# Ramji Yadav v. State of U.P

- **Citation:** (2021) 11 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-22
- **Bench:** Manoj Kumar Gupta, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramji-yadav-v-state-of-u-p-46681
- **Pages:** 10

## Headnote

Evidence Law - Indian Evidence Act, 1872-
Sections 3 & 134- It is trite law that a related
witness may not be labelled as interested
witness. Interested witnesses are those who
want to derive some benefit from the result of
litigation or implicating the accused. Once it is
established that witnesses were present at the
scene, to witness the occurrence, they cannot be
discarded merely on the ground of being closely
related to the victim. Relationship is not sufficient
to discredit a witness unless there is motive to
give false evidence to spare the real culprit and
falsely implicate an innocent person.

A related witness is not an interested witness unless
he stands to gain some benefit by implicating the
accused and testimony of a natural witness cannot be
discarded on the basis of his relationship as it is the
quality of evidence which is important.

Evidence Law - Indian Evidence Act, 1872-
Sections 137 & 145- The delay in sending of the
First Information Report to the Magistrate is
concerned,
there
is
no
date
and
time
mentioned in the Chik of sending it to the
Magistrate. Even there is no cross examination
done on behalf of the accused with regards to
the same. In the event of no cross examination
being done with regards to the same, the
accused cannot take benefit of it by just
placing arguments for which the relevant
witnesses have not been cross examined. As
such, it cannot be said that there was no
compliance of Section 157 Cr.P.C. and the First
Information
Report
was
an
anti-timed
document.

Settled law that where no question is put in cross-
examination to a witness on a particular fact, then the
same cannot be argued at a subsequent stage.
Criminal Law - Indian Penal Code, 1860-
Sections 302 & 304 Part-I- The incident started
with some quarrel between the parties. The
accused-appellant fired a shot from his gun.
The incident was not premeditated. The
accused-appellant is

## Text

92 INDIAN LAW REPORTS ALLAHABAD SERIES
confronting the society, as society could not
long endure and develop under serious threats of
crime and disharmony. It is therefore, necessary
to avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. At the
same time, undue harshness should also be
avoided keeping in view the
 reformative approach underlying in our criminal
justice system.

16. Keeping in view the facts and
circumstances of the case and also keeping in view
criminal jurisprudence in our country which is
reformative and corrective and not retributive, this
Court considers that no accused person is incapable
of being reformed and therefore, all measures should
be applied to give them an opportunity of reformation
in order to bring them in the social stream.

17. Keeping in view the facts and
circumstances, we will have to fall back what is
known as corrective measures. The accused were
young as narrated above. There were certain loopholes even in the investigation. The factual scenario
as narrated also to some extent would persuade us to
take a different view than that taken by the learned
Judge as far as committal of forcible sex is concerned
but even if that be shown the age of girl namely, the
prosecutrix does not permit us to take different view
but at the same time the judgements of the Apex
Court will permit us to fall back on what is known
reformative theory of punishment. The conviction of
the appellants can be interfered only for the purpose
of sentence as according to us keeping the gravity of
offence, the punishment of life imprisonment is too
harsh.

18. As discussed above, 'reformative theory of
punishment' is to be adopted and for that reason, it is
necessary to impose punishment keeping in view the
'doctrine of proportionality'. It appears from perusal
of impugned judgment that sentence awarded by
learned trial court for life term is very harsh keeping
in view the entirety of facts and circumstances of the
case and gravity of offence. Hon'ble Apex Court, as
discussed above, has held that undue harshness
should be avoided taking into account the
reformative approach underlying in criminal justice
system.

19. Learned AGA also admitted the fact that
the appellants are languishing in jail for more than
nine years. Perusal of the record also shows that
appellants are in jail for past nine years and three
months. As discussed above that in view of the
facts and circumstances of this case and keeping in
view of the gravity of the offence, life term
imprisonment is very harsh. In our opinion, ends of
justice would be met, if sentence is reduced to the
period of 7 years.

20. Hence, the sentence awarded to the
appellants by the learned trial court under Section
376(2)(G) r/w 149 IPC is reduced to the period of
seven years R.I. with all remissions and fine is
reduced from Rs.1 lac to Rs.10,000/- each.
Appellants have to undergo simple imprisonment for
one year in case of default of fine. Rest of sentences
in other offences shall remain intact and all the
sentences shall run concurrently as directed by
learned trial court.

21. Accordingly, the appeal is partly allowed
with the modification of sentence, as above.
----------
(2021)11ILR A92
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 4399 of 2015

Ramji Yadav ...Appellant
Versus
State of U.P. ...Respondent
11 All. Ramji Yadav Vs. State of U.P.
93
Counsel for the Appellant:
Sri Sanjay Kumar Singh, Sri Ajay Kumar Pandey,
Sri Faizan Siddiqui, Fatma Khatoon, Sri Rajesh
Kumar, Sri Rajrshi Gupta, Sri Rajul Bhagava, Sri
Rama Shanker, Sri Rahul Yadav, Sri Muktesh
Singh, Sri Irfan Ahmad, Sri Rizwan Ahmad, Sri
Rajesh Kushwaha, Sri Satish Trivedi

Counsel for the Respondent:
A.G.A.

Evidence Law - Indian Evidence Act, 1872-
Sections 3 & 134- It is trite law that a related
witness may not be labelled as interested
witness. Interested witnesses are those who
want to derive some benefit from the result of
litigation or implicating the accused. Once it is
established that witnesses were present at the
scene, to witness the occurrence, they cannot be
discarded merely on the ground of being closely
related to the victim. Relationship is not sufficient
to discredit a witness unless there is motive to
give false evidence to spare the real culprit and
falsely implicate an innocent person.

A related witness is not an interested witness unless
he stands to gain some benefit by implicating the
accused and testimony of a natural witness cannot be
discarded on the basis of his relationship as it is the
quality of evidence which is important.

Evidence Law - Indian Evidence Act, 1872-
Sections 137 & 145- The delay in sending of the
First Information Report to the Magistrate is
concerned,
there
is
no
date
and
time
mentioned in the Chik of sending it to the
Magistrate. Even there is no cross examination
done on behalf of the accused with regards to
the same. In the event of no cross examination
being done with regards to the same, the
accused cannot take benefit of it by just
placing arguments for which the relevant
witnesses have not been cross examined. As
such, it cannot be said that there was no
compliance of Section 157 Cr.P.C. and the First
Information
Report
was
an
anti-timed
document.

Settled law that where no question is put in cross-
examination to a witness on a particular fact, then the
same cannot be argued at a subsequent stage.
Criminal Law - Indian Penal Code, 1860-
Sections 302 & 304 Part-I- The incident started
with some quarrel between the parties. The
accused-appellant fired a shot from his gun.
The incident was not premeditated. The
accused-appellant is not said to have acted on
his own. The act of firing by him is said to have
been done on impulse and that too upon being
instigated
and
therefore
under
these
circumstances, it cannot be said that the
accused-appellant has committed an offence
under section 302 IPC.- It can be inferred that
the genesis of the occurrence has not been
established in this case, though, it is proved
beyond doubt that the accused-appellant fired
a gun-shot on the deceased resulting in his
death. Therefore, the offence committed by the
accused-appellant would not fall under section
302 IPC, but in our considered view, the
offence would fall under section 304 Part-I
IPC. Accused-appellant is convicted under
Section 304 Part-I IPC to a sentence of twelve
(12) years rigorous imprisonment.

Where it stands established that homicide was
committed as a result of instigation and provocation,
with no premeditation and repetition of assault, then
the same would amount to culpable homicide not
amounting to murder punishable u/s 304 Part I of the
IPC. Sentence modified accordingly. (Para 30, 31, 32,
34, 35, 36)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. St. of U.P Vs Kishanpal & ors: (2008) 16 SCC 73

(Delivered by Hon'ble Samit Gopal, J.)

1. This criminal appeal has been preferred
by Ramji Yadav S/o Sri Chhannu Yadav,
resident of Village Pahari, Police Station
Maruadih,
District
Varanasi
against
the
judgment and order dated 17.09.2015 passed by
the Additional Sessions Judge, Court No. 13,
Varanasi in Sessions Trial No. 390 of 2011
(State of U.P. Vs. Ramji Yadav) whereby the
accused-appellant has been convicted and
sentenced under Section 302 of the Indian Penal
94 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860 (hereinafter referred to as the 'IPC')
to life imprisonment, a fine of Rs. 40,000/- and
in default of payment of fine to one year
rigorous imprisonment. It is ordered that Rs.
20,000/- as realised from fine will be paid to
Nihori Yadav the father of the deceased Sanjay
Yadav as compensation under Section 357 of the
Code of Criminal Procedure, 1973 (hereinafter
referred to as the 'Cr.P.C.'). The trial court has
ordered that benefit of Section 428 Cr.P.C. be
extended to the accused.

