1

A.F.R

Court No. - 42

Case :- CRIMINAL APPEAL No. - 1162 of 1993

Appellant :- Ganga Singh And Others

Respondent :- State Of U.P.

Counsel for Appellant :- J.S.Kashyap

Counsel for Respondent :- A.G.A.

Hon'ble Manoj Misra,J.

Hon'ble Mrs. Manju Rani Chauhan,J.

1.This criminal appeal has been preferred by accused appellants

Ganga Singh, Nem Singh, Hira Lal, Lalta Prasad and Udaivir against

the judgment of conviction dated 03.07.1993 and the order of

sentence dated 03.07.1993 passed by the Vth Additional Sessions

Judge, Etah in Sessions Trial No.249 of 1991 whereby all the

appellants have been convicted under section 148 IPC and section

302 read with section 149 IPC and sentenced to suffer one year R.I.

and life imprisonment, respectively, for the aforesaid offences,

coupled with a direction that both sentences would run concurrently.

2.During the pendency of this appeal, appellant nos. 1, 3 & 5,

namely, Ganga Singh, Hira Lal & Udaivir Singh died and their appeal

was declared abated by vide order dated 15.07.2019.

3.The prosecution case as narrated in the first information

report (for short FIR), which was lodged by Smt. Omwati (P.W.1)

wife of the deceased - Indrajeet on 27.09.1990, at 11:30 A.M., at

police station Kotwali Dehat, District Etah, after discovery of dead

body of her husband, is that her husband – deceased, a resident of

village Nagla Hasan, was doing business in Garlic. On 26.09.2006

while he was returning from Etah to his house along with Balistar –

P.W.2 (brother-in-law of deceased) and Lekhraj - DW1 (distant

nephew of the deceased), at about 06:45 P.M., when they were near

the road going towards village Nandgaon, the accused appellants,

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armed with country made pistol and knives, with whom the

deceased had an altercation in connection with dispute relating to

land, caught hold of the deceased and dragged him towards the

fields. When Balistar (PW2) and Lekhraj (DW1) resisted they were

threatened as a result they escaped. After the deceased was

dragged into the crops standing in the field, soon thereafter, a

gunshot was heard. P.W.2 and D.W.1 came and informed the

informant about the incident, at night, in the village. Upon which,

many persons went to search for informant's husband but could not

find him. Next day morning, body of the deceased was found in

Millets (Bajra) field. FIR was lodged naming the appellants.

4.After registration of the FIR, the Sub Inspector (S.I.) Ompal

Singh (P.W.4) visited the spot, prepared the inquest report (Ex. Ka-

3); collected blood stained and plain earth; prepared site plan (Ex.

Ka 8); took into possession three bicycles found on the spot along

with other belongings of the deceased and prepared a memo of

recovery (Ex Ka 10); and, thereafter, after sealing the body of the

deceased, the body was sent for post mortem. Dr. G. C. Agrawal

(P.W.3) carried out autopsy at about 4 p.m. on 27.09.1990 and

prepared autopsy report (Ex. Ka 2). The autopsy report disclosed: (i)

Fire arm wound of entry 1.5. cm X 1 cm through and through on left

temple, blackening scorching and tattooing absent, with direction

left to right and slightly backward; (ii) Fire arm wound of exit 3 cm x

3 cm communicating with injury no.(i) on right side of head behind

right ear; (iii) incised wound 2 cm x 1 cm x muscle deep on left

thigh upper part of outer aspect; (iv) incised wound 5 cm x 1 cm x

muscle deep on inner surface of right knee joint; and (v) abrasion 3

cm x 2 cm on back of right shoulder joint. The time of death was

estimated 3/4

th

of a day before.

5.The investigation was thereafter taken over by Aley Hasan

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Khan (P.W.5) who recorded the statement of P.W.2 – Balister on

30.09.1990, handed over custody of cycle of the deceased and

Rs.595 of the deceased recovered from the spot to P.W.1 and

prepared memo (Ex. Ka 12), recorded statement of Lekhraj (D.W.1)

on 4.10.1990 and, on 08.10.1990, took possession of the torch,

allegedly being with the witness at the time of the incident, and

prepared memo (Ex. Ka. 13); and, thereafter, submitted charge

sheet (Ex. Ka.14). The learned Magistrate took cognizance of the

offence on the charge sheet and committed the case to the court of

session.

6.The charge of offences punishable under section 148 IPC and

section 302 read with section 149 IPC were framed against the

appellants. Upon denial of charges, trial commenced. The

prosecution, in order to prove its case, produced and examined five

prosecution witnesses: P.W.-1 - Smt. Omwati, the first informant,

who is wife of the deceased; P.W.-2 Balistar Singh, the eye witness

of the incident, who is brother of P.W.-1 - Smt. Omwati and thus is

brother-in-law of the deceased; P.W.-3 Dr. G.C. Agarwal, who

conducted the post-mortem; P.W.-4 Ompal Singh, Sub-Inspector,

who is the first Investigation Officer; and P.W.-5 Ale Hasan, Sub-

Inspector, the then Station Officer, the second Investigation Officer

of the case.

7.After recording of prosecution evidence, the incriminating

evidence were put to the accused for recording their statement

under section 313 CrPC. In their statements recorded U/s 313 Cr.P.C.

all the accused appellants denied their involvement in the crime.

Accused appellants Ganga Singh, Lalta Prasad & Udaivir Singh

specifically stated that they have been falsely implicated in this case

as they appeared as prosecution witnesses against the deceased,

who was accused in murder of one Har Prasad. The accused

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appellant Hiralal stated that he is cousin of Har Prasad. The accused

appellant Udaivir Singh denied that his cycle was recovered from the

place of occurrence, when this circumstance was put to him under

section 313 Cr.P.C.

8.The defense examined the alleged eye witness Lekhraj as

DW1, who stated that he was not there with the deceased at the

time of alleged incident. He further stated that he received the

information of the incident on the next day when he was there in

village Manota. Thereafter he visited the village Nagla Hasan and

after about two-three hours, when he reached, P.W.-2 Balistar also

reached there. Upon being confronted by his statement recorded

under section 161 CrPC, he categorically denied giving of any such

statement to the police.

9.The learned trial court relied upon the evidence adduced by

the prosecution and convicted and sentenced the appellants for the

charges framed against them. Hence, this appeal.

10.We have heard learned counsel for the surviving appellants 2

and 4; the learned Additional Government Advocate (AGA) for the

State; and have perused the record.

11.It has been submitted by the learned counsel for the

appellants that the evidence adduced by the prosecution is

concocted and is wholly unreliable. The first information report has

been lodged with inordinate delay, without there being any plausible

reason for the same. The alleged eye witness is a procured witness

and is highly interested, partisan and inimical witness. The

appellants had no motive to commit the offence and the motive

alleged by the prosecution is false and imaginary.

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12.On the other hand learned AGA has stated that the eye

witness P.W.-2 Balistar is wholly reliable and his testimony is

corroborated by medical evidence and recovery of the bicycle of the

deceased and one of the accused appellants, namely, Udaivir Singh

(since deceased), from the spot and, therefore, the conclusion

drawn by the learned trial court is justified and the appeal is liable to

be dismissed.

13.In the light of the aforesaid submissions, this court proceeds

to examine the evidence available on record.

14.The P.W.-1 Smt. Omwati is wife of the deceased. She has

stated in her examination in chief that one Master Har Prasad,

resident of her village was murdered and her husband was accused

in that murder case. He was prosecuted but was acquitted. The

accused Lalta Prasad, Udai Singh & Hira Lal are cousins of Har

Prasad and due to this reason, they bore enmity with her husband.

Regarding the incident in issue, she has stated that her husband

Indrajeet Singh (deceased) along with Balistar and Lekhraj were

returning from Etah to his village. All of them were on bicycle. Her

husband was on one bicycle and the two witnesses were on another

bicycle. When all the three reached near the road going towards

village Nandgaon, accused appellants, present in the court, were

found having country made pistols and knives in their hands. They

caught hold of her husband and dragged him towards the field and

when Balistar and Lekhraj tried to intervene, they were threatened.

The accused persons killed the deceased by gunshot and knives and

threw the dead body into the field of pearl millets (Bajra). She has

further stated that after receiving the information of the incident

she, along with some other persons of the village, reached the place

of occurrence but on account of darkness could not trace the dead

body. Thereafter, on the next day morning, she along with co-

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villagers again tried to trace the dead body and the dead body was

found in the field of pearl millets. She proved lodging of the FIR. She

stated that one month prior to the incident, a quarrel had taken

place between the accused persons and her husband.

15.In her cross-examination, she stated that Balistar and Lekhraj

had informed her about the incident in the village at about 08:00

P.M. They had come on bicycles. The two witnesses (Balistar and

Lekhraj) and others had accompanied her to search out the body,

however they did not visit the police station with her at the time of

lodging of the report. Her husband's body was discovered at 10 A.M.

When she had gone to the police station to lodge the report, Balister

and Lekhraj were there near the body of the deceased. Sher Singh,

Jalim Singh & Talevar were present with her at the police station.

She stated that the police arrived at the place of occurrence at

about 12:00 noon. The Investigation Officer recorded her statement

at about 11:30 A.M., near the body, at the place of occurrence,

during which witnesses Balistar and Lekhraj were present there. She

admitted in her cross examination that at the time when Har Prasad

was murdered, the accused persons were not living with Har Prasad.

With regard to the quarrel relating to land, she admitted that no

report was lodged. She has also stated that the house of accused

Lalta Prasad, Udai Singh and Hira Lal is situated in the eastern side

of the village and the house of accused Ganga Singh is situated in

the western side of the village and her house is situated in the

middle of the village and the land which was subject matter of

quarrel is situated in front of her house. The tube well and open

land of the accused persons, namely, Lalta Prasad, Udai Singh and

Hira Lal, is situated in the eastern side of their houses. She has

denied the suggestion that the deceased was murdered by unknown

persons and that she had lodged a false first information report

against the accused appellants on account of enmity.

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16.P.W.-2 Balistar, who is brother-in-law of deceased-Indrajeet

and is resident of village Amapur, has stated in the examination in

chief that deceased Indrajeet was his sister’s husband and was

doing business of garlic at Etah and he was helping him in his

business. The village Nagla Hasan is situated in between his village

and Etah and he used to visit village Nagla Hasan and the house of

his brother-in-law. He has further stated that the accused persons

were having grudge and enmity with his brother-in-law Indrajeet

Singh on account of murder case of Har Prasad, in which the

deceased Indrajeet was prosecuted but was acquitted. He has

further stated that the accused were also bearing enmity with the

deceased due to earlier incident of quarrel regarding abadi land of

the deceased. Regarding the present incident, this witness has

stated that he was returning from Etah along with his brother-in-law,

(deceased Indrajeet) and Lekhraj to village Nagla Hasan. His

brother-in-law was on one bicycle and he and Lekhraj were on

another bicycle. He was having torch with him. When they reached

near the way going to village Nandgaon, they saw accused persons

coming from front towards them. Accused Udai Singh and Lalta

Prasad were having knives, while accused appellants Hira Lal, Ganga

Singh and Nem Singh were having country made pistols. The

accused person caught hold of the deceased and when the

witnesses tried to save him, they were threatened by showing

country made pistols. All the five accused appellants dragged the

deceased towards field of pearl millets (Bajra) and thereafter he

heard a gun shot. After hearing the sound of gunshot, he ran

towards village Nagla Hasan and informed his sister Smt. Omwati

and other persons of the village about the incident. Thereafter they

along with Smt. Omwati and other villagers went to the place of

occurrence but as it was dark, they could not search the deceased in

the field and returned to the village. Next day, his sister and other

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persons of the village went to the place of occurrence and found the

dead body of deceased - Indrajeet Singh in the field of pearl millets

(Bajra). His sister Smt. Omwati lodged the first information report

regarding this incident by giving written information at the police

station. He saw the incident in the light of the torch.

17.In his cross examination, P.W.-2 Balistar Singh had stated that

his village is situated at a distance of about 11-12 kms from Etah

and it takes about one hour to reach his village from Etah. On the

date of incident, he started from Etah at about 06:15 P.M. on

separate cycle, while Indrajeet Singh was on separate cycle. He has

further stated in cross examination that the accused persons were

not covering their faces and two bicycles were parked there. The

accused persons were hidden in bushes and crop of pearl millets

(Bajra). He has also stated that near the place of incident, there is a

tube well and flour mill situated on the approach road towards

Nandgaon and a human habitation exists about 2-2.5 furlong away

from the place of incident. He has further stated that he didn’t shout

at the time of incident, as no one was present there. He has further

stated that the place of occurrence is situated at a distance of about

four kms from Etah city and it is about 1.5 - 2 kms away from village

Nagla Hasan. He has also stated that he could not go to Etah to

lodge the first information report as it was quite dark at that

moment. He has further stated in his cross examination that he

went to village Nagla Hasan on his cycle. He came back to the place

of occurrence to trace the deceased but could not find him on

account of darkness and went back to village Nagla Hasan. In the

morning at about 07:00-08:00 A.M., inhabitants of village Nagla

Hasan again went to search the deceased and the dead body was

found at about 10:00 A.M. He did not go to the police station to

lodge the first information report. He admitted that the accused

appellants Lalta Prasad, Udai Singh and Ganga Singh were

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prosecution witnesses against his brother-in-law (deceased Indrajeet

Singh) in the murder case of Har Prasad.

18.P.W.-3 Dr. G.C. Agarwal had conducted the post mortem

examination on the body of deceased Indrajeet Singh on 27.09.1990

at about 04:00 P.M. He has estimated that the death occurred about

3/4

th

of a day (i.e. 18 hours) earlier. He stated that he found five

injuries on the person of the deceased, which have already been

detailed above. Though he accepted that the death could have

occurred at about 06:45 P.M. on 26.09.1990 but also expressed that

it is possible that death may have taken place at 10 pm or up to four

hours before 10 pm, on 26.09.1990.

19.P.W.-4 Sub-Inspector Ompal Singh is the first Investigation

Officer of the case. He has stated that on 27.09.1990 he was posted

as Sub-Inspector at police station Kotwali Dehat and the case was

registered in his presence. Upon lodging of the first information

report he proceeded to the place of incident and prepared the

inquest report and other police papers and sent the dead body for

post mortem examination. Thereafter he made recovery of three

cycles, one plastic bag, one torn tehmad and slipper and Rs.595/-

from the site, from where the deceased was dragged and had

prepared memos of the recovery. In his cross examination, he has

stated that he did not record the statement of first informant under

section 161 of Cr.P.C at police station and site plan was prepared on

the pointing out of first informant. On that day, he did not

interrogate the eye witnesses Balistar and Lekhraj. He has also

stated that the witness Balistar did not show his torch to him, when

he visited the place of occurrence.

20.P.W.-5 Sri Aale Hasan Khan is the Station Officer of police

station Kotwali Dehat, District Etah and has stated that on the day

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when the first information report was registered he was on V.V.I.P.

duty and when he returned back after completing that duty, he took

over the investigation of the case from Sub-Inspector Ompal Singh

and went to the place of occurrence and saw various recoveries

prepared by first Investigating Officer. He recorded the statement of

eye witness Balistar under section 161 of Cr.P.C. on 30.09.1990 and

on the same day, he recorded the statement of first informant again

and the statement of witness Lekhraj was recorded by him on

04.10.1990 and the statement of witness Duryodhan (not examined)

was recorded on 26.10.1990, who identified one of the cycle found

on the spot as that of accused Udai Veer Singh. He has further

stated that he prepared the memo of recovery pertaining to the

torch of witness Balistar on 08.10.1990. He has admitted that he did

not conduct any investigation or enquiry in the small hamlet (abadi)

near the place of occurrence and at the flour mill which stood near

the place of occurrence.

21.From the evidence adduced by the prosecution, it is clear that

the prosecution case rests on the testimony of solitary eyewitness

P.W.-2 – Balistar. This witness is brother of the first informant -Smt.

Omwati and is brother-in-law of the deceased Indrajeet Singh. The

defense has assailed his testimony on the ground that he is an

interested and partisan witness, who has not lodged the FIR despite

full opportunity to him and, in fact, is a witness who has been set

up. Furthermore, it is not safe to rely upon the testimony of a

solitary eye witness who has himself not suffered any injury,

particularly when the other eye witness named in the first

information report has not supported the prosecution case and has

denied the presence of P.W.-2 Balistar in the village also. On the

other hand, the learned AGA has contended that this witness P.W.-2

Balistar is wholly reliable and conviction can always rest on the

testimony of a solitary witness.

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22.The law in this regard is well settled. Section 134 of Indian

Evidence Act, 1872 provides that “no particular number of witnesses

shall, in any case, be required for the proof of any fact”. Law does

not require plurality of witnesses and no particular number of

witness is required to prove the fact. It is the quality of the evidence

that counts and not the quantity. In the celebrated judgment of

Vadivelu Thevar vs. State of Madras – AIR 1957 SC 614, the

Hon’ble Apex Court has discussed this aspect of law in following

words: -

“Hence, in our opinion, it is a sound and well-

established rule of law that the court is concerned with

the quality and not with the quantity of the evidence

necessary for proving or disproving a fact. Generally

speaking, oral testimony in this context may be classified

into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

12. In the first category of proof, the court should

have no difficulty in coming to its conclusion either way -

it may convict or may acquit on the testimony of a single

witness, if it is found to be above reproach or suspicion of

interestedness, incompetence or subornation. In the

second category, the court equally has no difficulty in

coming to its conclusion. It is in the third category of

cases, that the court has to be circumspect and has to

look for corroboration in material particulars by reliable

testimony, direct or circumstantial. There is another

danger in insisting on plurality of witnesses. Irrespective

of the quality of the oral evidence of a single witness, if

courts were to insist on plurality of witnesses in proof of

any fact, they will be indirectly encouraging subornation

of witnesses. Situations may arise and do arise where

only a single person is available to give evidence in

support of a disputed fact. The court naturally has to

weigh carefully such a testimony and if it is satisfied that

the evidence is reliable and free from all taints which tend

to render oral testimony open to suspicion, it becomes its

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duty to act upon such testimony. The law reports contain

many precedents where the court had to depend and act

upon the testimony of a single witness in support of the

prosecution. There are exceptions to this rule, for

example, in cases of sexual offences or of the testimony

of an approver; both these are cases in which the oral

testimony is, by its very nature, suspect, being that of a

participator in crime. But, where there are no such

exceptional reasons operating, it becomes the duty of the

court to convict, if it is satisfied that the testimony of a

single witness is entirely reliable. We have therefore, no

reasons to refuse to act upon the testimony of the first

witness, which is the only reliable evidence in support of

the prosecution.”

23.It has also been held by Hon’ble Supreme Court in many cases

that when the sole eye witness is partisan or related or inimical

witness, the court must be cautious and evidence of such witness

may require corroboration from independent reliable sources before

making conviction. In the case of Ramji Surjya Padvi vs. State of

Maharashtra, AIR 1983 SC 810 , the relevant portion of the

judgment reads thus:

“There is no doubt that even where there is only a

sole eye-witness of a crime, a conviction may be

recorded against the accused concerned provided the

Court which hears such witness regards him as honest

and truthful. But prudence requires that some

corroboration should be sought from the other

prosecution evidence in support of the testimony of a

solitary witness particularly where such witness also

happens to be closely related to the deceased and the

accused are those against whom some motive or ill-will is

suggested.”

24.Like-wise, in the case of Govindaraju @ Govinda v. State

By Sriramapuram P.S. & Anr . (2012) 4 SCC 722, the Hon’ble

Apex Court cautioned about relying on testimony of sole eye-witness

in following terms: -

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“Equally well settled is the proposition of law that

where there is a sole witness to the incident, his evidence

has to be accepted with caution and after testing it on the

touchstone of evidence tendered by other witnesses or

evidence otherwise recorded. The evidence of a sole

witness should be cogent, reliable and must essentially fit

into the chain of events that have been stated by the

prosecution. When the prosecution relies upon the

testimony of a sole eyewitness, then such evidence has

to be wholly reliable and trustworthy. Presence of such

witness at the occurrence should not be doubtful. If the

evidence of the sole witness is in conflict with the other

witnesses, it may not be safe to make such a statement

as a foundation of the conviction of the accused. These

are the few principles which the Court has stated

consistently and with certainty.”

25.Another decision in the case of Bhimappa Chandappa

Hosamani & Ors. Versus State of Karnataka, 2006 (11) SCC

323 would be worth-while to notice, in which Hon’ble Apex Court

dealt with the evidence of sole eye-witness and held as follows: -

“We have undertaken a very close and critical

scrutiny of the `evidence of P.W.--1 and the other

evidence on record only with a view to assess whether

the evidence of P.W.--1 is of such quality that a conviction

for the offence of murder can be safely rested on her sole

testimony. This Court has repeatedly observed that on

the basis of the testimony of a single eye witness a

conviction may be recorded, but it has also cautioned that

while doing so the Court must be satisfied that the

testimony of the solitary eye witness is of such sterling

quality that the Court finds it safe to base a conviction

solely on the testimony of that witness. In doing so the

Court must test the credibility of the witness by reference

to the quality of his evidence. The evidence must be free

of any blemish or suspicion, must impress the Court as

wholly truthful, must appear to be natural and so

convincing that the Court has no hesitation in recording a

conviction solely on the basis of the testimony of a single

witness.”

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26.The legal principle deducible from the decisions noticed above

is that although ocular evidence of solitary eye-witness, who is close

relative of deceased, can be made basis of conviction but only after

it is found to be of sterling quality, free of any blemish or suspicion,

and should impress the Court as wholly truthful, natural and

convincing. As to whether the testimony is of such sterling quality

would depend on the proven facts and circumstances of a case. The

primary test ordinarily adopted by the court to test reliability of a

witness is whether the presence of the witness on the spot has been

proved beyond doubt and whether he had opportunity to witness

the incident. When incident occurs inside a house, the presence of

the inmates of that house would be natural. But where the incident

takes place at a place where ordinarily a person may not be found

present, the courts would have to closely scrutinize the evidence to

find out whether the claim that the witness was present at the scene

of occurrence is reliable or not. Some of the tests, inter alia,

adopted by courts, to ascertain whether the witness was present at

the scene of occurrence, are whether the witness has suffered any

injury in the incident; and whether the conduct of the witness at the

time of the incident or soon thereafter is such which is reflective of

his having witnessed the incident. No doubt, there can be no golden

rule that every person would react in a given manner in a given

situation but broad probabilities have to be kept in mind to assess

whether the conduct of the witness is in harmony with the

hypothesis of his presence at the scene of occurrence. Sometimes

inordinate delay in lodging the FIR, without proper explanation, is

evidence of conduct which is suggestive of the fact that the witness

might not have been present and, therefore, after deliberation and

guesswork, on the basis of suspicion, FIR has been lodged by

naming several accused persons. At times, reliability of a witness

may be gauged from the conduct reflected by those who have been

informed by the witness. In a nutshell each case turns on its own

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facts and circumstances derived from the evidence led.

27.In the light of the aforesaid principles, when we examine the

evidence of the prosecution witnesses P.W.-1 Smt. Omwati first

informant (not an eye witness) and P.W.-2 Balistar (claimed to be the

eye witness), it transpires that their conduct is not that of a normal

prudent human being. Say, if PW2 had informed PW1 about the

murder, she would not have waited till recovery of the body to lodge

the FIR next day morning, particularly, when, according to her

(PW1), she had collected villagers in the night and had visited the

spot thereby ruling out any fear factor. Moreover, PW1 would not

have waited till 8.00 AM of the next day morning to resume search

for her husband, as has been stated by PW2, because, an

apprehending wife would not wait till day break to find out whether

her husband is dead or alive, after receipt of information that her

husband has been dragged into the fields and a gun shot was heard

soon thereafter. It is noteworthy that the incident is of the month of

September and the morning sun is out by 6 A.M. therefore waiting

till 8.00 AM to resume search does not appeal to the conscience of

the court and is suggestive of the fact that there had been no

information by that time with PW1. More so, when no independent

witness has been produced by the prosecution to disclose that

search operations were conducted in the night also. Then there is

another aspect, which is, if the eye witnesses, namely, Balistar

(PW2) and Lekhraj (DW1) were present at the scene of occurrence

why it would take 2 hours to find out the body. It may be noticed

that according to the prosecution evidence body was found at about

10 AM whereas the search began at 8 AM. More so, when from the

site plan, the dead body was found just 7 paces away from the chak

road, 16 paces from the drain (nali) inside the field, and in total just

77 paces from the road/ place from where the deceased was

allegedly dragged by the accused. Further, the explanation given by

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the witnesses that in the night the dead body was not traceable on

account of darkness, does not appeal to reason, particularly, when

the witnesses had torch as, later, a case has been set up that the

accused was spotted in the light of a torch, which was handed out

to the investigation officer on 08.10.1990. Another noticeable aspect

which has surfaced in the prosecution case is with regard to the

absence of the eye witness (PW2) at the time of registration of FIR.

In natural course of events, the first information report ought to

have been lodged by the eye witnesses of the incident, who were

themselves close relatives of the deceased. Not only there is delay in

lodging the FIR but the same has not even been lodged by the eye

witness. According to the prosecution case, P.W.-2 Balistar, the

brother-in-law of deceased, and Lekhraj, nephew of the deceased

(not produced by the prosecution though produced by the defense

as DW1), had themselves seen the incident and were throughout

available either with the P.W.-1 or at the place of occurrence, having

a cycle with them yet they did not go to lodge the first information

report for which no satisfactory explanation is there. In fact, they did

not even accompany the first informant Smt. Omwati to the police

station at the time of lodging of the first information report though it

has come in the evidence that they were there with the body. If that

was so, then they could have been made witness of the inquest

proceeding. But neither of the two witnesses was a witness to the

inquest proceeding. The said circumstances, make the presence of

the solitary eye witness P.W.-2 Balistar, examined by the prosecution,

at the scene of occurrence highly doubtful.

28. Another aspect of the matter is the delayed interrogation of

P.W.-2 Balistar by the Investigating Officer. As per the statement of

P.W.-1 - Smt. Omwati, P.W.-2-Balistar was throughout present with

her, except at the police station, that is at the time of registration of

the FIR. She has admitted in her cross examination that when her

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statement was recorded by the Investigating Officer, witnesses

Balistar and Lekhraj were present there. P.W.-2 Balistar also stated in

his cross examination that when the police arrived at the place of

occurrence, he was present there with the dead body and had

shown the torch to the Sub-Inspector and the Sub-Inspector had

done a short interrogation with him. But P.W.-4 -Sub-Inspector Om

Pal Singh, the Investigating Officer, has specifically stated that when

he visited the place of occurrence on 27.09.1990, he prepared the

site plan at the instance of first informant P.W.-1 Smt. Omwati and,

on that date, he did not interrogate witnesses Balistar and Lekhraj

and that the witness Balister did not show his torch to him.

According to the statement of P.W.-5 Aale Hasan Khan, the second

Investigating Officer, he recorded statement of eye witness Balistar

on 30.09.1990 and took the torch of Balistar in his possession on

08.10.1990 and prepared the memo (Exhibit Ka-13). In the facts

and circumstances of the present case, the delayed interrogation of

P.W.-2 Balistar by the Investigating Officer is suggestive of the fact

that, in all probability, P.W.-2 Balistar was not then available as a

witness and when he was convinced to become a witness, his

statement was recorded. This circumstance dents the credibility of

the witness PW2 and renders him not of sterling quality.

29.The defense has also assailed the motive of the accused

appellants alleged by the prosecution for committing the offence. In

the first information report, the motive alleged by the first informant

is with regard to an earlier incident of some quarrel in between the

deceased and the accused persons over a piece of land. However in

the statement of witnesses recorded during trial, an additional

motive has been introduced which is that the deceased Indrajeet

Singh was prosecuted in the murder of Har Prasad and accused

appellants Udai Veer Singh, Lalta Prasad & Hira Lal are cousins of

Har Prasad and due to that reason they were bearing enmity with

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the deceased Indrajeet Singh. The cross examination of P.W.-1 Smt.

Omwati reveals that the deceased did not make any complaint or

report against the accused persons regarding the alleged quarrel

and, further, it has also been admitted by P.W.-1 Smt. Omwati that

the open land, stated to be root cause of quarrel, is situated in the

midst of the village while the houses and open land of accused

persons are situated in the eastern and western side of the village.

In these circumstances, the motive, as claimed by prosecution,

generated from quarrel in between deceased and accused persons

relating to a piece of land which does not appear to be accessible to

the accused persons, seems to be unfounded. Moreover, PW1 and

P.W.-2 have stated that though accused appellants Udai Singh,

Ganga Singh & Lalta Prasad were prosecution witnesses against

deceased Indrajeet Singh in the murder case of Har Prasad but they

resided separate from Har Prasad. Thus, there appears no strong

motive for commission of the offence.

30.Lastly, DW1, another relative of the deceased, allegedly an

eye witness as per the prosecution, has taken the courage to appear

as a defense witness and declare that he has not been with the

deceased and has not witnessed any such incident, as claimed by

the prosecution. Though suggestion has been put to him that on

account of pressure from his matrimonial home he has turned up as

defence witness but there is no motive suggested as to why he

would go against his relatives belonging to the family of the

deceased. If prosecution had not examined him, as being won over,

or if he had turned hostile, though examined by the prosecution,

things would have been different. But here he appeared as defense

witness and gave statement that his presence on the spot has been

falsely shown by the prosecution. Under the circumstances, his

testimony is of some significance so as to dent the credibility of the

prosecution evidence.

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31.At this stage, we may also observe that no recovery of the

weapon of assault was made from any of the accused and that the

alleged bicycles found on the spot were not connected, by any

admissible evidence, with that of any of the accused persons or with

any of the witnesses so as to demonstrate their presence at the

scene of occurrence. It may be noticed that PW5 had stated that

one of the bicycles was identified to be of accused Udai Veer Singh

but that person who allegedly identified the cycle to be that of Udai

Veer Singh was not examined whereas Udai Veer Singh, on the other

hand, in his statement recorded under section 313 CrPC denied that

the cycle recovered was his.

32.When we take a conspectus of the facts and circumstances

emanating from the evidence led during the course of trial, it

appears to us that the murder might have taken place in the dark

hours of the night, which was not witnessed by any one and,

therefore, after discovery of the body and deliberations, on the basis

of suspicion and guess work, prosecution story was developed. This

possibility gets credence from another circumstance which is that

prosecution names five accused armed with two types of weapons

of which injuries were found but except for showing as to which

accused carried what weapon it is not disclosed as to who caused

which injury. The reason for that appears to be that the injuries

were much less than the number of assailants. Although specific role

need not be attributed to all the accused as they could be fastened

with liability by taking recourse to the provisions of section 149 IPC

but what assumes importance is that this could be a ploy to add

accused, on the basis of suspicion, as to form an unlawful assembly

when, otherwise, the injuries suggested that there was a solitary

gun shot wound of entry and exit which proved fatal and the rest

were two incised wounds on non-vital part. Another aspect needs to

be noticed which is that there is no blackening,tattooing or scorching

20

found present in or around the gunshot wound of entry which

suggests that the shot was not from close proximity when the

accused, as per prosecution case, after over powering the deceased

had all the opportunity to shoot from a close range. There is yet

another aspect which is as to why would the assailants leave PW2

and DW1 escape alive on bicycles and fetch support from the nearby

village or let them become a witness against them when, in the

darkness of night, they had full opportunity to eliminate them as

well.

33.The trial court did not test the prosecution evidence on all the

aspects noticed by us and took the prosecution evidence as gospel

truth. When we take a conspectus of the entire prosecution

evidence, in the light of the discussion made above, we are of the

considered view that, firstly, the presence of PW2 at the place and

time of occurrence is highly doubtful, and, secondly, his testimony is

not of such sterling quality that proves the prosecution case against

the accused appellants beyond reasonable doubt. Under the

circumstances, the benefit of doubt must go to the appellants.

Consequently, the judgment of conviction dated 03.07.1993 and the

order of sentence dated 05.07.1993 is liable to be set-aside and is

hereby set aside. The appellants are acquitted from the charges.

They are on bail and they need not to surrender.

34.Thus, the appeal succeeds and is allowed.

35.Let a copy of this judgment and order be sent to the court

below for compliance.

(Manju Rani Chauhan, J.) (Manoj Misra, J.)

Order Date :- 18.9.2019

Sushil/-