Jagan Nath And Othes vs State Of U.P.
2017 Latest Caselaw 5369 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 14						             A.F.R.									Reserved
 
Case :- CRIMINAL APPEAL No. - 579 of 1998
 

 
Appellant :- Jagan Nath And Othes
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.S.Rastogi
 
Counsel for Respondent :- Govt. Advocate
 
 
 
Hon'ble Sheo Kumar Singh-I,J.

1. Challenge in this appeal is the order dated 9.10.1998 passed by Session Judge Lakhimpur Kheri in Session Trial No. 581 of 1998 under Sections 147, 148, 149, 323, 304 II of IPC, P.S. Mohamdi, District Kheri whereby and whereunder the accused appellant Jagannath and Malik @ Lal Bahadur were convicted under section 148 IPC and sentenced to undergo rigorous imprisonment for one year. Accused Ram Bilas and Chunni were convicted under section 147 IPC and sentenced to undergo six months rigorous imprisonment. Accused appellant Jagannath, Ram Bilas, Malik alias Lal Bahadur and Chunni were further convicted under Section 304 IPC part II read with section 149 IPC and each one of them was sentenced to undergo rigorous imprisonment for ten years. They were further convicted under Section 323 IPC read with section149 IPC and each one of them were sentenced to undergo rigorous imprisonment for six months. All the sentence were directed to run concurrently.

2. The brief facts giving rise to the present appeal is that Misri lal, Chunni Lal, Ram swaroop and Dwarika Prasad were brothers. Accused-appellants Jagannath and Ram Bilas are son of Chunni Lal. Malik is son of Ram Swaroop. Both the parties prosecution and defence belong to the same family. With regard to certain land dispute, some hot talks were exchanged between the parties and also on the point of grazing of the Urad crop by cattle of Jagannath on 28.7.1986, all the accused-appellants came on 28.9.1986 to the shop of Chunni Lal where in panchayat, it was settled that none of the parties will damage the crop of other through their cattle. After the panchayat, Jagannath went to his house abusing opposite party and at about 11.00 A.M. Jagannath armed with kanta, Ram Bilas, Chunni, Ujagar and Ram Swaroop armed with lathi and Malik armed with Sooja came near the shop of Chet Ram and started assaulting Misri Lal and Stm. Buddha wife of Misri Lal. Hearing hue and cry, Dwarika elder brother of Misri Lal, Katori sister of Misri Lal and her husband Raghubar and Ram Autar came there and saw all the accused-appellants assaulting Misri Lal and Smt. Buddha causing serious injuries on the body of these two person. On exhortation of complainant and other witnesses, the accused-appellants ran towards south. The complainant party arranged bullock cart and brought the injured Misri Lal and Smt. Buddha in bullock cart and when they were carrying for medical treatment and reached near rice mill of Mohamdi, Misri Lal died as a result of injuries received in this incident.

3. Written report was prepared by one Rajendra Kumar on the dictation of Shyam Babu and same was lodged with the police station Mohamdi and after that Smt. Budha was sent for medical examination with one of the home guard to Primary Health Centre Mohamdi. The first information report was lodged and entered into the G.D. and statement of the witnesses were recorded by the I.O. Dead body of the deceased Misri Lal was brought to the police station by bullock cart and inquest report was prepared. After preparing connected police papers i.e. photo lash, challan lash, letter to C.M.O., dead body was sealed and sent through constable Babu Lal and Homeguard Anoop Ram for post mortem. After recording statement of witnesses and completing the investigation, the investigating officer submitted charge sheet. The Magistrate took cognizance and committed the case to the court of Session where accused appellants were summoned and charges were levelled against them under Sections 148, 302/149, 307/149 IPC for which they pleaded not guilty and claimed for trial.

4. In order to prove the prosecution case, prosecution has examined Shyam Babu as PW-1, Smt. Buddha as PW-2, Dr. R.C. Singh as PW-3 and Sri P.L. Shakya as PW-4. In the statement recorded under Section 313 Cr.P.C., all the accused-appellants have submitted that they have been falsely implicated in this case due to the reason of inimical relation between the parties.

5. I have heard Sri. K.S. Rastogi learned counsel for appellant and learned Additional Government Advocate and also carefully gone through the record and judgment impugned.

6. It is admitted case that Misri Lal died. It is version of the prosecution that he died due to injuries caused on that date and time by the accused-appellants as narrated in the prosecution story and just after the incident, when arrangement was made for taking injured through bullock cart through police station for medical hospital, Misri Lal died and his dead body was taken to the police station and after that inquest report was prepared and dead body was sent to medical hospital for post mortem report.

7. Post mortem of the dead body of Misri lal was conducted by Dr. R.C. Singh the then Surgeon, District Hospital Lakhimpur Kheri. He found the following ante- mortem injures on the person of the deceased and prepared the post mortem report.

(i) Penetrating wound 1.2 cm x 0.8 cm x 5 cm on medial aspect of right leg 8 cm from knee joint.

(2) Contusion 8 cm x 2 cm on dorsal aspect of right forearm 5 cm above wrist joint with fracture of both bones.

(3) Incised wound 1 cm x 0.5 cm x bone deep on the posterior aspect of left forearm.

(4) Incised wound 0.5 cm x 0.4 cm x 0.2 cm on the back side of left forearm 2 cm above injury No.3.

(5) Raptured wound 2.5 cm x 0.8 cm on the backside of left side head on parietal and occipital bones 8 cm above left ear.

(6) Abrasion 5 cm x 0.8 cm on scapular region.

8. PW-1 Shyam Babu was examined before the court who had stated on oath that before the aforesaid incident, there was certain altercation between the parties and with regard to dispute between the parties, a panchayat was called to resolve the problem and it was resolved that the parties will not damage crop of other person by their cattles. All the members agreed to the proposal of panchayat but the accused-appellants Jagannath did not agree and went to the house abusing prosecution witnesses and at about 11.00 A.M. all the accused persons having kanta, lathis and Suja in their hands called Chet Ram and brutally beaten Chet Ram and Smt. Buddha. They also caused injuries to other prosecution witnesses. In the mean time, after hearing hue and cry, Smt. Buddha, Dwarika, Katori and Ragubar with Ram Autar reached there but accused appellants were continuously assaulting the deceased and Smt. Buddha by Kanta, lathi and Suja, as a result of which, they received injuries and fell on the ground. On certain exhortation, they ray away towards south of kharanja and after that a bullock cart was arranged but in the mean time injured Misri Lal died due to injuries received in the incident. This witness has proved the first information report which was given to the police station for lodging the first information report and taking legal action.

9. In his statement PW-2 Smt. Buddha has stated that she got injuries in the incident where all the accused appellants were beating the deceased. She had stated that all the accused appellants came and started to assault her husband and due to receiving injuries in the incident, he died. She has further stated that after the panchayat, when Chet Ram was in the shop all the accused-appellants came there with Kanta, Lathi, Suja and other instruments and started assaulting her husband Misri Lal and herself also with their weapons. When her son and witnesses challenged, the accused appellants ran towards south. Her husband received injuries from Kanta, lathi and Suja and thereafter when bullock cart was brought to carry the injured, her husband, to the medical hospital, her husband died in front of the Rice Mill in Mohamdi. Thereafter her son submitted a report to the police station for taking proper legal action.

10. Due to these injuries, one of the injured died during the treatment. Thus a serious charges of culpable homicide/murder was also framed against the appellants. In order to prove the prosecution case, PW-1 had stated that on a simple matter of saving crops from animals grazing and damage certain altercation took place between the parties and all the appellants started to beat the complainant and his family members. PW-1 Shyam Babu had stated that he lodged the first information report and the injured were medically examined.

11. The injuries found on the person of PW-2 and the fact that PW-2 was injured in the same occurrence lends assurance to his testimony that he was present at the time of the occurrence. The evidence of an injured witness is entitled to a greater weight and the testimony of such a witness is considered to be beyond reproach and reliable. Firm, cogent and convincing ground is required to discard the evidence of an injured witness. It is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, it was held as under:

"31. We may merely refer to Abdul Sayeed v. State of M.P. - (2010) 10 SCC 259 where this Court held as under:

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab-(2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

''28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka-1994 Supp (3) SCC 235 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand-(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana-(2006) 12 SCC 459. Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

12. The trial court judgment was fortified by the decisions of the Court in Pudhu Raja and another v. State Represented by Inspector of Police-40 (2012) 11 SCC 196, Jaswant Singh v. State of Haryana-(2000) 4 SCC 484 and Akhtar and others v. State of Uttaranchal-(2009) 13 SCC 722 on the law of material omissions and contradictions. Concurringly, the Court too observed that the defence had failed to demonstrate from the informant's testimony such discrepancies, omissions and improvements that would have caused the Court to reject such testimony after testing it on the anvil of the law laid down by this Court:

"325. ...Their throbbing injuries and the rigors of the weather coupled with the state of their minds must have at that point of time brought forth their instinct of survival and self preservation. The desire to have apprehended their assailants and to mete out just desserts to them could not have been their priority. ..."

13. In this context, I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."

14. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:

"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."

15. In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

16. In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".

17. In Inder Singh (supra), Krishna Iyer, J. laid down that:

"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."

18. In the case of State of U.P. v. Anil Singh-1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

19. Learned trial court has examined this contention of the appellant and by discussing the case of State of U.P. vs. Paras Nath Singh reported in 1973 Cr.L.J. 850 held that in the circumstances under which the present incident occurred and was narrated by the witnesses during the examination before the Court it is not probable to involve the accused on false ground. Further in view of Sandeep vs. State of Haryana reported in AIR 2001 SC 1103 it was held that where the witnesses were known, both the victim and the accused, there evidence would be material and could not be criticized on the ground that he was an interested witness. In case of Ashok Kumar Chaudhary vs. State of Bihar - 2008 (61) ACC 972 (SC) it was held that if a witness examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined.

20. Learned trial court has assessed the prosecution witnesses and found that nothing came out from the examination-in-chief or cross examination which may discredit the testimony of the witnesses.

21. In the case of Bhajan Singh @ Harbhajan Singh and Ors. vs. State of Haryana reported in (2011) 7 SCC 421 it was held that the evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.

22. Learned counsel for appellants has submitted that there was no motive behind causing injury while learned counsel for State has submitted that there was a dispute with regard to the crops and animals. This was the cause of motive. It has further been submitted by learned counsel for state that there is direct evidence, in that case, motive loses its importance and the case has to be examined on the basis of evidence on record.

23. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. [Abu Thakir v. State; AIR 2010 SC 2119, State of U.P. vs. Nawab Singh; AIR 2010 SC 3638, Bipin Kumar Mondal v. State of West Bengal; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav vs. State of Karnataka; (2003) 6 SCC 392, Thaman Kumar Vs. State of Union Territory of Chandigarh; (2003) 6 SCC 380, State of H.P. vs. Jeet Singh; (1999) 4 SCC370]

24. Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case [Badam Singh v. State of Madhya Pradesh; AIR 2004 SC 26]

25. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of the Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye-witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. (Sheo Shankar Singh v. State of Jharkhand; 2011(74) ACC 159 (SC), Ravinder Kumar vs. State of Punjab; 2001 (2) JIC (SC), State of H.P. vs. Jeet Singh; (1999) 4 SCC 370; Pannayar v. State of Tamil Nadu by Inspector of Police; AIR 2010 SC 85)

26. It is true that in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct. Motive provides foundational material Absence of motive- Not of much consequence when chain of proved circumstances is complete. [G. Prashwanath v. State of Karnataka; AIR 2010 SC 2914, Jagdish vs. State of M.P.; 2009 (67) ACC 295 (SC), Ujjagar Singh v. State of Punjab; AIR 2008 SC (Supp) 190]

27. The prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful & acceptable evidence is available on record sufficient to establish the guilty of accused persons. [Gopi Ram Vs. St. Of U.P.; 2006 (55) ACC 673 SC; State of U.P. vs. Nawab Singh; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav vs. State of Karnataka; (2003) 6 SCC 392, R.R. Reddy V. State of A.P.; AIR 2006 SC 1656, Sucha Singh V. State of Punjab; AIR 2003 SC 1471, State of Rajasthan v/s Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v/s State of Rajasthan AIR 2011 SC 72]

28. The motive as raised on behalf of the appellants is that the prosecution has failed to prove any motive for the commission of the crimed and in absence of clear and emphatic motive the order of conviction is liable to be set-aside and the accused persons are entitled to acquittal. This submission is, firstly, based on misreading of the record and secondly it is devoid of any merits. The evidence on record indicates that the relation between the parties were quite strained and the way the crime has been committed clearly indicates that they were unhappy with the dispute. Be that as it may, it is not always necessary for the prosecution to establish a definite motive for the commission of the crime. It will always be relatable to the facts and circumstances of a given case. It will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence. It is not correct to say that absence of motive essentially results in the acquittal of an accused if he is otherwise found to be guilty. In Babu Lodhi vs. State of U.P. reported in (1987) 2 SCC 352, the Apex Court took the view that insofar as the adequacy of motive is concerned, it is not a matter which can be accurately weighed on the scales of a balance.

29. When there is a sufficient direct evidence regarding the commission of offence, the question of motive will not loom large in the mind of the Court, though motive is a double edged weapon and the key question for consideration is whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by letting in reliable and cogent evidence. But proof of the existence of a motive is not necessary for a conviction for any offence.

30. Learned counsel for the appellants has challenged the judgment on the ground that the alleged witnesses produced by the prosecution are family members, as such, they are interested witnesses. The conviction of the appellants is primarily based on the statement of these witnesses, which, as such, is liable to be set-aside. It has also been submitted that the prosecution has failed to prove its case beyond any reasonable doubt. The conduct and role of the accused/appellants as attributed by the prosecution is not only improbable but is impossible to be believed.

31. On the contrary, learned counsel appearing for the State has argued that there was sufficient documentary and expert evidence on record. The version of the eyewitnesses cannot be doubted. Their presence on the site was natural and they had no reason to falsely implicate all or any of the accused in the case. It is contended that the version of the eyewitnesses is fully supported by the evidence of the expert and the statement of the Investigating Officer.

32. In light of above facts, the natural witnesses who were present at the spot at the time of occurrence were examined by the prosecution. There is no hard and fast rule that family members can

never be true witnesses to the occurrence and they will always depose falsely before the Court. It will always depends upon the facts and circumstances of a given case. In the case of Jayabalan vs. Union Territory of Pondicherry reported in (2010) 1 SCC 199, the Court took a 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.

33. The only requirement to scrutinize the evidence of related witnesses, under law, is that their evidence should be scrutinized with extra care and caution but the same cannot be discarded only on the ground of their relationship. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Appa v. State of Gujarat, AIR 1988 SC 698, wherein Hon'ble Apex Court has observed that "Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused".

34. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. Vs. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no. 16. Relevant portion of the aforesaid judgment reads as under:-

"16. ................. At this stage, we may refer to the judgment of this Court in the case of Gajoo V. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under:-

We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:-

26.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." Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness.

A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [(2008) 16 SCC 73]} In the case of Darya Singh & Ors Vs. State of Punjab [AIR 1965 SC 328], the Court held as under:-

6. ............ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."

35. It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. Vs. State of Uttar Pradesh reported in [(2009) 13 SCC 790], wherein Hon'ble the Apex Court has held as under:-

"26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........."

36. Again in a recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], Hon'ble the Apex Court has held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimical towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

37. The Hon'ble Apex Court, in the case of ''Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P.' (2007) 1 SCC (Cri) 500, has held in paragraph no.16 as under: -

"In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted. (Vide Hari Obula Reddy Vs. State of A.P., Ashok Kumar Pandey, Vs. State of Delhi, and Bijoy Singh Vs. State of Bihar). Nothing had been elicited in the cross-examination of PW1 and PW2 to discredit their evidence. Their evidence finds corroboration in Ex.P-1 and the evidence of the doctors (PW11 and PW12) and the MOs seized on the disclosures made by A-1 and A-3. Therefore, the High Court rightly held that the evidence of PWs1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused. There is no infirmity in the decision of the High Court by re-appreciating the evidence and reaching independent conclusions."

38. The Apex Court in the case of 'Dharnidhar Vs. State of Uttar Pradesh and others' reported in (2010), 7 SCC 759, in paragraph nos.12 to 14, has held as under:-

"12. 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. The Court held as under:

" 23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses, viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint."

13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. [AIR 2010 SC 917], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same.

14. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses' cannot be relied upon by the Court."

39. As per the dictum of the Apex Court, it is now a settled position of law that the statements of the alleged interested witnesses can be safely relied upon by the court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called 'interested witnesses' cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons.

40. In the statement under Section 313 Cr.P.C. the accused appellants had stated that they have been falsely implicated due to enmity. There is direct evidence of eye witnesses that all the appellants caused injury. Nothing has been stated in the statement as to under what circumstances the deceased died and why the eye witnesses are giving evidence against the appellants.

41. It is a settled principle of law that the statement made by the accused under Section 313 of the Cr.P.C. can be used by the Court to the extent that it is in line with the case of the prosecution. The same cannot be the sole basis for convicting an accused. In the present case, the statement of accused before the Court, to some extent, falls in line with the case of the prosecution and to that extent, the case of the prosecution can be substantiated and treated as correct by the Court. The legislative intent behind this section appears to have twin objects. Firstly, to provide an opportunity to the accused to explain the circumstances appearing against him. Secondly, for the Court to have an opportunity to examine the accused and to elicit an explanation from him, which may be free from the fear of being trapped for an embarrassing admission or statement.

42. The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 of the Cr.P.C. is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail of that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 of the Cr.P.C.

43. In Hate Singh Bhagat Singh vs. State of Madhya Bharat [AIR1953 SC 468], while dealing with Section 342 of the old Cr.P.C. equivalent to Section 313 of the present Cr.P.C. observed that answer of the accused given can be used in other enquiries or trials for other offences.

44. In the case of Narayan Singh vs. State of Punjab [(1963) 3 SCR 678 a Three Judge Bench of this Court held as under:

"Under Section 342 of the Cr.P.C. of Criminal Procedure by the first Sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation if any, of the incident which forms the subject matter of the charge and his defence. By Sub-section (3), the answers given by the accused may "be taken into consideration" at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.

45. Following the law laid down in Narayan Singh's case (supra) the Apex Court in State of Maharashtra v. Sukhdeo Singh [1992 CriLJ 3454] further dealt with the question whether a statement recorded under Section 313 of the Cr.P.C. can constitute the sole basis for conviction and recorded a finding that the answers given by the accused in response to his examination under Section 313 of the Cr.P.C. of 1973 can be taken into consideration in such an inquiry or trial though such a statement strictly is not evidence and observed in paragraph 52 thus:

"Even on the first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under Section 313 of the Cr.P.C....."

46. Learned counsel for appellants has submitted that remaining witnesses or all the witnesses have not been examined by the prosecution.

47. In a criminal trial quality of evidence which is before the Court is required to be considered and not the quantity of number of witnesses. As per Section 134 of the Evidence Act, no particular number of witnesses is required to prove any fact. If the testimony of a sole witness is found reliable on the touchstone of credibility, accused can be convicted on the basis of such sole testimony. This has been followed in various pronouncements of Hon'ble the Apex Court like Vadivelu Thevar vs. State of Madras; AIR 1957 SC 614, Raj Narain Singh vs. State of U.P.; 2009 (67) ACC 288 (SC), Namdeo vs. State of Maharashtra; 2007(58) ACC 414 (SC), Ramjibhai Narasanghbhai vs. State of Gujarat; (2004) 1 SCC 184, and Ranjeet Singh vs. State of MP; AIR 2011 SC 255.

48. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (1) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. What is required to be considered is as to whether the testimony of the sole witness is reliable, trustworthy and can be believed or not. In light of the facts of the present case where the presence of sole eyewitness on spot when the incident took place was not doubtful and his evidence was found to be credible and corroborated, in spite of the plea that other witnesses were also present or other witnesses were not produced before the Court in spite of the fact that they were named in the first information report, the testimony of sole witness cannot be rejected. [Journail Singh vs. State of Punjab reported in 2009 (1) Supreme 224]. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of (i) Manga alias Man Singh Vs. State of Uttarakhand reported in 2013 (7) SCC 629, (ii) State of Haryana Vs. Shakuntala and others reported in 2012 (5) SCC 171 and (iii) Prathipal Singh etc. Vs. State of Punjab and another etc. reported in 2012 (1) SCC 10. We would like to quote paragraph no. 49 of the judgment of Prithvipal Singh's case (supra), which reads as under:-

"49. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of Madras : AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of Delhi (2003) 11 SCC 367; Namdeo v. State of Maharashtra (2007) 14 SCC 150; and Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638)."

49. As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon. The contention of the learned counsel that in a heinous offence like murder plurality of witness is required, cannot be accepted. The deposition of PW-5 as recorded by the learned trial court comes within the category of wholly reliable evidence.

50. The grounds regarding delay in the first information report which have been pressed by the learned counsel for the appellant were also raised before the learned trial court. I have gone through the impugned judgment and fully satisfied with the view taken by the learned trial court and the finding that the first information report was not ante-timed.

51. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:-

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

52. In Thulia Kali v. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under:-

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

53. Similarly in Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained.

54. Law expects a prompt first information report because it eliminates all the chances of coming up of a coloured version. On this point, reliance may be placed on the pronouncement of Hon'ble the Apex Court in the case of Nanhe Vs. State of Uttar Pradesh reported in 1973 (3) SCC 317.

55. Keeping in view the aforementioned proposition of law, in the facts of the instant case, the first information report was lodged with utmost promptness and virtually there was no delay in lodging the same. A prompt first information report eliminates the chances of false implication, as stated earlier.

56. Learned counsel for appellants has submitted that there are certain contradictions and discrepancies.

57. Learned counsel for the State, has submitted that though there are no contradictions, even if there are certain discrepancies, these are normal discrepancies which did not corrode the credibility of the prosecution case as laid down in the following cases:-

"72. In State Represented by Inspector of Police v. Raravanan and another - JT 2008 (11) SC 290, reiterating the principle, the Court held:

"18. .... it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."

73. In Mahendra Pratap Singh v. State of Uttar Pradesh- JT 2009 (3) SC 120, the Court referred to the authority in Inder Singh and another v. State (Delhi Administration) 1978 (4) SCC 161 wherein it has been held thus:

"2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect."

74. In Sunil Kumar Sambhudayal Gupta and others v. State of Maharashtra - JT 2010 (12) SC 287, while dealing with the issue of material contradictions, the Court held:

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan)

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh.)

32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt." (Vide Mahendra Pratap Singh v. State of U.P. )"

And again:

"35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so." (See Syed Ibrahim v. State of A.P.22 and Arumugam v. State)"

58. PW-2 Buddha is the wife of deceased who was present at the time of incident and was also got injured during the course of causing injuries by the accused appellants. She has narrated that the due to certain dispute a panchayat was convened to resolve the problem but Jagannath was annoyed and went to his house and returned with kanta with other appellants and caused injuries to the deceased and herself.

59. PW-3 Dr. R.C. Singh was examined before the court and stated that dead body of Misri Lal was brought in a sealed condition by constable Babu Lal and homeguard Anoop Ram and he conducted the post mortem and prepared the post mortem report. He had submitted that the cause of death was due to shock and haemorrhage as a result of injury No.5. This injury was sufficient in the ordinary course of nature to cause his death. Injury No.1 was caused by pointed weapon, while injury No2 and 5 were possible by blunt weapon like lathi. Similarly injury No. 3 and 4 were possible by sharp edged weapon like kanta.

60. PW-4 P.L. Shakya investigating officer was examined before the court and stated that the F.I.R. was lodged by the complainant and on that basis, first information report was entered into G.D. After recording the statement of witnesses and on the basis of post mortem report, he has submitted the charge sheet against the accused appellants.

61. The version of the learned counsel for appellants that the rest of the witnesses were not examined has no relevance as no number of witnesses is required to prove any case. Prosecution story has been corroborated from the medical evidence and the evidence of prosecution witnesses.

62. In the statement recorded under Section 313 Cr.P.C., it has been stated that the deceased Misri Lal was of criminal nature and some one had caused injuries and he died due to those injuries. The accused appellant are not responsible for the injuries caused to the deceased.

63. Learned counsel for State has submitted that there are direct evidence by the eye witnesses who had seen the occurrence and proved by their statement, which finds corroboration from the medical evidence. Thus imaginary theory propounded by the defence is not acceptable. There is no evidence nor any report that anybody else has caused injuries.

64. Learned counsel for appellants has relied upon 2013(2) JIC 310 Allahabad Rishi Pal and others versus State of U.P and submitted that a lenient view should be taken on the point of sentence. In the aforesaid case, in the case of death the accused was punished with period undergone with fine. Similarly he has also relied on 2014(2) JIC 51 Allahabad Haneef Khan & others versus State of U.P. Learned counsel for State has submitted that appropriate, reasonable and just punishment should be awarded to the appellant.

65. In State of Karnataka v/s Krishnappa AIR 2000 SC 1470 , a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

66. In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , the trial court had convicted the appellant therein under Section 308 IPC along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by Court, the Court observed as under: -

"In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime,the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

67. In Shyam Narain v/s State (NCT of Delhi) (2013) 7 SCC 77 , it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

68. In Guru Basavaraj v. State of Karnata a (2012) 8 SCC 734, the Court, discussing about the sentencing policy, had to say this: -

"There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."

69. In Rattiram v. State of M.P. (2012) 4 SC 516 though in a different context, it has stated that: -

"the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries.... it is the duty of the court to see that the victim's right is protected."

70. It is seemly to state here that though the question of sentence is a matter of discretion, vague and unregulated benevolence. It is to be exercised a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life.

71. In Ramji Dayawala & Sons (P.) Ltd. v. Invest Import AIR 1981 SC 2085: -

"when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. `Discretion', said Lord Mansfield in R.v. Wilkes, ((1770) 98 ER 327), `when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular' (see Craies on Statute Law, 6 th Edn., p.273)."

72. In light of circumstances, mentioned as above, this court is of the view that sentence passed by learned court below under Section 304 Part II is higher side and it would be just to punish all the accused appellants with punishment of five years each. Accordingly, the appeal deserves to be partly allowed. Thus the appeal is partly allowed. The conviction and sentence under section 147, 148, 323 read with Section 149 IPC is confirmed. The conviction under Section 304 Part II read with Section 149 IPC is also confirmed but the sentence is reduced to undergo rigorous imprisonment for 5 years.

73. The appellants Ram Bilas and Malik are reported to be in jail. Appeal of appellant No.4 Chunni stood abated due to his death. Appellant Jagannath is on bail. His bail is cancelled. Learned Chief Judicial Magistrate, Lakhimpur Kheri is directed to take Jagannath in custody and sent to jail to serve out the remaining sentence. All the sentence shall sun concurrently. The period of detention under this case crime number shall be set off in accordance with the provisions as contained under Section 428 Cr.P.C.

74. A copy of this judgment and lower court record be sent back to the concerned court for compliance.

Order Date :- 12.10.2017

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