# Ramesh v. State of U.P

- **Citation:** Jail Appeal No. 521 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Jail Appeal No. 521 of 2018
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-v-state-of-u-p-46399
- **Pages:** 9

## Headnote

A. Criminal law-IPC Section 304 (II) I.P.CDelay in lodging F.I.R. has been very
satisfactorily and reasonably explained
and in this case delay is not at all fatal for
prosecution case-Statement of a relative
or interested witness could not be thrown
out only on the ground that the witness is
relative or interested witness, rather, such
statement
is to
be
scrutinized
with
caution-Exception-4 to section 300 of the
I.P.C.-Appellant only tried to pacify the
matter between co-accused ( acquitted)
and deceased and there were no premediation or pre-arranged plan to commit
crime and incident has taken place all of
sudden in spur of moment-No intention to
commit
such
fatal
assault
on
the
deceased-Sentence of five years rigorous
imprisonment reduced to three years
rigorous
imprisonment
alongwith
fine
with default clause and compensation to
the
widow
/
complainant
(wife
of
deceased).

Appeal partly allowed. (E-3)

Held- Where there is absence of any premeditation and the incident occurs on the spur
of the moment, the weapon is not lethal and
there is no repetition of assault after a single
blow, the case would come within Exception 4
to Section 300 IPC.(Para 16,21,23,26)

List of case cited:-

## Text

232 INDIAN LAW REPORTS ALLAHABAD SERIES

43. The conviction and sentence of
appellant Neeraj passed by Additional
Sessions Judge, Court No. 4, under section
498A, 304B IPC and Section 4 D.P. Act are
upheld. The appellant Neeraj is in jail and
he served out the sentence awarded to him.

44. Office is directed to transmit the
certified copy of this order to the court
below along with the lower court record,
for necessary compliance.
----------
(2020)03-05ILR A232
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Jail Appeal No. 521 of 2018

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

Counsel for the Appellant:
From Jail, Sri Ved Prakash Pandey.

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

A. Criminal law-IPC Section 304 (II) I.P.CDelay in lodging F.I.R. has been very
satisfactorily and reasonably explained
and in this case delay is not at all fatal for
prosecution case-Statement of a relative
or interested witness could not be thrown
out only on the ground that the witness is
relative or interested witness, rather, such
statement
is to
be
scrutinized
with
caution-Exception-4 to section 300 of the
I.P.C.-Appellant only tried to pacify the
matter between co-accused ( acquitted)
and deceased and there were no premediation or pre-arranged plan to commit
crime and incident has taken place all of
sudden in spur of moment-No intention to
commit
such
fatal
assault
on
the
deceased-Sentence of five years rigorous
imprisonment reduced to three years
rigorous
imprisonment
alongwith
fine
with default clause and compensation to
the
widow
/
complainant
(wife
of
deceased).

Appeal partly allowed. (E-3)

Held- Where there is absence of any premeditation and the incident occurs on the spur
of the moment, the weapon is not lethal and
there is no repetition of assault after a single
blow, the case would come within Exception 4
to Section 300 IPC.(Para 16,21,23,26)

List of case cited:-

1. Tara Singh & ors. Vs. St. of Punj., AIR 1991
SC 63

2. Nagappan Vs.. St. (by Insp.r of Police, T.N),
(2014) 3 SCC (Cri) 660

3. Vikram Singh & ors. Vs. St. of Punj., (2010) 3
SCC 56

4. Sheesh Ram & ors. Vs. St. of Raj,. (2014) 3
SCC 689

5. Gopal Singh Vs. St. of U.P.,(1978) 3 SCC 327

6. Surinder Kumar Vs. U.T., Chandigarh, (1989)
2 SCC 217

(Delivered by Hon'ble Suresh Kumar
Gupta J. )

1. Being aggrieved with the judgment
and order dated 12.4.2018 passed by
Additional Sessions Judge, Court No. 21,
Shahjahanpur, this jail appeal has been
preferred by appellant in S.T. No. 165 of
2014, Case Crime No. 395 of 2013, under
sections 304, 504 & 506 I.P.C. in which
appellant has been convicted under section
304 (II) I.P.C. for 5 years rigorous
imprisonment
alongwith
fine
of
Rs.
10,000/- and in default of payment of fine
six month further imprisonment. Appellant
was acquitted under sections 304/34, 504 &
3-5 All. Ramesh Vs. State of U.P.
233
506 I.P.C. After depositing the aforesaid
fine 3⁄4 part of the same shall be given to the
victim as compensation.