2. The entire trial court records of the
present case went missing from the trial court
itself. It had been reconstructed under the order
dated 01.12.2014 of the District Judge, Varanasi.

3. The prosecution case as per the First
Information Report lodged by Nihori Yadav
PW-1 is that on 15.01.2011 at 06:15 pm Ramji
Yadav was coming from village Kadipur. Sanjay
Yadav, his son was standing at the door. Ramji
Yadav on seeing his son started hurling abuses.
His son then asked him as to why he is abusing
on which there were some hot talks between
them. Mohan Yadav and Sohan Yadav @ Patali
Yadav the brothers of Ramji Yadav then
exhorted on which Ramji Yadav who was
carrying a 12 bore gun fired from it on his son
with an intention to kill him. Persons of village
took his son to the hospital. The first informant,
his brother and persons of the village have seen
the occurrence. Ramji Yadav was apprehended
there only. He was also taken to the hospital.

4. An application dated 15.01.2011 was
given by Nihori Yadav for lodging of a First
Information Report which is marked as Exb.:
Ka-1 to the records. Roop Chandra is the scribe
of the same.

5. A First Information Report was then
registered on 15.01.2011 at 19:30 hrs (7:30 pm)
as Case Crime No. 20 of 2011 under Section 307
IPC at Police Station Maruadih, District
Varanasi of which Nihori Yadav is the
informant. The same is Exb.: Ka-3 to the
records. The distance between the place of
occurrence and the Police Station is 4-1/2
kilometres.

6. Sanjay Yadav S/o Nihori Yadav aged
about 35 years died on 15.01.2011 at 08:35 pm
in Heritage Hospital, Lanka, Varanasi. His
postmortem examination was conducted on
16.01.2011 at about 3:30 pm by Dr. Santosh
Kumar Gupta PW-4 which is marked as Exb.:
Ka-6 to the records. The doctor found the
following injuries on his body:-

(i) Firearm entrance wound 2.5 cm
diameter x cavity deep on left side chest, 3 cm
below cavity border of left clavicle 6 cm outer to
midline, 133 cm above left above diaphragm and
7 cm above left nipple.

(ii) Surgical drainage with stitches (2
cm size) 10 cm below left axilla.

Cause of death is opined as shock and
haemorrhage as a result of firearm injury left
chest which was cause of rupture of left lung.

7. After the death of Sanjay Yadav, the
case was converted under Section 302 IPC. The
investigation concluded and a charge sheet No.
55 of 2011 dated 30.03.2011 under Section 302
IPC was submitted against the accusedappellant, the same is marked as Exb.: Ka-16 to
the records.

8. The trial court vide order dated
17.08.2011 framed charge against the accusedappellant under Section 302 IPC. The accusedappellant pleaded not guilty and claimed to be
tried.

9. A SBBL 12 bore gun bearing Gun No.
17283 - 96 of the Bhargava Arms Company with
an empty cartridge embedded in its chamber and
4 (four) cartridges in its cover were recovered on
16.01.2011. Sobhash Yadav and Rajendra
11 All. Ramji Yadav Vs. State of U.P.
95
Yadav PW-2 are the witnesses to the same. A
recovery memo regarding the said recovery was
prepared which is marked as Exb.: Ka-2 to the
records.

10. Certain articles were sent to the
ballistic expert for examination. A report dated
22.12.2011 has been sent, the same is on record.
The gun which was recovered was sent, was
marked as 1/2001. Two cartridges were fired as
test cartridges in the laboratory which were
marked as TC-1 and TC-2. The cartridge
recovered from the barrel of the gun was marked
as EC-1. As per the opinion of the ballistic
expert, the marks of EC-1 were identical to that
of TC-1 and TC-2 and they matched with them.

11. The prosecution in order to prove its
case examined Nihori Yadav PW-1 who is the
first informant and also father of the deceased.
Rajendra Yadav PW-2 is the brother of the
deceased and son of Nihori Yadav PW-1. These
two witnesses are produced and examined as the
eye witnesses of the incident.

