# Rajwa & Ors v. State of U.P

- **Citation:** (2019) 4 ILRA 422
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-26
- **Case number:** Criminal Appeal No. 811 of 1996
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajwa-ors-v-state-of-u-p-44999
- **Pages:** 17

## Headnote

A. Evidence Law - Indian Evidence Act,
1872, Criminal Appeal - Motive - In face
of direct evidence of eye-witnesses and
injured witnesses - motive not required
to be proved. (Para 2) Prosecution examined
PW-1 and PW-2 who are eye-witnesses and
injured witnesses - they are the real brothers
of the deceased - they have supported the
prosecution version - stated that they saw the
whole incident and the accused persons also
caused injuries to them - the testimony of a
witness cannot be discredited only on the
ground that the witnesses are related or
interested - the testimony of such witness
should be scrutinized cautiously and carefully-
relationship by itself will not render the
witness untrustworthy. (Para 25, 26 & 28)

B. Criminal Law - Indian Penal Code,
1860 - Section 149 - Every member of
unlawful assembly guilty of offence
committed in prosecution of common
object
-
There
is
no
substantial
4 All. Rajwa & Ors. Vs. State of U.P.
423
contradiction or discrepancies in the
evidence of the prosecution and some of
the
minor
contradiction
and
discrepancies
go
to
establish
the
reliability of the witnesses and that also
shows that they are not tutored - the
witnesses examined by prosecution are
natural, credible and trustworthy- Held -
no
infirmity
in
the
evidence
of
eyewitnesses who are injured witnesses
also, on the basis of which their ocular
testimony
could
be
discarded
-
Conviction
is
legal
and
absolutely
justified.

The accused persons formed an unlawful
assembly with common object to commit
offence by causing injuries - F.I.R. for the
occurrence lodged without any delay - The
injuries found on the body of the deceased
person and other injured persons find support
from the medical evidence and from the
postmortem report by which the date and time
of causing the injuries and death is very much
corroborated - The place of occurrence has
been fully established . (Para 43)

C. Criminal Law - Indian Penal Code,
1860 - Section 147,148,323/149 I.P.C -
Trial court awarded 6 months for the
offence under section 147 - punishment
under this section could extend for two
years - Same sentence awarded under
section
148
-
maximum
sentence
provided under law is 3 years - One year
punishment provided under section 323
I.P.C. - trial court awarded sentence of 6
months - Held - the sentence awarded
for

offence
under
section
147,148,323/149 I.P.C. is appropriate,
proportionate and reasonable. (Para 44)

The use of force and violence by unlawful
assembly constituted by the accused persons
is very much established in this instant case.
In Sunder Singh v The State, AIR 1955 All 232
and Barendra Kumar v State of Assam 1978
Cri LJ (noc) 90 (Gauhati), it has been clarified
that where offence has been committed by a
member of unlawful assembly, the persons
having deadly weapon, shall be punished for
the offence under section 148 and others not
carrying deadly weapon, shall be punished
und

## Text

_Characters 0–39,951 of 57,115. This is a partial read: ask again with offset=39951 for what follows._

422 INDIAN LAW REPORTS ALLAHABAD SERIES
particularly looking to the fact that he was
not found to have committed offence of
rape and only offence which has been
found proved is that of Section 363 and
366 I.P.C. which is punishable up to ten
years only and with fine.

33. In view of the above, the
judgement of the trial court is upheld and
the sentence awarded to the appellant is
maintained, however, looking to the
special circumstance narrated above, I
find that this would be suitable case in
which
provision
of
Probation
of
Offenders Act, 1958 should be invoked
and, hence instead of sending the accused
appellant to jail, it is directed that he shall
be released on probation for a period of
three years on his furnishing two sureties
and personal bond of same amount to the
satisfaction of the trial court with the
direction that he shall appear before the
court as and when he is called upon to
receive sentence. During this period, he
shall maintain peace and shall be of good
behaviour.

34. The appeal is, accordingly
dismissed.

35. Appellant is on bail. He shall
appear before the trial court at the earliest
within a period of one month and shall fill
up bonds as directed, in case of default, he
shall serve out the remaining sentence.

36. Copy of this judgement be
transmitted back to the trial court along
with lower court record at the earliest by
office for strict compliance of the
judgement forthwith.

37. Learned Amicus Curiae has
assisted this Court for deciding this
Appeal, hence for the said effort on her
part, it is deemed proper that she should
be paid Rs. 5,000/- as remuneration in
accordance with rules.
----------
(2019)12 ILR A422

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 811 of 1996

Rajwa & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.K. Singh, Sri Apul Misra, Sri Nand
Kishor Mishra, Sri Raja Ram Kushwaha,
Ms. Shilpa Ahuja

Counsel for the Opposite Party:
A.G.A., Sri Rakesh Kumar Gupta

A. Evidence Law - Indian Evidence Act,
1872, Criminal Appeal - Motive - In face
of direct evidence of eye-witnesses and
injured witnesses - motive not required
to be proved. (Para 2) Prosecution examined
PW-1 and PW-2 who are eye-witnesses and
injured witnesses - they are the real brothers
of the deceased - they have supported the
prosecution version - stated that they saw the
whole incident and the accused persons also
caused injuries to them - the testimony of a
witness cannot be discredited only on the
ground that the witnesses are related or
interested - the testimony of such witness
should be scrutinized cautiously and carefully-
relationship by itself will not render the
witness untrustworthy. (Para 25, 26 & 28)

