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Court No.47 RESERVED

AFR

Case :- CRIMINAL APPEAL No. - 1599 of 1992

Appellant :- Dalveer And Others

Respondent :- State

Counsel for Appellant :- Mohan Chandra, Mohit Singh

Counsel for Respondent :- A.G.A.

Hon'ble Manoj Misra,J.

Hon'ble Mrs. Manju Rani Chauhan,J.

(Delivered by Hon'ble Manoj Misra, J)

1.This appeal assails the judgment and order dated

28.08.1992 passed by the IVth Additional Sessions Judge,

Moradabad in Sessions Trial No. 587 of 1986 by which the

appellants, namely, Dalveer, Ramesh and Naresh were

convicted under sections 148 and 302/149 IPC and punished

as follows: one year of rigorous imprisonment under section

148 I.P.C.; and imprisonment for life under section 302 read

with section 149 I.P.C. Both sentences to run concurrently.

2.The aforesaid appellants were sent for trial along with co-

accused Man Singh. Man Singh however died during the

course of the trial. Hence, the case against him was abated.

Amongst the appellants, Dalveer and Ramesh died during the

pendency of the appeal hence their appeal was abated vide

order dated 31.01.2019. Thus this appeal has been pressed

only on behalf of surviving appellant no.3, namely, Naresh.

3.In brief the facts of the case are that on 14.06.1986, at

04:15 hours, a first information report (for short FIR) (Exhibit

Ka-1) was lodged by Jagdish Prasad (not examined) at police

station Kund Fatehgarh, District Moradabad, which was at a

distance of about 10 km from the place of occurrence. In the

FIR it was alleged that the informant along with his sister's

husband (the deceased - Kishan Lal), nephew (another

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deceased, namely, Mahender son of Kishan Lal) and another

nephew (P.W.3), namely, Surender son of Kishan Lal, had gone

to the house of Nathu Lal (not examined), at about 7 pm, on

13.06.1986, to attend a feast. On their way back home, near

the house of Roshan (not examined), at about 8:30 p.m., they

were surrounded by five persons, namely, Dalveer (appellant

no.1), Ramesh (appellant no.2); Naresh (appellant no.3); Man

Singh Jatav (who died during trial); and one unknown person.

All of them had emerged from the Gher of Naresh. Naresh had

a gun whereas the rest had Tabal (sharp-edged weapon).

Ramesh challenged the deceased - Kishan Lal by saying that

today he shall be taught a lesson for lodging a case against him

and for implicating Dalveer's father in a dacoity case. On his

saying so, Naresh opened fire from his gun at the deceased -

Kishan Lal, as soon as he fell down, Dalveer attacked him with

his Tabal. In the meantime, informant's nephew, namely,

Mahender, was surrounded by accused Ramesh, Man Singh,

Dalveer and the unknown person, who all attacked him with

Tabal and killed him too. Seeing all that, the informant raised an

alarm. Upon which, Ramesh fired two shots in the air, as a

result, due to fear, no villager came forward. Thereafter,

Dalveer, Ramesh and Naresh effected their escape by running

away towards the west and while they were running informant's

sister- Ramwati (PW2) and informant's niece Ramshree (not

examined) spotted them from the roof of their house. The

remaining accused, namely, Man Singh and the unknown

person escaped by using a Gali (lane) towards the east. In the

FIR it was alleged that bodies of the two deceased were lying

on the spot. The FIR sought to explain the delay by stating that

in the night, due to fear, it could not be lodged.

4.The informant was not examined as a witness, as he was

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reported dead. However, the lodging of the FIR was proved by

the Head Moharir (Shiv Kumar Singh – P.W.4), who had made

GD entry of the FIR, and the writing of the informant was

proved by his relative, namely, Yashoda Nandan (P.W.7).

5.Two inquest reports were prepared for the two deceased.

They were proved by the Investigating Officer (I.O.) (P.W.5) and

were marked Exhibit Ka-3 and Exhibit Ka-4. Ex. Ka-3 indicated

that inquest started at about 8.05 am on 14.06.1986 and was

completed at 10.15 am. The other inquest, as per Ex. Ka-4,

started at 10.15 am and was completed at about 11.30 am. The

autopsy of deceased - Mahendra Kumar was conducted on

15.06.1986 at about 2.45 pm. As per autopsy report (Ex. Ka-

27), eight ante-mortem incised wounds were there. Semi

digested food material was present in small intestine whereas

large intestine was found full with faecal matters. The cause of

death was due to shock and haemorrhage as a result of ante-

mortem injuries. Time of death was estimated about two days

before. Autopsy of Kishan Lal was conducted on 15.06.1986 at

about 1.00 pm. The autopsy report (Ex. Ka.22) disclosed five

ante-mortem injuries on his body. Apart from one gun shot

wound of entry on the front of right side of chest 4 cm below the

right nipple, with blackening and charring present all around the

wound, there were three incised wounds and one abrasion

found. Some semi-digested food material was also found in the

small intestine and the large intestine was found loaded with

faecal matter. The time of death was estimated two days before.

6.During the course of investigation, recovery of Farsa

(Tabal) was made on the pointing out of co-accused Man Singh

of which a fard / memorandum (Exhibit Ka-12) was prepared.

However, no recovery of any incriminating material was made

from the appellants. After investigation, charge-sheet (Ex. Ka

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14) was laid against four accused, namely, Dalveer, Ramesh,

Naresh, and Man Singh. The identity of the fifth accused

however could not be ascertained. Upon cognizance and

consequential committal to the court of sessions, charges were

framed against all the four accused for offences punishable

under section 148 I.P.C. and under section 302 read with

section 149 I.P.C. The accused pleaded not guilty and claimed

for trial.

7.Seven witnesses were examined by the prosecution. PW

2 and PW 3 were witnesses of fact whereas the rest were

formal witnesses. Before we proceed to notice the testimony of

the witnesses of fact, it would be useful to briefly notice the

testimony of the other witness, which is as under:

8.P.W.1- Natthu Singh, constable who visited the spot

along with the Investigation Officer (I.O.). He stated that on

14.06.1986, he visited the spot with the I.O; that the dead body

of Mahender and Kishan Lal were sealed and handed over to

him for being carried to the mortuary for autopsy; that by the

time he could reach there, it had become late, therefore,

autopsy could not be conducted on that day. Hence, it was

conducted on 15.06.1986 post noon.

9.P.W-4 - Shiv Kumar Singh, Head Moharir posted at the

police station where the FIR was lodged. He stated that on

14.06.1986 Jagdish Prasad (informant) had brought a written

report to the police station of which GD Entry was made by him.

10. P.W.5- Harish Chand Rana, the I.O. - Station House

Officer of the police station concerned. He proved the various

steps taken during the course of investigation including holding

of inquest proceeding, preparation of memorandums of

recovery of: (I) samples of blood-stained and plain earth, (ii)

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empty catridge of 12 bore, (iii) slippers and shoes of the two

deceased and (iv) Farsa (sharp-edged weapon) from co-

accused Man Singh. Site plan (Ex. Ka 13) from where recovery

of Farsa was shown was prepared by him. The site plan

(Exhibit Ka - 6) of the scene of the incident was prepared by

him. He stated that on 14.06.1986 he had recorded statement

of informant - Jagdish Prasad. He stated that on the same day,

he recorded statements of Smt. Ramwati; Laturi Singh, Bhuri,

Ram Avtar, Km. Ramshree, Itwari Lal and others. He also

stated that on 15.06.1986, he recorded the statement of

Surendra (PW3) on the basis of gestures made by him to the

questions put to him. He also stated that though PW3 was

dumb but he had the capacity to hear. He proved the

submission of charge-sheet (Ex. Ka-14). He also stated that he

learnt about the death of informant - Jagdish Prasad through a

Pairokar. In his cross-examination at the instance of accused

Ramesh and Dalveer, he stated that though he had recorded

statement of various persons of the area residing close to the

place of occurrence but they all gave hearsay evidence except

Chowkidar Latti (not examined). He also admitted that in the

site plan (Exhibit Ka-6), he had not shown the house of

deceased - Kishan Lal and had also not disclosed the place

from where Ramwati (PW2) had seen the accused running

away. He stated that towards north of the place of occurrence,

at a distance of just about 15-20 paces, there are shops. He

admitted that he had not recorded statement of those

shopkeepers. He also stated that towards north of the place of

occurrence there is a temple and towards north-east there is

jungle whereas towards north-west there is abadi. He stated

that he did not record statement of Nathu Lal or any such

person who may have returned with the deceased after

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attending the feast. During cross-examination, he could not tell

the distance of deceased- Kishan Lal's house from the place of

occurrence though he stated that it is quite near. He however

denied the suggestion that he had filed a false charge-sheet.

He also denied the suggestion that Jagdish had not given any

statement. He however admitted that he had not mentioned the

date on which report of the case was sent though he stated that

it was sent by post. He stated that as per endorsement, the FIR

was sent to the court of Chief Judicial Magistrate on

19.06.1986.

11.P.W.6 - Dr. Y.C. Gupta proved the post-mortem reports of

the two deceased. He opined that the death could have had

occurred in between 8 and 8:30 pm on 13.06.1986. Though,

during cross-examination, he stated that it is possible that the

deceased may have had died at about quarter to 11 pm on

13.06.1986 as there could always be a variation of 6 to 8 hours in

the estimation of time of death. He also accepted the possibility that

the deceased died 3 to 4 hours after having meal.

12.P.W.-7 - Yasoda Nandan proved the signature of Jagdish

Prasad on the written report (FIR). He stated that he is the

brother-in-law (Jija) of the deceased - Mahender and son-in-law

of the deceased-Kishan Lal and that he knew Jagdish Prasad

(informant), the brother-in-law of Kishan Lal, very well and was

conversant with his writing. He stated that Jagdish Prasad had

been visiting Raholi (the village where the incident occurred)

quite often. In his cross-examination, he admitted that he has

not brought with him any writing of Jagdish Prasad. He denied

the suggestion that Jagdish Prasad had died in the year 1980-

81. He feigned ignorance as regards execution of will by

Jagdish Prasad in favour of deceased Mahendra as also

whether Mahendra (the deceased), on strength of that will on

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death of Jagdish Prasad, had applied for mutation. He denied

the suggestion that on 13/14.06.1986 Jagdish Prasad was not

alive.

13.The two witnesses of fact, namely, Ramwati (P.W.2), the

widow of the deceased - Kishan Lal and the mother of the other

deceased- Mahender, and Surendra Singh (PW3 – the other

son of the deceased), deposed as follows:

14.P.W.-2 Ramwati stated that about a year and a half

before the incident, her husband (Kishan Lal) had lodged a first

information report against the accused Ramesh and Dalveer in

connection with theft of tractor bearings. In that theft case,

Dalveer and Ramesh were charge-sheeted, as a result, the

accused were inimical towards her husband and son. She

stated that Jagdish Prasad (the informant) was her brother. Two

days prior to the date of incident, Jagdish Prasad had come to

her house. On the date of the incident, her two sons, namely,

Surendra (PW3) and Mahendra (the other deceased) along with

Jagdish Prasad and her husband (deceased - Kishan Lal) had

left the house at about 7.00 pm to attend a feast at Natthu's

place. At about 8 pm, while she was there at her own house

with her daughter (Ramshree), she heard a gun shot. On

hearing the gun shot, she and her daughter went upstairs.

While they were climbing the staircase, they heard two shots

more. Soon thereafter, she saw, towards the west, in the Gali,

Dalveer, Ramesh and Naresh running and uttering in an

abusive tone, in vernacular, “this is what happens to police

informers”. Naresh had a gun in his hand whereas Dalveer and

Ramesh had Tabal. They ran through the Gher of Khushiram

towards the North. She saw them in moonlight. Shortly

thereafter her brother (informant) and her son Surendra (PW3)

arrived and informed her that Dalveer, Naresh, Ramesh and

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Man Singh along with another person have killed her husband

and her son Mahendra. In her cross-examination, she could not

tell the distance of the place of occurrence from her house. She

admitted having seen the accused running, near her house

only. She also admitted that by that time the night had set in.

