# Smt. Madhu Goswami & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 4 ILRA 297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-04-13
- **Case number:** Criminal Appeal No. 4795 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhu-goswami-anr-in-jail-v-state-of-u-p-47011
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section 299- Section- 302- Section 304-
Murder
or
Culpable
homicide
not
amounting
to
murder-
The
medical
evidence, the complaint and the evidence
of witnesses corroborates the injuries
caused to the deceased and the other
facts of the said incident is proved by the
evidence led namely occular as well as
documents produced- Section 299 or
Section 304 I.P.C.- clear from the F.I.R.
that there was a heated discussion and
during the quarrel, both the accused had
used what can be said to be Sabbal with
which about six injuries were caused and
298 INDIAN LAW REPORTS ALLAHABAD SERIES
one of them was on the frontal parietal
region which seems to have proved fatal
to the deceased who was an aged person.
The blows were not on other vital parts of
the body. It was not any such instrument
which can be said to be dangerous
weapons- The accused was not carrying
weapon rather they brought from the
home-The blow was an act of sudden
quarrel-There
was
no
pre-meditation
there was heat of passion.

Where the offence occurred in a sudden
moment of heat and passion, without any premeditation, a solitary fatal injury was inflicted
on vital part of body and without use of any
dangerous weapons, the offence would be one
under Section 304 of the IPC instead of Section

## Text

4 All. Smt. Madhu Goswami & Anr. Vs. State of U.P.
297
continuation of criminal case would put
accused to great oppression and prejudice
and extreme injustice would be caused to
him by not quashing the criminal case
despite full and complete settlement and
compromise with the victim. In other
words, the High Court must consider
whether it would be unfair or contrary to
the interest of justice to continue with the
criminal proceeding or continuation of the
criminal proceeding would tantamount to
abuse of process of law despite settlement
and compromise between the victim and
wrongdoer and whether to secure the ends
of justice, it is appropriate that criminal
case is put to an end and if the answer to
the above question(s) is in affirmative, the
High Court shall be well within its
jurisdiction
to
quash
the
criminal
proceeding.

19. In view of the above discussions,
in exercise of the discretion vested in the
Court which is extra ordinary power under
Section 482 of the Cr.P.C., (i) to stop the
abuse of process of the Court and (ii) to
ensure the ends of justice in terms of the
compromise showing parties willingness to
settle their dispute, the charge sheet dated
19.09.2016 in Criminal Case No.1817 of
2016 (State Vs. Patiram and others), arising
out of Case Crime No.106 of 2016, under
Sections 452, 336, 323, 427 of I.P.C.
relating to Police Station Ibrahimpur,
District Ambedkar Nagar is quashed
consequent thereupon, the learned trial
court is directed to drop the proceeding of
Criminal Case No.1817 of 2016 (State Vs.
Patiram and others), arising out of Case
Crime No.106 of 2016, under Sections 452,
336, 323, 427 of I.P.C. relating to Police
Station Ibrahimpur, District Ambedkar
Nagar.

20. Deputy Registrar (Criminal) to
communicate this order of Court to learned
trial Court i.e. Chief Judicial Magistrate,
Ambedkar Nagar immediately.

21.

Accordingly,
the
present
application under Section 482 Cr.P.C. is
disposed of.
----------
(2021)04ILR A297
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.04.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4795 of 2012

Smt. Madhu Goswami & Anr.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Piyush Kumar Shukla

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

Criminal Law - Indian Penal Code, 1860-
Section 299- Section- 302- Section 304-
Murder
or
Culpable
homicide
not
amounting
to
murder-
The
medical
evidence, the complaint and the evidence
of witnesses corroborates the injuries
caused to the deceased and the other
facts of the said incident is proved by the
evidence led namely occular as well as
documents produced- Section 299 or
Section 304 I.P.C.- clear from the F.I.R.
that there was a heated discussion and
during the quarrel, both the accused had
used what can be said to be Sabbal with
which about six injuries were caused and
298 INDIAN LAW REPORTS ALLAHABAD SERIES
one of them was on the frontal parietal
region which seems to have proved fatal
to the deceased who was an aged person.
The blows were not on other vital parts of
the body. It was not any such instrument
which can be said to be dangerous
weapons- The accused was not carrying
weapon rather they brought from the
home-The blow was an act of sudden
quarrel-There
was
no
pre-meditation
there was heat of passion.

Where the offence occurred in a sudden
moment of heat and passion, without any premeditation, a solitary fatal injury was inflicted
on vital part of body and without use of any
dangerous weapons, the offence would be one
under Section 304 of the IPC instead of Section
302. (Para 13, 19, 20, 21, 22)

Criminal Appeal partly allowed. (E-2)

Judgements/ Case law relied upon:-

1. Stalin Vs St. Rep. by the Inspr. of Police, Crl.
Appeal No.577 of 2020 dated 09/09/ 2020
(arising out of SLP (Crl.) No.3171 of 2019)

2. Vijay Bhai Patel Vs Navneet Bhai Nathu Bhai
Patel, 2004 SCC (Crl) 2032

3. Pulicherla Nagaraju Vs St. of A.P., (2006) 11
SCC 444

4. Mehir Gope Vs St. of Jhar., AIR 2021 SC 534

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. &
Hon'ble Gautam Chowdhary, J)

1. Heard Shri Piyush Kumar Shukla,
learned counsel for the appellants and
learned AGA for the State. The judgment
was ordered to be pronounced on
9.4.2021 but as Courts were closed, we
direted matter to be listed on 16.4.2021,
but the surge of Covid cases may force
Courts to be closed on 16.4.2021, hence,
we pronounce judgment today, i.e.,
13.4.2021.

2. This appeal has arisen from the
judgement and order dated 2.11.2012
passed by learned Additional Sessions
Judge, Jhanshi in Sessions Case No.72 of
2010 in State of U.P. v. Jai Prakash
Goswami
and
another
(Case
Crime
No.1498/09) under Section 302 and 504
I.P.C lodged in Police Station Sipri Bazar,
District Jhansi. The learned Sessions Judge
convicted both the accused for life
imprisonment under Section 302 read with
section 34 of Indian Penal Code with fine
of Rs.5,000/- and in default for one year
simple imprisonment.

3. The factual scenario as it unfurls
from the record and the F.I.R are that the
accused in unison caused death of the
deceased on 2.9.2009 in the morning. The
genesis of the offence as narrated in the
first information report is that the deceased
along with his wife and daughter was going
to Temple, his wife Kastoori and sister of
the complainant Radha Rai also were
following him. It is mentioned in the first
information that Radha Rai who was
married with one Daya Chand Rai. Daya
Chand Rai had deserted his sister and had
performed another marriage for which
maintenacne petition was also pending in
the Court at Jhansi. Unfortunatley, Madhu
Goshwami and her husband is known to
Daya Chand and it was because that the
parties are unable to amicably settle the
dispute with Madhu Goswami and her
husband Jai Prakash and his wife started
abusing the deceased and during the
ultercation Jai Prakash brought what can be
said to be to iron rodes (known as ''Sabbal')
and after further abusing both husband and
wife started assaulting the father and when
neighbours entering, both husband and wife
ran towards Rasbahar Colony and when the
complainant reached the place of the
offence, his father was lying injured and he
4 All. Smt. Madhu Goswami & Anr. Vs. State of U.P.
299
conveyed to the complainant that Madhu
Goswami and her husband Jai Prakash
Goshwami had beating with Sabbal. The
Complainant tried to arrange for vehicle to
take him to hospital, but he succumbed to
the injures. The Complainant lodged the
complaint with the Police Station Incharge.
It is this F.I.R. which gave rise to the
investigation being carried out against both
the accused.

4. The prosecution started against
both the accused who are husband and wife
for commission of offence under Section
302 read with section 34 of Indian Penal
Code and the charge sheet was laid against
them for commission of offence under
Section 302 read with section 34 of Indian
Penal code. The accused were committed to
the court of session as the case was triable
exclusively by the court of sessions.

5. It is admitted position of fact that
both the accused are in jail. The decision of
the
trial
court
was
pronounced
on
2.11.2012 since the said date they are in
jail. The bail application came to be
rejected on 8.1.2013. We are not aware as
to whether during the trial the accused were
enlarged on bail or not.

6. The prosecution examined several
witnesses so as to bring home the charge
framed against the accused as enumerated
hereinbelow:

1.
Deposition of
Satya Prakash
Rai

25/05/10,
16/06/10
and
30/07/10
PW1
2.
Deposition of
Radha Rai

04/09/10,
01/10/10
and
25/10/10
PW2
3.
Deposition of
Kasturi
04/12/10,
20/12/10
and
17/01/11
PW3
4.
Deposition of
Dr.
Anil
Kumar Saxena
09/03/11
PW4
5.
Deposition of
Sri Ram Patel

04/06/11
PW5
6.
Deposition of
Jai
Narayan
Verma
30/06/11
PW6
7.
Deposition of
Rajeev Pratap
Singh
29/07/11

PW7

7. In support of ocular version
following documents were filed:

1.
First
Information
Report
02/09/09 Ex.Ka.4
2.
Written
Report
02/09/09 Ex.Ka.1
3.. Recovery
Memo
of
blood
stained and
plain earth
02/09/09 Ex. Ka.2

4
Recovery
memo
of
Sabbal and
arrest
of
accused
07/09/09

Ex. Ka.13

5.
Postmortem
Report
02/09/09 Ex.Ka.3
6.
Report
of
Vidhi
Vigyan
Prayogshala
01/07/10

Ex. Ka.15

7.
Site
Plan
with Index
02/09/09

Ex.Ka.12,16
300 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned counsel for the appellant
has contended that if this Court feels that
the case is made out against the accused
that they have caused the death and that the
evidence led is such which proves there
presence overt act and the instrument used
and that they are not to be accorded benefit
of doubt, he presses into service the
provisions of Section 304 of the I.P.C as
the incident occured on spare of the
moment, there was no meeting of the minds
to do away with the deceased there was no
such great enmity that the accused had any
intention to do away with the deceased.
The evidence of so called eye witnesses
also proves that it was not a pre-planned
attempt to do away with the accused in
early part of the morning. It is no bodies
case that the accused were in waiting for
the deceased to pass through their home. It
is submitted that even on bare reading of
the F.I.R. and the oral testimony as well as
the enjuries sustained, the offence would be
murdered.
According
to
the
learned
Advocate, on the evidence of all witnesses
has convicted the accused under Section
302 I.P.C., which could not have been
done.

9. The following judgments of the
Supreme Court are cited by the learned
counsel so as to contend that offence under
Section 302 is not made out and that the
decisions would applying in the facts of
this case:

(i) Stalin v. State represented
by the Inspector of Police, Criminal
Appeal No.577 of 2020 dated 9th
September, 2020 (arising out of SLP
(Crl.) No.3171 of 2019)

10. It is further submitted in his oral
submission that PW-2 Satya Prakash is not
an eye witness of the incident and there is
material contradiction as regard place of
occurrence of the incident It is submitted
that the witnesses have in their ocular
version stated that incident occurred in
front of house of the accused namely Jai
Prakash Goswami whereas the site plan
shows that the incident is at an another
place. As far as the testimony of PW-3,
Radha Devi is concerned, her husband has
already contracted second marriage and she
has not stated as to which side of the
sambal was used as an assaulting weapon
and her Police statement is recording after
seventeen days. It is submitted that accused
no.2 did not use any weapon. It is
submitted that the projected eye witnesses
were in fact not eye witnesses. It is further
submitted that in the alternative, if this
Court does not accept that there are
material contradictions and the offence is
proved against the accused, it is submitted
that there were no repeating of blows on
any of the vital parts of the body, and,
therefore appellants have no intention to
commit murder. The prosecutions case
even if relied cannot take it beyond
punishment of part 2 of the IPC and it is
fruther submitted that the decision of Stalin
(Supra) will apply to the facts of this case.

11. Learned counsel for the State has
taken us through the record and has
contended that the vital part of the body
was attacked by both the accused may be
the deceased had no previous enmity, but
they were having knowledge that inflection
of Sambal would bring about death of the
deceased and the intention was also there,
otherwise they would not have inflicted
blows on the vital parts of the body by the
instruments used by them which were
recovered during the investigation. It is
further submitted that there was prior
meeting of minds as sambal was given by
Jai Prakash to his wife. It is further
4 All. Smt. Madhu Goswami & Anr. Vs. State of U.P.
301
submitted that minor contradictions about
stick and sambal cannot be the cause to
throw out the case of the prosecution.
There are very minor contradictions in the
evidence led. It is further submitted that the
injuries are found on the deceased on the
frontal parietal region and it is submitted
that both the accused in unison attacked
with sabbal and the use of power also will
not show that the case falls in section 304
of the I.P.C..

12. It would be necessary to discuss
the evidence of complainant who is son of
the deceaced and pw2 who is mother of
complainant namely she was examined as
PW-2 who was eye witness and PW-3
daughter of deceased who were accompany
deceased when the incident occurred and
also eye witness. We discuss the finding as
far as injuries on the deceased as per postmortem report as it is submitted that after
making submissions, the learned counsel
for the appellants has also made his
submission that even if the evidence is
sifted, it would prove that the accused had
no intention of doing away with the
deceased and, therefore, sympathy is
invoked for a lesser sentence. The evidence
of PWs-2 and 3, and proves the fact that
incident occurred in the morning and the
accused were not armed with Sabbal but
brought from their home and assaulted the
deceased with Sabbal. The deceased died
on the spot and when corss examination is
minutely read and sifted the submission of
the counsel for the appellants can be tested
on the basis of the evidence also. The
evidence cannot be said to be any way
concocted and is corroborated by the
factual data. PW-2 and PW-3 were with the
father (deceased) and their narration
corroborates the complaint namely incident
occurred near the house of the accused
from where blood soil was collected
during the investigation. The exact place
where the accused fled and the direction
given by both the eye witnesses was
proved. The sambal (Sabbal) was found at
the behest of the accused from a place
which would be known only to them. The
medical evidence shows that the narration
which PW-2 and PW-3 was gave impetus
to the investigation and no fault can be
found with the investigation. The evidence
of Doctor also goes to show that the post
mortem report corroborated with the
weapon used namely sabbal, the medical
evidence corroborated the fact that injuries
could be possible because of use of sabbal
and the death was also possible because of
thrashing/beating by the sabbal. In that
view of the matter, this evidence is
important. We find no reason to differ with
the finding of facts by the court below and
submissions made by learned counsel for
the State that the accused were the persons
who had caused the death.

13. The medical evidence, the
complaint and the evidence of witnesses
and medical evidence corroborates the
injuries caused to the deceased and the
other facts of the said incident is proved by
the evidence led namely occular as well as
documents produced and proved which we
have gone through. The finding of facts
are not be disturbed holding accused
guilty.

14. The police authorities were
examined. The police authrities in their
ocular version has stated that the statement
of the witnesses were recorded and site
plan is prepared and recovery of blood and
instrument is proved. The statements are
also recorded under Section 313 of the
Code of Criminal Procedure wherein
302 INDIAN LAW REPORTS ALLAHABAD SERIES
nothing to prove their innocence is brought
on record.

15. We are convinced that both oral
testimony and documentary evidence on
record of the trial court were sufficient so
as to record conviction for the following
reasons. One the F.I.R. was a prompt F.I.R.
The presence of the accused is proved by
the eye witnesses. Recovery memo of
sabbal was from a place which could have
been known only to the accused on which
there were bloodstains present, the death
occurred near the house of the accused. The
medical evidence shows that the death
occurred due to use of Sabbal which is
proved by the evidence of Dr. Anil Kumar
Saxena, PW-4. PW-2 and PW-3 have also
identified both the accused. There is no
reason to disbelieve the eye witness PW-2
and PW-3 as were following the deceased.
Over and obove, there is an oral dying
declaration to the son by his father namely
deceased that he was beaten by both Madhu
and her husband. Just because the statement
of PW-2 was recorded on 28th September,
it cannot cast doubt on her presence at the
scene of offence. The decision of the Apex
Court in Vijay Bhai Patel v. Navneet Bhai
Nathu Bhai Patel, 2004 SCC (Crl) 2032,
this judgment has been rightly not applied
in favour of the accused as the statements
have been proved by cogent evidence as
there only minor contradictions. The officer
has explained the delay during that period
and, the learned Judge has given detail
reason for accepting the ocular version of
PW-2, Smt. Radha Rai, daughter of the
deceased who has been rightly belived by
the learned judge below and, therefore, the
submission made by learned cousnel for the
appellants that the appellants are innoncent
and that they have been falsely implicated,
cannot be accepted. We are also convinced
that the F.I.R. cannot be said to be delayed
the submission that it was given after due
deliberation just because family members
were consulted, cannot be accepte. It
cannot be said that the F.I.R. was a forged
F.I.R. The fact that PW-2 had narrated the
incident to her brother namely the person
who lodged the F.I.R. as he not an eye
witness. The fact that the learned court
below has accepted that in a case of eye
witness motive pales into insignificance the
learned judge has relied on several
judgments which we have gone through,
we do not wish to burdent the judgment.
We are convinced that the accused and
accept the submission of the learne AGA.

16. The accused are in jail since
more than nine years. It is an admitted
position of fact that from the evidence led
PW-2 and PW-3 have opined that they
used to go to the temple passsing the
house of the accused since last about 3 to
4 years. They are regular ultercation it
was on that date is turned viaolent the
medical evidence as per the deposition of
Dr. Anil Kumar Saxena goes to show that
the injuries which were caused to the
deceased were mainly as follows:

(i) One lacerated wound on left
side of forehead 7 cm x 2 cm between left
eye and left eyebrow bone deep on
dissect-frontal bone, membrane ruptured
and brain matter lacerated and about
100mm blood present in crawel.

(ii) One lacerated wound 5 cm x
2 cm between chin and mouth bone deep
under neck maundable frachered situates
3 cm from left bone of chin.

(iii) One lacerated wound on
right leg anterior side 7 cm x 1 cm
subcutaneous deep situated 15 cm from
left knee.
4 All. Smt. Madhu Goswami & Anr. Vs. State of U.P.
303

(iv) One lacerated wound on right
leg midle side. Bone deep 16 cm from right
knee on dissect both tibia and fibula.

(v) One lacerated wound on
anterior side of left knee anterior side 3 cm
x 2 cm muscle deep.

(vi) One lacerated wound on
anterior side of left leg 3 cm x 2 cm muscle
deep.

17. The submission of the learned
cousnel for the appellants is that looking to
post mortem cuppled with the evidence of
the eye witnesses and medical evidence, the
accused cannot to be said to have
committed murder and, therefore, it is
further submitted that in a case of Stalin
(supra)
and,
benefit
was
accorded
therefore, the accused should be dealt with
a similar sentence. The place of incident is
where the accused are staying and have
their house and all of them were having a
verbal sudden quarrel. The external injuries
was by an instrument which cannot be said
to be such which was used for commiting
murder there was no pre-meditation of
mind. It is further submitted that the
alternative prayer requires to be considered.

18. This takes us to the issue of
whether the offence would be punishable
under Section 299 or Section 304 I.P.C.

19. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellants. However,
the
question
which
falls
for
our
consideration is whether, on reappraisal of
the peculiar facts and circumstances of the
case, the conviction of the appellant under
Section 302 of I.P.C. of the Indian Penal
Code should be upheld or the conviction
deserves to be converted under Section 304
Part-I or Part-II of the Indian Penal Code. It
would be relevant to refer Section 299 of
the Indian Penal Code, which read as
under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

20. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299

Section 300

A person commits
culpable homicide
if the act by which
the death is caused
is done-

Subject to certain
exceptions culpable
homicide is murder
is the act by which
the death is caused is
done.

INTENTION
(a)
with
the (1)
with
the
304 INDIAN LAW REPORTS ALLAHABAD SERIES
intention of causing
death; or

intention of causing
death; or

b) with the intention
of
causing
such
bodily injury as is
likely
to
cause
death; or

(2)
with
the
intention of causing
such bodily injury
as
the
offender
knows to be likely
to cause the death of
the person to whom
the harm is caused;

KNOWLEDGE

KNOWLEDGE
(c)
with
the
knowledge that the
act is likely to cause
death.

(4)
with
the
knowledge that the
act
is
so
immediately
dangerous

that it must in
all probability cause
death or such bodily
injury as is likely to
cause
death,
and
without any excuse
for incurring the risk
of causing death or
such injury as is
mentioned above.

21. It is very clear from the F.I.R.
lodged by the son of the deceased which
has been proved by the prosecution and
other witnesses of facts that there was a
heated discussion and during the quarrel,
both the accused had used what can be said
to be Sabbal with which about six injuries
were caused and one of them was on the
frontal parietal reason which seems to have
proved fatal to the deceased who was an
aged person. The blows were not on other
vital parts of the body. It was not any such
instrument which can be said to be
dangerous
weapons.
There
was
the
evidence of PW-2 and PW-3 and when read
as a complete testimony would show that
there was no such enmity between the
parties. The judgment of Stalin (supra)
permit us to hold that the tests given in
Pulicherla Nagaraju v State of A.P.,
(2006) 11 SCC 444 and as narrated above
in our case, the accused was not carrying
weapon rather they brought from the home
the blow was in act of sudden quarrell there
was no pre-meditation there was hit of
passion in this view of the matter and the
letest decision we are convinced that the
case could fall within section 304 of the
IPC.

22. We are even fortified in our view
by the latest decision of the Apex Court in
Khokan alias khokhan Vishwas v. State of
Chhattishgarh, AIR 2021 SC 939 which
shows that in similar facts the decision we
are taking would be in consonance with the
facts as proved hereinabove and the said
decision and the findings would apply to
the facts of our case also. In that view of
the matter, we are inclined to substitute life
imprisonment to ten years with all benefits
of remission under sections 433 and 434 of
the I.P.C. namely remissions and also the
decision of the Apex Court in case titled as
Mehir Gope v. Sate of Jharkhand, AIR
2021 SC 534 and, therefore, the case would
fall within Section 304 of the IPC.

23. The accused are in jail for a
period of more than 9 years. It is a matter
of fact as it is transpires from the F.I.R. and
as we have held that it is homicidal death
but not murder. We hold the accused guilty
for commission of offence under Section
304 of I.P.C. read with Section 34 but not
with 302 read with Section 34 I.P.C. The
punishment is reduced to ten years
incarceration, the fine is maintained, if the
4 All. Moosa & Ors. Vs. State of U.P.
305
fine is not paid, the sentence would be
default sentence of three months simple
imprisonment.

24. The concerned jailor
shall
immediately compute the period and if
remissions are granted, if any, the accused
have to be released. He shall do so
immediately on completion of the sentence.

25. Record and proceedings be sent
back to the trial court.

26. This court is thankful to Shri Piyush
Kumar Shukla and learned AGA for ably
assisting this Court in getting this old matter
disposed off.
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(2021)04ILR A305
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.04.2021

BEFORE

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

Criminal Appeal No. 2868 of 1983

Moosa & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri
G.S.Chaturvedi,
Sri
S.I.Jafri,
Sri
Mohammad Khalid, Sri Nazrul Islam Jafri,
Sri Prashant Vyas

Counsel for the Opposite Party:
A.G.A., Sri I.M.Khan, Sri Shahabuddin, Sri
R.N. Sharma

Evidence Law - Indian Evidence Act,
1872- Section 3- Evidence of related
witnesses- 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 settled law that relationship of a witness
does not effect his credibility, however, the
Court has to treat the same with caution and
extra care.

Evidence Law - Indian Evidence Act,
1872- Section 3- Minor embellishments
which do not go to the root of the case is
not fatal to prosecution case- 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.

Minor
embellishments
and
exaggerations
which do not go to the root of the case of the
prosecution are to be ignored provided the
evidence is trustworthy and corroborated by
other material evidence.

There is clinching evidence to prove the
prosecution case. The ocular version stands
corroborated by the medical evidence. The
accused had come armed with deadly weapons
and in prosecution of the common object
commited the offence. (Para 28, 34, 35)

Criminal Appeal accordingly rejected.(E2)

Case Law/ Judgements relied upon:-

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

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

1. The instant appeal has been
preferred against the judgment and order