B. Criminal Law - Indian Penal Code,
1860 - Section 149 - Every member of
unlawful assembly guilty of offence
committed in prosecution of common
object
-
There
is
no
substantial
4 All. Rajwa & Ors. Vs. State of U.P.
423
contradiction or discrepancies in the
evidence of the prosecution and some of
the
minor
contradiction
and
discrepancies
go
to
establish
the
reliability of the witnesses and that also
shows that they are not tutored - the
witnesses examined by prosecution are
natural, credible and trustworthy- Held -
no
infirmity
in
the
evidence
of
eyewitnesses who are injured witnesses
also, on the basis of which their ocular
testimony
could
be
discarded
-
Conviction
is
legal
and
absolutely
justified.

The accused persons formed an unlawful
assembly with common object to commit
offence by causing injuries - F.I.R. for the
occurrence lodged without any delay - The
injuries found on the body of the deceased
person and other injured persons find support
from the medical evidence and from the
postmortem report by which the date and time
of causing the injuries and death is very much
corroborated - The place of occurrence has
been fully established . (Para 43)

C. Criminal Law - Indian Penal Code,
1860 - Section 147,148,323/149 I.P.C -
Trial court awarded 6 months for the
offence under section 147 - punishment
under this section could extend for two
years - Same sentence awarded under
section
148
-
maximum
sentence
provided under law is 3 years - One year
punishment provided under section 323
I.P.C. - trial court awarded sentence of 6
months - Held - the sentence awarded
for

offence
under
section
147,148,323/149 I.P.C. is appropriate,
proportionate and reasonable. (Para 44)

The use of force and violence by unlawful
assembly constituted by the accused persons
is very much established in this instant case.
In Sunder Singh v The State, AIR 1955 All 232
and Barendra Kumar v State of Assam 1978
Cri LJ (noc) 90 (Gauhati), it has been clarified
that where offence has been committed by a
member of unlawful assembly, the persons
having deadly weapon, shall be punished for
the offence under section 148 and others not
carrying deadly weapon, shall be punished
under section 147. In this case, accused Pragi
Lal was having spade which was a deadly
weapon and being member of unlawful
assembly, committed the offence. As such, his
act constituted an offence of rioting committed
with spade, a deadly weapon, and that is
punishable under section 148. Therefore, a
charge
under
section
147
I.P.C.
was
unnecessarily framed against accused Pragi
Lal, and if framed, he could not be convicted
and sentenced for the same and could only be
punished for the offence under section 148
I.P.C. In view of this, the conviction and
sentence of Accused Pragi Lal for the offence
under section 147 I.P.C. is not sustainable and
is liable to be set aside. (Para 42)

D. Criminal Law - Indian Penal Code,
1860 - Section 304 Part II - Section 304
Part II provides a maximum sentence of
ten years - trial court awarded sentence
of 10 years rigorous imprisonment -
maximum sentence awarded by the trial
court for this offence - trial court
mentioned it as first offence of accused
persons - they had no criminal antecedent
- they committed offence due to social
circumstances - Held- sentence awarded
by the learned trial court being maximum,
if reduced to 7 years, the same will be
proportionate in view of the nature of
culpability. (Para 45)

The Indian Penal Code recognizes three
degrees of culpable homicide namely, (1)
culpable homicide of the first degree, a
gravest form of culpable homicide which is
defined under section 300 as murder, (2)
culpable homicide of the second degree, a
lower or lessor form of homicide not
amounting to murder as defined in section
299, punishable under the first part of section
304 and (3) culpable homicide of the third
degree, a lowest type of culpable homicide,
punishable under the second part of section
304 - appellants convicted under the category
of lowest type of culpable homicide - to give
lesson to complainant side because of
Chunuvadiya episode - no deadly weapon was
arranged and the accused persons were
carrying bamboo stick and one was having a
spade which is more an agriculture tool rather
than weapon. (Para 40)
424 INDIAN LAW REPORTS ALLAHABAD SERIES
Held:- Finding of conviction - No illegality or
perversity - modification in the sentence -
Sentence of accused for the offence under
section 147 I.P.C. is set aside - Sentence
under section 147, 323/149 I.P.C. of convicted
appellants and sentence of accused for the
offence under section 148, 323/149 I.P.C. is
upheld - sentence of convicted appellants and
accused under section 304 Part II I.P.C. is
reduced to seven years. (Para 45)

Criminal Appeal disposed of. (E-7)

List of cases cited: -

1.Saddik Vs. State of Gujarat, (2016) 10 SCC 663

2.Masalti V. State of U.P. (AIR 1965 SC 202)

3.M.C. Ali v. State of Kerala: AIR 2010 SC
1639;

