# Santu Kori & Ors v. State of U.P. & Ors

- **Citation:** Criminal Appeal No. 491 of 1998
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Criminal Appeal No. 491 of 1998
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santu-kori-ors-v-state-of-u-p-ors-46395
- **Pages:** 7

## Headnote

Govt.
Advocate,
M.
Naseeruallah,
Mohammad Masood Hasan, Mohammad
Naseerullah

A. It is well settled that where direct
evidence is worthy, it can be believed,
then motive does not carry much weight
and mind set of accused persons differs
from each other.

Indian Evidence Act- Section 8- Motive-
Where the case is based on direct evidence,
motive loses its relevance.

B. Merely because witnesses are closed
relatives
of
victim,
their
testimonies
cannot be discarded, but Court has to
adopt a careful approach and analyse
evidence to find out whether it is cogent
and credible evidence.

Indian Evidence Act- Section 134- It is the
quality and not the quantity of evidence
which is important. Conviction can be
recorded on the testimony of related witnesses
provided the same is credible and corroborated
from other evidence.

C.
Discrepancies,
variations
and
contradictions in prosecution case - If the
same do not go to the root of case then
accused-appellant is not entitled to get
benefit of the same.

Indian Evidence Act- Section 3- Minor
contradictions,
improvements
and
3-5 All. Santu Kori & Ors.Vs. State of U.P. & Ors.
215
embellishments cannot be made a reason to
discard the testimony of a witness.

D. The question of awarding sentence is a
matter of discretion to be exercised on
consideration
of
circumstances
aggravating
and
mitigating
in
the
individual
cases.The
measure
of
punishment should be proportionate to
gravity of offence. Object of sentencing
should be to protect society and to deter
the criminal in achieving avowed object of
law. Sentence should reflects conscience
of society and sentencing process has to
be stern where it should be. Appellant's
conviction under Section 307/34 I.P.C.
confirmed
but
sentence
modified
to
already undergone with fine imposed by
trial court.
 (PARA 23,28,29,33,34,36,37)

Criminal Appeal partly allowed. (E-3)

List of case cited:

## Text

214 INDIAN LAW REPORTS ALLAHABAD SERIES
is only with lathi but no injury of lathi is
inflicted on the part of the injured by
invoking section 307 read with Section 34
IPC, it cannot be said that there was
common intention of the appellant to
attempt murder of injured Ram Manohar

31. On perusal of the entire
evidence although it may be considered
that the appellant Shyam Lal was
present at the place of occurrence but
there is no overt act is done by the
appellant. The trial court wrongly
convicted the appellant by giving lathi
blow to the injured and prosecution is
not able to prove the common intention
as envisaged under section 34 IPC.

32. After considering the entire
evidence and perusal of the record, I am
of the opinion that the prosecution is
unable to prove the alleged offence
under
section
307/34
IPC
beyond
reasonable doubt against sole surviving
appellant Shyam Lal.

33. The appeal is allowed. The
order dated 25.02.1991 is set aside and
the appellant Shyam Lal is acquitted the
charge levelled against him under
section 307/34 IPC. The appellant is on
bail. He need not to surrender before
the Court. The sureties and bail bonds
are discharged.

34. The office is directed to
transmit back the record of the Lower
Court with a copy of judgment and
order of this Court for immediate
compliance.
----------
(2020)03-05ILR A214
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE

THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 491 of 1998

Santu Kori & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
S.S. Chauhan, Krishna Kr. Singh

Counsel for the Respondents:
Govt.
Advocate,
M.
Naseeruallah,
Mohammad Masood Hasan, Mohammad
Naseerullah

A. It is well settled that where direct
evidence is worthy, it can be believed,
then motive does not carry much weight
and mind set of accused persons differs
from each other.

Indian Evidence Act- Section 8- Motive-
Where the case is based on direct evidence,
motive loses its relevance.

B. Merely because witnesses are closed
relatives
of
victim,
their
testimonies
cannot be discarded, but Court has to
adopt a careful approach and analyse
evidence to find out whether it is cogent
and credible evidence.

Indian Evidence Act- Section 134- It is the
quality and not the quantity of evidence
which is important. Conviction can be
recorded on the testimony of related witnesses
provided the same is credible and corroborated
from other evidence.

C.
Discrepancies,
variations
and
contradictions in prosecution case - If the
same do not go to the root of case then
accused-appellant is not entitled to get
benefit of the same.

Indian Evidence Act- Section 3- Minor
contradictions,
improvements
and
3-5 All. Santu Kori & Ors.Vs. State of U.P. & Ors.
215
embellishments cannot be made a reason to
discard the testimony of a witness.

D. The question of awarding sentence is a
matter of discretion to be exercised on
consideration
of
circumstances
aggravating
and
mitigating
in
the
individual
cases.The
measure
of
punishment should be proportionate to
gravity of offence. Object of sentencing
should be to protect society and to deter
the criminal in achieving avowed object of
law. Sentence should reflects conscience
of society and sentencing process has to
be stern where it should be. Appellant's
conviction under Section 307/34 I.P.C.
confirmed
but
sentence
modified
to
already undergone with fine imposed by
trial court.
 (PARA 23,28,29,33,34,36,37)

Criminal Appeal partly allowed. (E-3)

List of case cited:

1. Lokesh Shivakumar Vs. St. of Kar., (2012) 3
SCC 196

2. Dalip Singh Vs. St. of Punj., AIR,1953, SC 364

3. Dharnidhar Vs.. St. of U.P., (2010) 7 SCC 759

4. Ganga Bhawani Vs. Rayapati Venkat Reddy &
ors, 2013(15) SCC 298

5. Sampath Kumar
Vs. Insp. of Police,
Krishnagiri, (2012) 4 SCC 124

6. Sachin Kumar Singhraha Vs. St. of M.P, 2019
(8) SCC 371

7. Smt. Shamim Vs. St. of (NCT of Delhi), 2018
(10) SCC 509

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

9. Sham Sunder Vs. Puran, (1990) 4 SCC 731

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

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

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

1. Accused-appellants Santu Kori,
Murli and Lahuri (Now dead) and accusedappellant Jhinguri filed this criminal appeal
challenging the judgement and order dated
29.8.1998 passed by Special Additional
Sessions Judge, Faizabad in Session Trial
No. 338 of 1991, State vs. Santu Kori and
others, under Section 307 I.P.C. (Crime No.
307 of 1991), Police Station Kotwali
Beekapur, District Faizabad whereby Trial
Court convicted all the accused-appellants
under Section 307/34 I.P.C. and sentenced
them
to
undergo
7
years
rigorous
imprisonment with fine of Rs. 1000/- each
and in default of payment of fine, they shall
further undergo for 6 months simple
imprisonment.

2. Brief facts of the prosecution case
which need to be noted for disposal of the
present appeal which are as under :-

On 3.8.1991 at about 9:00 PM,
accused persons Santu Kori and Murli with
Lathi, accused Jhinguri with Ballam and
accused Lahuri with Farsa attacked Ram
Tahal in sugar cane field causing serious
injuries with intention to kill him.

3. On the basis of of written tehrir
Ex.Ka-1 of PW-1 Sant Ram, Chick F.I.R.
Ex.Ka-5 was registered under Section 307
I.P.C. against the accused persons, entry of
case was made in general diary Ex.Ka-6.

4. Injured Ram Tahal was medically
examined
by
Dr.
K.U.
Ahmad
on
3/4.8.1991 at about 12:40 in the night.
Doctor found 9 injuries on the person of
injured Ram Tahal and prepared medical
report.
216 INDIAN LAW REPORTS ALLAHABAD SERIES

5. S.S.I. Surjan Singh Sengar
undertook the investigation, visited spot,
prepared site plan, recorded the statement
of witnesses, found sufficient evidence and
submitted charge sheet against the accusedappellants under Section 307 I.P.C.

6. Case, being exclusively triable by
Court of Sessions, was committed by
Additional
Chief
Judicial
Magistrate,
Faizabad to Session Judge for trial which
came to be transferred and decided by
Special
Additional
Sessions
Judge,
Faizabad.