2. Brief facts of this case are as
follows-:

That on 7.9.2013 at about 7-8
P.M. lot of altercation happened between
husband of complainant namely Sher Pal
(deceased) and her neighbour namely
Mausam Ali and this altercation continued
for a long time. Complainant alongwith her
daughters and her Jeth's son namely
Ramesh (appellant) had tried to sort out the
matter but all in vain. Then Ramesh
inflicted two - three blow of stick on the
head of Sher Pal and pushed him on the
floor. Accused Mausam Ali is also
involved
in
this
incident.
Thereafter
complainant tried to take her husband to the
hospital for treatment but could not do the
same due to non-availability of vehicle,
resultant her husband-Sher Pal had died on
the spot. This occurrence was witnessed by
several neighbours of the complainant.
Thereafter, complainant scribed a report by
Irfan and on the basis of that written report
Ex. Ka-1 an F.I.R. was lodged (Ex. Ka-8)
on 8.9.2013 at 00.30 mid night at police
station Rauja against appellant-Ramesh and
co-accused-Mausam Ali. Distance between
the police station and place of occurrence is
about 12 hours in North-East.

3. This case is entered in G.D. at
serial no. 2 dated 8.9.2013 at 00.30 hours
(Ex. Ka-2) and inquest report (Ex. Ka-4) as
well as papers relating to autopsy is also
prepared by SI Janki Prasad Sharma on
direction of S.H.O. Afterward autopsy of
deceased was done in district hospital by
PW-5-Dr. R.S. Prasad. According to PW-5
at the time of alleged incident deceased was
45 years old and duration of death of
deceased about one day. In medical
examination
following
ante-mortem
injuries were found on the body of
deceased:-

i. Lacerated wound 2.5 cm X 1
cm into bone deep on the right eye-brow.

ii. Abraided contusion 4 cm X 2
cm on tip of nose

iii. Contusion 6 cm X 3 cm on the
left side of back 12 cm below the right tip
of shoulder.

iv. Contusion of 8 cm X 4 cm on
left side back 10 cm below.

v. Contusion 12 cm X 3 cm on left
side of lower part of back just above left
side of buttock.

vi. Abraided contusion 7 cm X 3
cm on right side of back of chest 4 cm
below tip of shoulder.

vii. Contusion 8 cm X 2.5 cm on right side
of back 9 cm below tip of shoulder.

4. On internal examination of body of
deceased injuries no. 4 to 7 were rib
fracture on the left side of back, lungs were
raptured, heart was empty, stomach was
empty, chyme and gases were present in
small intestine, bladder was empty. As per
result of ante-mortem injuries, doctor
opined that death of deceased was done due
to shock and hommerrage. Death report is
proved as Ex. Ka-7.

5. That investigation of this case was
conducted by IO Virendra Bahadur Singh /
PW-3. IO prepared site plan (Ex. Ka-2) on
instruction
of
complainant
and
after
recording the statement of witnesses as
234 INDIAN LAW REPORTS ALLAHABAD SERIES
well as after completing formality of
investigation submitted charge-sheet (Ex.
Ka-3) against appellant-Ramesh and coaccused-Mausam
Ali
before
C.J.M.
concerned, where it is committed to the
sessions court and by means of transfer this
case is decided by A.D.J. Court No. 21. On
16.7.2014 charge was framed against the
appellant as well as co-accused, Mausam
Ali, under sections 304/34, 504 & 506
I.P.C. After conclusion of trial learned trial
court acquitted co-accused, Mausam Ali,
and convicted the appellant as aforesaid.