4. Himanshu v. State (NCT of Delhis) (2011) 2
SCC 36: 2011) 1 SCC (Cri) 593,

5.(Bhajan Singh and others Vs. State of
Haryana; (2011) 7 SCC 421

6.Jayabalan vs. U.T. of Pondicherry; 2010(68)
ACC 308 (SC),

7.Jalpat Rai v/s State of Haryana AIR 2011 SC 2719

8.Waman v/s State of Maharashtra AIR 2011
SC 3327

9.Shyam Babu Vs. State of UP, AIR 2012 SC 3311,

10.Dhari & Others Vs. State of UP, AIR 2013
SC 308 and

11.Bhagwan Jagannath Markad Vs. State of
Maharashtra, (2016) 10 SCC 537

12.Rupinder Singh Sandhu vs State of Punjab,
(2018) 16 SCC 475,

13.State of Haryana Vs. Krishan, AIR 2017 SC
3125,

14.Mukesh Vs. State for NCT of Delhi &
Others, AIR 2017 SC 2161 (Three-Judge
Bench),
15.Bhagwan Jagannath Markad Vs. State of
Maharashtra, (2016) 10 SCC 537

16.Jarnail Singh Vs. State of Punjab, 2009 (6)
Supreme 526

17.State of U.P. Vs. Chhoteylal, AIR 2011 SC 697,

18.Dimple Gupta (minor) Vs. Rajiv Gupta, AIR
2008 SC 239

19.State of U.P. v. Naresh; 2011 (75) ACC
215) (SC)

20.Gosu Jayarami Reddy and another Vs. State of
Andhra Pradesh; (2011) 3 SCC(Cri) 630,

21.Parsu Ram Pandey v/s State of Bihar AIR
2004 SC 5068,

22.Shivappa v. State of Karnataka; AIR 2682,

23.Ramchandaran v/s State of Kerala AIR
2011 SC 3581

24.Mukesh Vs. State for NCT of Delhi &
Others, AIR 2017 SC 2161 (Three-Judge
Bench)

25.Bhagwan Jagannath Markad Vs. State of
Maharashtra, (2016) 10 SCC 53,

26.Mukesh v State for NCT of Delhi & Others,
AIR 2017 SC 2161,

27.Bhagwan Jagannath Markad v State of
Maharashtra, (2016) 10 SCC 537

28.Hukum Singh v State of Rajasthan, 2001
CrLJ 511 (SC),

29.Dharnidhar Vs. State of U.P, (2010) 7 SCC 759

30.Sunder Singh v The State, AIR 1955 All 232

31.Barendra Kumar v State of Assam 1978 Cri
LJ (noc) 90 (Gauhati)

32.Ananta Deb Singha Mahapatra v State of
WB, AIR 2007 SC 2524

33.State of Karnataka v Bhaskar Kushali
Kotharkar, AIR 2004 SC 4333,
4 All. Rajwa & Ors. Vs. State of U.P.
425
(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Apul Misra, Ms. Shilpa
Ahuja and Sri N.K. Mishra, learned
counsel for the appellants, Sri Rakesh
Kumar Gupta, learned counsel for the
complainant and Sri M. P. Singh Gaur,
learned A.G.A. for the State.

2. This criminal appeal has been filed
against the judgment and order dated
04.05.1996, passed by Additional Sessions
Judge, Hamirpur, in Sessions Trial No. 179
of 1990 (State vs. Rajwa and others), arising
out of Case Crime No. 137 of 1988, Police
Station Kabrai (Hamirpur), District Mahoba
by which the appellants Rajwa, Shiva
Narain, Babu Lal, Sipahi Lal, Pragi Lal and
Lalloo have been convicted and sentenced
for the offence under Section 147 I.P.C. for
six months rigorous imprisonment each, for
the offence under Section 304/149 I.P.C. for
ten years rigorous imprisonment along with
fine of Rs. 2000/- each and in default of fine
six months additional imprisonment and for
the offence under Section 323/149 I.P.C. for
six months rigorous imprisonment along
with fine of Rs. 500/- each and in default of
fine one month additional imprisonment. The
accused-appellant Pragi Lal has also been
convicted and sentenced for the offence
under Section 148 I.P.C. for six months
rigorous imprisonment. However, accused
persons Nanna and Bachcha have been
acquitted by the learned trial court.

3. It appears that accused-appellant no. 4
namely Sipahi Lal has died and his appeal has
been abated by the order dated 16.08.2019.

4. Brief facts of the case is that on
29.07.1988 at about 5 to 6 P.M. Rishi
Ram had gone for natural call and
Rameshwar, the another brother of
informant Mewa Lal was returning after
natural call. At the moment, he reached at
the door of Sipahi Lal, the accused persons
Rajwa, Shiva Narain, Sipahi Lal, Pragi Lal,
Bachcha, Nanna, Lalloo and Babu Lal
carrying spade and lathi in their hands met
and said to Rishi Ram that Chunwadia, the
daughter of Kalloo has been defamed by
them. Rishi Ram and Rameshwar refused
having done so, whereupon the accused
persons started beating both of them. On
hue and cry being raised, the informant
Mewa Lal, Dwarika and Punna reached
there and they were also beaten by the
accused persons by spade and lathi. The
witnesses Murli, Ram Das and others
reached there on hearing noise. Mewa Lal
lodged the first information report at Police
Station Kabrai on 29.07.1988. The injured
persons Punna, Mewa Lal, Rameshwar,
Dwarika and Rishi Ram were medically
examined in Primary Health Centre, Kabrai.
Seeing the serious conditions of all the
injured persons, they were sent to District
Hospital, Hamirpur. Finding the condition
of Rishi Ram more serious, he was referred
from District Hospital to Kanpur Helat
Hospital, where, on 1.08.1988 Rishi Ram
died during treatment because of the injuries
caused by the accused persons on the date
of incident.

