# Puttan Yadav @ Vipin (In Jail) v. State of U.P. 760 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 2 ILRA 759
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-03
- **Case number:** Criminal Appeal No. 386 of 2014
- **Bench:** Pritinker Diwaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puttan-yadav-vipin-in-jail-v-state-of-u-p-760-indian-law-reports-allahabad-49740
- **Pages:** 13

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- The medical evidence is a
crucial and significant piece of evidence
which, if corroborates the prosecution
version, and eye-witness account, the
prosecution would certainly succeed in
proving its case- The injuries found on the
body of the deceased by the doctor would
have been caused in the same manner as
deposed by PW-2- The injuries caused to
the poor child were sufficient in the
ordinary course of business to cause her
death and the prosecution story as such is
fully
corroborated
by
the
medical
evidence.

Where the ocular evidence is corroborated by
the medical evidence, then conviction can be
secured on that basis.

Criminal Law- Indian Evidence Act, 1872-
Section 134- It is transpired from the
close scrutiny of entire testimony of PW-2
that her evidence is quite innocent and
trustworthy and she is wholly reliable
witness. Her deposition in its continuity is
quite
instinctive
and
bears
no
contradiction in material particulars such
as to the manner of assault, place of
occurrence, author of crime and all other
related factors. Her presence over the
place of occurrence at the time of incident
is quite natural- Her deposition is free
from all infirmities and she is proved to be
a
reliable
and
natural
witness
and
conviction can safely be recorded on the
basis of statement of such witness - and
further
gets
corroboration
from
the
medical evidence.

Conviction of an accused can be secured even
upon the testimony of a solitary witness where
such testimony is truthful, creditworthy and
corroborated with the medical evidence, as it is
the quality of the evidence and not the quantity,
which is important.

Criminal Law- Indian Evidence Act, 1872-
Section 3- The testimony of a witness in a
criminal trial cannot be discarded merely
because the witness is a relative or family
member of the victim of the offence. In
such a case Court has to adopt a careful
approach in analyzing the evidence of
such witness and if the testimony of the
related
witness
is
otherwise
found
credible, accused can be convicted on the
basis of the testimony of such related
witness.

Settled law that where the court, after
exercising abundant caution, finds that the
testimony of a related witness is trustworthy
and credible and her presence is natural, then
the same is wholly reliable.

Quantum of Punishment- Doctrine of
Proportionality- Section 304 (Part-I) IPC-
life imprisonment has been awarded by
learned trial court- Appropriate sentence
should be awarded after giving due
consideration
to
the
facts
and
circumstances of each case, nature of the
offence and the manner in which it was
executed
or
committed.
It
is
the
obligation of the Court to constantly
remind itself that the right of the victim,
and be it said, on certain occasions the
person aggrieved as well as the society at
large
can
be
victims,
never
be
marginalised. The measure of punishment
should be proportionate to the gravity of
the
offence-
Keeping
in
view
the
reformative theory of punishment and
"doctrine of proportionality", it appears to
us that the sentence of life imprisonment
awarded under Section 304 (Part-I) IPC
by learned trial Court to the appellant is
too harsh and severe- Since the appellant
has already served-out more than ten
years jail sentence, the sentence of life
imprisonment under Section 304 (Part-I)
IPC is converted into the sentence already
undergone, which would meet the ends of
justice.
2 All. Puttan Yadav @ Vipin Vs. State of U.P.
761
As the judicial trend in the country is
reformative and not retributive hence in view of
the facts and circumstances of the case and
period of incarceration undergone by the
accused, the sentence awarded modified to the
period undergone. (Para 26, 28, 29, 40, 42, 45,
47, 48, 60, 61)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,985 of 43,312. This is a partial read: ask again with offset=39985 for what follows._

2 All. Puttan Yadav @ Vipin Vs. State of U.P.
759
that it is consistent only with the hypothesis of
the guilt of accused-appellant. Needless to say,
that last seen theory comes into play where the
time gap between the point when the accused
and the deceased were last seen alive and
when the deceased is found dead is so narrow
that possibility of any person other than the
accused being the author of crime becomes
impossible.

44. Moreover, the trial court missed on
the aspect that motive in the present case could
not be proved by the prosecution. Although,
motive may pale into insignificance in a case
involving eyewitnesses, however it may not be
so when an accused is implicated based upon
the circumstantial evidence. This position of
law has been dealt with by the Apex Court in
the case of Tarsem Kumar v. Delhi
Administration (1994) Supp 3 SCC 367 in the
following terms:

"8. Normally, there is a motive
behind every criminal act and that is why
investigating agency as well as the court while
examining the complicity of an accused try to
ascertain as to what was the motive on the part
of the accused to commit the crime in question.
It has been repeatedly pointed out by this Court
that where the case of the prosecution has been
proved beyond all reasonable doubts on basis
of the materials produced before the court, the
motive loses its importance. But in a case which
is based on circumstantial evidence, motive for
committing the crime on the part of the accused
assumes greater importance. Of course, if each
of the circumstances proved on behalf of the
prosecution is accepted by the court for
purpose of recording a finding that it was the
accused who committed the crime in question,
even in absence of proof of a motive for
commission of such a crime, the accused can be
convicted. But the investigating agency as well
as the court should ascertain as far as possible
as to what was the immediate impelling motive
on the part of the accused which led him to
commit the crime in question. ......."