She admitted that towards east of the place of occurrence,

there is a rasta going towards the jungle. In response to the

suggestion that her house is at a distance of 300-400 yards

from the place of occurrence, she could not tell the distance.

She stated that when her brother and son (PW3) informed her

about the incident she had already come down from the

staircase. She stated that she had visited the spot after

receiving information but no one from the Mohalla was present

there, though, later, they had come. Later, Natthu had also

arrived. In her cross-examination, she denied the suggestion

that her husband had got her son's name mutated over the land

of Jagdish by showing him dead. She also denied the

suggestion that on account of such act of her husband, Jagdish

was angry with him. In her cross-examination she stated that

her brother and son (PW3) at that time had not informed her

whether the deceased had left Natthu's house after having

food, though, later, she came to know that they had had food. In

her cross-examination she admitted that her maternal home i.e.

house of Jagdish, is at a distance of 15 Kos (45 km) from her

village. She stated that there was no special reason for Jagdish

to have come to her house though he used to visit her house on

a regular basis. In her cross-examination, she admitted that

boundary wall of her house is quite high towards the lane,

which was used by the accused for effecting their escape, and

that she could not have seen the accused had she not been on

the roof. A specific question was put to her as to when she first

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saw the accused to which she responded by saying that when

they were about 8-10 yards away from her door towards the

east. In response to a specific question as to what her brother

had been doing the entire night, she stated that she could not

tell because she had been crying and was in a state of shock.

She also could not tell who had visited her in the night. She,

however, stated that her brother had left at about 4 am, before

sun rise, on a tractor, along with fellow villagers Parmanand

and her son' brother-in-law, namely, Umesh, to lodge the FIR.

In her cross-examination, she admitted that her husband

had been mingling with criminals and had been passing on

information to the police, as a result, criminals were annoyed

with him. She accepted the suggestion that her husband had

got multiple accused arrested. She however could not tell

whether he had been witness in various cases. She also stated

that in her house, about 25 years back, there was a dacoity in

which Dalveer's father, namely, Lokman alias Loki, was

accused though he was acquitted. She stated that though,

thereafter, there had been no quarrel with Loki but, about two

years back, Dalveer and Ramesh had stolen her tractor's parts.

However, she could not tell whether any case in that connection

was going on. She denied the suggestion that on the night of

the incident there was no moonlight as there were clouds. She

further denied the suggestion that she did not see the accused

but has implicated them on account of past enmity. In her cross-

examination, at the instance of accused Naresh, she admitted

that Naresh is Nai by caste whereas the remaining accused

were Dhobi by caste. During her cross-examination at the

instance of Naresh, she was also confronted by her statement

recorded under Section 161 Cr.P.C. wherein she had not stated

that she heard Naresh also exclaiming about the fate of police

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informers when she spotted him running with other accused

persons. On being confronted with that statement, she stated

that she does not know as to how the I.O. did not mention that.

She denied the suggestion that Jagdish, her brother, had died

much before the incident. As regards the direction where the

accused went, during cross-examination, she stated that the

accused were seen running towards north through the Gher of

Khushiram's house. Later, she stated that she had seen the

accused entering that Gher but could not see where they went.

She stated that, at that time, her daughter-in-law and her

daughter were also there at the roof. She stated that she had

informed the I.O. about the place from where she had

witnessed the incident but she could not tell as to why the I.O.

had not disclosed that place in the site plan. She further stated

that her younger son Surender (PW3) though is dumb but is

able to hear and understand. She denied the suggestion that

she, at the time of incident, was at her Maika. She denied the

suggestion that Jagdish was not present. She also denied the

suggestion that Naresh was not involved in the incident and

that she leveled false allegations.

15.P.W.3 - Surendra Singh, son of the deceased - Kishan

Lal, who was aged about 14-15 years at the time of his

examination, being dumb, therefore, through gestures got his

statement recorded in the question and answer form. The said

witness initially tried to support the prosecution case but in his

cross-examination, the said witness made gestures to

questions in such a manner which suggested that he did not

have knowledge of the incident and was tutored. Interestingly,

the said witness, in his cross-examination, by making gestures,

admitted that he came to know about his father and brother's

death when he woke up in the morning. The trial court

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therefore discarded his testimony.

16.The entire incriminating circumstances evinced from the

prosecution evidence were put to the accused while recording

their statement under Section 313 Cr.P.C. The accused denied

the allegations and claimed that they were falsely implicated on

account of police pressure and enmity. In addition thereto, they

claimed that Jagdish Prasad (the informant) had died much

before the incident and in support thereof they passed on a

Khatauni extract to demonstrate that mutation proceedings

were drawn in respect of plots of agricultural land consequent

to death of a tenure holder named Jagdish Lal. They however

led no evidence in defense.

17.The trial court though discarded the testimony of P.W.3 by

holding him to be a tutored witness but convicted the accused-

appellant on the basis of other evidence. While recording

conviction, the trial court relied on the hearsay testimony of

Ramwati (PW2), by treating it to be admissible under section 6

of the Evidence Act, 1872 (for short the Evidence Act). The trial

court took the view that the said hearsay testimony was

corroborated by circumstantial evidence as well as medical

evidence.

18.We have heard Sri V.P. Srivastava, learned senior

counsel, assisted by Sri Mohit Singh, for the surviving appellant

- Naresh; and Sri Deepak Mishra, the learned A.G.A. for the

State.

19.The learned counsel for the appellant submitted that as

the informant (Jagdish Prasad) was not examined, the first

information report which, by itself, is not a substantive piece of

evidence, could not have been taken into consideration to

corroborate the testimony of other witnesses and could not

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have been read to ascertain the manner in which the incident

occurred. He submitted that since the testimony of P.W. 3 has

been discarded by the trial court there remains the testimony of

Ramwati (P.W.2) only. Admittedly, Ramwati is not an eye-

witness of the incident. Her testimony is only to the effect that

she saw three persons running with arms and proclaiming that

“this is what happens to police informers”. This by itself is not a

clinching circumstance inasmuch as the place of the incident

and the place from where P.W.2 noticed the three, out of the

five accused, running were not proved to be in such close

proximity to each other that involvement of other persons in the

crime could be ruled out.

20.It has been submitted that the site plan prepared by the

I.O. neither discloses the location of the house of P.W.2 with

reference to the place of occurrence nor it discloses the spot

from where she had allegedly witnessed the three accused

running. Moreover, the suggestion put to PW2 that her house is

at a distance of 300-400 yards from the place of occurrence

has not been specifically denied though she claimed that she is

not aware of the distance. Further, in her testimony, PW2 has

neither disclosed the time nor the time-gap by which, or within

which, she received information from her brother Jagdish

regarding the murder of her husband and her son by the

accused-appellants. Otherwise also, since it has not specifically

come in the evidence as to how contemporaneous with the

incident was the reporting of the incident by the informant to

PW2, the hearsay evidence would not become admissible by

applying the principle of res gestae enshrined under section 6

of the Evidence Act.

21.In addition to above, the learned counsel for the appellant

submitted that it has come in the post-mortem of the deceased

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that there was semi-digested food found present in the intestine

though the large intestine was found full of faecal matter which

is suggestive of the fact that the deceased had had their food 2-

3 hours before their death. If that is so, then the prosecution

story that the deceased had left at 7 pm to attend a feast at the

house of Natthu and, after having the dinner there, on way

back, at about 8 pm, the incident occurred gets falsified. It has

been submitted that in all probability the incident had occurred

much later and, only after learning about the incident, on the

basis of guess work and past enmity, the prosecution story was

developed, which theory gets probabilized by the delay in

lodging the FIR.

22.It has also been submitted that evidence was brought on

record to demonstrate that in the year 1981, by showing

Jagdish Prasad (the informant) dead, mutation proceedings had

been undertaken concerning land of Jagdish Prasad which

resulted in entry of the name of one of the deceased, that is

Kishan Lal's son, in the revenue records. This gives rise to

three possibilities, first, that Jagdish, if not dead, would be

inimical towards the deceased's family and, therefore, would

not probably be in the company of the deceased; second, that,

under the circumstances, he came only after hearing about the

death of his brother in law to help out his bereaved sister and,

therefore, was not witness to the incident; and, third, the first

information report is completely bogus. It has been submitted

that even assuming that Jagdish Prasad was alive, the second

possibility gets credence from the circumstance that there was

no justification to wait till 4:15 am of the next day to lodge the

FIR, particularly, when they had a tractor for transportation and,

if there had been fear of the night, even by that time, that is

4:15 am, the sun had not come out, which is the admitted case

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of the prosecution. It thus appears that the incident occurred

late in the night; that no one had witnessed the incident; that

Jagdish Prasad who resided at a distance of about 45 kms was

informed and called; that, upon his arrival, on the basis of

suspicion and guess-work, the prosecution story was

developed with the help of the police as the deceased Kishan

Lal was admittedly a police informer.

23.In addition to above, it was submitted that if the statement

of Ramwati (PW2) is taken in its entirety, Jagdish had not

informed her as to who played what role in the killing of the two

deceased, as also, as to how many shots were fired by whom

and in what manner, because, she has merely stated that

Jagdish informed her that the accused have killed her husband

and son but who did what is not disclosed by her. The medical

evidence discloses, inter alia, solitary gun shot wound, that too,

on one of the two deceased persons. Whereas, according to

PW2 she heard three gun shots. Who fired those three shots is

not disclosed. The contents of the FIR though may offer

explanation for all that but it is not admissible in evidence as the

informant was not examined. Thus, as only three accused were

seeing running and, out of them, only one had gun in his hand

whereas the other two had Tabal, who fired the other shots

becomes a mystery. More so, because the I.O. in his testimony

disclosed that on the spot only one 12 bore empty cartridge

was found.

24.It was also argued that no source of light except

moonlight has been disclosed by P.W.2 in her testimony. The

distance from where P.W. 2 saw the accused running appears

to be about 8 to 10 yards. Whether a person could be

recognized from that distance, in moonlight, is extremely

doubtful. It has also been submitted that, apart from above,

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P.W.2 in her statement recorded under section 161 Cr.P.C has

not disclosed that Naresh was also exclaiming that “this is what

happens to police informers”. This clearly shows that her stand

is not consistent and her testimony in absence of other

convincing evidence cannot form basis of conviction.

25.Learned counsel for the appellant also submitted that,

admittedly, Naresh is a Nai by caste whereas the other accused

were Dhobi by caste; and there is no motive attributed to

Naresh for the crime though motive has been attributed to other

accused Dalveer and Ramesh. Hence, there was no valid

reason shown for Naresh to associate with the other accused

persons.

26.It has next been submitted that nothing incriminating has

been recovered on the pointing out of the accused Naresh or

Dalveer or Ramesh who were allegedly seen running together.

The recovery, as alleged, is at the instance of co-accused Man

Singh who was not seen running with the accused appellants.

27.It was lastly contended that the appellants though have

been convicted under section 148 IPC as also under section

302 with the aid of section 149 I.P.C. but the prosecution has

miserably failed to disclose that there was a fifth accused also.

Even the charge-sheet was submitted against four persons

only. Further, the fourth person, namely, Man Singh, was not

seen together with the accused-appellant. Under the

circumstances, there was no evidence to suggest that there

existed an unlawful assembly of five persons of which the

appellants were members. Hence, the conviction under section

148 I.P.C. as also under section 302 I.P.C. with the aid of

section 149 I.P.C. is not at all sustainable.

28.It has thus been prayed that the conviction of the accused

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appellant by the trial court is completely unjustified and the

impugned judgment and order be therefore set aside.

29.Per Contra, the learned A.G.A. submitted that the

evidence brought on record indicated that the two deceased

had died at the same time and on or about the same spot. One

of them died due to gun shot injury as also incised wounds and

the other died due to several incised wounds which disclosed

that multiple assailants were there. Shortly, after hearing the

gun shot, the appellant - Naresh was seen in the company of

other two accused persons with such weapons of which injuries

were found on the body of the two deceased and, soon

thereafter, Jagdish, the informant, who had accompanied the

two deceased, came rushing and informed P.W.2 that her

husband and her son have been killed by five persons, out of

those five, three were seen by her. All this constituted part of

the same transaction and therefore the statement of Jagdish

Prasad (the informant), narrated to his sister - Ramwati (P.W.2),

becomes admissible in evidence by applying the doctrine of res

gestae enshrined under section 6 of the Evidence Act and as

such was admissible and sufficient to record conviction,

particularly, when nothing material could come out of her cross-

examination.