5. Alleging motive, it was stated in
the first information report that in respect
of Chunuwadia, a Panchayat took place in
the village but nothing was decided and
her illicit relations with accused Rajwa
remained a rumour and the accused
persons were of the opinion that she is
being scandalized because of Rishi Ram
and Rameshwar and they had inimical
relation with them.

6. On information of death of Rishi
Ram in Helat Hospital, the police came
426 INDIAN LAW REPORTS ALLAHABAD SERIES
and prepared inquest report on 1.08.1988
and with necessary paper, the dead body
was sent for postmortem to District
Hospital, Kanpur. The postmortem was
conducted at about 04:00 P.M. and the
post-mortem report was prepared. On the
death of Rishi Ram on 18.08.1988, the
Investigating Officer made addition of
Sections 147, 148 and 304 I.P.C. and the
investigation
was
started.
The
I.O.
recorded the statements of the witnesses,
prepared
site
map
and
thereafter
submitted charge sheet under sections
147, 148, 323, 324, 304 I.P.C. against all
the accused persons.

7. Charges were framed against the
accused persons for the offences under
Section 147, 302/149, 324/149 I.P.C. and
against against accused Pragi Lal, charge
was also framed under Section 148 I.P.C..
The prosecution examined as many as
seven witnesses and documents Exhibits
Ka-1 to Ka-13 were proved by the
prosecution witnesses. The statements of
the accused persons were recorded under
Section 313 Cr.P.C., who did not give any
evidence in defence. They, however,
stated that the statements given by the
witnesses were false and because of
enmity, they have been falsely implicated
in the present case. After hearing the
prosecution and defence side, the learned
trial court passed the impugned judgment
and convicted and sentenced the accusedappellants.

8. Feeling aggrieved by the
impugned judgment, the present criminal
appeal has been filed challenging the
impugned judgment on the ground that
the conviction and sentence is against the
weight of evidence available on record.
The sentence is too severe and the learned
trial court did not consider the evidence
on
record
properly.
Therefore,
the
impugned judgment is liable to be set
aside and the accused-appellants are
entitled for acquittal.

9. PW-1 Mewa Lal (informant and
eye witness) has stated that the accused
persons Rajwa, Shiva Narain, Sipahi Lal,
Pragi Lal, Bachcha, Nanna, Lalloo and
Babu Lal belong to his village and he
knows them and they are present in the
court. Accused Shiva Narain and Babu
Lal are sons of accused Rajwa, whereas,
accused Nanna and Bachcha are sons of
the maternal uncle of Rajwa. Sipahi Lal is
cousin brother of Rajwa and accused
Lalloo
is
brother-in-law
of
Rajwa,
whereas, accused Pragi Lal is close
companion of Rajwa. The witness has
stated that the deceased Rishi Ram was
his real brother and at about 6 A.M. in the
morning on the date of incident when he
was going for natural call and his brother
Rameshwar was coming back and when
both reached in front of the house of
accused Sipahi Lal, he came out and on
his door, all the accused persons were
present with lathi in their hands whereas
Pragi Lal was having a spade. They were
talking about the conduct of Rishi Ram
and Rameshwar making allegations that
they are defaming them. When both
denied accused persons Nanna and
Bachcha kept standing there, whereas
other accused persons namely Rajwa,
Shiva Narain, Sipahi Lal, Pragi Lal,
Lalloo and Babu Lal started beating Rishi
Ram and Rameshwar by lathi and spade.
On hue and cry, Mewa lal, his father
Punna and his brother Dwarika reached
there and tried to prevent accused persons
but the accused persons also started
beating them and caused injuries to them.
Witnesses Murli and Ram Das reached
there and saw the incident. He lodged the
4 All. Rajwa & Ors. Vs. State of U.P.
427
first information report which is Ext. Ka1. They were sent to hospital by police
where they were medically examined.
Injured persons including Rishi Ram were
referred to District Hospital. Rishi Ram
was more serious, hence, he was referred
to Helat Hospital, Kanpur, where he died
on 01.08.1988 because of the injuries
caused by the accused persons. The
witness
has
also
stated
about
the
Panchayat which took place in respect of
Chunuwadia, the daughter of Kalloo and
Rajwa
having
illicit
relations.
The
accused persons were suspecting Rishi
Ram and Rameshwar were scandalizing
Chunuwadia. In cross-examination, he has
stated that no injury was caused by spade
by Pragi Lal to him. By spade Rameshwar
and Dwarika sustained injuries. Punna did
not suffer any injury of spade.