45. Lastly, we may add that there is
unexplained delay in lodging the FIR, which
has been lodged by the owner of the shop
where deceased was said to be working after
three days of incident. Surprisingly, Ram Dayal
(P.W.-3) who is the father of the deceased, did
not make any attempt to search his son
Vishwanath and inform the police about his
missing which itself creates doubt on the
prosecution story. Moreover, the complainant's
testimony as regards the implication of Bheem
was disbelieved, hence he had lost the
credibility of being a reliable witness.

46. In view of the aforesaid detail
discussions, the impugned judgement and order
of Conviction dated 02.05.1987 passed by II
Additional Session Judge, Hardoi is hereby setaside. The appellant is on bail. The appellant
need not surrender and his bonds are cancelled
and sureties discharged.

47.

The
appeal
stands
allowed
accordingly.

48. Let a copy of this order be sent to the
Court
concerned
for
information
and
compliance.
----------
(2023) 2 ILRA 759
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.02.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 386 of 2014

Puttan Yadav @ Vipin ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party
760 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Nikhil Kumar, Sri Jitendra Singh, Sri Lalji
Yadav, Sri Sudhakar Yadav, Sri Yashpal
Yadav

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 3- The medical evidence is a
crucial and significant piece of evidence
which, if corroborates the prosecution
version, and eye-witness account, the
prosecution would certainly succeed in
proving its case- The injuries found on the
body of the deceased by the doctor would
have been caused in the same manner as
deposed by PW-2- The injuries caused to
the poor child were sufficient in the
ordinary course of business to cause her
death and the prosecution story as such is
fully
corroborated
by
the
medical
evidence.

Where the ocular evidence is corroborated by
the medical evidence, then conviction can be
secured on that basis.

Criminal Law- Indian Evidence Act, 1872-
Section 134- It is transpired from the
close scrutiny of entire testimony of PW-2
that her evidence is quite innocent and
trustworthy and she is wholly reliable
witness. Her deposition in its continuity is
quite
instinctive
and
bears
no
contradiction in material particulars such
as to the manner of assault, place of
occurrence, author of crime and all other
related factors. Her presence over the
place of occurrence at the time of incident
is quite natural- Her deposition is free
from all infirmities and she is proved to be
a
reliable
and
natural
witness
and
conviction can safely be recorded on the
basis of statement of such witness - and
further
gets
corroboration
from
the
medical evidence.

Conviction of an accused can be secured even
upon the testimony of a solitary witness where
such testimony is truthful, creditworthy and
corroborated with the medical evidence, as it is
the quality of the evidence and not the quantity,
which is important.

Criminal Law- Indian Evidence Act, 1872-
Section 3- The testimony of a witness in a
criminal trial cannot be discarded merely
because the witness is a relative or family
member of the victim of the offence. In
such a case Court has to adopt a careful
approach in analyzing the evidence of
such witness and if the testimony of the
related
witness
is
otherwise
found
credible, accused can be convicted on the
basis of the testimony of such related
witness.

Settled law that where the court, after
exercising abundant caution, finds that the
testimony of a related witness is trustworthy
and credible and her presence is natural, then
the same is wholly reliable.

Quantum of Punishment- Doctrine of
Proportionality- Section 304 (Part-I) IPC-
life imprisonment has been awarded by
learned trial court- Appropriate sentence
should be awarded after giving due
consideration
to
the
facts
and
circumstances of each case, nature of the
offence and the manner in which it was
executed
or
committed.
It
is
the
obligation of the Court to constantly
remind itself that the right of the victim,
and be it said, on certain occasions the
person aggrieved as well as the society at
large
can
be
victims,
never
be
marginalised. The measure of punishment
should be proportionate to the gravity of
the
offence-
Keeping
in
view
the
reformative theory of punishment and
"doctrine of proportionality", it appears to
us that the sentence of life imprisonment
awarded under Section 304 (Part-I) IPC
by learned trial Court to the appellant is
too harsh and severe- Since the appellant
has already served-out more than ten
years jail sentence, the sentence of life
imprisonment under Section 304 (Part-I)
IPC is converted into the sentence already
undergone, which would meet the ends of
justice.
2 All. Puttan Yadav @ Vipin Vs. State of U.P.
761
As the judicial trend in the country is
reformative and not retributive hence in view of
the facts and circumstances of the case and
period of incarceration undergone by the
accused, the sentence awarded modified to the
period undergone. (Para 26, 28, 29, 40, 42, 45,
47, 48, 60, 61)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Raj Narain Singh Vs St. of U.P. 2010 AIR SCW
521