6. In order to substantiate the charge
levelled against the appellant, prosecution
examined
Smt.
Mahadevi
(wife
of
deceased) as PW-1, she proved the written
report (Ex. Ka-1). Sita, who is the daughter
of deceased as PW-2, PW-1 and PW-2 are
reported as eye-witnesses of the alleged
incident, IO Virendra Bahadur Singh as
PW-3, who proved site plan as Ex. Ka-2
and charge sheet as Ex. Ka-3, Dr. Janki
Prasad Verma as PW-4, who proved
inquest report as Ex. Ka-7, C.M.O. Letter,
R.I. Letter and challan nash Ex. Ka-4 to Ex.
Ka-6, Dr. Aditya Prakash Arya as PW-5,
who proved post mortem report as Ex. Ka7 and Ct. Clerk Jitendra Singh as PW-6,
who proved the chik F.I.R. as Ex. Ka-8 and
relevant G.D. No. 2 as Ex. Ka-9.

7. After examination of these
witnesses,
on
9.3.2018
statement
of
accused-appellant was
recorded under
section 313 Cr.P.C. Accused/ appellant
denied all the charges levelled against him
and stated that he was falsely implicated in
this case by complainant due to personal
vengeance. Co-accused Mausam Ali clearly
denied the prosecution version and stated
that he is innocent and deceased and his
wife committed marpeet to one woman of
his village namely Sushila Devi and coaccused was the witness of that incident,
due to that enmity wife of deceased has
falsely implicated him in this case. After
hearing of both the parties, learned trial
court acquitted the accused and convicted
the appellant as aforesaid being aggrieved
against the order dated 2.4.2018, this
appeal has been filed by the appellant.

8. I have heard learned counsel for the
appellant and the learned A.G.A. and
perused the material available on record.

9. Learned counsel for the appellant
submitted that appellant has been falsely
implicated in this case. The occurrence has
taken place at about 8 P.M. and F.I.R. was
lodged at about 12.30 midnight having
delay of 4.30 hours and there is no
explanation regarding the same. That no
independent eye-witness was examined by
the prosecution and both the prosecution
witnesses i.e. PW-1 (wife of deceased) and
PW-2 (daughter of deceased) are relatives
of deceased and they are interested
witnesses, therefore no reliance can be
placed on the statement of interested and
related witnesses. As independent witness
was available on the spot as no independent
witness examined by the prosecution so
conviction of appellant could not be
sustained
Learned
counsel
further
submitted that death of deceased was died
due to falling on the pave road it cannot be
established from the evidence that the act
was committed by the appellant with
intention to kill the deceased. Rather than
due to certain altercation between Mausam
Ali
and
deceased
this
incident
unintentionally happened. Learned counsel
next submitted that co-accused-Mausam
Ali was acquitted by the trial court so
appellant is also liable to be acquitted.
Learned counsel further submitted that
appellant is an old age person and if court
3-5 All. Ramesh Vs. State of U.P.
235
found appellant's guilt then considering the
poor condition, and there was no premediation or pre-arrange plan and entire
circumstances that death of deceased
occurred due to non-availability of any
vehicle at the time of alleged incident so
complainant could not take her husband to
the
hospital
for
treatement
and
he
succumbed due to excessive bleeding.

10. Per contra, learned A.G.A.
submitted that appellant had intentionally
committed culpable homicide and given
several fatal blow by stick, which resultant
to death of deceased. He further submitted
that although there are several eyewitnesses were present at the spot at the
time of alleged incident but due to enmity
and partibandi in village independent
person always refuse to give deposition so
it could not be presume that absence of
independent eye-witness belied prosecution
case. Learned A.G.A. further contended
that prosecution is able to prove its case
beyond shadow of doubt. The alleged
incident has taken place in the village of
deceased. Hence, neither date time and
place of occurrence nor the identity of
accused could be disputed by learned
counsel for appellant. Role of appellant to
inflict injury to deceased with lathi and
unintentionally pushed the deceased on
pave road was proved. There is no material
on record to disbelieve the prosecution
charge
against
appellant.
It
is
also
submitted that learned trial court does not
seem to have fallen an error while
convicting and sentencing the appellant
under section 304 part II I.P.C. Appellant
deserves no leniency. So appeal is liable to
be dismissed.