12. As formal witnesses, Umesh Rai PW-3
was the Head Constable of Police Station
Maruadih, Varanasi who transcribed the First
Information Report and prepared its Chik. Dr.
Santosh Kumar Gupta PW-4 conducted the
postmortem examination of the deceased Sanjay
Yadav. Arun Kumar Yadav, Sub-Inspector PW5 conducted the inquest on the body of the
deceased which is Exb.: Ka-7 to the records.
Sageer Ahmad PW-6 is the Investigating Officer
of the matter who took up the investigation and
concluded it by filing charge sheet against the
accused-appellant Ramji Yadav.

13. The accused-appellant denied the
occurrence and claimed false implication due to
enmity with the first informant due to some land
dispute and claimed to be tried. No defence was
led by him.

14. The trial court after considering the
entire evidence on record came to the conclusion
that the evidence of witnesses and the entire
records go to show that the accused Ramji
Yadav has committed the said offence which has
been proved against him beyond reasonable
doubts and the prosecution has been successful
in proving the case against him and thus
convicted him under the aforesaid section.

15. We have heard Sri Rajrshi Gupta & Sri
Rama Shankar Yadav, learned counsels for the
accused-appellant and Sri Attreya Dutta Mishra,
learned Additional Government Advocate for
the State of U.P. and have perused the entire
reconstructed records and the judgment and
order of conviction.

16. Learned counsels for the accusedappellant have made the following submissions
before us:-

(i) There has been a delay in sending
of the First Information Report to the
Magistrate. The Chik First Information Report
states that the same is being sent by dak. There
is no recital of the date and time of its dispatch.
The same is in violation of Section 157 of the
Cr.P.C. The First Information Report is thus an
anti-time document.

(ii) In the First Information Report,
there is a specific allegation of Mohan Yadav
and Sohan Yadav @ Patali Yadav, the brothers
of the accused-appellant Ramji Yadav to have
exhorted him after which he fired but the first
informant and Rajendra Yadav later on
exonerated them and as such in the investigation
they were exonerated. After investigation no
charge sheet was submitted against them. This
would go to show that the prosecution case is
not truthful. There has been an attempt to
increase the number of accused persons and thus
the implication of the accused-appellant also
becomes doubtful. The genesis of the occurrence
is also doubtful.
96 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) The accused-appellant had no
motive at all to commit the said offence. The
prosecution has not come out with any motive at
all for the accused-appellant to indulge in the
said incident.

(iv) The arrest of the accused-appellant
is in dispute. In the First Information Report, it
is stated that he was apprehended by the
villagers and he was also taken to the hospital.
There is no document whatsoever on record to
show that the accused-appellant was taken to the
hospital as narrated in the First Information
Report and by the first informant. Sageer Ahmad
PW-6 who is the Investigating Officer of the
case states that he arrested the accused-appellant
from the hospital and then he took him for the
recovery of the weapon. The link of the accusedappellant being apprehended and being taken
and admitted in the hospital and then being
arrested from there is missing.

(v) The two eye witnesses being Nihori
Yadav PW-1 and Rajendra Yadav PW-2 are the
father and brother respectively of the deceased
Sanjay Yadav. They are family members of the
deceased and as such are interested witnesses.
There is no independent witness to support the
prosecution case. It would be very unsafe to rely
upon the testimony of the alleged eye witnesses as
they are the family members of the deceased and
are interested witnesses.

(vi) It is lastly argued that even if
presuming all the evidences to be true and
correct, the matter would not travel beyond
Section 304 Part-I of the IPC. The case is a case
of a single shot without any repetition of firing
as is evident from the prosecution evidence and
the postmortem report. There was no motive for
the accused-appellant to commit the said
offence. The incident started with an altercation
in which a single shot was fired. The accusedappellant has been in jail since 16.01.2011 and
as such has suffered imprisonment for about 10
years and 10 months which would be an
appropriate sentence for him under Section 304
Part-I IPC.

17.

Learned
Additional
Government
Advocate for the State on the other hand opposed
the submissions of learned counsels for the
accused-appellant by arguing that the present case
is a case of direct evidence. The incident took
place on 15.01.2011 at 06:15 pm and the First
Information Report was lodged on 15.01.2011
itself at 19:30 hrs which was after about one hour
and fifteen minutes of the incident. The distance
between the place of occurrence and Police Station
is four and a half kilometres. The First Information
Report has been lodged promptly. Sanjay Yadav,
the deceased in an injured condition was taken to
the hospital and as such the First Information
Report was lodged under Section 307 IPC but after
getting information about his death, the case was
converted under Section 302 IPC. PW-1 Nihori
Yadav and PW-2 Rajendra Yadav are the eye
witnesses of the incident and were natural
witnesses present.

18. It is further argued that the SBBL gun
used in the incident was recovered on the
pointing out of the accused-appellant which had
an empty cartridge in its chamber. The same was
sent to ballistic expert for examination. The
report of the ballistic expert clinches the case as
he opined that the said empty was fired from the
said weapon after testing it and comparing it
from the test cartridges. Thus the use of the said
weapon gets corroborated from the ballistic
report.

19. It is argued that in so far as the
argument of the First Information Report being
anti-time is concerned, there is no foundation
laid by the accused in the cross-examination of
the witnesses for the same. Only drawing a
presumption about it by the fact that the date and
time of sending the First Information Report is
not mentioned therein would not in any manner
be conclusive of the fact that there was a delay
in sending of the same to the Magistrate. It is
argued that the testimony of the two eye
witnesses are correct and intact and they are
11 All. Ramji Yadav Vs. State of U.P.
97
natural and truthful witnesses. There is ample
evidence on record to prove that the accusedappellant is the person who shot the deceased.
The appeal lacks merit which is liable to be
dismissed.

20. PW-1 Nihori Yadav is the first
informant of the case and the brother of the
deceased. He states that the incident is of
15.01.2011 at about 06:15 pm. He was present in
his house. Accused Ramji Yadav started abusing
Amit and Sanjay. His son was shot by him. He
was carrying a gun, the shot hit his left chest.
Ramji Yadav shot him while he was standing at
the door of his house. His son was taken to the
hospital by his family members. He later on
came to know that his son died while going to
the hospital. Ramji Yadav tried to run away after
firing. He was apprehended by the villagers.
Police came and took him away. He lodged the
First Information Report. He also went with
Ramji to the Police Station. He proves the
application given by him for lodging of the First
Information Report.

21. In his cross examination, he states that
he had given an affidavit dated 14.02.2011 to the
D.I.G., Varanasi. He states that in the said
affidavit in para 3, he has stated that Mohan
Yadav and Sohan Yadav have been falsely
implicated in the present case. To a suggestion
that he has enmity with many people he refuses.
He further refuses the suggestion that unknown
person shot his son and he did not witness the
incident. He refuses that he has falsely
implicated the accused.

22. PW-2 Rajendra Yadav is the other son of
the first informant Nihori Yadav and is the brother
of the deceased Sanjay Yadav. He states that the
accused-appellant shot his brother with his
licensed gun which hit his left chest. His brother
then walked 2-3 steps and then fell down after
which he with the help of villagers took him to
Heritage Hospital wherein the doctors declared
him dead at about 08:30 pm. He is also a witness
of the recovery of the gun and cartridges which
was on the pointing out of the accused-appellant
on 16.01.2011. He states about the said recovery
being effected before him and the recovery memo
being prepared before him. He is also the witness
of the recovery of blood stained mud and plain
mud, the recovery memo of which is Exb.: Ka-13
to the records which was also done on 16.01.2011.
He is a witness of the inquest. He states that he had
also given an affidavit in the matter through his
lawyer which was prepared on his instructions. He
had stated in the same that Mohan and Sohan were
not present at the place of incident at the date and
time of the occurrence. Their names have been
wrongly mentioned in the First Information
Report. To a suggestion to him that unknown
persons have murdered his brother in the night he
denies. He further denies that he is not an eye
witness to the incident. It is further denied by him
that he has falsely implicated the accused-appellant
and he was not present at the place of occurrence.
He denies the suggestion that no such incident took
place as stated by him in his examination-in-chief
and also denies the suggestion that he is giving a
false statement in court.

23. PW-3 Umesh Rai is the Head
Constable who transcribed the First Information
Report and prepared the Chik. He proves the
same.

24. PW-4 Dr. Santosh Kumar Gupta
conducted the postmortem examination of the
deceased Sanjay Yadav. He states that he
conducted the postmortem on 16.01.2011 at
about 03:30 pm. The deceased had died on
15.01.2011 at about 08:35 pm in Heritage
Hospital. He proves the postmortem report and
states that the cause of death was shock and
haemorrhage as a result of firearm injury on the
left chest with rupture of left lung.

25.

PW-6
Sageer
Ahmad
is
the
Investigating Officer of the case. He states about
98 INDIAN LAW REPORTS ALLAHABAD SERIES
his taking over the investigation on 16.01.2011
and conducting the Panchayatnama on the body
of the deceased in the mortuary of Heritage
Hospital, Varanasi which is marked as Exb.: Ka7 to the records. He then prepared other
documents relating to the same and sent the
body for postmortem. He states that on
16.01.2011 he prepared the site plan which was
marked as Exb.: Ka-12 to the records. He
prepared the recovery memo of the blood stained
mud and plain mud in the presence of witnesses
which was dictated by him to Sub-Inspector
Arun Kumar Yadav. The same was marked as
Exb.: Ka-13 to the records.

26. Accused Ramji Yadav gave his
statement to him which was marked as Exb.:
Ka-14 to the records. Subsequently, as he was
admitted in Kabir Chaura, Hospital he reached
the hospital and recorded his statement and
took him for the recovery of the 12 bore gun.
The same was then got recovered on the
pointing out of the accused. The recovered
gun was bearing Gun No. 17283 - 96 of The
Bhargava Arms Company and had an empty
cartridge in its barrel and four cartridges in its
cover. The gun and the cartridges were sealed
and a recovery memo of the same was
prepared which was marked as Exb.: Ka-2 to
the records. He then proceeded with the
investigation and subsequently on 24.01.2011
Section 34 IPC was added in the investigation.
The statements of witnesses were recorded.
Smt. Girja Devi and Smt. Dulari Devi were
also interrogated by him on 09.03.2011 as eye
witnesses of the incident. The statement of
formal witnesses were recorded by him. After
investigation he submitted a charge sheet
under Section 302 IPC against the accusedappellant. The said charge sheet is marked as
Exb.: Ka-16 to the records. Articles were sent
to the Director Forensic Lab, Lucknow
through Constable-188 Rajesh Pandey in a
sealed condition for analysis. A report was
received from the ballistic expert in the matter
after examination of the articles received in
the lab.

27. He states that in the First Information
Report, it is mentioned that Mohan Yadav and
Sohan Yadav exhorted Ramji who then fired
and in the statement of the first informant, he
had stated about the same but later on he gave
an affidavit and an affidavit was also received
from Rajendra Yadav stating therein that the
said persons have been falsely implicated. To
a suggestion that he did not get the recovery of
the weapon done, he denies the same. He
further
denies
the
suggestion
that
in
conspiracy he brought the licensed weapon of
the accused from his house and fired from it at
the Police Station and made a false case. In
the end, he denies the suggestion that he has
not investigated the matter properly and in
conspiracy with the villagers, has filed charge
sheet against the accused-appellant without
any evidence. He further denies the fact that
the deceased had enmity with many people of
the village and was murdered in the night by
someone and due to the enmity with the
accused he has been falsely implicated.

28. The accused-appellant in his statement
under Section 313 Cr.P.C. states that the case
has been instituted against him due to enmity.
He further states that Nihori Yadav and Rajendra
Yadav have enmity with many people of the
village. There is a dispute with regards to land
between the accused-appellant and his brother
with Nihori Yadav and as such he has enmity
with him. The deceased has been murdered by
some unknown persons in the dark.

29. The prosecution case is specific in so
far as it relates to the firing upon the deceased
Sanjay Yadav is concerned. The role of firing
has been assigned to the accused-appellant
Ramji Yadav with his licensed gun. The time of
occurrence and the place of occurrence is also
specified. There is no challenge by the accused
11 All. Ramji Yadav Vs. State of U.P.
99
with regards to the date and place of occurrence.
Two eye witnesses examined in the trial being
Nihori Yadav PW-1 and Rajendra Yadav PW-2
although are the father and brother of the
deceased but are natural witnesses of the
incident. Since the place of occurrence is the
house of the first informant, the presence of the
said two witnesses cannot be doubted.