10. PW-2 Rameshwar has also
supported the statement of PW-1 Mewa Lal
and has stated that when he was going for
natural call and Rishi Ram was returning
back, in front of the door of Sipahi Lal, the
accused persons carrying a lathi and
accused Pragi Lal with a spade met there
and on account of rumour defaming
Chunuwadia, they all started beating Rishi
Ram. When Mewa Lal, Dwarika and Punna
reached there, they were also beaten.
Witnesses Murli and Ram Das reached
there who saw the incident. The injured
persons were taken to hospital, where they
were medically examined in Primary Health
Centre, Kabrai and thereafter they were sent
to
District
Hospital,
Hamirpur.
The
condition of Rishi Ram was being more
serious, hence he was referred to Helat
Hospital, Kanpur, where he died. The
witness also stated that Murli and Ram Das
have come in collusion with the accused
persons and they are not prepared to give
evidence against them.

11. PW-3 Dr. M. L. Verma
examined
injured
Rishi
Ram
on
29.07.1988 at PHC, Kabrai at 10 A.M.
and found following injuries on his body:-

1. Lacerated wound 1.5 cm. X 0.5
cm. X bone deep at head in left side in parietal
region, 7 cm. above left ear. The injury was
crushed and lacerated in irregular way and on
touching, the injury was bleeding.

2. Contusion 8 cm. X 4 cm. on
left side on forehead above left eyebrow.
There was swelling and redness in the
eyes. X-ray was advised.

3. Incised would 1.5 cm. X 0.5 cm.
X 0.2 cm. on left forearm in the middle and
on the outer side, 12 cm. below the left joint
elbow. Clean cut, fresh and slant.

4. Contusion 10 cm. X 3 cm. on
left thigh in the middle and outer side. 20
cm. above the left knee joint, red in colour
and swelling was present.

5. Contusion 6 cm. X 3 cm. on
forehead in the left side. 4 cm. below the
injury no. 1, colour redish, swelling was
present, X-ray was advised.

6. Contusion 6 cm. X 3 cm. on the
right side of head behind temporal region. 4 cm.
above the right ear, redish and swelling was
present in slant, X-ray was advised.

According to doctor, injures no.
1, 2, 4, 5 and 6 were caused by blunt
object like lathi and injury no. 3 was
caused by sharp weapon like spade. The
injured was unconscious at the time of
medical. There was bleeding from his
mouth and his condition was very poor.

12. On the same day at about 10:15
A.M. injured Rameshwar was also
examined and following injuries were
found on his body :-

1. Crush injury 5 cm. X 1.5 cm.
bond deep in the right side of head and
428 INDIAN LAW REPORTS ALLAHABAD SERIES
parietal region, 13 cm. above the right
ear, irregularly lacerated and crushed,
bleeding was starting on touching the
injury. X-ray was advised. The injury was
in the slant condition.

2. Abrasion 4 cm. X 3 cm. on the right
side of face, 4 cm. above from the mouth angle.

3. Abrasion 10 cm. X 3 cm. on
the joint of right shoulder.

According to doctor injuries no.
2 and 3 were caused by blunt object and it
was possible to have come by friction. Xray was advised in respect of injury no. 1.

13. On the same day at about 10:45
A.M., injured Dwarika was examined and
following injuries were found on his body
:-

1. Crushed injury 8 cm. X. 1.5
cm. X bone deep on the right side of head
on temporal region in slant position,
above 8 cm. from the right ear. The edges
of the injury was irregular and there was
bleeding on touching the injury.

2. Crushed wound 4 cm. X 1.5
cm. X bone deep on the back side of head
in the occipital area horizontally and 9
cm. away from injury no. 1. The edges of
the injury was irregular and bleeding was
present on touching the same.

3. Contusion 6 cm. X. 3.5 cm. on
the 1/3 area of right forearm, 5 cm. Above
the right joint. The injury was redish and
swelling was present. X-ray was advised.

4. Contusion 8 cm. X 3 cm. on
the back of the joint of right shoulder, 3
cm. Behind the scapula. The injury was
redish and swelling was present.

According to doctor all the
injuries wee caused by blunt object like
lathi and were simple in nature.

14. On the same day at about 11:20
A.M., injured Punna was medically
examined and following injuries were
found on his body :-

1. Lacerated wound 3 cm. X. 1.5
cm. X bone deep on the left side of head in
the parietal region, 10 cm. above the left
ear. The edges of the injury were
irregular and badly crushed. Bleeding
was present on touching the injury. The
injury was in slant position.

2. Contusion 10 cm. X 9 cm. on
the left forearm on the back side, 21 cm.
below the left elbow joint. The injury was
redish and X-ray was advised.

3. Contusion 7 Cm. X 3 cm. in
the right hand on the back of outer side of
1/3 forearm, 2 cm. above the wrist joint.
Swelling was present. The injury was
redish and X-ray was advised.

4. Contusion 7 cm. X 3.5 cm.
behind the right forearm, 6 cm. below the
right elbow. Injury was redish, swelling
was present and X-ray was advised.

5. Contusion 7 cm. X 3 cm.
outside the right hand and in the middle
chest above the right elbow joint.

6. Abraded contusion 4 cm. X. 3
cm. above the right shoulder. The injury
was redish and swelling was present.

7. Contusion 8 cm. X. 3 cm.
behind the abdomen in slant position, 14
cm. below the scapula angle. The injury
was redish, swelling was present and Xray was advised.