11. In order to prove this case
prosecution examined six witnesses and out
of these only two witness of fact, examined
by prosecution. PW-1, Mahadevi, is the
wife of deceased as well as an eye-witness
of this case. PW-1 deposed in her statement
that before three year at 7-8 P.M. there was
some altercation between her husband and
neighbour,
Mausam
Ali.
Meanwhile,
brother-in-law of PW-1, Dharmpal, and her
daughter tried to pacify the altercation but
they could not succeed. Son of her brotherin-law (jeth) Ramesh and Mausam Ali both
assailant grabbed her husband and pushed
him on the pave ground. Due to this Sher
Pal sudden sustained serious injuries and
PW-1 could not take her husband for
treatment because she failed to make
arrangement of any vehicle and her
husband Sher Pal died after half an hour on
the spot. At the time of incident a bulb was
lightening on the pole and PW-1 clearly
identified the accused in the light of bulb.
PW-1 in his cross-examination stated by
making an improvement that Mausam Ali
was armed with banka and inflicted on
head of Sher Pal and Ramesh inflicted lathi
on the base of nose and both of them
pushed Sher Pal on pave road resultant,
Sher Pal died.

12. PW-2 is the daughter of deceased
who herself examined as an eye-witness
and she clearly stated in her statement that
Ramesh armed with lathi and Mausam Ali
armed with farsa, inflicted injuries to her
father so statement of PW-1 also in support
of PW-2.

13. Learned trial court acquitted coaccused, Mausam Ali, only on the grounds
that although both the witnesses (PW-1 &
PW-2) in their statements clearly stated that
co-accused, Mausam Ali, was also involved
in
this
incident
and
taken
active
participation but in the F.I.R.(Ex. Ka-1) no
said allegation is imputed against Mausam
Ali. On the opinion of learned trial court
236 INDIAN LAW REPORTS ALLAHABAD SERIES
that evidence adduced against co-accused,
Mausam Ali, was not in consonance with
F.I.R. so learned trial court acquitted
Mausam Ali against charge levelled upon
him and no appeal against acquittal of
Mausam Ali is filed by prosecution till
date.
Only
appellant,
Ramesh,
was
convicted and presently he is languishing in
jail.

14. One of the argument of learned
counsel for appellant is that occurrence has
taken place on 7.9.2013 at about 7 to 8
P.M. That distance between place of
occurrence and police station is about 3
kms and F.I.R. was lodged against the
appellant at 12.13 midnight. Thus there are
about 5 hours delay in lodging the F.I.R.
which is not at all explained by the
prosecution and delay in lodging F.I.R.
gives rise to the fact that appellant has been
falsely implicated in this case. In case of
prompt F.I.R., chance of false implication
of accused is very remote. While learned
A.G.A. submitted that delay is clearly
explained in this matter that first informant
is an illiterate, rustic household lady and
nobody from the village came forward for
arranging conveyance for deceased after
alleged incident. Complainant could not
manage conveyance in time so in these
circumstances, delay occurred in lodging
F.I.R. There are many factors which have
to be taken into consideration while
looking into factum of delay in criminal
cases. It is true that court has duty to take
notice of delay and examined the same in a
back draft of a factual score whether there
is any expectable explanation offered by
the
prosecution
but
when
delay
is
satisfactorily
explained
no
adverse
inference is to be drawn. It is to be seen
whether there has been possibility of
embellishment in the prosecution version
on account of such delay.

15. In this connection it will be useful
to take note of the following observation
made by Apex Court in Tara Singh & Ors.
v. State of Punjab, AIR 1991 SC 63 :

"The delay in giving the FIR by
itself cannot be a ground to doubt the
prosecution case. Knowing the Indian
conditions as they are, one cannot expect
these villagers to rush to the police station
immediately after the occurrence. Human
nature as it is, the kith and kin who have
witnessed the occurrence cannot be
expected to act mechanically with all the
promptitude in giving the report to the
police. At times being grief-stricken
because of the calamity it may not
immediately occur to them that they
should give a report. After all it is but
natural in these circumstances for them to
take some time to go the police station for
giving the report. Of course, in cases
arising out of acute factions there is a
tendency to implicate persons belonging to
the opposite faction falsely. In order to
avert the danger of convicting such
innocent persons the Courts should be
cautious to scrutinize the evidence of such
interested witnesses with greater care and
caution and separate grain from the chaff
after subjecting the evidence to a closer
scrutiny and in doing so the contents of
the FIR also will have to be scrutinised
carefully. However, unless there are
indications of fabrication, the Court
cannot reject the prosecution version as
given in the FIR and later substantiated
by the evidence merely on the ground of
delay.
These
are
all
matters
for
appreciation and much depends on the
facts and circumstances of each case."

16. Thus delay in lodging F.I.R. has
been very satisfactorily and reasonably
explained which has also been discussed by
3-5 All. Ramesh Vs. State of U.P.
237
trial court and in this case delay is not at all
fatal for prosecution case.

17. So far as the second argument is
concerned that only interested and related
witnesses
i.e.
PW-1,
Mahadevi
w/o
deceased and PW-2 Sita, daughter of
deceased,
were
examined
by
the
prosecution. No other independent witness
is produced so no reliance can be placed in
the statement of interested and related
witnesses.
That
the
prosecution
has
produced only interested and related
witnesses i.e. PW-1 & PW-2. Both are
relatives of deceased except this no
independent eye-witness produced by the
prosecution. While PW-1 has clearly stated
in her statement that at the time of alleged
incident her daughter as well as villagers
were present at her door and Ramvir was
also sit on his shop but neither anyone
come forward nor prevented the appellant
from being killing.

18. In Nagappan v. State (by
Inspector of Police, Tamil Nadu) reported
in (2014) 3 SCC (Cri) 660 Hon'ble the
Apex Court in paragraph no. 10 has
observed as under :-

"10. As regards the first
contention about the admissibility of the
evidence of PW 1 and PW 2 being closely
related to each other and the deceased,
first of all, there is no bar in considering
the evidence of relatives. It is true that in
the case on hand, other witnesses turned
hostile and have not supported the case of
the prosecution. The prosecution heavily
relied on the evidence of PW 1 & PW 2.
The trial court and the High Court, in
view of their relationship, closely analysed
their statements and ultimately found that
their evidence is clear, cogent and without
considerable contradiction as claimed by
their counsel. This Court, in a series of
decisions, has held that where the
evidence of "interested witnesses" is
consistent and duly corroborated by
medical evidence, it is not possible to
discard the same merely on the ground
that they were interested witnesses. In
other words, relationship is not a factor to
affect the credibility of a witness. "
(emphasis added)

19. In Vikram Singh and others V.
State of Punjab reported in (2010) 3 SCC
56 Hon'ble the Supreme Court has cited
paragraph 3 of its earlier pronouncement in
the case of Rana Pratap and Others V.
State of Haryana reported in 1983 (3)
SCC 327 which reads as under:-

"There were three eye witnesses.
One was the brother of the deceased and
the other two were a milk vendor of a
neighbouring village, who was carrying
milk to the dairy and a vegetable and fruit
hawker, who was pushing his laden cart
along the road. The learned Sessions
Judge and the learned Counsel described
both the independent witnesses as chance
witnesses implying thereby that their
evidence
was
suspicious
and
their
presence at the scene doubtful. We do not
understand
the
expression
'chance
witnesses'. Murders are not committed
with
previous
notice
to
witnesses;
soliciting their presence. If murder is
committed in a dwelling house, the
inmates
of
the
house
are
natural
witnesses. If murder is committed in a
brothel, prostitutes and paramours are
natural witnesses. If murder is committed
in a street, only passersby will be
witnesses. Their evidence cannot be
brushed aside or viewed with suspicion on
the ground that that they are mere chance
witnesses'.
The
expression
'chance
238 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses' is borrowed from countries
where every man's home is considered his
castle and every one must have an
explanation for his presence elsewhere or
in another man's castle. It is a most
unsuitable expression in a country whose
people are less formal and more casual.
To discard the evidence of street hawkers
and street vendors on the ground that they
are 'chance witnesses' even where murder
is committed in a street is to abandon good
sense and take too shallow a view of the
evidence."(Emphasis added)

20. In Sheesh Ram and others v.
State of Rajasthan reported in (2014) 3
SCC 689 Hon'ble the Apex Court in
paragraph no. 10 has observed as under:-

"10. It is submitted that all these
witnesses are related and therefore their
evidence cannot be relied upon. Assuming
they are related to each other and, hence,
interested witnesses, it is well settled that
the evidence of interested witnesses is not
always suspect. It has to be scrutinized
with caution and can be accepted if it is
found reliable."

21. Hence, statement of a relative or
interested witness could not be thrown out
only on the ground that the witness is
relative or interested witness, rather, such
statement is to be scrutinized with caution.

22. Hon'ble the Apex Court in Gopal
Singh Vs. State of U.P. reported in (1978)
3 SCC 327 has observed in paragraph no.
11 as under:-

"11. True, they were interested
witnesses, related to the deceased. Far
from undermining the circumstances of
the case, it guaranteed the truth of their
testimony. Being relations, they would be
the least disposed to falsely implicate the
appellant, or substitute him in place of the
real culprit. In short, the murder charges
had been proved to the hilt against the
appellant."

23. As the law propounded by apex
court statement of relatives and interested
witnesses could not be thrown out only on
the ground that witnesses are relatives.
Rather such statement of the witnesses is to
be scrutinized with caution. It is made clear
that related or interested witnesses will
never like to save the real culprit and
falsely implicate some other innocent
person. In this case alleged occurrence has
taken place near the house of the deceased
and presence of these witnesses are quite
natural. Hence, no adverse inference can be
drawn that witnesses are related and
interested witnesses. In the backdrop of the
legal situation now it is to be seen as to
whether the prosecution has been succeed
to prove the charges against the accused.

24. It was argued that the incident in
question took place on a sudden fight
without any premeditation and the act of
the appellant hitting the deceased was
committed in the heat of passion upon a
sudden quarrel without the appellant having
taken undue advantage or acting in a cruel
or unusual manner. Firstly, there is not
even a suggestion that the appellant had
any enmity or motive to commit any
offence against the deceased. Secondly,
because the weapon used was not lethal nor
was the deceased given a second blow once
he had collapsed to the ground. The
prosecution case is that no sooner the
deceased fell to the ground on account of
the blow on the head, the appellant and his
companions took to their heels - a
circumstance that shows that the appellant
had not acted in an unusual or cruel manner
3-5 All. Ramesh Vs. State of U.P.
239
in the prevailing situation so as to deprive
him of the benefit of Exception-4. Thirdly,
because during the exchange of hot words
between the deceased and the appellant,
intention
of
the
appellant
and
his
companion was at best to belabour him and
not to kill him as such. The cumulative
effect of all these circumstances, in our
opinion, should entitle the appellant to the
benefit of Exception-4 to section 300 of the
I.P.C.

25. In Surinder Kumar Vs. Union
Territory, Chandigarh (1989) 2 SCC 217,
Apex Court held that if on a sudden quarrel
a person in the heat of the moment picks up
a weapon which is handy and causes
injuries out of which only one proves fatal,
he would be entitled to the benefit of the
Exception provided he has not acted
cruelly. This Court held that the number of
wounds caused during the occurrence in
such a situation was not the decisive factor.
What
was
important
was
that
the
occurrence had taken place on account of a
sudden and unpremeditated fight and the
offender must have acted in a fit of anger.
Dealing with the provision of Exception 4
to Section 300 I.P.C. this Court observed:-

"..........To invoke this exception
four requirements must be satisfied,
namely, (i) it was a sudden fight; (ii) there
was no premeditation; (iii) the act was
done in a heat of passion; and (iv) the
assailant had not taken any undue
advantage or acted in a curel manner. The
cause of the quarrel is not relevant not is
it relevant who offered the provocation or
started the assault. The number of wounds
caused during the occurrence is not a
decisive factor but what is important is
that the occurrence must have been
sudden and unpremeditated and the
offender must have acted in a fit of anger.
Of course, the offender must not have
taken any undue advantage or acted in a
cruel manner. Where, on a sudden
quarrel, a person in the heat of the
moment picks up a weapon which is
handy and causes injuries, one of which
proves fatal, he would be entitled to the
benefit of this exception provided he has
not acted cruelly."