2. Kusti Mallaiah Vs St. of A.P (2013) 12
Supreme Court Cases 680

3. Amar Singh Vs State (NCT of Delhi) (2020) 19
SCC 165

4. Ashok Kumar Chaudhary. Vs St. of Bih. 2008
(61), ACC 972 (SC)

5. Bhagwan Jagannath Markad Vs St. of Maha.
(2016) 10 SCC

6. Hema Vs State, (2013) 81 ACC 1 (SC)

7. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

8. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257

9. Ravada Sasikala Vs St. of A.P., AIR 2017 SC
1166

10. Jameel Vs St. of U.P., (2010) 12 SCC 532

11. Guru Basavraj Vs St. of Kar., (2012) 8 SCC
734

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

13. St. of Punj. Vs Bawa Singh, (2015) 3 SCC
441

14. Raj Bala Vs St. of Har., (2016) 1 SCC 463

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

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

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

18. G. V. Siddaramesh Vs St. of Kar., 2010 (87)
AIC 43 (SC)

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Present criminal appeal has been
preferred by the appellant Puttan Yadav @
Vipin against the judgement and order dated
20.1.2014 passed by the Sessions Judge,
Kanpur Dehat in Sessions Trial No.91 of
2013 (State vs. Puttan Yadav @ Vipin),
arising out of case crime no. 638 of 2012,
convicting and sentencing the appellant for
the offence punishable under Section 304
(Part-I) IPC to undergo life imprisonment and
a fine of Rs. 5,000/- with stipulation of
default clause.

2. Brief facts of the case, as culled out
from the record, are that a written report was
submitted by the complainant Gore Lal son of
Ram Nath, resident of village Chakeri, Police
Station Chakeri, District Kanpur Nagar at
Police Station- Akbarpur, District- Kanpur
Dehat in which averments were made that
Km. Laxmi, niece (bhanji) of the informant,
aged about two years, had sustained injuries
and she was hospitalized at Kabir Hospital,
Kanpur Nagar by the appellant and his family
members. She expired during treatment. Anita,
sister of the informant, was also harassed by
the accused persons.

3. On the basis of the written report (Ext.
ka-1), Death Information Report (Ext. ka-2)
was registered at Police Station concerned on
30.10.2012 at 9.15 a.m., mentioning all the
details as described in Ext. Ka-1. After post
mortem and enquiry, a G.D. entry for
registration of the case was also made, which
is Ext. Ka-3.
762 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Investigation of the case proceeded.
The Investigating Officer recorded the
statements of the witnesses, inspected the
spot and prepared site plan. He also
prepared the inquest report of the deceased
and papers relating to post mortem.

5. Post mortem of the dead body of
the deceased was performed and Autopsy
report (Ext. ka-4) was prepared by Dr.
Sanjeev Kumar on 30.10.2012 at 2.30 p.m.
On examination of the dead body of the
deceased, following ante-mortem injuries
were found:

"(1). Abrasion - 3 cm X 2 cm over
Right side of fore head approx 3 cm above
Right eye brow.

(2) Abrasion - 2 cm X 1 cm over
left side of fore head, approx 4 cm above
Left eye brow.

(3) Contusion - 2 cm X 2 cm, at
vertex (Top of scalp).

(4) Contusion - Swelling - 4 cm X
4 cm, over occipital region.

(5) Contusion - 5 cm X 4 cm, over
right cheek.

(6) Contusion - 3 cm X 3 cm, over
left cheek."

6. In the opinion of the doctor, death
was caused by reason of shock due to
injuries on vital parts (Head Injury).

7. After completing the investigation,
charge-sheet (Ext. ka-12) against the accused
appellant was filed. Concerned Magistrate
took the cognizance and the case, being
exclusively triable by Sessions Court, was
committed to the Court of Sessions.

8. Accused appeared before the trial
court and charge under Section 304 IPC
was framed against him. Appellant denied
the charge and claimed his trial.

