Reserved on 8

th

September, 2022

Delivered on 23

rd

September, 2022

A.F.R.

Court No. - 43

Case :- CRIMINAL APPEAL No. - 2534 of 2007

Appellant :- Balister And Another

Respondent :- State of U.P.

Counsel for Appellant :- Shyamji Gaur,A.K.Dubey,A.R.

Dubey,G.P.Dikshit,Noor Mohammad

Counsel for Respondent :- Govt. Advocate

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

(Delivered by Hon. Shiv Shanker Prasad, J.)

1.This appeal has been preferred by accused-appellants, namely,

Balister and Smt. Kamla against the judgment and order dated 21

st

March,

2007 passed by the Additional Sessions Judge, Court No.6, Muzaffarnagar

in Sessions Trial No. 830 of 2006 (State of U.P. Vs. Balister and Another),

under Sections 302/34 I.P.C. arising out of Crime No. 838 of 2005, Police

Station-Budhana, District-Muzaffarnagar, whereby both the accused-

appellants have been convicted and sentenced to undergo life

imprisonment under Section 302/34 I.P.C. with fine of Rs. 7,000/- each, in

default thereof, they have to further undergo one year additional

imprisonment.

2.We have heard Mr. Sheshadri Trivedi, learned Amicus Curiae

appearing for the accused-appellant no.1 and Kumari Meena, learned

A.G.A. for the State. Appellant no.2 has died and her appeal has already

abated by this Court vide order dated 8

th

September, 2022. We have also

perused the entire materials available on record.

3.The prosecution story, as reflected from the records, is as follows:

On the basis of a written report submitted by the informant-P.W.1,

namely Jagendra Singh dated 23

rd

November, 2005 (which was marked as

Exhibit-Ka-1), a first information report (Exhibit-Ka-9) was lodged on 23

rd

November, 2005 at 06:30 p.m. (in evening), which was registered as Crime

No. 231 of 2005 under Section 302 I.P.C., at Police Station-Badhana,

2

District-Muzaffarnagar against three persons, namely, Puran, Balister and

Smt. Kamla. In the said report, it has been alleged that on 23

rd

November,

2005 at 06:30 p.m., the brother of the informant-P.W.-2, namely, Anil

Kumar went to the grocery shop of Satendra for buying some goods,

where Puran, his brother Balister and his mother Smt. Kamla, who are

residents of same village, were already standing there. When Anil Kumar,

brother of the informant-P.W.-1, after buying goods, returned to his house

from the said grocery shop, then the above three persons in front of the

street of their house, started abusing and threatening him that they will see

him today. When Anil Kumar brother of the informant-P.W.2 objected not to

do the same, then Balister and Kamla grabbed Anil Kumar from behind

and Puran started hitting him by Tabal. When Anil Kumar fell on the ground

then Balister also started hitting him with Balkati. At the same time, the

informant-P.W.-1, Krishnapal Singh, Mahipal and Sanjeev Kumar were

coming from their fields through the front road. Hearing the sound in the

street, informant-P.W.-1, Krishnapal Singh, Mahipal and Sanjeev Kumar

reached the spot and tried to save him as also they raised alarm. On

seeing informant-P.W.-1, Krishnapal Singh, Mahipal and Sanjeev Kumar,

all the accused persons, namely, Puran, Balister and Smt. Kamla, ran

away after threatening them. They chased them but did not succeed in

catching them. Thereafter, they picked up Anil Kumar from the spot and

took him to the hospital by a Car, where he was declared dead. Thereafter

they went to the Police Station along with the dead body of Anil Kumar.

Resultantly, on the written report of the informant-P.W.-1, Crime No. 231 of

2005 was registered. On registration of the said case, the inquest of the

body of the deceased, which was lying in a Marshal jeep outside the Police

Station, was conducted by Sub-Inspector Vijay Pal Singh (P.W.4) on 23

rd

November, 2005 at 2200 hours. Since injuries were found on the body of

the deceased, in the opinion of the inquest witnesses, the cause of death

of the deceased was homicidal. The inquest report was marked as Exhibit-

Ka-3. As such, after sealing the dead body of the deceased, the same was

sent to Mortuary for post-mortem on 23

rd

November, 2022 through

Constables Yadram and Maheshpal.

3

4.The post-mortem of the dead body of the deceased Anil Kumar was

conducted by Dr. U.S. Fauzdar (P.W.-3) on 24

th

November, 205 at 03:30

p.m. and in his opinion, the cause of death of deceased was due to shock

and haemorrhage as a result of ante-mortem injuries. On post-mortem of

the dead body of the deceased, following ante-mortem injuries were

reported:

“(1). Incised wound 7 cm. x 1/2 cm x scalp deep on the back of skull

(occipital region), 8 cm. above to hair line of back,

(2). Incised wound 8 cm. x 1 cm. x muscle deep over left cheek;

(3) Incised wound 15 cm. x 3 cm. x bone deep on left side of neck,

underneath tissues are sharply cut with severed of cortical vessels,

veins, partial cut of on left side trachea, Fifth cervical body of

vertebra is partially cut;

(4) Incised wound lower 1/2 of outer helix of left Pinna. Cut;

(5) Contused abrasion 3 cm. x ½ cm. on top of left shoulder;

(6 Contused abrasion 1 cm. x 1/2 cm. on deltoid prominence of left

shoulder;

(7). Contused abrasion 10 cm. x 1/2 cm. on back of left upper arm;

(8) Contused abrasion 10 cm. x 1/2 cm. on back of left shoulder;

(9) Incised wound 13 cm. x 3 cm. x muscle deep on Inner back of

left forearm lower 1/2;

(10) Incised wound 3 cm. x 1 cm. x muscle deep on dorsum of left

wrist;

(11) Incised wound 6 cm. x 2 ½ cm. x bone deep on flexor aspect of

left forearm lower third;

(12) Incised wound 10 cm. x 2 ½ cm. x bone deep dorsum of left

hand with fractured of v, iv & iii metacarpal, fractured ends are are

reddish in colour;

(13) Incised wound 1 cm. x 1/2 cm. muscle deep on flexor aspect of

left middle finger; and

(14). Incised wound 1 cm. x 1/2 cm. muscle deep of flexor aspect

of left middle finger.”

5. It would be worth noticing that the accused-appellant, namely,

Balister @ Kallu and Smt. Kamla were also got medically examined by Dr.

4

Vineet Kaushik, In-charge Medical Officer, Primary Health Centre,

Budhana, Disrict Muzaffarnagar 13

th

November, 2005, wherein no fresh

visible injury were seen on the bodies of the accused-appellants.

6.After sending the body of the deceased for post-mortem, the

Investigating Officer, namely, Jagdish Singh, the then Station House

Officer, Badhaut, District Baghpat, P.W.-6, went to the place of occurrence

and collected blood stained earth and plain earth, thereafter prepared

memo of recovery (Exhibit-13). He also prepared Site Plan of the place of

occurrence. He recorded statements of witnesses. On 12

th

December,

2005, the Investigating Officer arrested the named accused persons,

namely, Ballister and Smt. Kamla and on their pointing out, he recovered

Balkati and Tabal which were alleged to have been used in the crime of

which the recovery memo was also prepared (Exhibit-Ka-14). After

completion of statutory investigation in terms of Chapter XII Cr.P.C., the

Investigating Officer submitted the charge-sheet against the accused

persons. The learned Magistrate took cognizance of the offence on the

charge-sheet and committed the case to the court of Sessions Judge.

7.It would also worth noticing that the recovered weapons i.e. Tabal

and Balkati as also the clothes and article, which were collected from the

body of the deceased, namely, pant along with belt, T-shirt, Baniyan,

underwear and kardhan, were sent for forensic examination to the

Forensic Science Laboratory, U.P. Agra. After examining the same, the

Forensic Science Laboratory has submitted its report dated 16

th

June,

2006. Though in the said report, it has been reported that human blood

stain was found on all the objects sent for forensic examination, but it was

preposterous.

8.On 21

st

November, 2006, the learned Trial Court framed charges

against the accused persons for offences punishable under Sections 302

I.P.C. read with Section 34 I.P.C.

9.In order to prove its case, the prosecution relied upon documentary

evidence, which were duly proved and consequently marked as Exhibits.

The same are catalogued herein below:-

5

“i). First information report was marked as Exhibit Ka -9 ;

ii). The written report of informant/P.W.-1 Jagendra Singh Jaat, was

marked as Exhibit Ka-1;

iii). Recovery memo of blood stained and plain earth collected from the

place of occurrence was marked as Exhibit Ka-13;

iv). Recovery memo of blood stained Tabal and Balkati was marked as

Exhibit Ka-14;

v). The post-mortem report of the deceased Anil Kumar was marked as

Exhibit Ka-2;

vi). Report of Forensic Science Laboratory, U.P. Agra was marked as

Exhibit Ka-7; and

vii). Site plan with index was marked as Exhibit Ka-15.”

10. The prosecution also examined total nine witnesses in the following

manner:-

“i). The Informant, namely, Jagendra Singh, brother of the deceased

has been adduced as P.W.-1;

ii). Sanjeev Kumar, who is alleged to be an independent witness,

has been adduced as P.W.-2;

iii) Dr. U.S. Fauzdar, District Hospital, Muzaffarnagar, who conducted

the post-mortem of the body of the deceased Anil Kumar has been

adduced as P.W.-3;

iv) Sub-Inspector Vijaypal Singh, who prepared the inquest report of

dead body of the deceased, has been adduced as P.W.-4;

v). Constable-378 Shashi Kawar Rana, who prepared the Chik first

information report (Exhibit-ka-9) on the basis of written report of the

informant Jagendra Singh has been adduced as P.W.-5; and

vi). Sub-Inspector Jagdish Singh, the then Station House Officer,

Police Station-Budhana, who conducted the investigation of the

alleged crime.

11.After recording of the prosecution evidence, the incriminating

evidence were put to the accused-appellants Balister and Smt. Kamla for

recording their statements under section 313 Cr.PC. In their statements

recorded U/s 313 Cr.P.C. on 19

th

January, 2007, the accused appellants

6

denied their involvement in the crime. Accused appellants Balister and

Smt. Kamla specifically stated before the trial court that they have been

falsely implicated in this case. The defence has also adduced Yogendra

Singh resident of the same village, as D.W.-1.

12.It would also be worth noticing that the trial court under Section 311

Cr.P.C. has summoned Balesh Kumar, the then teacher of Dayanand Bal

Vidyalaya, Junior High Court, Budhana, Police-Station Budhana, District-

Muzzafarnagar and has also recorded his statement as Court Witness.

13.While passing the impugned judgment of conviction, the trial court

after relying upon the documentary as well as oral evidence adduced by

the prosecution, has recorded its finding that it has been proved that the

prosecution has mentioned the immediate reason for the murder of Anil by

the accused from the very beginning and has also proved by the

evidence. The informant-P.W.-1 took the injured Anil, who was breathing a

little, immediately to the Primary Health Center where he was declared

dead and immediately thereafter he was taken from there to the Police

Station, where on the written report of the informant, the first information

report has been lodged. The first information is prompt in which date, time

and place of incident; the immediate reason for commissioning of the

offence; the details of the weapons used by the accused-appellants; the

name of the witnesses; the brief details of the incident have been

mentioned and there is no possibility of any false facts being mentioned in

the first information report. The entire prosecution version has been proved

by the eye-witnesses, namely, P.W.-1 and P.W.-2. Though both eye-

witnesses are brothers of the deceased yet their presence on the spot is

proven and despite the fact that they have faced a long cross-examination

but they stand in the test of truth. There is no possibility of false implication

of the accused in the alleged offence by the prosecution even if they do not

have any prior enmity with the accused without any reason. Despite the

fact that they are real brother of the deceased. It is also not likely that they

will falsely implicate an innocent person except the real accused. The

medical evidence has also supported the statements of the eye witnesses

and the prosecution version. The investigation in the matter has been done

7

promptly following due procedure known to law. There is no defect in the

investigation done in the matter so that the benefit of the same could

accrue to the defense party. After recording such finding, the trial court has

come to the conclusion under the impugned judgment of conviction that

the prosecution has been able to fully prove that both the accused, in

furtherance of their common intention, committed the murder of Anil Kumar

in front of their street. As such, the trial court has found the offence under

Section 302 read with 34 I.P.C. to have been committed by the accused

persons Balistar and Smt. Kamla. Consequently, the trial court has

awarded sentence of life imprisonment along with a fine of Rs. 7,000/-

each.

14. Aggrieved by the aforesaid judgment and the order of conviction

and sentence, the present jail appeal has been filed on the ground that

conviction is against the weight of evidence on record and against the law

and the sentence awarded to the accused-appellants is too severe.

15.Questioning the impugned judgment and order of conviction, learned

Amicus Curiae appearing for the appellant no.1 Balister submits that:

(i) the alleged incident took place on 23.11.2005 when the brother of

informant Anil Kumar S/o of Dhara Singh R/o Tanda P/s Bhudhana,

Muzaffarnagar had gone to purchase few items from the shop of Satendra

at about 6:30 p.m. When the deceased was returning to his house after

purchasing the said items, he was surrounded by Puran, his brother

Balister and mother of Balister, namely, Smt. Kamla, who threatened and

abused informant’s younger brother Anil. In the meantime, Balister and

Kamla grabbed Anil and Puran attacked him with Tabal. Consequently, Anil

fell down on the ground. Balister also attacked him with Balkati. This

incident was seen by Kishan Pal Singh, Mahi Pal and Sanjeev Kumar, who

were returning from their fields. When they heard screams of Anil Kumar,

they tried to rescue him. Thereafter, Puran, Balister and his mother Kamla

Devi ran away from the place of occurrence. The injured Anil was brought

to the hospital where he was declared dead. After that, the informant (P.W.-

1) along with other took him in a Jeep to the Police Station, where on the

written report of the informant the first information report has been lodged.

8

Henceforth, it is evident that the alleged incident took place on 23.11.2005

at 6:30 p.m. Whereas, the first information report has been lodged by the

informant P.W. 1 on 23.11.2005 at 20:50 p.m. The distance between the

place of occurrence and the P.S. concerned is about 7 kms;

(ii) in support of prosecution story, prosecution has adduced two

eyewitnesses P.W.-1 Jogendra Singh and P.W.-2 Sanjeev Kumar. These

two are the star witnesses of the prosecution. However, there are major

contradictions in their statements and that is why, in the first information

report, it is stated that Puran attacked Anil with Tabbal and Balister

attacked him with Balkati. The same has been stated in chief-examination

by Jogendra Singh P.W.-1, whereas P.W.-1 Jogendra Singh has stated in

his statement under 161 Cr.P.C. that Puran as well as Balister had

attacked the deceased Anil with Tabbal. Hence, there is contradiction with

regard to the weapons, which are alleged to have been used by both the

accused Puran and Balister for assaulting the deceased Anil;

(iii)it is stated in the first information report that the accused-appellants

Balister and Kamla grabbed deceased Anil at the time of occurrence,

whereas P.W.-1 Jogendra Singh in his cross-examination admitted that

accused-appellant Kamla caught hold of the left-hand of deceased Anil and

did not grab him along with accused Balister, whereas in the first

information report it has been alleged that she had grabbed him along with

accused Balister. P.W.-2 Sanjeev Kumar stated in his examination-in-chief

that Balister caught hold of left-hand of Anil and accused Kamla caught

hold right-hand of Anil. As such, there is inconsistency in the statements of

the star witnesses P.W. 1 and P.W.- 2;

(iv) there was no source of light at the place of occurrence. Although P.W.-

2 Sanjeev Kumar has stated that there were two gas lanterns, which were

lighting. It has also been stated that P.W.- 2 Sanjeev Kumar had seen the

occurrence in the light of these two lanterns. Whereas, P.W.-1 Jogendra

Singh has stated in his examination-in-chief that there was no electric light

at the place of occurrence. He has further stated that there was no light of

lanterns at the place of occurrence because there were no gas lanterns,

which were lightning at the time of occurrence;

9

(v) in the month of November at about 6:30 p.m. in evening, according to

Indian climate, it becomes dark. Prosecution witness P.W.-1 Jogendra

Singh has stated in his cross-examination that at the time of occurrence

there was dense darkness. Therefore, it is apparently clear that in the

absence of source of light, it was impossible for witnesses to recognize the

accused persons. Sanjeev Kumar P.W.-2 has stated in his cross-

examination that the Investigating Officer had recorded his statement

under Section 161 Cr.P.C. after a month from the date of incident. Thus,

there is a possibility of development/improvement in the statements of the

witnesses;

(vi) P.W.- 2 Sanjeev Kumar has stated that, “I heard the incident at tiraha

from the main road”. While in the order of framing of charge passed by the

trial judge on 21.11.2006, it has been mentioned that the incident occurred

at the shop of Satendra, which is situated at village-Tanda Vahad Police

Statiton Bhudhana, District Muzaffarnagar. From the perusal of the site

plan which is marked as Exhibit Ka-12, which have been prepared by the

Investigating Officer, tiraha is shown as ‘Point A+’ and shop of Satendra is

situated in the east side of this very tiraha which is 40 passes (Kadam)

away from ‘Tiraha Point A+’, meaning thereby that the place of occurrence

has shifted. As such, due to shifting of place of occurrence, the prosecution

story is wholly unreliable;

(vii)it has been stated in the first information report as well as in the

cross-examination of P.W.-1 Jogendra Singh that at the time of incident

Mahipal, Sanjeev and Kishan Pal were present, but the prosecution has

not examined Mahipal and Kishan Pal except Sanjeev Kumar as P.W.-2.

P.W.- 1 Jogendra Singh has stated in cross-examination that when he

arrived at the place of occurrence, his brother was lying injured. Blood of

his brother was spilled on the ground. Whereas, in the first information

report, it has been stated that the accused Puran and Balister attacked Anil

with Tabbal and Balkati. The same has been stated by P.W.- 2 Sanjeev

Kumar in his examination-in-chief. It is therefore, clear that there are major

contradictions in the statements of P.W.-1 and P.W.-2 as well as in the first

information report;

10

(viii) P.W.-3 Doctor U.S. Faujdar who conducted the post-mortem of the

deceased Anil, has stated in his cross-examination that there was no injury

on the waist of the body of deceased Anil. At the time of post-mortem,

P.W.-3 had found as many as 14 ante-mortem injuries on the left part of the

body of the deceased, but none of the injuries are shown on the waist of

the dead body of the deceased. Therefore, the entire prosecution story is

doubtful;

(ix) Jagendra P.W. 1 and Sanjeev P.W. 2 have not seen the incident

because when they arrived at the spot, the incident had already occurred,

meaning thereby that after the occurrence of the incident, witnesses

reached the spot. On the basis of which it can be said that before arrival of

the witnesses including P.W.-1 and P.W.2 at the spot, the accused persons

ran away, meaning thereby that they have not seen the incident by their

own eyes. Therefore, the prosecution story is wholly improbable as also

the same has not been supported by the evidence and that is why, the

accused appellants are not guilty of the offence under Section 302 read

with 34 I.P.C.

On the cumulative strength of the aforesaid, learned Amicus Curiae

appearing for the appellant no.1 submits that the impugned judgment and

order of conviction cannot be legally sustained and is liable to be quashed.

16.On the other-hand, Kumari Meena, learned A.G.A. for the State,

supports the prosecution version by submitting that the statements of P.W.-

1 Jagendra and P.W. 2-Sanjeev are credible in the facts and circumstances

of the case and since they are eyewitnesses and have clearly disclosed

about the commissioning of the offence of murder, therefore, the trial court

has not committed any error in holding conviction of the accused

appellants under Section 302 read with 34 I.P.C. On the cumulative

strength of the aforesaid submissions, learned A.G.A. submits that as this

is a case of direct evidence, the impugned judgment and order of

conviction does not suffer from any illegality and infirmity so as to warrant

any interference by this Court. As such the present appeal filed by the

accused-appellant who committed heinous crime by murdering deceased

Anil Kumar, is liable to be dismissed.

11

17.We have considered the submissions made by the learned counsels

for the parties and have gone through the records of the present appeal

especially, the judgment and the order of conviction and evidence adduced

before the trial court.

18.The only question which is required to be addressed and determined

in this appeal is whether the conclusion of guilt arrived at by the trial court

and the sentence awarded is legal and sustainable under law and suffers

from no infirmity and perversity.

19.The facts, as have been noticed above, would clearly go to show

that the incident of this case has occurred on 23.11.2005 at 6:30 p.m. in

the evening. The first information report qua the incident has been lodged

on 23.11.2005 at 20:50 p.m. According to prosecution, the first information

report is well within time and prompt. As per the first information report, the

incident took place on the relevant date as on 23.11.2005 at 6:30 p.m.

when Anil Kumar had gone to purchase a few items from the shop of

Satendra. When the deceased Anil was returning to his house after

purchasing the said items, he was surrounded by Puran, his brother

Balister and his mother Kamla, who threatened and abused the informant’s

younger brother Anil. In the meantime, Balister and Kamla grabbed Anil

and Puran attacked Anil with Tabal. Resultantly, Anil fell down on the

ground. Balister also attacked Anil with Balkati. In the first information

report, it has been stated that the incident occurred in the street which is

situated in front of the house of the accused persons. The house of

accused persons shown by the Investigating Officer is situated in the east

side from the shop of Satendra, whereas, as per the site plan, the place of

occurrence has been shown by the Investigating Officer on tiraha at ‘Point

A+’. This place of occurrence is situated west side from the shop of

Satendra which is 40 passes (Kadam) away from the shop of Satendra. On

21

st

November, 2006, the trial court has framed charge against the

accused person namely, Balister and Kamla, the said order has been

numbered as 10/A and a copy of which is brought on record at page-12 of

the paper book.

12

20.For examining veracity or genuineness or otherwise of the fact as to

what is the actual place of occurrence, it would be worthwhile to

reproduce, the order of trial court framing charge against the accused-

appellants, which is quoted hereinafter:

“eS] v’kksd dqekj ikBd] vij l= U;k;k/kh’k] dksVZ uEcj 6] eqtQ~Qjuxj

vki 1- ckfyLVj ,oa 2- Jherh deyk dks fuEu vkjksi ls vkjksfir djrk gWWw:

;g fd fnukad 23-11-2005 dks le; djhc 6-30 cts 'kke LFkku lrsUnz dh

nqdku xkao Vk.Mk cgn Fkkuk cq<+kuk ftyk eqtQ~Qjuxj esa vkius lkekU;

vk’k; ls bl vk’k;] Kku o ifjfLFkfr esa oknh txsUnz flag ds HkkbZ vfuy dh

dksgyh Hkj yh rFkk vkids ,d vU; lg vfHk;qDr iwju us rcy o iydVh ls

rFkk vkius Hkh iydVh ls vfuy dks migfr;kW dkfjr dj mldh gR;k dkfjr

dhA bl izdkj vkius /kkjk 302 lifBr /kkjk 34 Hk0n0la0 ds vUrZxr

n.Muh; vijk/k dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSA

eS ,rn~ }kjk funsZ’k nsrk gwW fd mDr vkjksi gsrq vkidk fopkj.k bl

U;k;ky; }kjk fd;k tk;sA”

21.From perusal of the aforesaid framing charge order, it is apparent

that the the place of occurrence is the shop of Satendra, which is situated

in village Tanda Vahad, Police Station-Bhudana District Muzaffarnagar. All

the evidence has however been led by the prosecution over the place of

occurrence i.e. Point-A+ which is Tiraha at a distance of 40 passes from

the shop of Satendra alleged to be place of occurrence in Charge Paper

No.10/A. In the circumstances as elaborated herein-above, the place of

occurrence is shifting. The same has been alleged by P.W.-1 Jogendra

Singh in his examination-in-chief that when Anil Kumar deceased had gone

to purchase some items from the shop of Satendra, Puran, Balister and

Kamla were already there and after surrounding Anil, all the accused

persons threatened and attacked him. From the perusal of this version of

P.W. 1, the incident occurred in the street, which is situated between the

shop of Satendra and house of the accused persons. As per Jogendra

Singh P.W.-1, the incident did not occur at ‘Place A+’ as shown by

Investigating Officer, in site plan as ‘Exhibit-Ka/12’. Moreover, P.W.-1

Jagendra Singh has admitted in his cross-examination that, “tiraha is

situated 10-15 passes (Kadam) away from the place of occurrence.” On

the contrary, in site plan, the Investigating Officer has indicated the place of

occurrence at ‘Point A+’. P.W.-2 Sanjeev Kumar has stated in his cross-

examination that shouting was heard by him at tiraha which is on the

street. It means that the incident had not occurred at ‘Point A+’ as shown in

13

site plan as ‘Exhibit-Ka/12’. Thus, in these circumstances, the place of

occurrence is shifting. This anomaly creates a doubt upon the prosecution

version.

22.In Matlab Ali v. State of U.P. (Crimininal Appeal No. 175 of 1971,

decided on 9

th

August, 1971), this Court has observed that, “shifting of

place of occurrence is a serious matter and must necessarily cast a grave

doubt as to the correctness of prosecution version. If place of occurrence

is different, there could be no question of alleged eyewitnesses seeing

anything.”

23.It is pertinent to note that in Syed Ibrahim v. State of A.P., reported in

(2006) 10 SCC 601, the Hon’ble apex court has observed that, “when the

place of occurrence itself has not been established it would not be proper

to accept the prosecution version”.

24.In State of U.P. v. Mangal Singh and Ors., reported in (2009) 12

SCC 306, the Hon’ble apex court has observed that, “whereon a reading

of evidence it is clear that occurrence as claimed is changed, it was

noticed that the witnesses were shifting their versions almost at every

stage. This itself was sufficient to doubt the veracity of the prosecution

version”.

25.Again, in Asraf Biswas v. State of W.B., reported in 2016 SCC

OnLine Cal 4342, the Hon’ble Apex Court made reference to the case of

Syed Ibrahim v. State of A.P., reported in (2006) 10 SCC 601, wherein it

has been stated that, “it would not be proper to accept the prosecution

case when the place of occurrence itself has not established. The place of

occurrence was not proved beyond all reasonable doubts in the instant

case and as a result, we have no hesitation to arrive at a conclusion that

there was infirmity in decision making process of the learned Trial Judge.

Once it is held that the place of occurrence has not been established

beyond all reasonable doubts, then the other circumstances are hardly

sufficient to establish the guilt of the accused”.

26.In Jumma Vs. State of U.P. reported in MANU/UP/1104/1992, Pr.-19;

a Division Bench of this Court has observed that, “shifting of place of

occurrence is a serious matter and must necessarily cast a grave doubt as

to the correctness of prosecution version. If place of occurrence is

14

different, there could be no question of alleged eyewitnesses seeing

anything.”

27.As per the first information report, at the time of occurrence, accused

Balister and Kamla had grabbed Anil, whereas the accused Puran attacked

Anil with Tabbal and thereafter the accused Balister attacked him with

Balkati. On the other hand, P.W.-2 Sanjeev Kumar has stated in his

examination-in-chief that Balister caught hold of left hand of Anil and

Kamla caught hold of right hand of Anil. Puran was attacking Anil with

Tabbal and when Anil fell down on ground, Balister attacked him with

Balkati. On the contrary, P.W.-1 Jogendra Singh in his statement recorded

under Section 161 Cr.P.C. has stated that the accused Puran as well as

accused Balister both attacked Anil with Tabbal. Therefore, there is

inconsistency with respect to weapon used by the accused persons.

28.In the first information report as well as in the examination-in-chief of

P.W.-1 Jogendra Singh it has been alleged that accused Balister and

Kamla had grabbed deceased Anil at the time of occurrence, but P.W.-1

Jogendra Singh has stated in his cross-examination that Kamla caught

hold of the hand of Anil from left side. Whereas, P.W.-2 Sanjeev Kumar has

stated in his examination-in-chief that Balister had caught hold of the left

hand of Anil and Kamla had caught hold of right hand of Anil. At this point

of juncture, there is major discrepancy and inconsistency in the statements

of the witnesses which also creates doubt in prosecution version.

29. It is also noteworthy that when Balister caught hold of left hand of

deceased Anil and Kamla caught hold of right hand of Anil at the time of

incident as is stated by P.W.-2 Sanjeev Kumar in his examination-in-chief

or Kamla had caught hold of left hand of deceased Anil at the time of

occurrence, as stated by P.W. 1 Jogendra in his cross-examination, it is not

possible that the accused persons, who had caught deceased Anil, did not

receive any injury. From the perusal of Photo-Lash (Exhibit-Ka/4) and the

Post-mortem report (Exhibit-Ka/2), it is apparent that there were 14 ante-

mortem injuries, which are on the left-side of the deceased. If Kamla or

Balister had caught hold of the left/right hand of deceased Anil then, it is

not possible for them not to receive any injury on the point of catching hold

of the hands of deceased. Therefore, there are major contradictions,

15

inconsistency and discrepancy which again creates doubt in the

prosecution version.

30. P.W.-1 Jogendra Singh has stated in examination-in-chief that

Sanjeev Kumar, Kishan Pal and Mahi Pal arrived at the time of occurrence

but except Sanjeev Kumar as P.W.-2, neither Kishan Pal nor Mahi Pal have

been examined in support of prosecution story. Even Satendra and

Devendra have also not been examined in support of prosecution story.

P.W.-1 in his statement has disclosed that the fact about the three accused

persons including the appellant no.1 of abusing the deceased was

informed by Devendra. Devendra however is not produced. As per the

statements of P.W.-1 and P.W.2, it was Devendra, who told Jogendra

(informant-P.W.1), Sanjeev Kumar (P.W.-2), Kishan Pal and Mahipal that in

front of his shop, there was altercation between the deceased Anil Kumar

and accused persons, namely, Puran, Balister and Kamla and at that time,

the accused persons were having Tabal and Balkati. Inspite of the fact that

Devendra is the witness and his information is the basis of disclosure

about the manner in which the fight erupted on the spot leading to the

murder of deceased yet Devendra is not adduced in evidence.

31.It would also be worth noticing that as per the version of the first

information report as well as the statement of P.W.-1 in his examination-in-

chief that on the date of incident, the deceased went to the shop of

Devendra for buying some goods and when he was returning to his house

after buying the same, on the way in front of their street, the accused

persons, namely, Puran, Balister and Kamla assaulted the deceased,

whereas in the cross examination, P.W.-1 has stated as follows:

“nsosUnz us ;g ckr Hkh eq>s crk;h Fkh fd mldh nqdku ij eqyfteku dh

esjs HkkbZ vfuy ds lkFk dgu lquu gq;h FkhA D;k dgu lquu gq;h Fkh ;g mlus

ugha crk;k FkkA nsosUnz us eq>s ;g Hkh crk;k Fkk fd mldh nqdku ij tc eqyfteku

ls esjs HkkbZ dh dgu lquu gq;h Fkh rc eqyfteku cydVh o roy fy, gq, Fks

esjs /;ku ugha gS fd eSus njksxk th dks nsosUnz }kjk crk;h tkus okyh ckr crk;h

Fkh ;k ughaA ;g ckr nsosUnz us crk;h Fkh rgjhj esa eSus ugha fy[khA^*

Similarly, in his cross examination, P.W.-2 has stated as follows:

^*eSus iw.kZ o vfuy dks ns[kk FkkA os yksx dgk ls vk;s Fks eSus ugha ns[kk

FkkA eSus njksxk tks dks ;g ckr crk;h Fkh fd ?kVuk ls igys vuhy e`rd o

eqyfteku nsosUnz dh nqdku ls vk;s FksA njksxk th us eq>ls lkjh ckrs iwNh FkhA

eksVh&2 ckrs ?kVuk ds ckjs esa iwWNh FkhA“

16

Perusal of the aforesaid statements would go to show that there is

material contradiction as to at whose shop, either Devendra or Satendra,

the deceased went to buy the goods.

32.As per prosecution story, the incident occurred on 23.11.2005 at 6:30

p.m. in the evening. According to Indian climate, in the month of

November, at about 6:30 p.m. it gets dark, meaning thereby that at the

time of occurrence, there was darkness. This fact is admitted by P.W.-1

Jogendra Singh in his cross-examination that at the time of occurrence, it

was deep dark. P.W.-1 Jogendra has also admitted that at the time of

occurrence, there was no supply of electricity. P.W.-2 Sanjeev Kumar in his

cross examination has also admitted that at the time of occurrence, it was

dark night. P.W.-1 Jogendra has however stated in his cross-examination

that at the time of occurrence, gas lantern was lightning at the gate of the

house of Narendra. However, no gas lantern was recovered by the

Investigating Officer during the course of investigation. Hence, it is clear

that the source of light at the time of occurrence is not explained. In the

absence of any source of light, it would be difficult for witnesses to

recognise the accused persons at the time of occurrence.

33. P.W.-1 Jogendra in his cross-examination has also stated that which

of two accused had assaulted the deceased, how many injuries were

inflicted upon the body of the deceased and in which part, he sustained

injuries, are not known to him. He has further stated that accused Puran

has assaulted Anil on his waist but from the perusal of the post-mortem

report, no injury was found on the waist of deceased Anil. From the

aforesaid it is apparent that there is inconsistency in the statements of this

star witness i.e. P.W.-1 which also makes the prosecution story doubtful.

34.P.W. 2 Sanjeev Kumar has also stated in his cross-examination that

he is unable to say as to which of two accused has assaulted Anil and on

which part of his body, he sustained injuries. His statement under Section

161 Cr.P.C. has been recorded by the Investigating Officer after one month

from the date of alleged incident. He further stated in his cross-

examination that the deceased Anil and accused persons had come at the

place of occurrence from the shop of Devendra before the incident

occurred. Whereas, the prosecution version as unfolded in the first

17

information report as well as in the statement of P.W.-1 Jogendra Singh,

the deceased Anil had gone to purchase something from the shop of

Satendra. There is again major discrepancy and inconsistency in the

statement of this second star witness which creates major doubt in the

prosecution version. Apart from the above, P.W.-2 has admitted in his

cross-examination that he is cousin brother i.e. son of real uncle of the

deceased Anil, that is why it can be said that he is an interested witness,

as argued on behalf of accused-appellant.

35.P.W. 3 Doctor U.S. Faujdar who did autopsy of the dead body of

deceased Anil and found 14 injuries on his dead body but stated in his

cross-examination that there was no injury on the waist of the dead body of

the deceased.

36.P.W. 5 Constable 378 Shashi Kawar Rana has admitted in his cross-

examination that it is true that the then Chief Judicial Magistrate C.J.M. has

perused the first information report on 29.11.2005. He has admitted that he

is unable to tell as to why the the first information report reached to the

court so late. The argument of learned Amicus Curaie is that the first

information report is ante-timed as the delay in its dispatch to Magistrate is

not disclosed.

39.P.W. 6 the Station House Officer, Jagdish Singh has admitted in his

cross-examination that it is true that there is no signature of Sub-Inspector

Chandrashekhar on Alaqatal recovery memo. Henceforth, recovery memo

of alaqatal as well as alaqatal has not been proved by this witness P.W. 6.

This witness has also admitted that on the date of occurrence, it was dark

night. He further stated that informant Jogendra in his statement had

stated to him that, at the time of occurrence, Balister and Puran had

Tabbal. He has also admitted that no gas lantern was taken in the

possession of Police. He further stated that on the inspection of place of

occurrence, no slippers of deceased Anil were recovered. He is also

unable to tell as to why first information report dated 23.11.2005 reached

the court of Chief Judicial Magistrate on 29.11.2005.

38.Accused Balister has stated under Section 313 Cr.P.C. that he has

been falsely implicated owing to village animosity. During the pendency of

the present appeal, accused Kamla has died. With regards to said accused

18

Kamla, vide order of this Court dated 8

th

September, 2022, the present

appeal at her behest has been abated.

39.We have examined the judgment and order of conviction passed by

the trial court, which merely noticed the prosecution version and thereafter

has referred to various judgments to hold that the prosecution has

established guilt of the accused-appellants based on prosecution

evidence. The trial court has not carefully examined the statements of the

prosecution witnesses so as to evaluate the correctness or otherwise of

the same. We have noticed hereinabove that there are material

contradictions, inconsistencies and discrepancies in the statements of the

prosecution witnesses specially its star prosecution witnesses i.e. P.W.-1

and P.W.-2, who are alleged to be eye-witnesses of the incident in

question. Apart from the above P.W.-1 and P.W.-2 are interested witnesses

as P.W.-1 and P.W.-2 are brother and cousin brother of the deceased

respectively and as such their statements were liable to have been

minutely examined when there is no independent witness. The trial court

has also not carefully examined the site plan prepared by the Investigating

Officer qua the shifting of place of occurrence.

40. In view of the above discussions, we find that the trial court was not

justified in returning the finding of guilt against the accused-appellants on

the basis of evidence led by the prosecution. Finding of the court below

that the guilt of the accused appellant has been proved beyond reasonable

doubt, is thus rendered unsustainable. We hold that the prosecution has

failed to prove the guilt of accused-appellants beyond reasonable doubt.

41.Consequently, in view of the deliberation held above, this appeal

succeeds and is allowed. The judgment and order of conviction of

accused-appellants dated 21.03.2007 passed in Session Trial No. 830/06,

by the Additional Session Judge Court No. 6 Muzaffarnagar cannot be

legally sustained and is, hereby, set aside. The accused-appellant no.1

Balister is clearly entitled to benefit of doubt. As he has already suffered

incarceration of almost 15 years since the date of his conviction, he is

entitled to be released forthwith.

42.Accordingly, the present appeal stands allowed.

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43. The accused-appellant no.1 Balister shall be released on

compliance of Section 437-A Cr.P.C., unless he is wanted in any other

case forthwith.

46.We record our appreciation for the able assistance rendered in the

case by Mr. Sheshadri Trivedi, learned Amicus Curiae, who would be

entitled to his fee from the High Court Legal Service Authority, quantified as

Rs. 15,000/-

47.Let a copy of this judgment be sent to the Chief Judicial Magistrate,

Muzaffarnagar henceforth, who shall transmit the same to the concerned

Jail Superintendent for release of the accused-appellant no.1 Balister in

terms of this judgment.

(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)

Order Date :- 23.9.2022

Sushil/-