According to doctor all the
injuries were caused by blunt object like
lathi and were simple in nature.

15. On the same day at about 12:15
P.M. injured Mewa Lal was examined and
following injuries were found on his body
:-

1. Contusion 6 cm. X 4 cm. on
the left side of the face on the angle of
4 All. Rajwa & Ors. Vs. State of U.P.
429
medieval bone, below 2.5 cm. from the left
ear. The injury was redish, swelling was
present and X-ray was advised.

2. Contusion 8 cm. X. 3 cm. in
the middle of right thigh, 2.5 cm. above
the right knee joint. The injury was redish
and swelling was present.

3. Contusion 11 cm. X. 3 cm. in
the right thigh, 2 cm. Below the injury no.
2. The injury was redish and swelling was
present.

According to doctor all the
injuries were caused by blunt object like
lathi and were simple in nature.

16. The doctor has stated that the
injuries of all the injured persons were
found to be fresh and the same were
possible
to
have
been
caused
on
29.07.1988 at about 6 A.M. He has also
proved the injury reports as Ext. no. Ka-2
to
Ka-6.
In
the
cross-examination,
however, he has stated that the injuries of
Rishi Ram are also possible at 3 to 4 A.M.
in the morning. There was no incised
wound
to
injured
Rameshwar
and
Dwarika. Similarly, after seeing the
postmortem report, the witness has stated
during cross-examination that no incised
wound is mentioned on the body of Rishi
Ram.

17. PW-4 Surendra Bahadur Singh
SI has stated that on 29.07.1988, he was
deputed as S.I. in Police Station Kabrai
and Case Crime No. 137 of 1988 was
registered in his presence and he was
assigned investigation on 03.08.1988. He
has recorded the statements of witnesses
Rameshwar, Dwarika, Punna and Murli
and prepared the site-map Ext. Ka-7. On
29.07.1988, he obtained the postmortem
report of Rishi Ram and copied the same
in the case diary and accordingly an
addition of offence under Section 304
I.P.C. was made. He could not get the Xray report on that date. On 10.10.1988, he
recorded the statements of witnesses Ram
Das and others and after completing the
investigation, he submitted charge sheet.
He
has
also
stated
that
initially
investigation was made by S.I. Ram
Naresh Yadav and he recorded the
statement of informant. The witness has
also proved the GD as Ext. Ka-9 by which
the offence was modified and chik F.I.R.
as Ext. Ka-10 and G.D. report as Ext. Ka11 have also been proved by him.

18. PW-5 Chandra Shekhar Gautam,
Chief Pharmacist has stated that the postmortem of Rishi Ram was conducted by
Dr. S.M. Agarwal in the mortuary of
U.H.N. Hospital on 01.08.1988. Dr. S.N.
Agarwal has died and since he worked
with him and had seen him writing and
signing, therefore, he has proved the
postmortem report as Ext. Ka-12.

19. From the perusal of postmortem
report, it appears that the deceased
Rishiram was aged about 43 years.
Following ante-mortem injuries were
found on the body of deceased:

1. Lacerated wound 2 cm x 2 cm
x bone deep present on the right side of
scalp in parietal region 5 cm above from
left year.

2.
Contusion
on
left
eye
(blackening) 5 cm x 2.5 cm.

3. Contusion on the right eye 3
cm x 2 cm (blackening).

4. Lacerated wound 1 cm x 0.5
cm on the left forearm 10 cm below elbow
joint.

The cause of death has been
shown to be shock and hemorrhage
resulted because of ante-mortem injuries.
430 INDIAN LAW REPORTS ALLAHABAD SERIES

20. PW-6 and I.O. Ram Naresh
Yadav has stated that on the date of
incident he was given investigation of the
offence. He copied the medical report in
the case diary and arrested accused
Nanna.
Thereafter,
SI
S.B.
Singh
conducted the investigation. In his crossexamination, the witness has stated that
he did not take statement of Chunuwadia.

21. PW-7 Ram Narayan has stated
that Rishi Ram died in Helat Hospital and
the police of District Kanpur prepared the
inquest report and other papers on which
he also signed which is Ext. Ka-13.

22. The submission of the learned
counsel to the appellants is that all the
witnesses examined by the prosecution
are interested and related witnesses and
none of the independent witnesses has
been produced. The motive for the
offence is not clear and confusing. On the
same evidence, two accused persons have
been acquitted. There is only one injury
which can be said to be fatal and on vital
part resulting in death of the deceased, but
the learned trial court has convicted 6
persons for the offence under section 304
I.P.C.. The sentence is too severe. Only
Pragilal has been said to be having spade,
but he has been convicted for both the
offence under section 147 and 148 I.P.C..
It has been also argued that the F.I.R. is
delayed for which no explanation has
been given by the prosecution.

23. So far as the delay in lodging the
F.I.R. is concerned, the learned trial court
has found on evidence that the F.I.R. was
lodged in 3-4 hours from the time of
incident on the same day. The police
station was 21 km. away from the place of
occurrence and 6 persons were injured of
complainant side and they went to police
station on bullock-cart. Therefore, the
learned trial court rightly concluded that
in the facts and circumstances of the case,
there was no delay in lodging F.I.R.