30. The occurrence in the present case is of
15.01.2011 at 6:15 pm and the First Information
Report has been lodged on the same day at 19:30
hrs (07:30 pm) which is after about one hour and
fifteen minutes of the incident. The same was
lodged after Sanjay Yadav while being in an
injured condition was taken away to the hospital
by Rajendra Yadav PW-2 and other villagers.
The distance between the place of occurrence
and the Police Station is four and a half
kilometres. The First Information Report is a
prompt report lodged by Nihori Yadav PW-1.
There is a recovery of SBBL gun on the pointing
out of the accused-appellant which was having
an empty cartridge embedded in it which is said
to have been used in the present incident. The
gun was sent to the ballistic expert for
examination and empty cartridge found in it,
was found to have been fired from the same.
Since the matter is having eye witnesses being
present, the motive does not play an important
role and the non-mentioning of any motive in
the First Information Report would not make the
entire prosecution case doubtful.

It is trite law that a related witness
may not be labelled as interested witness.
Interested witnesses are those who want to
derive some benefit from the result of litigation
or implicating the accused. Once it is established
that witnesses were present at the scene, to
witness the occurrence, they cannot be discarded
merely on the ground of being closely related to
the victim. The Apex Court in State of Uttar
Pradesh Vs. Kishanpal and others : (2008) 16
SCC 73 held as under:

"18. The plea of defence that it would
not be safe to accept the evidence of the eye
witnesses who are the close relatives of the
deceased, has not been accepted by this Court.
There is no such universal rule as to warrant
rejection of the evidence of a witness merely
because he/she was related to or interested in the
parties to either side. In such cases, if the
presence of such a witness at the time of
occurrence is proved or considered to be natural
and the evidence tendered by such witness is
found
in
the
light
of
the
surrounding
circumstances and probabilities of the case to be
true, it can provide a good and sound basis for
conviction of the accused. Where it is shown
that there is enmity and the witnesses are near
relatives too, the Court has a duty to scrutinize
their evidence with great care, caution and
circumspection and be very careful too in
weighing such evidence. The testimony of
related witnesses, if after deep scrutiny, found to
be credible cannot be discarded.

19. It is now well settled that the
evidence of witness cannot be discarded merely
on the ground that he is a related witness, if
otherwise the same is found credible. The
witness could be a relative but that does not
mean his statement should be rejected. In such a
case, it is the duty of the Court to be more
careful in the matter of scrutiny of evidence of
the interested witness, and if, on such scrutiny it
is found that the evidence on record of such
interested witness is worth credence, the same
would not be discarded merely on the ground
that the witness is an interested witness. Caution
is to be applied by the court while scrutinizing
the evidence of the interested witness.

20. It is well settled that it is the
quality of the evidence and not the quantity of
the evidence which is required to be judged by
the court to place credence on the statement. The
ground that the witness being a close relative
and consequently being a partisan witness,
should not be relied upon, has no substance.
Relationship is not a factor to affect credibility
100 INDIAN LAW REPORTS ALLAHABAD SERIES
of a witness. It is more often than not that a
relation would not conceal actual culprit and
make allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the Court has
to adopt a careful approach and analyse the
evidence to find out whether it is cogent and
credible."

31. Relationship is not sufficient to
discredit a witness unless there is motive to give
false evidence to spare the real culprit and
falsely implicate an innocent person.

32. The exoneration of two accused persons
who were assigned the role of exhortation only
cannot be a ground for discarding the entire
prosecution evidence. In so far as, the delay in
sending of the First Information Report to the
Magistrate is concerned, there is no date and time
mentioned in the Chik of sending it to the
Magistrate. Even there is no cross examination
done on behalf of the accused with regards to the
same. In the event of no cross examination being
done with regards to the same, the accused cannot
take benefit of it by just placing arguments for
which the relevant witnesses have not been cross
examined. As such, it cannot be said that there was
no compliance of Section 157 Cr.P.C. and the First
Information Report was an anti-timed document.
The presence of the eye witnesses and their
unblemished testimony is sufficient enough to
prove the case. The prosecution cannot fail even
for the reason that it has not proved the motive for
the commission of the incident. Even during
lengthy cross examination of PW-1 Nihori Yadav
and PW-2 Rajendra Yadav no material could be
elucidated by the accused in his benefit and favour
from them which could be safely taken to discard
their testimony in full. The prosecution has
succeeded its case beyond reasonable doubts
against the accused-appellant.

33. The alternative arguments of learned
counsels for the accused-appellant that the
matter would not be one under Section 302 IPC
but would fall under Section 304 Part-I IPC is
being taken up for consideration now.