7. Trial Court framed charges against
accused-appellants under Section 307/34
I.P.C. Accused persons denied the charges
levelled against them, pleaded not guilty
and claimed trial.

8. In order to substantiate its case,
prosecution
examined
PW1-Ram
Tahal
(Injured), PW-2 Sant Ram, PW-3 Chandrabhan
(independent
witness),
PW-4
Dr.
A.K.
Srivastava, PW-5 Dr. K.U. Ahmad, PW-6
Gayadeen Tiwari, Head Constable and PW-7 S.I.
Surjan Singh Sengar, Investigating Officer of the
case. PW-1, 2 and 3 are the witness of fact and
other witnesses are formal witnesses.

9. Subsequent to closure of prosecution
evidence, Trial Court recorded statement of
accused-appellant under Section 313 Cr.P.C.
explaining all incriminating and other evidence
and circumstances. In the statement under
Section 313 Cr.P.C., accused denied prosecution
story in toto and subsequently stated that they
were falsely implicated in the present case on
account of property dispute.

10. Trial court after appreciating the entire
evidence of prosecution and hearing of both the
parties, convicted and sentenced the accusedappellant as stated above.

11. During the pendency of appeal,
accused-appellant no. 1 Santu Kori, appellant
no. 3 Murli and appellant no. 4 Lahuri have
died. Their appeal stood abated. Only appellant
no. 2 Jhinguri remained alive.

12. I have heard Sri Krishna
Kumar Singh, learned counsel for the
appellants and Ms. Parul Kant, learned
AGA for the State at length and have
gone through the record available on
file with the valuable assistance of
learned counsel for the parties.

13. Learned counsel for appellant
no. 2 Jhinguri submits that the accusedappellant is innocent and has been
falsely implicated in the present case.
He has committed no offence. Only
PW-1 Ram Tahal is injured in the
incident, rest witnesses i.e. PW-2 and 3
are not independent witnesses. They are
interested witnesses. The appellant is
old person aged about 60 years and
incident is of the year, 1991. There is
no motive to accused to commit the
present
crime.
There
are
several
contradictions
in
the
statement
of
witnesses so as to disbelieve their
evidence. It is further contended that
injured in incident Ram Tahal has also
been died during the pendency of
appeal. The present appellant and
Dharmpal and Satyapal son of Ram
Tahal entered into a compromise in the
matter and compromise deed is also on
file mentioning that criminal appeal be
allowed for sentencing of already under
gone.

14. On the other hand, learned AGA for
the State opposed the submission made by
learned counsel for the appellant and submitted
that accused-appellant along with other coaccused (Now dead) assaulted the victim Ram
3-5 All. Santu Kori & Ors.Vs. State of U.P. & Ors.
217
Tahal (Now dead) with Lathi, Danda and
Ballam causing him serious injuries. Victim
was medically examined and trail court after
appreciating entire evidence rightly found him
guilty, convicted and sentenced him.

15. Although time, date and place of
incident, injuries found on the person of victim,
respective weapon of accused-appellant are not
disputed by learned counsel for the appellant.
According to him, accused-appellant is not
responsible for causing injuries to victim. He
has been falsely implicated.

16.

Only
question
remains
for
consideration is, "whether accused-appellant is
responsible for causing injuries to victim along
with other co-accused and Trial Court has
rightly appreciated the evidence and found him
guilty or not?"

17. Now I may proceed to consider the
submissions of learned counsel for the parties
and evidence briefly as well as legal points with
few important decisions.

18. PW-1 Ram Tahal(Injured) deposed in
his statement that on 3.8.1991 at about 9 PM,
accused-appellants Santu Kori, Murli, Lahuri
and Jhinguri assaulted him with their respective
weapon. Accused-appellant Santu Kori and
Murli was having Lathi in their hands while
Jhinguri was having Ballam and Lahuri was
having Farsa. All the four persons surrounded
and assaulted him causing serious injuries. He
sustained serious injuries and fell down on
earth. On hearing his scream Sant Ram, Indra
Pal and Ghanshyam came to spot, witnessed the
incident and saved him. Accused was
recognized in the light of torch.