24. So far as motive for the offence
is concerned, the learned trial court, after
clarifying on the basis of statement of
PW-1, has pointed out that that the reason
for the incident was the illicit relation
between Rajawa and Chunuvadiya due to
which she was enough scandalized and
this brought bad name and frame to her
and family. The mention of Chunuvadiya
in F.I.R. and the expression 'badnami
karni hai' was concluded by the learned
trial court that it was not happily worded
and it has come in the statement of
informant that it was to indicate that the
complainant side has scandalized her and
it meant 'Chunuvadiya ko badnam kar
diya
hai'
(Chunuvadiya
has
been
scandalized) and in respect of it, a
panchayat also took place in the village
on the initiation of the accused persons 15
days before. It needs mention that
Chunuvadiya is the sister of accused Pragi
and it was a rumour in the village that she
had illicit relation with accused Rajawa
and accused persons believed that rumour
has been spreaded by the complainant
side in the village. Therefore, on the basis
of evidence on record, the learned trial
court found that this became a motive for
this criminal incident.

25. Moreover, in a case based on
direct evidence, the settled law is that
existence or proof of motive is not
necessary. In Saddik Vs. State of Gujarat,
(2016) 10 SCC 663, it has been held that
motive is not a sine qua non for the
commission of a crime. Moreover, it takes
a back seat in a case of direct ocular
account of the commission of the offence
4 All. Rajwa & Ors. Vs. State of U.P.
431
by a particular person. In a case of direct
evidence the element of motive does not
play such an important role as to cast any
doubt on the credibility of the prosecution
witnesses even if there be any doubt
raised in this regard. If the eye-witnesses
are trustworthy, the motive attributed for
the commission of crime may not be of
much relevance. Failure to prove motive
or absence of evidence on the point of
motive would not be fatal to the
prosecution case when the other reliable
evidence available on record unerringly
establishes the guilt of the accused. It is
pertinent to mention that where case is
based on direct evidence it is not
incumbent for the prosecution to allege or
prove motive. It can, however, be pointed
out that in this case, the motive has been
alleged and proved by the prosecution.

26. In the case in hand, the
prosecution has examined PW-1 Mewalal
and PW-2 Rameshwar who are eyewitnesses and injured witnesses and they
have supported the prosecution version
and have stated that they saw the whole
incident and the accused persons also
caused injuries to them. The submission
of the learned counsel for the appellant is
that both these witnesses are related and
highly interested witnesses as they are the
brothers of the deceased. The law in this
regard is well settled that the testimony of
a witness cannot be discredited only on
the ground that the witnesses are related
or interested. The only requirement is that
the testimony of such witness should be
scrutinized cautiously and carefully. Thus,
In Masalti V. State of U.P. (AIR 1965 SC
202) Supreme Court Observed:

"But it would, we think, be
unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. ... The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice."

27. The above observation has been
affirmingly
quoted
in
subsequent
judgments. Thus, for instance, in M.C. Ali
v. State of Kerala:: AIR 2010 SC 1639;
and Himanshu v. State (NCT of Delhis)
(2011) 2 SCC 36: 2011) 1 SCC (Cri) 593,
(Bhajan Singh and others Vs. State of
Haryana; (2011) 7 SCC 421, it was laid
down that evidence of a related witness
can be relied upon provided it is
trustworthy. Such evidence is required to
be carefully scrutinized and appreciated
before reaching to a conclusion on the
conviction of the accused in a given case.

28. Again in Jayabalan vs. U.T. of
Pondicherry; 2010(68) ACC 308 (SC),
Jalpat Rai v/s State of Haryana AIR
2011 SC 2719 and Waman v/s State of
Maharashtra AIR 2011 SC 3327, it was
observed that the over-insistence on
witnesses having no relation with the
victims often results in criminal justice
going away. 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 testimony of
such related witness. This view has been
reiterated in Shyam Babu Vs. State of
UP, AIR 2012 SC 3311, Dhari & Others
Vs. State of UP, AIR 2013 SC 308 and
Bhagwan Jagannath Markad Vs. State
of Maharashtra, (2016) 10 SCC 537.
432 INDIAN LAW REPORTS ALLAHABAD SERIES
Recently, in Rupinder Singh Sandhu vs
State of Punjab, (2018) 16 SCC 475, it
has been reiterated by the supreme court
that relationship by itself will not render
the witness untrustworthy. It is true that
PW-1 and PW-2 are the real brothers of
deceased. But, there is nothing in their
statements which can create any amount
of doubt, although, both have been crossexamination at length on every point very
minutely.