30.It was also submitted by him that, admittedly, Ramesh

and Dalveer were inimical to the deceased as they had been

implicated by the deceased in a theft case. Hence, they had

motive for the crime and Naresh by joining them has incurred

liability even though he may not have had personal motive for

the crime.

31.The learned A.G.A. also pointed out that it was proved not

only by the testimony of the Investigating Officer but also of

P.W.7 that Jagdish had lodged the FIR. It has been submitted

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that as two persons were brutally murdered in the night,

awaiting the wee hours of the morning to lodge the FIR is a

natural human conduct on the part of victim's family and

therefore it cannot be said that the FIR is highly delayed and

that the prosecution version suffers from embellishment.

32.It was next submitted that no explanation has been

offered by the accused as to why they were running with

weapons in the night shortly after the incident. Lack of

explanation could therefore provide the missing link which

completes the chain of circumstances pointing towards the guilt

of the accused. He thus prayed that the appeal be dismissed

and the judgment of the court below be maintained.

33.We have given our thoughtful consideration to the rival

submissions and have perused the record carefully.

34.Before we proceed to deal with the weight of the rival

submissions, it would be useful for us to first examine whether

the contents of the FIR lodged by Jagdish Prasad, who has not

been examined as a witness, could be read and considered for

the purpose of corroborating and contradicting the testimony of

the witnesses who were examined during the course of trial. In

this regard in Sheikh Hasib alias Tabarak v. The State of

Bihar : (1972) 4 SCC 773, it has been held that a first

information report does not constitute substantive evidence. It

can, however, only be used as a previous statement for the

purpose of either corroborating its maker under section 157 of

the Evidence Act or for contradicting him under section 145

thereof. It cannot be used for the purpose of corroborating or

contradicting other witnesses. Similarly, in Harkirat Singh v.

State of Punjab : (1997) 11 SCC 215, the apex court had

observed that where the first informant could not be examined

as a witness during the course of trial and the first information

18

report does not relate to the cause of his own death, or as to

any of the circumstances of the transaction resulting in his

death, the first information report cannot be used as substantive

piece of evidence.

35.In the instant case, admittedly, the informant - Jagdish

Prasad was not produced as a witness and the FIR did not

relate to the cause of his own death, or as to any of the

circumstances of the transaction which resulted in his death,

therefore the said first information report is not admissible as a

dying declaration under section 32(1) of the Evidence Act.

Hence, in view of the decisions of the apex court noticed above

it can not be used for the purpose of contradicting or

corroborating the testimony of other witnesses. Under the

circumstances, the prosecution case would therefore depend

on the admissibility, reliability and weight of other evidences led

during the case of the trial.

36.The issues that now arise for our consideration are

whether the hearsay testimony of P.W.2 (Ramwati) that she was

informed by her brother (Jagdish Prasad - informant) and her

dumb son (Surendra - P.W.3) that her husband (Kishan Lal) and

her elder son (Mahendra) were killed by the accused persons

could be considered admissible under Section 6 of the

Evidence Act. If no, then, whether there remains on record

sufficient reliable evidence on the basis of which the accused-

appellant could be convicted.

37.Before we proceed to examine the admissibility of the

statement of Ramwati (P.W.2) that her husband and son were

done to death by the accused, as told to her by her late brother

and dumb son, we may note that the trial court has already

discarded the testimony of her dumb son, namely, Surendra

Singh, who was examined as PW3, by observing that the said

19

witness was not reliable as he appeared tutored and could not

withstand the test of cross-examination and by his gestures

gave an impression that he used to sleep by the sun set and

that he got information about the death of his father and brother

when he woke up next morning. Thus, the testimony of PW2

alone survives for our consideration.

38.At this stage, before proceeding to analyze the statement

of P.W.2 on the principles laid out by 6 of the Evidence Act, it

would be apposite for us to observe that the prosecution has

not set up recovery of any incriminating article from the

surviving appellant or the other accused-appellants with whom

the surviving appellant (Naresh) was seen running soon after

the gun shots were heard by PW2. The alleged recovery of

Farsa (sharp-edged weapon), allegedly used in the crime, was

made at the instance of co-accused Man Singh, who died

during the pendency of the trial. Admittedly, Man Singh was not

seen running with the accused-appellants. Hence, the recovery

at the instance of Man Singh is inconsequential in so far as the

surviving accused-appellant Naresh is concerned.

39.Now we shall proceed to analyze the testimony of

Ramwati (P.W.2). Her testimony is in two parts. The first part

relates to what she saw and the second part relates to what she

heard from her brother Jagdish (Informant) and what she

gathered from her dumb son Surendra Singh (P.W.3). As per

what she saw, even if her testimony is accepted in its entirety,

she just saw three persons, namely, Dalveer; Ramesh; and

Naresh (the surviving appellant) running with weapons and

proclaiming “this is what happens to police informers”. Though,

in her statement before the court, she stated that she heard all

three proclaiming in unison but in her statement recorded under

section 161 Cr.P.C, with which she was confronted, she had not

20

disclosed that the surviving appellant- Naresh was also heard

proclaiming. These three accused were seen running in a lane

which was adjacent to her house. She saw them in moonlight

after she had climbed the stairs of her house upon hearing gun

shots. She admitted in her cross-examination that the boundary

wall of her house is high and the lane would not have been

visible had she not gone upstairs. She stated that as she had

heard gun shots, to find out as to what had happened, she had

climbed the staircase with her daughter and daughter in law.

She stated that from the higher floor of her house she could see

the lane and those three accused running. She had been cross-

examined in respect of source of light. She stated that there

was moonlight and in that moonlight she saw the accused

running.

40.The learned counsel for the appellant had strenuously

urged that it was not possible for P.W.2 to recognize persons in

moonlight, particularly, when they are running and it has not

been satisfactorily established as to from how far she had

spotted the accused more so when the I.O. in the site plan had

not shown the place from where P.W.2 saw the accused

running and the place where they were seen running. Further,

the site plan that was prepared by the I.O. did not disclose the

location of the house of P.W.2 from where she saw qua the

place where the incident occurred and the bodies were found.

41.Upon careful perusal of the site plan (Ex. Ka-6) prepared

by the I.O. (P.W.5), the distance between the two spots, where

the two bodies were lying, was about 21 paces. Meaning

thereby that the two bodies were separated by 21 paces. The

first body which is shown at point A was lying on the side of the

path whereas the second body was lying on the middle of the

path 21 paces towards the north. At the place where the second

21

body was lying, going towards east from that place, there

existed a rasta (path). The main rasta (path) where the bodies

were found proceeded towards north and then curved towards

the west. Before it curved towards the west, there was another

rasta (path) going towards the north. The site plan though

discloses that the accused-appellant took the path curving

towards west, which was towards north from the place of

occurrence, but the location of the house of P.W.2. from where

she allegedly spotted the accused-appellants has not been

disclosed. P.W.2 has not stated in her testimony that she could

see the place of occurrence from the upper floor of her house

or from any portion of her house. A suggestion was put to her

that her house is 300-400 yards away from the place of

occurrence in response to which she could not tell the distance

of the place of occurrence from her house. She also did not

disclose the exact time, shortly where after, she saw the

accused running, after she had heard the gun shots. She only

stated that she saw them running when she had climbed the

upper floor of her house upon hearing the gun shots. The time

duration between hearing the gun shots and seeing the

accused running by P.W.2 has not come in the evidence. The

distance between the house of P.W.2 and the place of

occurrence has also not come in the evidence. Further, from

the site plan it appears that for the assailants there were two

other escape /exit points from where they could have exited the

main path before reaching the house of PW2. The other two

exit points were as follows: one towards east and the other

towards north. From the evidence led, it appears, the house of

PW2, from where she spotted the accused running, fell after

those two exit points. Thus, the circumstance that the accused

were seen running with weapons in front of the house of PW2,

22

in our view, is not clinching enough to put the burden on the

accused to explain their conduct or presence inasmuch as the

said circumstance does not rule out intervention of others in the

crime as there existed other exit and access points for the

assailants to arrive and to effect their escape from the place of

occurrence, much before reaching the house of PW2.

42.Now, we shall examine whether PW2 was allegedly

informed by her brother and son almost contemporaneous to

the incident so as to form part of the same transaction. In her

testimony PW2 has stated that after having witnessed the

accused running away, when she had come downstairs, her

brother (informant) and her son (PW 3) arrived and informed

her that the accused persons including the appellants have

killed her husband and her son. The time gap between the

accused seen running away and her brother and son arriving at

her house and reporting it to her is not disclosed. Interestingly,

in her testimony, she has not disclosed that her brother -

Jagdish and her son (PW3) had told her about the role played

by each accused as was narrated in the FIR. Further, she has

not disclosed in her testimony that her brother had informed her

that the other two accused, out of a total of five accused,

escaped by taking some other route.

43.From a close scrutiny of the evidence noticed above, it is

clear that the information, if any, given to PW2 by her brother

and son, does not appear to be contemporaneous with the time

and place of the incident for the following reasons: (a) because

the place of incident is not demonstrated to be in close

proximity; and (b) because the time-gap between the incident

and the information provided has not been demonstrated to be

almost non-existent.

44.Now we shall examine whether the statement of PW2 in

23

respect of culpability of the accused appellant on the basis of

statement of the informant could be considered admissible

under section 6 of the Evidence Act, as found by the trial court.

The rule of res gestae embodied in section 6 of the Evidence

Act in essence is that the facts which, though not in issue, are

so connected with the fact in issue as to form part of the same

transaction, become relevant by itself, whether they occurred at

the same time and place or at different times and places. The

apex court had the occasion to examine the said principle in

several decisions. In Gentela Vijayavadhan Rao and another

v. State of A.P. : (1996) 6 SCC 241, the apex court, in

paragraph 15 of the judgment, as reported, held as follows:-

“The principle or law embodied in Section 6 of the

Evidence Act is usually known as the rule of res

gestae recognised in English Law. The essence of the

doctrine is that fact which, though not in issue, is so

connected with the fact in issue "as to form part of the

same transaction-becomes relevant by itself. This rule

is, roughly speaking, an exception to the general rule

that hearsay evidence is not admissible. The rationale

in making certain statement or fact admissible under

Section 6 of the Evidence Act is on account of the

spontaneity and immediacy of such statement or fact

in relation to the fact in issue. But it is necessary that

such fact or statement must be part of the same

transaction. In other words, such statement must

have been made contemporaneous with the acts

which constitute the offence or atleast immediately

thereafter. But if there was an interval, however

slight it may be, which was sufficient enough for

fabrication then the statement is not part of res

gestae. In R. v. Lillyman, (1896) 2 O.B. 167 a

statement made by a raped woman after the

ravishment was held to be not part of the res gestae

on account of some interval of time lapsing between

making the statement and the act of rape. Privy

Council while considering the extent up to which this

rule of res gestae can be allowed as an exemption to

the inhibition against hearsay evidence, has observed

in Teper v. Reginam, (1952) 2 All E.R. 447, thus :

“The rule that in a criminal trial hearsay

evidence is admissible if it forms part of the res

gestae is based on the propositions that the

human utterance is both a fact and a means of

communication and that human action may be

24

so interwoven with words that the significance of

the action cannot be understood without the

correlative words and the dissociation of the

words from the action would impede the

discovery of the truth. It is essential that the

words sought to be proved by hearsay

should be, if not absolutely

contemporaneous with the action or event,

at least so clearly associated with it that they

are part of the thing being done, and so an

item or part of the real evidence and not

merely a reported statement."

The correct legal position stated above needs no

further elucidation.”

(Emphasis Supplied)

45.In Vasa Chandrasekhar Rao vs Ponna Satyanarayana

& Anr. : (2000) 6 SCC 286, a question had arisen whether

statement of prosecution witness that accused's father had told

the prosecution witness over the telephone that his son (the

accused) had killed the deceased, could be read in evidence

under Section 6 of the Evidence Act, particularly, when the

accused's father, in the witness box, had denied making any

such statement. The apex court, in paragraph 7 of its judgment,

though had found that the prosecution had been able to prove

the case against the accused on the basis of circumstantial

evidence but as regards admissibility of the said statement,

under Section 6 of the Evidence Act, it proceeded to observe as

follows:-

“The question arises whether the statement of

PW21 that PW1 told him on telephone at 6 p.m.

that his son has killed the deceased, could go in

as evidence under Section 6 of the Evidence Act.

PW1, not having supported the prosecution during

trial, the aforesaid statement of PW 21 would be in

the nature of an hearsay but Section 6 of the

Evidence Act is an exception to the aforesaid

hearsay rule and admits of certain carefully

safeguarded and limited exceptions and makes

the statement admissible when such statements

are proved to form a part of the res gestae, to

form a particular statement as a part of the same

transaction or with the incident or soon thereafter,

25

so as to make it reasonably certain that the

speaker is still under stress of excitement in

respect of the transaction in question. In absence

of a finding as to whether the information by

PW1 to PW 21 that accused has killed the

deceased was either of the time of

commission of the crime or immediately

thereafter, so as to form the same transaction,

such utterances by PW1 cannot be considered

as relevant under Section 6 of the Evidence

Act.”

(Emphasis Supplied)

46.In Dhal Singh Dewangan vs State Of Chhattisgarh :

(2016) 16 SCC 701, a three-judges bench of the Apex Court

had the occasion to deal with the applicability of section 6 of the

Evidence Act. In this case, a question had arisen whether the

testimony of prosecution witnesses that after receipt of

information about the crime they had reached the spot and had

found Kejabhai (PW.6 of that case) shouting that the accused

had killed his wife and children could be considered admissible

under section 6 of the Evidence Act. After examining the

provisions of section 6 of the Evidence Act and the law laid

down in earlier decisions, the apex court, by its majority view, in

paragraphs 24 and 25 of the judgment, held as follows:-

“The general rule of evidence is that hearsay

evidence is not admissible. However, Section 6 of

the Evidence Act embodies a principle, usually

known as the rule of res gestae in English Law, as

an exception to hearsay rule. The rationale behind

this Section is the spontaneity and immediacy of

the statement in question which rules out any

time for concoction. For a statement to be

admissible under Section 6, it must be

contemporaneous with the acts which constitute

the offence or at least immediately thereafter.

The key expressions in the Section are “…so

connected… as to form part of the same

transaction”. The statements must be almost

contemporaneous as ruled in the case of Krishan

Kumar Malik (Supra) and there must be no interval

between the criminal act and the recording or

making of the statement in question as found in

26

Gentela Vijayvardhan Rao’s case (Supra). In the

latter case, it was accepted that the words sought to

be proved by hearsay, if not absolutely contemporary

with the action or event, at least should be so clearly

associated with it that they are part of such action or

event. This requirement is apparent from the first

illustration below Section 6 which states ….

“whatever was said or done…. at the beating, or so

shortly before or after it as to form part of the

transaction, is a relevant fact.”

Considered in the aforesaid perspective, we do not

find the statements attributed to PW-6 Kejabai by

PWs 3 and 5 to be satisfying the essential

requirements. The house of the appellant,

according to the record, was at a distance of 100

yards from Gandhi Chowk, where these

witnesses are stated to have found PW-6 Kejabai

crying aloud. Both in terms of distance and time,

the elements of spontaneity and continuity were

lost. PW-6 Kejabai has disowned and denied

having made such disclosure. But even

assuming that she did make such disclosure, the

spontaneity and continuity was lost and the

statements cannot be said to have been made so

shortly after the incident as to form part of the

transaction. In the circumstances, we reject the

evidence sought to be placed in that behalf through

PWs 3 and 5. Even if we were to accept the version

of PWs 1 and 2, the same would also suffer on this

count and will have to be rejected.”

(Emphasis Supplied)

47.From the decisions noticed above, the legal principle

deducible is that section 6 of the Evidence Act is one of the

exceptions to the rule against hearsay evidence therefore

hearsay statement of a witness, by taking the aid of Section 6

of the Evidence Act, would be admissible in evidence only if

that statement was made to the witness contemporaneous with

the acts which constitute the offence or at least immediately

thereafter so as to form part of the same transaction. As to

whether it forms part of the same transaction is to be found out

from the proven facts and circumstances of each case. One of

the tests is whether such statement has been made so

27

contemporaneous with the transaction in question as to make it

reasonably certain that the speaker is still under stress of

excitement in respect of the transaction in question. Where it is

not clear from the evidence led as to what was the time gap

between the incident and the making of that statement and

whether the maker of the statement was still under stress of

excitement in respect of the transaction in question, it would be

unsafe to rely upon such statement by invoking the provisions

of section 6 of the Evidence Act inasmuch as the principle

embodied under section 6 of the Evidence Act is an exception

to the general rule against hearsay evidence. Where the time

gap between the statement and the fact in issue is such that it

does not make it contemporaneous with the fact in issue, or

where there is no satisfactory evidence to show that the

statement is contemporaneous with the fact in issue, or where

the distance between the place of occurrence and the place

where the statement is made is such, which could be

considered sufficient to douse the stress or the emotions,

thereby giving opportunity to the possibility of concoction, the

statement would not fall within the exception to the rule against

hearsay and, hence, would not be admissible.

48.When we test the testimony of P.W.2 in the light of the

legal principle noticed above, we find that the prosecution has

failed to disclose the distance between the place of occurrence

and the house where P.W.2 resided, that is the place where she

was allegedly informed by the informant and her son PW3. The

prosecution evidence also fails in specifically disclosing the

time-gap between the incident and making of the statement by

the informant and P.W.3, which has been narrated by P.W.2.