26. Considering the entire facts and
circumstances of the case as well as after
perusing
the
record
in
this
appeal
prosecution has successfully proved the
charges levelled against the appellant
beyond reasonable doubt. Learned trial
court has also rightly recorded the finding
of guilt against the appellant. I do not find
any illegality in the impugned judgment
and order of the trial court. So in these
circumstances, the conviction is upheld
against the appellant. So far as regard
sentence is concerned appellant is the
nephew of the deceased. Appellant only
tried to pacify the matter between Mausam
Ali and deceased and there were no premediation or pre-arranged plan to commit
crime and incident has taken place all of
sudden in spur of moment. Appellant has
no intention to commit such fatal assault on
the deceased. Appellant was incarceration
few months during trial as well as after
judgment he is in jail continuously since
12.4.2018. In these circumstances, it
would be appropriate for the end of
justice, sentence of five years rigorous
imprisonment is reduced to three years
rigorous imprisonment alongwith fine of
Rs. 10,000/- with default clause and
compensation
to
the
widow
/
complainant
(wife
of
deceased)
as
awarded by trial court.

27. Appeal is partly allowed on the
point of sentence only.
240 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Appellant is in jail. The period
spent by the appellant in jail shall be set off
from the imprisonment awarded by this
court. Learned trial court shall ensure
compliance of this order.

29. Office is hereby directed to certify
this order to the learned trial court
immediately. The lower court record
should also be transmitted forthwith.
----------
(2020)03-05ILR A240
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2020

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE VIKAS KUNVAR
SRIVASTAVA, J.

Criminal Appeal No. 577 of 2009
&
Criminal Appeal No. 371 of 2009
&
Criminal Appeal No. 655 of 2009

Ram Pal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ashok Verma, Anil Kumar Pandey (Amicus)
Pramod Kumar Shukla, Sanandan Kumar
Misra, Soniya Mishra

Counsel for the Respondent:
G.A., M.L. Syal, Shashi Kiran Arya

A. Evidence law- Indian Evidence Act, Section
154 - Hostile witness- The common law
principle, ''falsus in uno falsus in omnibus' does
not apply in Indian Law of Evidence- - The
evidence of a Hostile Witness cannot be altogether
rejected and the part of the evidence, which finds
corroboration from other evidence, is admissible.

B. Evidence law- Indian Evidence Act- Section 3-
Related or Interested Witnesses- Fact that the
witnesses are related to each other is no ground
for disbelieving their evidence- Relative should
have no interest to falsely implicate the accused
or protect the real culprit - There is no reason for
related witnesses to falsely implicate the accused and let
the real culprits go scot free. However, The Court has to
treat the said evidence with caution.

C. Evidence law- Indian Evidence Act- Section
45- Opinion of Expert -The evidence of doctor is
merely an opinion of expert under Section 45 of
the Indian Evidence Act- The expert is a valuable
witness when it becomes utmost necessary for
the court to record his evidence to form an
accurate opinion to determine that the offence
was committed by the accused-The other
evidences corroborated
with
the
expert's
witness' deposition fixes the guilt on the
accused-The testimony of eye witness should be
paramount unless medical evidence is so
conclusive as to rule out even the possibility of
eye witness's version to be true- If the opinion of
the Doctor corroborates the ocular evidence then the
accused can be safely convicted however the ocular
version shall be granted primacy over the medical
evidence unless the medical evidence overwhelmingly
contradicts the ocular version.

D. Criminal Law- Code of Criminal Procedure-
Section 313.- Opportunity to enable accused
to
explain
incriminating
circumstances
emerging out from the evidence against them
- All accused have availed the opportunity and
commonly blamed the incriminating which
came out from prosecution evidence to be
''false implication by reason of enmity'-- Failure
of the accused to provide explanation to the
incriminating material against him would lead the
Court to derive an adverse inference against him.

E. Criminal law- Indian Penal Code-Section 34
- Concept of joint liability- The proved facts
circumstances and materials available on
record
attract
the
constructive
liability
enshrined in the provision of Section 34 of the
IPC.- Section 34 Provides for joint liability of the
accused
where
the
common
intention
and
participation of the accused in the commission of the
offence is proved.
(Para 53,58,59,60,72,77,80,89,109,110)

Criminal Appeal dismissed.(E-3)

List
of
case
cited:-