29. So far as trustworthiness of the
fact witnesses is concerned, it needs to be
pertinently mentioned that both these
witnesses are injured witnesses and law
gives a very high value to a witness who
has sustained injury in the same incident.
As held in State of Haryana Vs. Krishan,
AIR 2017 SC 3125,Mukesh Vs. State for
NCT of Delhi & Others, AIR 2017 SC
2161 (Three-Judge Bench), Bhagwan
Jagannath
Markad
Vs.
State
of
Maharashtra, (2016) 10 SCC 537 and
Jarnail Singh Vs. State of Punjab, 2009
(6) Supreme 526, deposition of an injured
witness should be relied upon unless there
are strong grounds for rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies for the
reason that his presence on the scene
stands established in the case and it is
proved that he suffered the injuries during
the said incident. Moreover, both the
witnesses are illiterate villagers and
keeping in view the law laid down in
State of U.P. Vs. Chhoteylal, AIR 2011
SC 697, Dimple Gupta (minor) Vs. Rajiv
Gupta, AIR 2008 SC 239 the court should
keep in mind the rural background and the
scenario in which the incident had
happened and should not appreciate the
evidence from rational angle and discredit
the witness's otherwise truthful version on
technical grounds.

30. From the statement of doctor
who has examined both the witnesses, it is
clear that their injuries were possible by
the weapons which have been assigned to
the accused persons and must have been
caused on date and time as alleged by the
prosecution.

31. The learned counsel for the
appellants
has
mentioned
certain
discrepancy and contradiction in the
testimony of witnesses with regards to
who reached first and who gave how
many blows and who caused injuries to
whom and the like. It needs to be pointed
out that where one person of the same
family died on the spot and four other
received injuries, in such a horrendous
situation, the witnesses are not supposed
to be perfectionist to give the exact
account of the incident. Some sort of
contradiction,
improvement,
embellishment is bound to occur in the
statement. As laid down in State of U.P.
v. Naresh; 2011 (75) ACC 215) (SC), in
all criminal cases, normal discrepancies
are bound to occur in the depositions of
witnesses due to normal errors of
observation, namely, errors of memory
due to lapse of time or due to mental
disposition such as shock and horror at
the
time
of
occurrence.
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. The Court
has to form its opinion about the
credibility of the witness and record a
finding as to whether his deposition
inspires confidence.

32. In Gosu Jayarami Reddy and
another Vs. State of Andhra Pradesh;
4 All. Rajwa & Ors. Vs. State of U.P.
433
(2011) 3 SCC(Cri) 630, it was observed
that Courts need to be realistic in their
expectation from the witnesses and go by
what would be reasonable based on
ordinary human conduct with ordinary
human frailties of memory and power to
register events and their details. A witness
who is terrorized by the brutality of the
attack cannot be disbelieved only because
in his description of who hit the deceased
on what part of the body there is some
mix-up or confusion.

33. Further, in Parsu Ram Pandey
v/s State of Bihar AIR 2004 SC 5068,
Shivappa v. State of Karnataka; AIR
2682, Ramchandaran v/s State of Kerala
AIR 2011 SC 3581, it was held that minor
discrepancies or some improvements
would not justify rejection of the
testimonies of the eye-witnesses, if they
are
otherwise
reliable.
Some
discrepancies are bound to occur because
of the sociological background of the
witnesses as also the time gap between
the date of occurrence and the date on
which they give their depositions in
Court. In Mukesh Vs. State for NCT of
Delhi & Others, AIR 2017 SC 2161
(Three-Judge Bench) and Bhagwan
Jagannath
Markad
Vs.
State
of
Maharashtra, (2016) 10 SCC 53, it was
reiterated that minor contradictions in the
testimonies of the Prosecution Witness
are bound to be there and in fact they go
to support the truthfulness
of the
witnesses.

34. It has been further argued on
behalf of the learned counsel to the
appellant that no independent witnesses,
though alleged in F.I.R., have been
examined nor other injured witnesses
except PW-1 and PW-2 have been
produced by the prosecution. It is true that
in the F.I.R., it has been alleged that on
hearing noise, witnesses Murali and
Ramdas reached there and their name
finds mention in the charge-sheet. In
respect of these witnesses, PW-1 and PW2 have stated that they are not prepared to
give evidence in support and they are in
collusion with the accused persons. In
such circumstances if they have not been
examined, it will have no effect on
prosecution case.

35. In Mukesh v State for NCT of
Delhi & Others, AIR 2017 SC 2161,
Bhagwan Jagannath Markad v State of
Maharashtra, (2016) 10 SCC 537 and
Hukum Singh v State of Rajasthan, 2001
CrLJ 511 (SC), the Supreme Court has
explained the law on this point and has
laid down that if a witness examined in
the court is otherwise found reliable and
trustworthy, the fact sought to be proved
by that witness need not be further proved
through other witnesses though there may
be other witnesses available who could
have been examined but were not
examined. Non-examination of material
witness is not a mathematical formula for
discarding the weight of the testimony
available on record however natural,
trustworthy and convincing it may be. It is
settled law that non-examination of eyewitness cannot be pressed into service like
a ritualistic formula for discarding the
prosecution case with a stroke of pen.
Court
can
convict
an
accused
on
statement of sole witness even if he is
relative
of
the
deceased
and
non
examination
of
independent
witness
would not be fatal to the case of
prosecution. It has been further laid down
in Dharnidhar Vs. State of U.P, (2010) 7
SCC 759 that non- examination of
independent
eye
witnesses
is
inconsequential if the witness was won
434 INDIAN LAW REPORTS ALLAHABAD SERIES
over or terrorised by the accused. In
Hukum Singh (supra), the Supreme
Court expressed following view: