# Shri Pal & Ors v. State

- **Citation:** (2021) 7 ILRA 26
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-20
- **Case number:** Criminal Appeal No. 1244 of 1987
- **Bench:** Manoj Kumar Gupta, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-pal-ors-v-state-47084
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,1860-Sections
302/34,
201,307/34-challenge
to-
conviction-
accused came with lathi, danda, farsa and
gun with common object and they brutally
murdered the deceased and cutting his
head threw the body in canal, would show
the occurrence could not be carried out by
one
person
alone-they
succeeded
in
executing their plan successfully-ocular
version
stands
corroborated
by
the
medical evidence-presence of PW-1 and
PW-2 was natural, their testimony is
consistent in respect of time and place of
occurrence-merely because witnesses are
close relatives of victim, their testimonies
can not be discarded-relationship with one
of the parties is not a factor that affects
credibility of witness-more so, a relative
would not conceal the actual culprit and
make
allegation
against
an
innocent
person-they were subjected to lengthy
cross examination, but the defence could
not
succeed
in
impeaching
their
creditworthiness by extracting anything
suspicious.(Para 2 to 45)

B. It is a settled legal proposition that the
evidence of closely related witness or
interested witness is required to be
carefully
scrutinized
and
appreciated.
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 case the
evidence has a ring of truth to it, is
cogent, credible and trustworthy, it can,
and certainly should, be relied upon.(Para
44)

The appeal is dismissed. (E-5)

List of Cases cited:

## Text

26 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel could not point out any error
apparent on the face of the record and the
submissions made do not fall within the
parameters of Section 114 read with Order
47 Rule 1 C.P.C.

17. Having considered the matter, this
Court finds that no grounds of review is
made
out.
The
Review-Petition
is
absolutely
devoid
of
merits
and
is
dismissed with costs.
----------
(2021)07ILR A26
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.07.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 1244 of 1987

Shri Pal & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Sri
S.P.S.
Raghav,
Sri
Gopal
Sahai
Srivastava, Sri Indra Kumar Chaturvedi,
Smt.
Rekha
Pundir,
Sri
Hari
Mohan
Kesarwani

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,1860-Sections
302/34,
201,307/34-challenge
to-
conviction-
accused came with lathi, danda, farsa and
gun with common object and they brutally
murdered the deceased and cutting his
head threw the body in canal, would show
the occurrence could not be carried out by
one
person
alone-they
succeeded
in
executing their plan successfully-ocular
version
stands
corroborated
by
the
medical evidence-presence of PW-1 and
PW-2 was natural, their testimony is
consistent in respect of time and place of
occurrence-merely because witnesses are
close relatives of victim, their testimonies
can not be discarded-relationship with one
of the parties is not a factor that affects
credibility of witness-more so, a relative
would not conceal the actual culprit and
make
allegation
against
an
innocent
person-they were subjected to lengthy
cross examination, but the defence could
not
succeed
in
impeaching
their
creditworthiness by extracting anything
suspicious.(Para 2 to 45)

B. It is a settled legal proposition that the
evidence of closely related witness or
interested witness is required to be
carefully
scrutinized
and
appreciated.
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 case the
evidence has a ring of truth to it, is
cogent, credible and trustworthy, it can,
and certainly should, be relied upon.(Para
44)

The appeal is dismissed. (E-5)

List of Cases cited:

1. Sampath Kumar Vs Inspr. of Police,
Krishnagiri (2012) 4 SCC 124

2. Sachin Kumar Singhraha Vs St. of M. P.
(2019) CRLA 473-474

3. Smt. Shamim Vs St. (NCT of Delhi)(2018)
CRLA 56

4. Yogesh Singh Vs Mahabeer Singh & ors.
(2017) 11 SCC 195

5. Lokesh Shivakumar Vs St. of Karn. (2012) 3
SCC

6. Dalip Singh Vs St. of Punj. (1953) AIR SC 364

7. Dharnidhar Vs St. of U.P. (2010) 7 SCC 759
7 All. Shri Pal & Ors. Vs. State
27
8. Jayabalan Vs U.T .of Pondicherry (2010) 1
SCC 199

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

10. Bhagalool Lodh & anr. Vs St. of U.P.(2011)
AIR SC 2292

11. Dhari & ors. Vs St. of U.P.(2013) AIR SC 308

12. Anil Rai Vs St. of Bih. (2001) SCC 456

13. Raju@ Balachandran & ors. Vs St. of T.N.
(2012) 12 SCC 701

14. Jodhan Vs St. of M.P.(2015) 11 SCC 52

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

1. The present Criminal Appeal has
been filed by accused-appellants, namely,
Shripal, Vijaypal, Kiranpal and Rishipal
against the judgement and order dated
30.04.1987 passed by III Additional
Sessions Judge, Meerut in Sessions Trial
No.420 of 1982, Police Station Sardhana,
District Meerut, whereby trial Court
convicted the accused appellants under
Sections 302/34, 201 and 307/34 IPC and
sentenced them for life imprisonment and
fine of Rs.200/- each with default clause.

2. According to prosecution story in
brief, one Rajpal was shot dead on
25.08.1982 at about 11:00 AM in Village
Kapsar, Police Station Sardhana, District
Meerut by accused-appellants Shripal,
Vijaypal, Kiranpal and Rishipal and
accused persons took away his dead body
towards Rajwaha. Informant was also
injured by shrapnel. Incident was reported
to police station concerned telephonically
by informant PW-1 Jagdish.

3. On the basis of information
received telephonically, a chik FIR
Ex.Ka-14
was
registered
by
Head
Constable Moharrir Rajpal Singh at
Crime No. 256 of 1982, under Sections
302, 201 and 307 IPC. Entry was made
by same Constable in G.D. of police
station concerned.

4. The then S.H.O. Roshan Lal
Verma PW-5 undertook investigation of
the case and took relevant papers,
proceeded to spot along-with S.I. V.S.
Sharma
and
other
police
officials.
Recorded the statement of PW-1 Jagdish,
PW-2 Smt. Ummed (W/o deceased) and
other witnesses, visited the spot, prepared
site plan Ex.Ka-2 at the pointing out of
informant, found signs of dragging the
dead body up to Gang Naher, prepared
site plan of that place i.e. Ex.Ka-3,
collected blood stained earth and simple
earth of place of incident, prepared fards
thereof and searched the body on the
bank of river but found it nowhere.
Investigating Officer collected blood
stained soil and some pieces of wound
there from and prepared fards thereof.

5. On the next day, Investigating
Officer received information from one
Mohd. Yaseen regarding dead body that
was entered into G.D.15. Investigating
Officer visited there with S.I. V.S.
Sharma and other officials, directed S.I.
to hold inquest over the dead body which
was beheaded. Sri Sharma held inquest
Ex.Ka-6 and prepared relevant papers
thereof.
Dead
body
was
sent
for
postmortem. On the very same day,
Investigating
Officer
recorded
the
statement of Mohd. Yaseen.
28 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Further investigation was done by
PW-7 S.I. A.K. Chaudhary due to transfer
of former Investigating Officer.

7. PW-3 Dr. Prempal Singh medically
examined PW-1 Jagdish on 25.08.1982 and
found one lacerated wound on scalp of
right parital measuring 0.8 x 0.2 cm muscle
deep and clotted blood was also found over
the injury. Doctor prepared medico legal
report Ex.Ka-1.

8. PW-8 Dr. Vijay Singh held autopsy
over the dead body of Rajpal and prepared
postmortem report Ex.Ka-13, noting ante
mortem injuries therein.

9. PW-7 S.I. A.K. Chaudhary, after
completing
entire
formalities
of
investigation, found sufficient evidence
against accused persons and submitted
charge sheet Ex.Ka-12 against the accusedappellants before CJM concerned who took
cognizance of the case.

10. CJM, after making sufficient
compliance under Section 207 Cr.P.C., case
being triable by Court of Sessions,
committed it to Court of Sessions for trial.

11. Session trial came to be heard by
III Additional Sessions Judge, Meerut. Trial
Court framed the charges under Sections
302/34, 201 and 307/34 IPC against the
accused-appellants, who denied the charges
and pleaded not guilty and claimed to be
tried.

12. In support of its case, prosecution
examined nine witnesses, namely, PW-1
Jagdish, PW-2 Smt. Ummed, PW-3 Dr.
Prem Raj Singh, PW-4 Dharampal, PW-5
S.H.O. Roshan Lal Verma, PW-6 Constable
Shaukat Ali, PW-7 S.I. A.K. Chaudhary,
PW-8 Dr. Vijay Singh and PW-9 Moharrir
Rajpal Singh out of which PWs 1 Jagdish
and PW-2 Smt. Ummed are witnesses of
fact and rest are formal witnesses.

13. On closure of evidence by
prosecution, Court recorded the statements
of accused persons under Section 313
Cr.P.C. explaining entire evidence and
incriminating
circumstances.
Accused
persons denied the prosecution story in
toto. Statements of witnesses are alleged to
be wrong, they claimed false implication
but they did not set up any defence story.
They did not choose to lead any evidence
in their defence.

14. Trial Court after hearing counsel
for parties and appreciating entire evidence
available on record has found accusedappellants
guilty
and
convicted
and
sentenced as stated above.

15. We have heard Sri Indra Kumar
Chaturvedi, learned Senior Council assisted
by Sri Hari Mohan Kesarwani for the
appellants and Sri S.A. Murtaza, learned
AGA for State and we have gone through
the record with the valuable assistance of
learned Counsel for the parties.

16. Learned Senior Counsel appearing
for appellants has challenged conviction of
accused-appellants,
advancing
his
submissions in the following manner :

i.
Accused-appellants
are
innocent, they have committed no offence
and they have been falsely implicated in the
present case.

ii. There was no sufficient and
prompt motive to accused-appellants to
commit murder of deceased Rajpal in the
presence of witnesses who are the close
7 All. Shri Pal & Ors. Vs. State
29
relative of deceased, enabling them to give
video-graphic version.

iii. As per prosecution evidence,
dragging of dead body is alleged but
postmortem report does not indicate any sign
of dragging over dead body of deceased.
Body was found beheaded, there is no injury
of any fire arm over the dead body. It seems
that story of opening fire on head has been
developed by prosecution after postmortem
report is received because body was
beheaded.

iv. Sripal is alleged to have gun
with him but there is no fire arm injury on
deceased or alleged injured PW-1.

v. Medical evidence does not go
with the prosecution case and it is not
sufficient to prove the guilt of the accusedappellants.

vi. Medical report of PW-1 also
does not support the story of PW-1 as injury
found was of hard blunt object while it is
stated to have been caused by fire arm.

vii. Police failed to recover the
head of the deceased or any offending arms
allegedly used in the commission of offence
from the possession of any of the accused.

viii. PWs 1 and 2 being close
relative of deceased is not worthy of
credence. There is no public witness whereas
incident is said to have taken place in the
light of day.

ix. Incident is said to have taken
place in the broad daylight and PW-2 stated
that more than 100 persons had gathered
there but nobody came forward to support the
prosecution case.

x. No independent witness has
been produced from the side of prosecution.

xi. There is material contradiction
in the evidence of witness so as to
disbelieve the prosecution case.

xii. Deceased had previous
litigation with other persons besides
accused-appellants. He might have been
murdered by someone else.

xiii. Place of standing buggi has
neither been shown in site plan nor any
recovery memo has been prepared by
Investigating Officer.

xiv.
Trial
Court,
without
appreciating proper evidence and in
haphazard manner, passed impugned
order of conviction which is liable to be
quashed.

17. On the other hand, learned AGA
supporting
the
impugned
judgement
submitted that it is a daylight murder. PW-1
has been injured in the incident and it is
settled legal position that evidence of
injured persons cannot be ignored lightly
unless it is proved otherwise. Relationship
of the witnesses to victim/deceased is not a
ground for ignoring their evidence. This is
a case of direct evidence where motive has
no relevance although motive shown by
prosecution for committing murder of
Rajpal has been established by prosecution.
Body was identified by PW-2 wife of
deceased and father of deceased (not
examined). Evidentally Rajpal was brutally
murdered and there was no reason for the
witnesses to falsely implicate the accused
persons.
Prosecution
story
is
fully
supported by medical evidence. Trial Court
has
rightly
convicted
the
accusedappellants.

18. Before adverting to submission
made by learned Counsel for the accusedappellants, we would like to consider the
evidence of witnesses on the point of time
of incident, weapon and manner in which
incident took place.
30 INDIAN LAW REPORTS ALLAHABAD SERIES

19. PW-1 informant Jagdish deposed
that incident took place at 11:00 AM on
25.08.1982. He (informant), his cousin
Rampal (deceased) and Smt. Ummed PW-2
wife of Rajpal (deceased) were returning to
his house taken Mayar in Buggi from his
field, when they reached at the patri of
Rajwaha (Canal) accused Sripal, Vijaypal,
Kiranpal and Rishipal came there with their
respective weapons. Sripal and Rishipal
were armed with gun, Kiranpal was armed
with Katta and Vijaypal having farsa.
Accused took down Rajpal from Buggi
saying that he was head of the opposite
party whereupon he and Smt. Ummed
raised alarm. Accused Sripal hit fire on the
head of Rajpal. Sripal also fired on him, all
the accused persons assaulted Rajapal with
their respective weapons. All the accused
persons tied the hands of Rajpal by his own
shirt and his leg by bed sheet and took him
away towards Canal. Informant ran away to
his village leaving Smt. Ummed on spot.
Statement further recites that Rajpal
(deceased) sustained head injury by fire
arm. He was also injured in head by
shrapnel. In cross examination, PW-1 states
that all the accused persons are his family
member, he ran away from spot leaving his
Bhabhi PW-2 there, he made telephone call
from post office. He further deposed that
when he again reached on spot, Buggi was
there but Bhabhi was not there. He did not
know how long after the incident his
Bhabhi came there. In entire cross
examination, neither place, date and time of
incident nor the murder of Rajpal has been
challenged by the accused persons. It
appears that cross examination has been
made for the sake of cross examination.

20. PW-2 Smt. Ummed deposed that
at the time of occurrence she, her husband
Rajpal and her Dewar Jagdish were
coming from Jungle, when they reached
on the parti of Canal, accused Sripal,
Vijaypal, Kiranpal and Rishipal met there.
All the accused persons told Rajpal that he
was the head of opposite party and took
him down, when they raised alarm
accused Sripal hit first fire on Rajpal and
second fire on Jagdish. Her husband fell
down on the earth having sustained firearm injury and all the accused persons
started cutting him, accused persons tied
the hands of her husband with his own
shirt and his legs with bed sheet. They
took him towards Canal. She further
deposed that her Dewar PW-1 ran away to
village and gave information to Police
through telephone. She further deposed
that at the time of incident only she and
her Dewar was there, no other family
member was there. Telu and Santa who
were the outsider have come, who
witnessed the incident. She further stated
that dead body of her husband was
recovered from Gang Naher next day at
07:00 AM. She further states in her
examination-in-chief that there was an
enmity between her husband and his
family (accused persons) from before her
marriage. In her cross examination she had
gone to her field one day before the
incident. She did never go to field before.
She is not in position to tell whose fields
are near the field of Jagdish and her. She
specifically stated in paragraph 8 of her
statement that accused persons took off
her husband and Sripal opened fire.
Accused Vijaypal attacked with farsa.
Where incident took place, her husband's
blood was spilled. Nobody chased the
accused. In paragraph no.12 of statement,
she admits that dead body was recovered
before her. Suggestion put before her that
she had not seen the incident has been
denied by the witness. Defence did not put
any suggestion challenging the time, date
of incident and murder of Rajpal.
7 All. Shri Pal & Ors. Vs. State
31

21. Both the witnesses withstood the
lengthy cross examination but nothing
could be brought so as to disbelieve their
statements.

22. Statement of PW-2 and her
presence on spot with her husband is quite
natural. Presence of PW-1 Jagdish got
cemented with the statement of PW-2.
Time, place and manner in which Rajpal
has been murdered is unchallenged from
the statement of PWs 1 and 2, incident
stands corroborated.

23. Now only question remains for
consideration before us is that who are
responsible for causing murder of Rajpal
and whether trial Court has rightly
convicted the accused-appellants under the
aforesaid sections or not?

24. PW-8 Dr. Vijay Singh conducted
the autopsy over the dead body of Rajpal at
about 02:20 PM on 27.08.1982. He opined
that death was possible at 11:00 AM on
25.08.1982 as a result of ante mortem
injuries.
Doctor
found
following
antemortem injuries on his person at the
time of postmortem:-

i. Incised wound amputating the
head from trunk at the lower part of neck.
38 cm in circumference and 13 cm from
interior to back. Borders were incised and
interrupted. All the soft tissues including
trachea, esophagus and large vessels were
cut underneath, VI cervical vertebrae was
also cut into half.

ii. Incised wound 2 cm x 2 cm
Skin deep left side front of chest upper part.

iii. Incised wound 2 cm x 2 cm
muscle deep with tailing at lower end on
inner part of front of lower chest.

iv. Incised wound 1 cm x 3⁄4 cm
x skin deep on left base of neck.

v. Incised wound 11 cm x 6 cm
muscle and bone deep both on top of left
shoulder cutting the head left humorous
and achromion process.

vi. Incised wound 6 cm x 2 cm
bone deep of back chest 5 cm from midline
tailing present on outer end.

Vii. Two incised wound 4 1⁄2 cm x
2 cm and 3 1⁄2 cm x 1 1⁄2 cm both muscle
deep and parallel each other and also
parallel to injury no. 6, 4 cm above injury
no.6.

Viii. Incised wound 7 cm x 2 cm
bone deep upper part of back of left chest,
tailing present on the outer end.

ix. Incised wound 5 cm x 1 cm x
skin deep 2 cm interior to injury no.8.

x. Contusion 14 cm x 2 cm on
back and ineer side of right arm extending
from upper end of right arm to back of
right elbow.

25. PW-5 S.I. Roshan Lal Verma
deposed that on 25.08.1982, he was posted
as S.H.O. at police station Sardhana . On
the very same day on the basis of telephone
call made by Jagdish, case was registered
in
his
presence.
He
under-took
investigation, visited spot along-with S.I.
V.S. Sharma and Constable Shaukat Ali,
recorded the statement of PWs 1 and 2, on
the pointing out of PW-1 inspected the
spot, prepared site plan Ex.Ka-2. He found
the sign of dragging the dead body up to
Gang Naher, prepared site plan Ex.Ka-3.
Collected blood stained and simple earth
from spot and prepared fard thereof. He
searched the dead body and found blood
stained earth and some pieces of wound at
the bank of Canal. On 26.08.1982, on the
information made by Mohd. Yaseen, he
reached at Gang Naher and directed S.I.
32 INDIAN LAW REPORTS ALLAHABAD SERIES
V.S. Verma to hold inquest over the dead
body which was found in Gang Naher.
Ultimately
after
completing
entire
formalities of prosecution, charge sheet was
submitted by S.I. A.K. Chaudhary.

26. From the statement of PWs 1 and
2
discussed
above
and
perusal
of
statements of witnesses PWs 8 and 5,
complicity
of
accused
persons
in
commission of offence stands proved.

27. One of the argument advanced by
learned Senior Counsel for appellants is
that as per prosecution, accused persons
opened fire on the deceased Rajpal but
there was no fire arm injury found on the
dead body of deceased while conducting
postmortem by doctor, thus prosecution
case is not supported by medical evidence
and statements given by PWs 1 and 2
inspires no confidence.

28. So far as the argument advanced
by learned Counsel for accused-appellants,
we are not convinced for the reasons that
witness
PW-1,
alleged
eye
witness,
specifically deposed that accused Shree Pal
fired on the head of Rajpal. Accused Shree
Pal fired on him also and other accused
persons
assaulted
Rajpal
with
their
respective weapons.

29. It is also noteworthy that dead
body of Rajpal was recovered beheaded
and his head could not be traced out by
police. When head of Rajpal could not be
recovered by police, panchayatnama and
postmortem of his head could not be
conducted, therefore, there was no accused
of any fire-arm injury in the postmortem
report, argument is misconceived and not
worthy to be accepted.

30.

Certainly,
there
is
minor
contradictions or development in their
evidence but they are not of such nature so
as to disbelieve the entire story of
prosecution and they are not so serious and
sufficient that accused could be acquitted.
Each
and
every
contradiction
and
development appeared in cross examination
do not affect the root of case.

31. In so far as discrepancies,
variations
and
contradictions
in
the
prosecution case are concerned, we have
analysed entire evidence in consonance
with the submissions raised by learned
counsel's and find that the same do not go
to the root of case.

32. 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.

33. In Sachin Kumar Singhraha v.
State of Madhya Pradesh, (2019) 8 SCC
371, Hon'ble Supreme Court has observed
that the Court will have to evaluate the
evidence before it keeping in mind the
rustic nature of the 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.
7 All. Shri Pal & Ors. Vs. State
33

34. We 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. Reference may be made to Smt.
Shamim v. State (GNCT of Delhi), (2018)
10 SCC 509.

35. In Yogesh Singh vs. Mahabeer
Singh & Other, 2017 (11) SCC 195, Supreme
Court has held that minor inconsistencies or
insignificant embellishments in the statement
of witnesses should yield to the fallibility of
human faculties and be ignored if the evidence
is otherwise trustworthy and corroborates in
material particulars: -

"29. It is well settled in law that the
minor discrepancies are not to be given undue
emphasis and the evidence is to be considered
from the point of view of trustworthiness. The
test is whether the same inspires confidence in
the mind of the Court. If the evidence is
incredible and cannot be accepted by the test
of prudence, then it may create a dent in the
prosecution version. If an omission or
discrepancy goes to the root of the matter and
ushers in incongruities, the defence can take
advantage of such inconsistencies. It needs no
special emphasis to state that every omission
cannot take place of a material omission and,
therefore,
minor
contradictions,
inconsistencies or insignificant embellishments
do not affect the core of the prosecution case
and should not be taken to be a ground to
reject the prosecution evidence. The omission
should create a serious doubt about the
truthfulness or creditworthiness of a witness. It
is only the serious contradictions and
omissions. (See Rammi @ Rameshwar Vs.
State of M.P. (1999) 8 SCC 649; Leela Ram
(dead) through Dulli Chand Vs. State of
Haryana and Another, (1999) 9 SCC 525;
Bihari Nath Goswami Vs. Shiv Kumar Singh
& Ors., (2004) 9 SCC 186; Vijay @ Chinee
Vs. State of Madhya Pradesh, (2010) 8 SCC
191; Sampath Kumar Vs. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124; Shyamal
Ghosh Vs. State of West Bengal, (2012) 7 SCC
646 and Mritunjoy Biswas Vs. Pranab @ Kuti
Biswas and Anr., (2013) 12 SCC 796)."

36. There is no suggestion from the side
of accused persons that witnesses were not
present on spot. In statement under Section 313
Cr.P.C., accused persons simply stated that they
have been falsely implicated on account of
rivalry. No evidence was adduced from the side
of defence. They denied the prosecution case
and statement of witnesses is said to be of
rivalry. No specific plea has been taken by
accused persons as to why they have been
trapped in so serious matter. Time, date and
murder of Rajpal has not been challenged by
the accused persons in cross examination or
statement under Section 313 Cr.P.C.

37. So far as motive is concerned, it is
well settled that where direct evidence is worthy
of credence, 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 there was no strong
motive to commit the present offence,
prosecution case cannot be disbelieved.

38. 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
34 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."

39. Another limb of argument is that
PW-1 and PW-2 are closely related to each
other and because of enmity they have
falsely implicated the accused. The law on
this point is well settled. The evidence of
such witness is to be closely scrutinized,
with extra care and caution. It cannot be
rejected merely for the reason that they are
closely related to the complainant. If on a
careful scrutiny, their testimony is found to
be intrinsically reliable and trustworthy,
then nothing prevents the court from
placing reliance upon the same, it is now
well settled law laid down in Dalip Singh
v. State of Punjab, AIR,1953, SC 364,
where Court has held as under :-

"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."

40. 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"

41. 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.
7 All. Shri Pal & Ors. Vs. State
35

(Vide: Bhagalool Lodh & Anr.
v. State of UP, AIR 2011 SC 2292; and
Dhari & Ors. v. State of U. P., AIR 2013
SC 308)."

42. In Yogesh Singh (Supra), the
Supreme Court summarized the legal
position on the above issue as follows:

"28. A survey of the judicial
pronouncements of this Court on this
point leads to the inescapable conclusion
that the evidence of a 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. (See Anil Rai Vs. State of
Bihar, (2001) 7 SCC 318; State of U.P.
Vs. Jagdeo Singh, (2003) 1 SCC 456;
Bhagalool Lodh & Anr. Vs. State of U.P.,
(2011) 13 SCC 206; Dahari & Ors. Vs.
State of U. P., (2012) 10 SCC 256; Raju
@ Balachandran & Ors. Vs. State of
Tamil Nadu, (2012) 12 SCC 701;
Gangabhavani
Vs.
Rayapati
Venkat
Reddy & Ors., (2013) 15 SCC 298;
Jodhan Vs. State of M.P., (2015) 11 SCC
52)."

43. We have held that the presence
of PW-1 and PW-2 was natural. Their
testimony is consistent in respect of time
and place of occurrence, the manner in
which occurrence took place, witnesses
were
subjected
to
lengthy
cross
examination, but the defence could not
succeed
in
impeaching
their
creditworthiness by extracting anything
suspicious.

44. It is settled that merely because
witnesses are close 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 conceal the
actual culprit and make allegation against
an innocent person. However, in such a
case Court has to adopt a careful
approach and analyse the evidence to find
out that whether it is cogent and credible
evidence.

45. The result of above discussion is
that there is concrete evidence to prove
the prosecution case. The ocular version
stands corroborated by the medical
evidence. Accused persons had come with
lathi, danda, farsa and gun and in
prosecution of common object, brutally
murdered Rajpal. The circumstances that
accused shot fire on Rajpal, dragged him
to canal where they caused serious
injuries by cutting his head and threw the
dead body in the canal, would show that
occurrence could not be carried out by
one person alone, therefore, involvement
of all accused persons seems to be in
incident. They succeeded in executing
their plan successfully. They were rightly
found guilty of offences by the Trial
Court.
There
is
no
mitigating
circumstance or evidence for taking a
different view on the conviction and
sentence awarded by the trial Court. The
appeal is devoid of merit and is
dismissed. Accused-appellants shall be
taken in custody forthwith to serve out
their sentence.
36 INDIAN LAW REPORTS ALLAHABAD SERIES

46. Let a copy of this judgment be
sent
to
the
trial
court
concerned
forthwith.
----------
(2021)07ILR A36
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 1265 of 2020

Shivam Tiwari ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Kaushal Tiwari

Counsel for the Respondents:
G.A.

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code,1860-Sections 323,504,506 &
SC/ST Act-Section 3(1)(d)(dha)-seeking
bail-rejection-accused
casted
abusive
words and inflicted injury to the son of
complainant-six injuries with hard and
blunt object was found in the medical of
the
complainant's
son
who
was
handicapped-prima
facie
sufficient
material is available on the record against
the accused- no irregularity found in the
order passed by the trial court at the stage
of framing charge.(Para 1 to 14)

B. At the stage of section 227, the judge
has merely to sift the evidence in order to
find out whether or not there is sufficient
ground
for
proceeding
against
the
accused.charge may although be directed
to be framed when there exists a strong
suspicion but it is also trite that the court
must come to a prima facie finding that
there
exist
some
materials
therefor.
suspicion alone, without anything more,
cannot form the basis therefor or held to
be sufficient for framing charge.(Para 9 to
11)

The appeal is rejected. (E-5)

List of Cases cited:

1. P. Vijayan Vs St of Ker. & ors. ( 2010) 2 SCC
1398

2. Soma Chakravarty Vs St.(2007)AIR SC 2149

3. Sajjan Kumar Vs C.B.I. JT (2010) 10 SC 413

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

1.

As
per
report
of
CJM,
Ambedkarnagar dated 04.03.2021, notice
was duly served on respondent no.2 but no
one has put in appearance on his behalf.

2. This criminal appeal has been filed
by the appellant against the judgement and
order dated 07.10.2020 passed by learned
Special Judge, SC/ST Act, Ambedkarnagar
in SC/ST Case No.107 of 2019, Crime
No.0125 of 2019, under Sections 323, 504,
506 IPC & Section 3(1)(d)(dha) of SC/ST
Act,
P.S.-
Malipur,
District-
Ambedkarnagar.

3. The brief fact of the case is that
according to the prosecution story, the
complainant namely Udayraj lodged the
F.I.R. on 11.06.2019 with allegation that
the son of the complainant, Amarjeet who
is handicapped was going to Malipur for
repairing his bicycle. When he reached near
Budhawa Baba temple, then one Shivam
Tiwari, S/o Jagdish Tiwari started casting
abusive words and when the son of the
complainant objected, then the accusedappellant inflicted injury to him. The F.I.R.
was lodged against the accused-appellant
under Sections 323, 504, 506 IPC. During
investigation, the son of the complainant,