9. Trial proceeded and to bring home
the charge against the accused / appellant,
prosecution has examined in all five
witnesses, who are as follows:

1 Gore Lal
PW-1 (informant)
2 Smt. Anita
PW-2 (mother of the
deceased)
3 Head
Constable
Ram Autar
PW-3 (scribe of G.D.)
4 Dr.
Sanjiv
Kumar
PW-4
(who
performed
the
autopsy
of
the
deceased)
5 Adhya Prasad
Verma
PW-5
(Investigating
Officer)

10. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1
Written report
Ext. A-1
2
Death information
G.D.
Ext. A-2
3
Registration G.D.
Ext. A-3
4
Post
mortem
report
Ext. A-4
5
Inquest Report
Ext. A-5
6
Letter to C.M.O.
Ext. A-6
7
Challan Nash
Ext. A-7
8
Letter to C.M.O.
Ext. A-8
9
Letter to R.I.
Ext. A-9
10
Photo Nash
Ext. A-10
11
Site plan
Ext. A-11
12
Charge sheet
Ext. A-12

11. After conclusion of evidence, statement
of accused appellant was recorded under Section
313 CrPC, wherein he pleaded inter alia his false
implication, as his relations with his wife and inlaws were not cordial. He further stated that while
he was climbing stairs with her daughter, she
tripped and sustained injuries.
2 All. Puttan Yadav @ Vipin Vs. State of U.P.
763

12. In support of its case, defence has
examined DW-1 Ravindra and DW-2
Shivnath Pal. However, no documentary
evidence was produced.

13. PW-1 and PW-2 are the witnesses
of fact.

14. P.W-1, namely, Gore Lal in his
oral testimony has stated that her sister
was married with the appellant (Vipin @
Puttan
Yadav),
resident
of
village
Chiraura, Police Station Akbarpur, District
Kanpur Dehat. Deceased was his niece
(Bhanji).
On
29.10.2012,
telephonic
information was received from the in-laws
of her sister that his brother-in-law Vipin
@
Puttan
after
beating
his
niece,
hospitalized
her
at
Kabir
Hospital,
Yashoda Nagar, Kanpur Nagar. When the
informant reached the hospital, he found
her niece dead. Thereafter, he came to
police chauki Raniya alongwith the dead
body of his niece to lodge F.I.R.. He has
further stated that the relations between
his sister and brother-in-law were not
cordial and he used to beat her.

15. P.W.-2 Anita, is the wife of the
appellant. She has stated that she was
married with the appellant eight years ago.
Three children were born-out from their
wedlock, but two had expired. Laxmi was
aged about 2 years. On the road situated in
front of her house, she (deceased) started
pooping. Angered with this, appellant
rushed towards the house of his brother,
scolding and dragging her. She also
followed him. In the house of his brother,
he slammed her to the ground due to
which her head banged against the wall.
Thereafter, she along with her father-inlaw and cousin of appellant, proceeded to
Kabir Hospital for treatment, where her
daughter succumbed to her injuries.

16. PW-3 to PW-5 are the formal
witnesses.

17. PW-3 - Constable Ram Autar, is
scribe of F.I.R., who has proved Death
Information
Report
Ext.
ka-2
and
registration of G.D. Ext. ka-3.

18. PW-4 Dr. Sanjiv Kumar, has
performed the autopsy of the deceased and
prepared the Autopsy Report Ext. ka-4.

19. PW-5 Sub-Inspector Adhya
Prasad Verma, is the Investigating Officer
of the case, who has proved the proceeding
of investigation in his testimony and also
the inquest and various papers relating to
post mortem as Ext. ka-5 to Ext. ka-10. Site
plan Ext. ka-11 and charge sheet Ext. ka-12
were also proved by PW-5.

20. On the basis of aforesaid oral and
documentary evidence, learned trial court
recorded the conviction of the accused and
sentenced him, as mentioned herein-above.

21. Heard Shri Sudhakar Yadav,
learned counsel for the appellant and Shri
Nitin Kesarwani, learned AGA and Ms.
Mayuri Mehrotra for the State.

22. The impugned judgment and order
has been assailed on various grounds by the
learned counsel for the appellant. It has
been argued that the appellant being the
real father of the deceased, had no motive,
at all, to do away with the deceased. There
is no independent eye witness of the
occurrence and the appellant has been
falsely implicated in this matter, as he had
strained relations with his wife Anita and
her brother, the informant. It was just an
accidental death and the appellant had no
role in commission of crime. It has also
been submitted that the wife of the
764 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant was insisting to live with her
parents and also asked the appellant to live
with her in her parents' house after selling
the fields, but the appellant had denied. It is
further submitted that the medical evidence
does not support the prosecution version
and the investigation is faulty.

23. On the aforesaid grounds, prayer
for setting aside the impugned judgment
and order has been made by allowing the
present appeal.

24. Per contra, the learned AGA has
vehemently opposed the appeal and submitted
that the impugned judgment is based on cogent
and reliable evidence and there is no infirmity
in the same. It is a case of eye witness account
and the deposition of eye-witness / PW-2 is
reliable and finds corroboration from the
medical evidence. There was no possibility of
false implication of accused appellant and no
material omission or irregularity is found in the
investigation of the case. On the basis of
aforesaid grounds, it has been prayed that the
appeal is devoid of merits and is liable to be
dismissed.

25. In light of the rival contentions of both
the sides, we have gone through the entire oral
and documentary evidence on record.

26. The medical evidence is a crucial and
significant piece of evidence which, if
corroborates the prosecution version, and eyewitness account, the prosecution would
certainly succeed in proving its case.

27. This theory leads us to sift the medical
evidence on record in light of the oral ocular
evidence.

28. PW-4 - Dr. Sanjeev Kumar, has
performed the autopsy of the deceased,
who was a small girl aged about two years
only. The ante mortem injuries found at the
time of post mortem were abrasion and
contusion, as deposed by PW-4. It is
important to note that the doctor - PW-4,
who has proved the autopsy report Ext. ka4, has found clotted blood in scalp beneath
the injuries described externally and
fracture of both parietal bones with suture
loosening under vertex was also found and
clotted blood was also found present under
meninges and meningeal space. The
immediate cause of death was shock due to
the injuries on vital parts i.e. the head
injury which was sufficient to cause death.
The injuries of abrasion and contusion were
also found in the area of forehead scalp and
cheek. Now if we pay attention to the
prosecution version, as also explained by
PW-2 in her deposition, deceased was
firstly dragged by the accused and slammed
to the ground as a result of which, her head
banged against wall and fatal injury was
caused to her, we have no hesitation to hold
that the injuries found on the body of the
deceased by the doctor would have been
caused in the same manner as deposed by
PW-2.

29. The analysis of medical evidence
takes us through the inquest report, which
has been proved by the PW-5 as Ext. ka-5
wherein the panchas have also opined that
the death of the deceased Laxmi seems to
be a result of assault. It is also to be noted
that in the inquest report itself, the injuries
found on the body of the deceased have
been mentioned. The occurrence is said to
be committed on 29.10.2012, as stated by
the PW-1, the inquest report has been
prepared on 30.10.2012 and the autopsy
was also performed on 30.10.2012 itself.
We are of the considered view that the
injuries caused to the poor child were
sufficient in the ordinary course of business
to cause her death and the prosecution story
2 All. Puttan Yadav @ Vipin Vs. State of U.P.
765
as such is fully corroborated by the medical
evidence.

30. It has been further submitted by
the learned counsel for the appellant that
the ocular testimony of PW-2 only, the
wife of the appellant, is available on record,
who had strained relations with her
husband, the appellant. It is argued that it is
a case of false implication and whole
testimony of PW-2 is concocted and
fabricated. To give force to his contention,
learned counsel for the appellant has also
impressed upon the defence evidence
which, according to him, bears the true
story of the incident.

31. The aforesaid argument of learned
counsel for the appellant takes us through
the evidence rendered by the accused and
other evidence available on record.

32. DW-1 Ravindra, is said to be the
neighbour and brother of the appellant. He
has deposed that the deceased was his niece
and at the time of occurrence, Anita, the
wife of the accused appellant, was present
in his house. When they heard the shrieks
of Laxmi, they ran towards the house of
accused and found that when the appellant
was climbing the stairs alongwith his
daughter,
suddenly
she
slipped
and
sustained injuries. She was taken to Kabir
Hospital but during treatment she died. He
has also explained that the wife of the
appellant was willing to live with her
parents and to sell out the land of the
accused but when he was not ready to do
so, he was falsely implicated in this case. In
his cross-examination, DW-1 has stated
that when he reached the spot, Laxmi was
already injured and she had got injuries
over her head, cheek and scalp. The
aforesaid statement of DW-1 is sufficient to
show that he was not present on the spot at
the time of occurrence and when he
reached the spot, occurrence had already
happened. Hence, he is not the eye-witness
to the incident.

33. DW-2 Shivnath Pal is the
neighbour of accused appellant. He has
stated that on 20.10.2012 at about 3.30 p.m.
he had seen that Puttan Yadav was
climbing over his roof through wooden
ladder alongwith his daughter Laxmi and
suddenly she tripped and sustained injuries.
He ran to the spot and meanwhile Puttan's
brother Ravindra, his wife, wife of Puttan
and other villagers also reached there and
Laxmi was taken to the hospital. In his
cross-examination, DW-2 has stated that
his house is situated only at the distance of
10 steps from the house of the accused
appellant.

34. With a view to properly scrutinize
and analyze the evidence on record, we
have gone through the site plan Ext. ka-11
proved by PW-5, which contains the clear
topography of the place of occurrence. A
perusal of site plan Ext. ka-11 shows that
no-where any house of Shivnath Pal DW-2
near the place of occurrence has been
shown therein, which is a proof of the fact
that DW-2, the so-called eye witness,
adduced by the defence, was not the
neighbour of the convict and was not an
eye-witness to the occurrence, as well.

35. The deposition of DW-1 also
reflects that the place of occurrence was the
house of the convict, whereas in the site
plan Ext. ka-11 the place of occurrence has
been shown at the house of DW-1 /
Ravindra itself. PW-2 / Anita also does not
make any statement in consonance with
DW-1 as she states in very clear terms that
the accused dragged the child from the road
to the house of his brother Ravindra and
766 INDIAN LAW REPORTS ALLAHABAD SERIES
there the incident happened. In her crossexamination, she has explained that the
accused had slammed her daughter outside
the house of Ravindra on the ground. She
has admitted this fact that, at that time, she
was present in the house of her brother-inlaw (Jeth) Ravindra but her deposition is
specific on this point that the occurrence
happened at the house of Ravindra and not
inside the house of accused-appellant
himself. PW-2 has made some reliable
statements also. Significantly she has
clarified that there is no ladder to go to the
roof in the house of Ravindra and even in
the house of her in-laws. This statement is
corroborated from the site plan Ext. ka-11
as well. From a careful perusal of the Ext.
ka-11, we find that no ladder has been
shown in the house of DW-2 Ravindra and
that of the convict - appellant himself.

36. It is noteworthy that the
Investigating Officer / PW-5 has not been
confronted by the defence side in respect of
non-mentioning the ladder in the house of
the accused. PW-5 has made a specific
statement that the place of occurrence is the
house of Ravindra and the field of Subedar
exists in between the house of the appellant
and that of Ravindra. The site plan has been
prepared on the pointing out of Anita Devi
- PW-2, who is the mother of the deceased.

37. On the basis of aforesaid
discussions, the story that the incident
occurred in the house of appellant himself
at the time when he was climbing the stairs
alongwith his daughter, the deceased, as
put forth by the defence, comes to an end
and was rightly rejected by the learned trial
Court.

38. It has been further argued by
learned counsel for the appellant that there
is
no
independent
witness
to
the
occurrence. PW-2 / Anita is the mother of
the deceased and is an interested witness. It
is further argued that death of the deceased
has been caused in a residential area but no
person of the said vicinity has come out to
depose in favour of the prosecution and the
sole evidence of PW-2 is available on
record.

39. To meet out this contention made
by the learned counsel for the appellant, we
have to sift the deposition of PW-2. PW-2,
in her examination-in-chief, states in clear
terms that when the appellant slammed the
deceased, she made shouts but no one came
there upon her shrieks. It is important to
mention that no cross-examination has been
made by the defence side over this point
from the PW-2. Now the question arises
before us whether non-examination of other
witnesses, except the sole eye witness, by
the prosecution, vitiates the prosecution
story. This issue needs to be examined in
light of the legal position and evidence
available on record. We find, on the basis
of testimony of PW-2, that no person of the
vicinity came to the place of occurrence,
except her.

40. We have to keep in mind that it is
an established principle of law that to prove
a given fact, particular number of witnesses
need not be examined. In Section 134 of
the Indian Evidence Act it has been
provided that "No particular number of
witnesses shall in any case be required for
the proof of any fact." Reference can be
placed on the decision of the Hon'ble Apex
Court in Raj Narain Singh Vs. State of
U.P. 2010 AIR SCW 521, wherein it has
been held that it is not necessary that all
those persons, who were present at spot,
must be examined. It is quality of evidence
which is required to be taken note of by the
Courts and not the quantity. It is transpired
2 All. Puttan Yadav @ Vipin Vs. State of U.P.
767
from the close scrutiny of entire testimony
of PW-2 that her evidence is quite innocent
and trustworthy and she is wholly reliable
witness. Her deposition in its continuity is
quite instinctive and bears no contradiction
in material particulars such as to the
manner of assault, place of occurrence,
author of crime and all other related
factors. Her presence over the place of
occurrence at the time of incident is quite
natural, as she was sitting in the house of
Ravindra, the real brother of the appellant,
nearby her own house, where the incident
occurred. It is very significant to note that
PW-2, in the concluding part of her crossexamination, has stated that appellant had
also killed her first daughter by pouring hot
water upon her, however, she did not make
any complaint to anyone regarding the
same. Besides it, we cannot ignore the fact
that PW-2, despite being the mother of the
poor deceased, is the wife of the appellant
also. She had got no occasion to falsely
implicate her own husband for the murder
of her daughter. Though a plea has been
taken by the defence that PW-2 was
insisting upon her husband to sell the
agricultural field and to live with her in her
parental house, yet we do not find any
reliable evidence to this effect on record.
Even DW-1 Ravindra, real brother of the
appellant, states that Anita / PW-2 returned
back to her matrimonial home from her
parents' house two months before the
occurrence alongwith the deceased child
and from that day till the fateful day, no
quarrel took place between the appellant
and PW-2 / Anita. This statement also rules
out any possibility of false implication of
the appellant by the informant side.

41. We note that PW-1 is not the
witness of fact prevailing in the present
case. Admittedly, he was not present at the
time of occurrence and he reached the
hospital after receiving the information of
death of her niece. He is the brother of PW2 and proves the written report Ext. ka-1 in
his deposition and also states that the
written
report
is
based
upon
the
information given by Anita to him. He also
states that the behaviour of the appellant
was not good to his sister and he used to
beat her. PW-2 has denied the fact that she
ever insisted upon her husband to live
separately with her at Kanpur City.

42. After carefully scrutinising and
analysing the evidence of PW-2, we find no
inconsistent statement or embellishment in
her testimony. Her deposition is free from
all infirmities and she is proved to be a
reliable and natural witness and conviction
can safely be recorded on the basis of
statement of such witness, though she is the
sole witness of the occurrence.

43. The Hon'ble Supreme Court in
Kusti Mallaiah Vs. State of Andhra
Pradesh (2013) 12 Supreme Court Cases
680 has laid down as follows:

"23. It has been held in catena of
decisions of this Court that there is no legal
hurdle in convicting a person on the sole
testimony of a single witness if his version
is clear and reliable, for the principle is
that the evidence has to be weighed and not
counted. In Vadivelu Thevar v. The State
of Madras AIR 1957 SC 614, it has been
held that if the testimony of a singular
witness is found by the court to be entirely
reliable, there is no legal impediment in
recording the conviction of the accused on
such proof. In the said pronouncement it
has been further ruled that the law of
evidence does not require any particular
number of witnesses to be examined in
proof of a given fact. However, faced with
the testimony of a single witness, the court
768 INDIAN LAW REPORTS ALLAHABAD SERIES
may classify the oral testimony into three
categories, namely, (i) wholly reliable, (ii)
wholly unreliable, and (iii) neither wholly
reliable nor wholly unreliable. In the first
two categories there may be no difficulty in
accepting or discarding the testimony of
the single witness. The difficulty arises in
the third category of cases. The court has
to be circumspect and has to look for
corroboration in material particulars by
reliable testimony, direct or circumstantial,
before acting upon the testimony of a single
witness. Similar view has been expressed in
Lallu Manjhi and another v. State of
Jharkhand (2003) 2 SCC 401, Prithipal
Singh and others v. State of Punjab and
another (2012) 1 SCC 10 and Jhapsa
Kabari and others v. State of Bihar (2001)
10 SCC 94.

44. The same view has been reiterated
in Amar Singh Vs. State (NCT of Delhi)
(2020) 19 Supreme Court Cases 165
wherein it has been held as follows:

....As a general rule the Court can
and may act on the testimony of single eye
witness provided he is wholly reliable. There
is no legal impediment in convicting a person
on the sole testimony of a single witness. That
is the logic of Section 134 of the Evidence
Act, 1872. But if there are doubts about the
testimony Courts will insist on corroboration.
It is not the number, the quantity but quality
that is material. The time honoured principle
is that evidence has to be weighed and not
counted. On this principle stands the edifice
of Section 134 of the Evidence Act. The test is
whether the evidence has a ring of truth, is
cogent, credible and trustworthy or otherwise
(see Sunil Kumar V/s State ( NCT of Delhi)
(2003) 11 SCC 367).

45. Upon the analysis of evidence of
PW-2, we find that her evidence is cogent
and
trustworthy
and
further
gets
corroboration from the medical evidence.
Her testimony leads us to the conclusion
that PW-2 is a reliable and natural witness
and minor discrepancies, if any, found in
her evidence are ignorable.

46. In Ashok Kumar Chaudhary.
Vs. State of Bihar 2008 (61), ACC 972
(SC) it has been categorically held that if
the testimony of an eyewitness is otherwise
found trustworthy and reliable, the same
cannot be disbelieved and rejected because
certain insignificant, normal or natural
contradictions have been appeared into his
testimony.
If
the
inconsistencies,
contradictions,
exaggerations,
embellishments and discrepancies in the
testimony are only normal and not material,
in nature, then the testimony of an
eyewitness has to be accepted and acted
upon.
Distinctions
between
normal
discrepancies and material discrepancies
are that while normal discrepancies do not
corrode the credibility of a party's that the
case, material discrepancies do so.

47. The evidence of PW-2 has also
been assailed on the ground that she is the
real mother of the deceased and as such,
she is an interested witness and her
evidence cannot be accepted as a gospel
truth.

48. So far as the submission of PW-2
being an interested and relative witness is
concerned, in this context the Hon'ble Apex
Court in Bhagwan Jagannath Markad
Vs. State of Maharastra (2016) 10 SCC
has held that the testimony of a witness in a
criminal trial cannot be discarded merely
because the witness is a relative or family
member of the victim of the offence. In
such a case Court has to adopt a careful
approach in analyzing the evidence of such
2 All. Puttan Yadav @ Vipin Vs. State of U.P.
769
witness and if the testimony of the related
witness
is
otherwise
found
credible,
accused can be convicted on the basis of
the testimony of such related witness.

49. The investigation of the case has
also been assailed by learned counsel for
the appellant, who vehemently submits that
the investigation is faulty and there are
several discrepancies in the investigation.
However, from a perusal of the record, it is
apparent that the present is a case based on
eye-witness account and the eye-witness /
PW-2 has given a cogent and reliable
description of the incident. Her statement
finds full corroboration from the medical
evidence. The Investigating Officer has
found the place of occurrence the same as
has been narrated by PW-2. We find no
material
irregularity
or
omission
/
negligence in the investigation of the case.
Moreover, since the prosecution case is
well established and proved by ocular
evidence supported with medical evidence,
negligence or omission, if any, on the part
of the Investigating Officer, does not
adversely affect the prosecution version at
all.

50. In Hema Vs. State, (2013) 81
ACC 1 (Supreme Court), it has been held
by the Hon'ble Apex Court that any
irregularity or deficiency in investigation
by
Investigating
Officer
need
not
necessarily lead to rejection of the case of
prosecution when it is otherwise proved.
The only requirement is use of extra
caution in evaluation of evidence. A
defective investigation cannot be fatal to
prosecution when ocular testimony is found
credible and cogent.

51. It may be reiterated, at the cost of
repetition, that the investigation in the
present case does not suffer from any
material irregularity. At the same time,
F.I.R. and registration of G.D. has been
proved by PW-3, whereas PW-1 proves the
written report. Inquest report and relevant
papers relating to autopsy have been
properly proved by PW-5.

52. Considering the oral evidence of
the witnesses, the documentary evidence
and also considering the medical evidence
including post mortem report, there is no
doubt left in our mind about the guilt of the
present appellant, as concluded by the trial
court after meticulous analysis of the
evidence on record. We concur with the
same
and,
accordingly,
confirm
the
conviction of the appellant under Section
304 (Part-I) IPC.

53. Learned counsel for the appellant,
in the course of his argument, has further
requested that the sentence recorded by the
learned trial court is too severe and harsh
and submits that the convict / appellant had
no intention to do away with the deceased.
He was the real father of the deceased and
had no motive to kill her own daughter and
in a spur of moment, the occurrence
happened. He was a young man at the time
of incident and has already spent more than
ten years of incarceration and must be a
repenting man.

54. Now it takes us to the quantum of
sentence, specifically under Section 304
(Part-I) IPC, where life imprisonment has
been awarded by learned trial court. For
awarding the sentence, we have to keep in
mind the theories of punishment in our
country.

55. Discouraging the retributive
theory, the reformative theory of the
sentence has been impressed upon by the
Hon'ble Apex Court in Mohd. Giasuddin
770 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs. State of AP, AIR 1977 SC 1926. It has
been observed by the Hon'ble Supreme
Court:

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

56. On the other hand, in Deo Narain
Mandal Vs. State of UP, (2004) 7 SCC
257, it was observed that while determining
the quantum of sentence, the Court should
bear
in
mind
the
'principle
of
proportionality'.

57. If we translate the legal theories
rendered by the Hon'ble Apex Court in
various
judgments,
such
as,
Ravada
Sasikala vs. State of A.P., AIR 2017 SC
1166, Jameel vs State of UP, (2010) 12
SCC 532, Guru Basavraj vs. State of
Karnatak, (2012) 8 SCC 734, Sumer
Singh vs. Surajbhan Singh and others,
(2014) 7 SCC 323, State of Punjab vs.
Bawa Singh, (2015) 3 SCC 441, Raj Bala
vs. State of Haryana, (2016) 1 SCC 463,
Sham Sunder vs. Puran (1990) 4 SCC
731, M.P. vs. Saleem, (2005) 5 SCC 554
and Ravji vs. State of Rajasthan, (1996) 2
SCC 175, the settled legal position, which
emerges out before us, is that appropriate
sentence should be awarded after giving
due
consideration
to
the
facts
and
circumstances of each case, nature of the
offence and the manner in which it was
executed or committed. It is the obligation
of the Court to constantly remind itself that
the right of the victim, and be it said, on
certain occasions the person aggrieved as
well as the society at large can be victims,
never be marginalised. The measure of
punishment should be proportionate to the
gravity of the offence. Object of sentencing
should be to protect society and to deter the
criminal in achieving the avowed object of
law. Further, it is expected that the Courts
would operate the sentencing system, so as
to impose such sentence which reflects the
conscience
of
the
society
and
the
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 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 in 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'.

58. In view of the above propositions
of law, the paramount principle that should
be the guiding laser beam is that the
2 All.