19. PW-2 Sant Ram (real nephew of PW1) deposed in his statement that on hearing
scream of Ram Tahal, he reached to spot and
saw that accused persons were assaulting him
with Lathi, Dandal Farsa and Ballam.

20. PW-3 Indra Pal also supported the
prosecution case and deposed that he
reached the spot on hearing scream of Ram
Tahal. He rushed to spot and saw in the
light of Torch that accused Jhinguri with
Ballam and Lahuri with Farsa and rest
accused Santu and Murli with Lathi were
assaulting Ram Tahal.

21. All the three witnesses withstood
lengthy cross-examination but nothing
adverse could be brought on record so as to
disbelieve their statement.

22.

Doctor
conducted
medical
examination of injured Ram Tahal, found 9
injuries on the person of injured. He
prepared medico legal report and opined
that injury nos. 1, 2 and 5 have been caused
by incisor like Farsa and injury no. 9 was
caused by some pointed weapon like
Ballam which is assigned to present
accused-appellant.

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

24. In Lokesh Shivakumar v. State
of Karnataka, (2012) 3 SCC 196, Court
held as under :-

"As regards motive, it is well
established that if the prosecution case is
fully
established
by
reliable
ocular
218 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence coupled with medical evidence,
the issue of motive looses practically all
relevance. In this case, we find the ocular
evidence led in support of the prosecution
case wholly reliable and see no reason to
discard it."

25. So far as argument of relative witness
and non-examination of independent witness
are concerned, it is now well settled law laid
down in Dalip Singh v. State of Punjab,
AIR,1953, SC 364 wherein Court has held :-

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against the
accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to
screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run
high and there is personal cause' for enmity,
that there is a tendency to drag in an innocent
person against whom a witness has a grudge
along with the guilty, but foundation must be
laid for such a criticism and the mere fact of
relationship far from being a foundation is often
a sure guarantee of truth. However, we are not
attempting any sweeping generalisation. Each
case must be judged on its own facts. Our
observations are only made to combat what is
so often put forward in cases before us as a
general rule of prudence. There is no such
general rule. Each case must be limited to and
be governed by its own facts."

26. In Dharnidhar v. State of UP
(2010) 7 SCC 759, Court has observed
as follows :-

"There is no hard and fast rule
that family members can never be true
witnesses to the occurrence and that
they will always depose falsely before
the Court. It will always depend upon
the facts and circumstances of a given
case. In the case of Jayabalan v. U.T.
of Pondicherry (2010) 1 SCC 199, this
Court had occasion to consider whether
the evidence of interested witnesses can
be relied upon. The Court took the view
that a pedantic approach cannot be
applied while dealing with the evidence
of an interested witness. Such evidence
cannot be ignored or thrown out solely
because it comes from a person closely
related to the victim"

27.

In
Ganga
Bhawani
v.
Rayapati Venkat Reddy and Others,
2013(15) SCC 298, Court has held as
under :-

"11. It is a settled legal
proposition that the evidence of closely
related witnesses is required to be
carefully scrutinised and appreciated
before any conclusion is made to rest
upon it, regarding the convict/accused
in a given case. Thus, the evidence
cannot be disbelieved merely on the
ground that the witnesses are related to
each other or to the deceased. In case
the evidence has a ring of truth to it, is
cogent, credible and trustworthy, it can,
and certainly should, be relied upon.
(Vide: Bhagalool Lodh & Anr. v. State
of UP, AIR 2011 SC 2292; and Dhari &
Ors. v. State of U. P., AIR 2013 SC
308)."

28. It is settled that merely
because witnesses are closed relatives
of victim, their testimonies cannot be
discarded. Relationship with one of the
parties is not a factor that affects
credibility of witness, more so, a
relative would not protect actual culprit
and
make
allegations
against
an
3-5 All. Santu Kori & Ors.Vs. State of U.P. & Ors.
219
innocent person. However, in such a
case Court has to adopt a careful
approach and analyse evidence to find
out whether it is cogent and credible
evidence.

29. In so far as discrepancies, variations
and contradictions in prosecution case are
concerned, I have analysed entire evidence in
consonance with submissions raised by learned
counsel and find that the same do not go to the
root of case and accused-appellant is not
entitled to get benefit of the same.

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

31.

In Sampath
Kumar v.
Inspector
of
Police,
Krishnagiri,
(2012) 4 SCC 124, Court has held that
minor contradictions are bound to
appear in the statements of truthful
witnesses as memory sometimes plays
false and sense of observation differs
from person to person.

32. In Sachin Kumar Singhraha
v. State of Madhya Pradesh, 2019 (8)
SCC 371, Supreme Court has observed
that
Court
will
have
to
evaluate
evidence before it keeping in mind the
rustic nature of depositions of the
villagers, who may not depose about
exact
geographical
locations
with
mathematical precision. Discrepancies
of this nature which do not go to the
root of the matter do not obliterate
otherwise acceptable evidence. It need
not be stated that it is by now well
settled that minor variations should not
be
taken
into
consideration
while
assessing the reliability of witness
testimony and the consistency of the
prosecution version as a whole.

33. I, lest not forget that no
prosecution case is foolproof and the
same is bound to suffer from some
lacuna or the other. It is only when such
lacunae are on material aspects going to
the root of the matter, it may have
bearing on the outcome of the case, else
such shortcomings are to be ignored.
(See Smt. Shamim v. State of (NCT of
Delhi), 2018 (10) SCC 509)

34. PW-1, 2 and 3 supported the
prosecution
case.
PW-1
Ram
Tahal
sustained 9 serious injuries on his body at
the time of incident. Doctor conducted
medical examination report and submitted
that injury no. 9 was caused by some
pointed weapon like Ballam and as per
prosecution witness, accused-appellant was
having Ballam at the time of incident.
Medical evidence caused with ocular
version.
220 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Considering the entire facts and
circumstances of the case, entire evidence
led by prosecution, injuries found on the
person of victim and legal preposition
discussed herein before,I do not find any
legallity or irregularity committed by Trial
Court in the impugned order. Trial Court
rightly found him guilty. Conviction of
accused-appellant Jhinguri deserves to be
and is maintained and confirmed.

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

37. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation of
court to constantly remind itself that right
of victim, and be it said, on certain
occasions person aggrieved as well as
society at large can be victims, never be
marginalized. The measure of punishment
should be proportionate to gravity of
offence. Object of sentencing should be to
protect society and to deter the criminal in
achieving avowed object of law. Further, it
is expected that courts would operate the
sentencing system so as to impose such
sentence which reflects conscience of
society and sentencing process has to be
stern where it should be. The court will be
failing in its duty if appropriate punishment
is not awarded for a crime which has been
committed not only against individual
victim but also against society to which
criminal and victim belong. Punishment to
be awarded for a crime must not be
irrelevant but it should conform to and be
consistent with the atrocity and brutality
which the crime has been perpetrated,
enormity of crime warranting public
abhorrence and it should 'respond to the
society's cry for justice against the
criminal'. [Vide : (Sumer Singh vs.
Surajbhan Singh and others, (2014) 7 SCC
323, Sham Sunder vs. Puran, (1990) 4 SCC
731, M.P. v. Saleem, (2005) 5 SCC 554,
Ravji v. State of Rajasthan, (1996) 2 SCC
175].

38. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, motive, nature of
offence and manner in which it was
executed or committed, weapon used by
him in the commission of offence,
compromise between the parties, I partly
allow this appeal and confirm appellant's
conviction under Section 307/34 I.P.C. but
modify sentence to already undergone with
fine imposed by trial court.

39. Lower Court record along with a
copy of this judgment be sent back
immediately to Trial Court through District
Court concerned for compliance and further
necessary action.
----------
(2020)03-05ILR A220
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Jail Appeal No. 501 of 2018

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

Counsel
for
the
Appellant: