop nor a
hawker
moving
around
on
the
pavements."

53. In State of U.P. v. Zakaullah
1998 Cri. L.J. 863 in para-10, it is said:

"The necessity for "independent
witness" in cases involving police raid or
police search is incorporated in the
statute not for the purpose of helping the
indicted person to bypass the evidence of
those panch witnesses who have had some
acquaintance with the police or officers
conducting the search at some time or the
other. Acquaintance with the police by
itself
would
not
destroy
a
man's
independent outlook. In a society where
police
involvement
is
a
regular
phenomenon many people would get
acquainted with the police. But as long as
they are not dependent on the police for
their living or liberty or for any other
matter, it cannot be said that those are
not independent persons. If the police in
order to carry out official duties, have
sought the help of any other person he
would
not
forfeit
his
independent
character by giving help to police action.
The requirement to have independent
witness to corroborate the evidence of
the police is to be viewed from a realistic
angle. Every citizen of India must be
presumed to be an independent person
until it is proved that he was a dependent
of the police or other officials for any
purpose whatsoever."

54. Referring to some of the the
aforesaid decisions, Court in Girja
Prasad Vs. State of M.P. (2007) 7 SCC
625 held:

"It is well-settled that credibility
of witness has to be tested on the
touchstone
of
truthfulness
and
trustworthiness. It is quite possible that in
a given case, a Court of Law may not
base conviction solely on the evidence of
Complainant or a Police Official but it is
not the law that police witnesses should
not be relied upon and their evidence
cannot
be
accepted
unless
it
is
corroborated in material particulars by
other
independent
evidence.
The
presumption that every person acts
honestly applies as much in favour of a
Police Official as any other person. No
infirmity attaches to the testimony of
Police Officials merely because they
belong to Police Force. There is no rule
of law which lays down that no conviction
can be recorded on the testimony of
Police Officials even if such evidence is
otherwise reliable and trustworthy. The
rule of prudence may require more
careful scrutiny of their evidence. But, if
the Court is convinced that what was
2 All. Pramod Kumar Vs State
477
stated by a witness has a ring of truth,
conviction
can
be
based
on
such
evidence." (para 25)

55. In the present case, it is fully
established from the statement of PW-1
and PW-2 that Vinod Kumar succumbed
to knife injures caused by accusedappellant. Evidence shows that dead body
of deceased was found in the house at the
time of inquest. Medical evidence shows
that death of Vinod Kumar might have
occurred due to shock and haemorrhage
on account of ante-mortem injuries, as
alleged by prosecution. Accused-appellant
in his statement under Section 313
Cr.P.C. has given reply that witnesses
gave false statement but he did not
suggest anything as to why PW-1 and
PW-2 gave false statements against him,
therefore, there cannot be any hesitation
to come to conclusion that accused
Pramod Kumar caused death of his
brother Vinod Kumar by causing several
injuries on his body with knife.

56. In view of facts and legal
position discussed hereinabove, we find
that Trial Court has rightly analyzed
evidence led by prosecution and found
accused guilty and convicted him for
having committed murder of Vinod
Kumar, an offence punishable under
Section
302
IPC.
Conviction
and
sentenced awarded by Trial Court is liable
to be maintained and confirmed. No
interference is warranted by this Court.
Jail appeal lacks merit and liable to be
dismissed.

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

58. 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
upon court to constantly remind itself that
right of victim, and be it said, on certain
occasions or 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
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].

59.