The evidence that has come only indicates that P.W.2 was

informed by the informant and P.W.3 shortly after the accused

28

ran away. The evidence does not indicate that P.W.2's brother

(informant) or her son (P.W.3), who had reported the incident to

her, were being chased by the accused, or they came chasing

the accused, when they entered the house and informed P.W. 2

that her husband and elder son have been done to death by as

many five persons. Rather, the testimony is to the effect that

P.W.2, upon hearing gun shots, went upstairs. From there she

could see three persons running and proclaiming that “this is

what happens to police informers”. Thereafter, she came down

and, soon thereafter, her brother (informant) and younger son

(P.W.3) arrived and informed her that the accused persons

have killed her husband and her elder son. The testimony

noticed above suggests that there was a time-gap between the

incident and the reporting of the incident to P.W.2. The

possibility of the time-gap being substantial cannot be ruled out

because in the site plan, the house of P.W. 2 is not disclosed.

In fact, a suggestion has come that her house is at a distance

of about 300 to 400 yards from the place of occurrence, which

has not been specifically refuted by her. Further, as the

informant and PW3 had not arrived at the residence either

being chased by, or while giving chase to, the accused, in

absence of cogent evidence in respect of the time-gap between

the incident and reporting of the incident, it cannot be safely

concluded that the informant and PW3 were still reeling under

the stress of excitement in respect of the transaction in

question. Under the circumstances, keeping in mind that there

is no clear and cogent evidence led by the prosecution to

disclose the distance between the two places and the time gap

between the incident and reporting of the incident to P.W.2, it

would be unsafe on our part to accept the statement of the

informant and PW3, narrated in the testimony of P.W.2, as

29

admissible by applying the doctrine of res gestae.

49. Once, we discard this hearsay statement of PW2, we are

left with very little evidence which is of P.W.2 seeing the three

accused running, two with sharp-edged weapon and one with a

gun. Admittedly, from the place where PW2 saw the accused

running, the place of occurrence was not visible. Further, we

have already found that the path which connects the place of

occurrence and the house of PW2, from where she spotted the

accused running on the path, before reaching the house of

PW2 provided at least two other exit points for the perpetrator

of the crime to escape as is clear from the site plan (Ex. Ka-6).

Thus, the circumstance that these three accused persons were

seen running is not such which could rule out all other

hypothesis than the guilt of the accused. In addition to above,

the proclamation by these three persons that this is what

happens to police informers is not an admission of guilt but is

simply an expression of opinion as to what is the fate of police

informers. This evidence, as we have found, being not clinching

enough, would not throw the burden on the accused to explain

the circumstance in which they were seen running. Moreover,

there is no recovery, either of the gun or of any other

incriminating material, from the possession or on the pointing

out of the surviving appellant or the other two accused who

were seen running with him. We are thus of the considered view

that there is virtually no worthwhile evidence to uphold the

conviction of the appellant (Naresh).

50.There is another aspect of the matter, which is whether

PW2 was really informed by her brother and son about the

incident or she came to know from other sources. In this regard,

what assumes importance is that PW3, who happens to be the

dumb son of PW2, has been discarded as completely

30

unreliable. Once that is the case, we would have to test

whether this information could have come to her from the

informant. In this regard there are certain circumstances which

may be noticed. According to the prosecution case the two

deceased had gone to attend a feast at about 7 pm. P.W.2 had

admitted in her testimony that she was informed that they had

had food there before leaving. However, semi-digested food

was found in the small intestine. The incident is said to have

occurred at 8.00 pm. Normally, digestion would take some time.

This lends credence to the argument that the incident took

place much later, and may not have been witnessed. This

theory gets corroborated from the circumstance that the FIR

was lodged at 4:15 am next day. If fear of night was the factor

for the delay in lodging the FIR what was the hurry in lodging

the FIR at 4.15 am when, admittedly, it was still dark. This also

lends credence to the possibility, which has been suggested by

the defense, that Jagdish Prasad (the informant), who resided

in a different village 45 km away, was summoned, and,

thereafter, FIR was lodged by doing guess-work and by

creating witness of circumstance, namely, P.W.2

51.There is yet another aspect which goes in favour of the

appellant. This is that the charge against the appellant is not

under section 302 IPC simpliciter but under section 302 read

with section 149 I.P.C. Interestingly, except the statement of the

informant made to P.W.2, which we have already held not

admissible, there is no evidence to show that there were five or

more persons involved in the crime. Admittedly P.W.2 saw only

three accused running. The remaining two were not seen by

her. In fact, charge-sheet was laid against four persons only.

The identity of the fifth could not be established. When

participation by five persons is not proved by any admissible

31

evidence led by the prosecution, there can be no conviction

with the aid of section 149 I.P.C. Otherwise, there is no

evidence as to who played what role and whether they shared

common intention hence conviction with the aid of section 34

IPC would also not be justified more so because the only

evidence that survives is with regard to three persons running

not from the spot of occurrence but at some distance therefrom.

On this ground also, the conviction of the appellants can not be

sustained.

52. In addition to above, there is another unexplained

circumstance in the prosecution case which is as to why would

Naresh (surviving appellant), who had no motive, would join

other accused in finishing off the two deceased. No doubt,

prosecution has led evidence that there had been a motive for

Dalveer; Man Singh; and Ramesh to finish off the deceased -

Kishan Lal as he had implicated them in the past but there is no

motive attributed to the surviving-appellant Naresh to join the

other accused. Further, we find that other two accused were by

caste Dhobi whereas Naresh is Nai by caste.

53.When we take a conspectus of the entire evidence led by

the prosecution, we find that there are too many gaps in the

prosecution evidence and, therefore, even if we go by the

circumstantial evidence, the chain of circumstances is not

complete to rule out all other hypothesis than the guilt of the

accused. Hence, the benefit of doubt would have to go to the

accused.

54.Consequently, for all the reasons recorded above, we

have no option but to allow the appeal. The judgment and order

dated 28.08.1992 passed by IVth Additional Sessions Judge,

Moradabad in Sessions Trial No. 587 of 1986 is hereby set

aside as against the appellant Naresh. The appellant Naresh is

32

acquitted of all the charges leveled against him. If the appellant

is on bail, he need not surrender.

55.Let a copy of this order be sent to the trial court for

compliance.

Order Date :- 21.11.2019

Sunil Kr Tiwari