34. The incident started with some quarrel
between the parties. The accused-appellant fired
a shot from his gun. The incident was not
premeditated. The accused-appellant is not said
to have acted on his own. The act of firing by
him is said to have been done on impulse and
that too upon being instigated by his brothers
Mohan Yadav and Sohan Yadav @ Patali
Yadav. From the evidence of PW-1 and PW-2 it
is evident that there had been hot exchange of
words. The injury as received by the deceased
Sanjay Yadav is a single injury on his body
which was the cause of his death. The other
injury was a surgical drainage with stitches
which has been stated by the doctor to be present
on his body which was a procedure done during
the course of his treatment.

35. The accused-appellant has caused a
single gun-shot injury to the deceased that too
on being instigated by his two brothers who
have been exonerated during investigation and
therefore under these circumstances, it cannot be
said that the accused-appellant has committed an
offence under section 302 IPC. But according to
the learned counsels for the accused-appellant,
the offence would fall under section 304 Part-I
IPC. Learned counsel submitted that the
accused-appellant
has
already
suffered
imprisonment of more than ten (10) years and
ten (10) months and he is first offender and he
should be released on the sentence already
undergone by him.

We have meticulously considered the
evidence in this case in the light of the above
submission of the learned counsels for the
accused-appellant. The alleged eyewitnesses
Nihori Yadav PW-1 and Rajendra Yadav PW-2
have deposed that the accused-appellant was
abusing the deceased who objected to it and
11 All. Sanjay @ Kalla Vs. State of U.P.
101
some hot talks between them took place after
which his brothers Mohan Yadav and Sohan
Yadav @ Patali Yadav, the exonerated coaccused instigated the accused-appellant Ramji
Yadav and on this, he fired a shot on the
deceased. None of these witnesses have
disclosed as to what was the cause or reason by
the accused-appellant to abuse the deceased. The
accused-appellant had caused a single gun-shot
injury, on being instigated by his brothers
Mohan Yadav and Sohan Yadav @ Patali
Yadav. Thus, if there was no dispute or quarrel
or enmity before the incident and it has not been
made clear by the witnesses as to what was the
cause or reason for hurling abuses then certainly
it can be inferred that the genesis of the
occurrence has not been established in this case,
though, it is proved beyond doubt that the
accused-appellant fired a gun-shot on the
deceased resulting in his death. Therefore, the
offence committed by the accused-appellant
would not fall under section 302 IPC, but in our
considered view, the offence would fall under
section 304 Part-I IPC.

36. So far as sentence is concerned, from
the records it is clear that the accused-appellant
was arrested on 16.01.2011 and during trial he
remained in custody and even after the
impugned judgment he has remained in jail till
date. Thus, he has suffered imprisonment of
about ten years and ten months and if remission
part is considered then this sentence would be
more. The incident is of the year 2011 and the
accused-appellant has suffered mental agony of
this case for more than ten years. The accusedappellant is not reported to have any previous
criminal history. Looking to the overall facts and
circumstances of the case, nature of evidence
available on record, this Court is of the
conclusion that the present case would fall under
Section 304 Part-I IPC and not under Section
302 IPC and a conviction of twelve (12) years
alongwith fine already imposed by the trial court
with compensation to the father of the deceased
as ordered by the trial court would meet the ends
of justice.

37. In the result, the appeal is partly
allowed.

38. The accused-appellant is convicted
under Section 304 Part-I IPC to a sentence of
twelve (12) years rigorous imprisonment. The
amount of fine as imposed upon him by the trial
court and the compensation as directed to be
paid from it under Section 357 Cr.P.C. is
maintained. The default sentence as ordered by
the trial court is also maintained.

39. The lower court record along with a
copy of this judgment be sent back forthwith to
the trial court concerned for compliance and
necessary action.
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(2021)11ILR A101
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 5508 of 2007
connected with
Criminal Appeal No. 4794 of 2007

Sanjay @ Kalla ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Raghuraj Kishore, Sri Ajay Kumar Sharma,
Sri Ashutosh Tripathi, Sri Atmaram Nadiwal, Sri
Dharmendra Singhal, Sri Dharmendra Singhal,
Sri Hari Om Yadav, Sri Maqsood Ahmad, Sri
Mohd. Farooq, Sri Shiv Prakash, Sri Yogesh
Srivastav

Counsel for the Respondent: