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The Allahabad High while recently dismissing the criminal appeal filed for re appreciation of the evidence on record & affirming the conviction & sentence passed in 2015 in the matter of State v. Kapil & Others have observed that the testimony of the injured holds more value as an injured would never conceal the real culprit. 

“It is settled law that the testimony of the injured holds more value as the injured will never conceal the real culprit. So far as the testimony of a related witness is concerned, if the presence of a relative witness at the place of occurrence is not doubted, same can not be disbelieved on the sole ground being relative.” Single Bench of Justice Subhash Chand, noted. 

The present Criminal Appeal is against the judgment dated 20.1.2018 of conviction and sentence passed by the court in ST No. 429 of 2015 (State Vs. Kapil and others) whereby the appellant Kapil was convicted for the offence under section 307/34 of IPC and sentenced with rigorous imprisonment of 7 years and a fine of Rs. 5,000/- and in default of payment of fine additional imprisonment of three months was to be undergone.

The brief facts giving rise to this Criminal Appeal are that

“informant Dharmveer Singh, son of late Bhagirath Singh resident of Mohalla Jatan, Pilkhuva, District Hapur moved written information with the police station concerned with these allegations that on 10.3.2014 at 6.00-O'clock evening he along with his son Vikas and the brother-in-law of his son namely Sumit were exchanging talk at the crossing nearby his house. At the same time Kapil, son of Bablu, Gaurav, son of Shailendra, Bablu son of Sukhpal all residents of Madaia Jatan, Pilkhuva came by Motorcycle of which speed was too fast. The son of the applicant asked them to control the speed and to drive the motorcycle slowly just to avoid any mishappening. On this issue all the three accused persons who were armed with weapon hurled abuses to his son and exhorted to his companion to open fire with intend to cause death of his son whereby Vikas opened fire which hit to the stomach of 2 his son Vikas who fell down on the spot due to sustaining injury. The informant made noise whereby the persons of the locality were attracted there. All the three accused persons fled away brandishing their country made pistols after having left the Motorcycle at the place of occurrence. He also saw the whole occurrence and recognized the assailants. The condition of his son Vikas was critical.”

Therefore the Trial Court summoned the accused persons and charge was framed against the accused Kapil, Gaurav and Bablu under sections 307/34 and 504 of IPC which were read over and explained to the accused persons. The same was denied by them and demanded for trial. The court after hearing learned counsel for the rival parties passed the impugned judgment of conviction and sentenced the appellant.

Hence, this criminal appeal has been preferred on behalf of the appellant Kapil on the ground that the impugned judgment is based on perverse and illegal finding and the trial court has not appreciated the evidence in proper perspective. He further argued that the trial court has not considered the pleas raised on his behalf and thus convicted him on the wrong appreciation of the evidence.

The Learned counsel for the appellant has submitted that, “the conviction of the appellant is based on the evidence of interested and related witnesses. No independent witness has been examined and on this ground contended to discard the prosecution case.”

On the other hand the prosecution contended that if the statements of the witnesses are taken into consideration then the guilt of the appellant is clear. 

“It is settled law that the testimony of the injured holds more value as an injured will never conceal the real culprit. So far as the testimony of a related witness is concerned, if the presence of a relative witness at the place of occurrence is not doubted, the same cannot be disbelieved on the sole ground being relative.”-stated the appeal.

Taking into account the factual matrix of the present case the bench relied upon SC judgments in Vijay Shankar Shinde Vs. State of Maharashtra AIR 2008, “the testimony of an injured witness holds more credence. Normally, he would not shield the real culprit.”

Also in, Ashok Kumar Chaudhari Vs. State of Bihar AIR 2008, “the relationship per se does not affect the credibility. Non examination of public witness by itself does not give rise to adverse inference against the prosecution when the evidence of injured witness is reliable.”

The Bench observed that,

“…the ocular evidence adduced on behalf of 6 prosecution in regard to firearm injury in the stomach of injured Vikas is also corroborated with the medical evidence adduced on behalf of prosecution.”

Further the Court observed that, “On account of negligence on part of the Investigating Officer, the prosecution case cannot be discarded, if the same is proved from the evidence of the eye-witness also corroborated with the medical evidence.”

In the present case the prosecution has been successful in proving its case with reliable and cogent ocular evidence which is corroborated with the medical evidence.As such, the impugned judgment of conviction of the appellant Kapil for the offence under section 307 IPC does not bear any infirmity and same needs no interference.

Therefore the Bench held that, 

“in view of re-appreciation of the evidence on record this criminal appeal is hereby dismissed and the impugned judgment of conviction and sentence passed in ST No. 429 of 2015 (State Vs. Kapil and others) arising out of case crime no. 374 of 2014 P.S. Pilkhuva, District Hapur is affirmed. The appellant has to serve out the sentence as awarded by the court.”

Case Title: Kapil v State of UP, 2021