1

A.F.R.

Reserved

Case :- CRIMINAL APPEAL No. - 1419 of 2009

Appellant :- Kripa Shanker Dubey

Respondent :- State of U.P.

Counsel for Appellant :- S.K. Singh Yadav,Jitendra

Singh,Manvendra Singh,S.P. Srivastava

Counsel for Respondent :- Govt. Advocate,S.K.Srivastava

with

Case :- CRIMINAL APPEAL No. - 1313 of 2009

Appellant :- Uma Shanker Dubey

Respondent :- State of U.P.

Counsel for Appellant :- S.K. Singh Yadav

Counsel for Respondent :- Govt Advocate,Sharad Kumar

Srivastava

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Subhash Chandra Sharma,J.

(Delivered by Subhash Chandra Sharma,J.)

1.Heard Sri Jitendra Singh, learned counsel for appellant Kripa

Shankar Dubey, Sri Manvendra Singh, learned Advocate for the

appellant Uma Shankar Dubey and Sri Rupak Chubey, learned

A.G.A. for State and perused the record.

2.These appeals emanate from the judgment and order dated

18.02.2009 passed by Additional Session Judge/Special Judge

E.C. Act, Fatehpur in S.T. No.169 of 2006 (State vs. Kripa Shanker

Dubey and another) arising out of Case Crime No.213 of 2005,

under Section 302 read with Section 34 I.P.C. sentencing the

appellants with life imprisonment and fine of Rs.10,000/- and in

default of payment of fine to undergo additional one year rigorous

imprisonment by each and in S.T. No.170 of 2006 (State vs. Kripa

Shanker Dubey) arising out of Crime No.218 of 2005, under

Section 25 Arms Act, Police Station Lalauli, District Fatehpur

2

whereby the appellant Kripa Shanker Dubey has been sentenced

with two years rigorous imprisonment with fine of Rs.1000/- and in

default of payment of fine to undergo additional six months rigorous

imprisonment.

3.The prosecution case in brief is that on 22.12.2005 at about

8:00 P.M. an F.I.R. was lodged at the Police Station Lalauli, District

Fatehpur by the informant Suresh Kumar S/o Ramasrey resident of

Kichaucha, Police Station Lalauli, District Fatehpur by filing a

written report stating therein that on 22.12.2005 at about 6:00 P.M.

his elder brother Umesh @ Pappu aged about 27 years went to the

hand pump to fetch water and as he (deceased) reached near the

hand pump Kripa Shanker Dubey S/o Ram Vishal and his brother

Uma Shanker Dubey residents of the same village equipped with

country-made pistol came with the intention of committing murder

and shot fire at him (deceased) causing injuries in his stomach, as

a result it he died and accused persons fled away towards the field.

The incident was witnessed by his bua (aunt) Maun Shree and

Surajpal.

4.The investigation of the case was handed over to S.H.O.

Manoj Kumar Pandey who after receiving the information went to

the place of occurrence alongwith other officials and conducted the

inquest of the dead body of deceased Umesh @ Pappu and

prepared the inquest report and other relevant papers required for

the purposes of post-mortem. The dead body was sealed and

handed over to constable Baburam and Devmani who took it to the

Mortuary District Hospital, Fatehpur.

5.The post-mortem was conducted on 23.12.2005 at 3:30 P.M.

by Dr. A.S. Khan who found the dead body in sealed cloth intact

which tallied the sample seal. The external condition of the dead

body as described therein is as under :-

3

Average built body. Rigor mortis present.

Antemortem Injuries

1.Fire arm wound of entry 2 cm x 2 cm x

cavity deep in right side of the abdomen 15 cm

outer to umbilicus at 9 O'clock position.

Blackening present around the wound. Intestines

were protruded out from wound.

2.Contusion of 6 cm x 3 cm in right side of the

abdomen 20 cm below the right nipple.

3.A mattelic bullet recovered from left side of

pelvic muscles which was sealed in an envelop

and sent to S.P., Fatehpur through C.M.S.

Cause of death was mentioned as shock and

hemorrhage as a result of antemortem fire arm

injury

6.During investigation, the statement of informant Suresh

Kumar was recorded and after making spot inspection at the

instance of the informant, site plan was prepared by the I.O. On

25.12.2005, accused persons Kripa Shanker Dubey and Uma

Shanker Dubey were arrested near the bus stand. A country-made

pistol of 315 bore and one cartridge, from the pocket of the

accused and another cartridge from the chamber of the country-

made pistol were recovered from the possession of accused Kripa

Shanker Dubey. Recovery memo was prepared and a separate

case because of the recovery of the country-made pistol and

cartridge was registered u/s 25 Arms Act as Crime No.218 of 2005

at the police station, investigation of which was handed over to S.I.

Ram Chandra Mishra. Further the statement of other witnesses

4

were recorded by the I.O and on the basis of the material collected

during the investigation, a prima facie case under Section 302/34

I.P.C. was found to be made out against the accused persons, as a

result, the charge-sheet was submitted to the court concerned.

Later on reports from the F.S.L. were received and submitted to the

Court through supplementary case diary.

7.In crime no.218 of 2005 u/s 25 Arms Act, the investigating

officer recorded the statement of informant Manoj Kumar Pandey

and constable Sarfaraz Haider and after spot inspection at the

instance of the informant prepared the site plan. After recording the

statements of other witnesses and obtaining the prosecution

sanction from the District Magistrate, he filed charge-sheet before

the court concerned.

8.The learned court took cognizance of the offence and

provided copies of the prosecution papers in compliance of Section

207 Cr.P.C. to the appellants and committed the case for trial.

9.The learned trial court after taking into consideration the

material on record framed the charges against both the appellants

u/s 302 read with Section 34 I.P.C. and u/s 25 Arms Act against the

appellant Kripa Shanker Dubey. The charges were read over and

explained to the appellants. They pleaded not guilty but denied the

charges and claimed for trial. Consequently, the cases were fixed

for prosecution evidence. Since both the cases were connected to

each other, therefore, consolidated and tried together.

10. In support of its case, the prosecution examined PW-1 Suresh

Kumar, the first informant and brother of the deceased; Pw-2

Sheetla Devi as eye-witness of the incident and mother of the

deceased; PW-3 Dr. A. S. Khan who conducted post-mortem of

dead body of the deceased; PW-4 Constable Kunwar Singh who

5

prepared chick F.I.R. and entered the detail in G.D.; PW-5 S.I.

Manoj Kumar Pandey the investigating officer of crime no.213 of

2005 u/s 302 I.P.C. and PW-6 S.I. Ram Chandra Mishra who

investigated the case registered u/s 25 Arms Act relating to crime

no.218 of 2005.

11.On conclusion of prosecution evidence statement of accused

persons were recorded u/s 313 Cr.P.C. wherein appellants Kripa

Shanker Dubey and Uma Shanker Dubey asserted the incident

and statements of witnesses relating thereto, false. In relation to

recovery of arm and cartridge appellant Kripa Shanker Dubey

termed it to be false and stated that he was arrested by the police

from his house and false recovery of country-made pistol was

shown against him. In defence, no evidence was adduced on the

part of the appellants.

12.After hearing the arguments on behalf of the appellants as

well as for the State, the trial court passed the judgment and order

dated 18.02.2009 convicting the appellants as aforesaid against

which these appeals are preferred.

13.Learned counsel for the appellants submits that the

impugned judgment and order of conviction is bad in law being

against the evidence on record. The trial court has erred in

convicting the appellants without making proper appreciation of the

evidence. The appellants had no motive to commit the murder of

the deceased. The F.I.R. is ante-time. PW-1 & PW-2 are relatives

of the deceased, therefore, they are interested witnesses, their

testimony is full of contradictions. The statement of PW-2 u/s 161

Cr.P.C. was not recorded by the investigating officer during

investigation but she was introduced by the prosecution for the first

time before the trial court so her testimony cannot be relied upon.

The presence of PW-1 is not mentioned in the F.I.R. so he cannot

6

be said to be an eye-witness. In this way, the testimony of PW-1

being not present on the spot at the time of alleged incident and

PW-2 being not examined by the investigating officer and not

named in the F.I.R. as eye-witness cannot be made the basis of

conviction. The witnesses those were named in the F.I.R. have not

been examined by the prosecution. As a result, the whole

prosecution story becomes doubtful and the benefit of doubt is to

be extended to the accused appellants. Thus, the prosecution

could not prove its case beyond reasonable doubt and the

appellants are entitled for acquittal.

14.Learned A.G.A. opposed the contentions raised by the

learned counsel for the appellants and urged that in this case the

informant as well as PW-2 both were present on the spot and they

had narrated the whole prosecution story as well. They are eye-

witnesses, therefore, motive looses its importance. The testimony

of PW-2 cannot be discarded only on the basis that her statement

u/s 161 Cr.P.C. was not recorded by the investigating officer. No

prejudice is caused to the accused appellants. The presence of

PW-1 on the spot is not disputed. From the reading of the F.I.R., it

is clear that PW-1 was present on the spot at the time of the

incident. The prosecution witnesses, though relatives but their

testimony cannot be discarded on this account only if they are

reliable and trustworthy otherwise. The contradictions in the

testimony of the witnesses are minor in nature and are not likely to

affect the veracity of the statements, hence immaterial. The death

of deceased Umesh Kumar Singh is said to be caused with fire arm

which gets support from the post-mortem. In this way, the

prosecution had proved its case beyond reasonable doubt against

the appellants. The trial court has passed the judgment and order

on the basis of evidence on record after appreciating the evidence

according to the settled principles of law. There is no error in the

7

judgment under challenge. These appeals being devoid of merit

are liable to be dismissed.

15.From the submissions and perusal of the record, the

questions which emerge for consideration of this Court are :- as to

whether the F.I.R is ante-time; motive is absent; the witnesses

being relatives; no independent witnesses having been examined

would have adverse affect on the prosecution case; as to whether

the alleged contradictions in the testimony of witnesses make it

unreliable and non-recording the statement of PW-2 u/s 161

Cr.P.C. by the investigating officer would cause prejudice to the

appellants.

16.Before we deal with the contentions raised by the learned

counsel for the appellants, it would be convenient to take note of

the evidence adduced by the prosuection.

17.PW-1 Suresh Kumar is the first informant and brother of the

deceased who deposed that there was enmity on account of village

pradhani elections between both the families of the accused and

the deceased. On 22.12.2005 at about 6:00 P.M., his elder brother

Umesh Kumar went to fetch water at the hand pump in front of his

house. As his brother reached near the hand pump, appellant Kripa

Shanker Dubey opened fire which hit in the stomach of his brother

on the right side near the umbilicus and after 10-15 minutes, he

died. P.W.1 took the injured inside the house and made him lie

down on the cot where he died. This incident was witnessed by he

himself, his bua (aunt) Maun-Shree, another aunt Rajrani and

Surajpal. The accused persons fled away after shooting the

deceased. At the time of the incident, he (the informant) was at his

gate and his bua (aunt) and another aunt were at the hand pump

and Surajpal was talking to his brother (deceased). He himself

wrote the written report and gave it at the police station Lalauli,

8

which he proved in his hand writing as Ex Ka-1.

18.PW-2 Sheetla Devi mother of the deceased deposed that she

knew the accused Kripa Shanker Dubey and Uma Shanker Dubey

who were residents of her village. The murder of her son Umesh

Kumar was committed at about 6:00 P.M. near the hand pump in

front of her house where his son went there to fetch water. Kripa

Shanker came there and made fire on the stomach of his son

Umesh @ Pappu. No other person was with Kripa Shanker Dubey.

PW-2 stated that she was at her gate at that time from there she

was watching everything. The incident was witnessed by Surajpal,

his wife and Maushree. Suresh also saw the incident. She further

stated that Uma Shanker Dubey was on the back side and he did

nothing. She stated that she narrated all these facts to the police.

Both the witnesses were cross-examined on behalf of the

appellants at length.

19.PW-3 Dr. A. S. Khan has proved the post-mortem report as

Ex Ka- 2 in his hand writing and signature. He told that the injury

was caused with fire arm like country-made pistol at about 6:00

P.M. as a result, the deceased died. He also opined that the cause

of death was shock and hemorrhage due to antemortem fire arm

injury. During post-mortem, a bullet was recovered from the

abdomen of the deceased which was sealed and sent to S.P.,

Fatehpur through C.M.S.

20.PW-4 constable Kunwar Singh has proved the check F.I.R.

which was prepared by him on the basis of written report in his

hand writing and signature as Ex Ka-3 and G.D. as Ex Ka-4.

21.PW-5 S.I. Manoj Kumar Pandey who investigated the case

has proved the investigation and the papers prepared by him

relating to the inquest as Ex Ka-5 to 10, recovery memo as Ex Ka-

9

11, country-made pistol and cartridge as material Ex.- 1 to 3,

charge-sheet as Ex Ka-12 and F.S.L. report as Ex Ka- 13 & 14.

22.PW-6 S.I. Ram Chandra Mishra has proved the investigation

relating to the Crime No.218 of 2005 registered u/s 25 Arms Act,

site plan as Ex Ka-15, charge-sheet as Ex Ka-16, prosecution

sanction as Ex Ka-17 and check F.I.R. in the hand writing of

constable Ramkripal Pandey as Ex Ka-18 and G.D. as Ex Ka-20.

23.Relating to the F.I.R, it is argued that it is antetime. In this

regard, it is to note that the incident took place on 22.12.2005 at 6

p.m. and F.I.R. was lodged at 8.p.m on the same day at the police

station concerned, 12 km away from the place of occurrence.

P.W.4 constable Kunwar Singh deposed that he lodged the F.I.R.

on 22.12.2005 at 8 O'clock on the basis of the written report given

by informant Suresh Kumar and entered its detail in the G.D. report

no. 26 in the presence of the Station House Officer of the police

station and, thereafter, sent him to the place of occurrence. P.W. 5.

Manoj Kumar Pandey, the station house officer deposed that he

had gone to attend the OR of ASP at the Fatehpur Police Office,

while returning he was informed on the RT set that Umesh Kumar

had been murdered in the village Kichhauchha. He reached at the

village directly and conducted the inquest and prepared relevant

papers. It shows that PW-5 was not present at the Police Station at

8 p.m. as stated by P.W.4 but arrived at the police station after

conducting the inquest and sending the dead body for post-mortem

from the place of the incident.

24.P.W.1 informant has stated that he wrote the written report

and gave it in the police station Lalauli, which he proved as Ex. Ka-

1. During cross examination, P.W.1 stated that he called the police

by phone call from the police station. The Station Officer was

somewhere else from where he came on the spot. Then P.W.1 told

10

him (P.W.5) about the incident who got him write down the report.

P.W.1 showed the place of occurrence to the Investigating Officer.

P.W.1 did not take the dead body to the police station. The inquest

was conducted at home, then he went with the Investigating Officer

to lodge the FIR. The Investigating Officer dictated, he wrote and

gave that written report to him. This statement of P.W.1 clearly

shows that the station house officer was not present at the police

station. The informant called the police by phone and did not go to

the police station for lodging the FIR on his own but after the

Station Officer visited the place of the occurrence and conducted

inquest, P.W.1 went with him to the police station and lodged the

FIR by giving the report, written by him on the dictation of the

Station Officer. The inquest shows that the proceedings were

started at 20.23 p.m. and completed on 23.35 pm. It infers that the

station house officer reached at the police station after 23.35 p.m.

with the informant and then FIR was lodged on the basis of the

written report given by the informant, mentioning therein the time of

receiving information at 8 pm, which proves that the FIR was

lodged ante-time.

25.It is also argued that PW2 Sheetla Devi mother of the

deceased and PW 1, had not witnessed the incident. P.W.2 was

not present at the time of the incident. Her statement was neither

recorded by the Investigating Officer nor her name was mentioned

in the list of witnesses in the charge sheet, therefore, she cannot

be relied on. In this regard, it is true that the informant did not

mention her name in the F.I.R. with other witnesses who had

witnessed the incident. Her statement was not recorded by the

Investigating Officer under Section 161 Cr.P.C. and also her name

was not included in the list of prosecution witnesses in the charge

sheet but she was produced before the trial court as P.W.2

projecting her as eye witness of the incident. On 4.4.2007, after

11

one and half year, for the first time, she (P.W.2) deposed that the

incident was seen by her.

26.P.W. 2 stated that she was present at the gate of her house at

the time of the incident. She further stated that she came from the

tubewell and reached at her house and in the meantime,

occurrence took place. She went back on the gate of the house

and stood there. Suresh (P.W.1) was also there at the gate.

27.P.W.1 Suresh had not disclosed the presence of this witness

i.e., P.W.2 at the place of occurrence in the F.I.R. and Section 161

Cr.P.C. statement, though during his examination in the court,

P.W.1 stated about the presence of his bua Maunshree, bhabhi

Rajrani and Surajpal, who were not examined during the trial. In his

cross-examination, P.W. 1 also stated that his mother was in the

house. At the time of occurrence, he was out of the gate and

Surajpal Rakesh, Rajshree and Maunshree were collecting water.

He heard the sound of firing. All people present there disbursed

and accused persons fled away. He remained there alone and

brought his brother, the deceased inside the house. When he

brought the deceased to some distance, his mother came, then

both of them took the deceased and lay his body on the cot. In this

way, the version of P.W. 2 that she was present at the gate with

P.W. 1 Suresh and witnessed the incident, does not get support

from the statement of Suresh but it seems that she (PW-2) was in

the house and came outside after the incident had occurred and

while P.W. 1 Suresh was carrying the deceased from the place of

occurrence to his house. Thus, the presence of P.W. 2, on the spot,

at the time of the incident, is not established. Her testimony that

she witnessed the accused persons making fire at the deceased

does not inspire confidence of the court.

28.The names of other witnesses namely, Maunshree and

12

Surajpal were mentioned in the F.I.R. who witnessed the incident

and were present there at the time of the occurrence. But both

these witnesses have not been examined by the prosecution, for

the reasons best known to them. The testimony of P.W.2 about his

presence is unreliable and is nothing but an improvement on the

material aspect of the case.

29.It is to be noted that a witness, whose name was not

mentioned in the F.I.R. as an eye witness, and whose statement

was not recorded by the Investigating Officer under Section 161

Cr.P.C. and is not shown in the list of witnesses in the charge sheet

but examined before the trial court to the first time years after the

occurrence, his testimony cannot be considered safe to rely on, for

it may cause prejudice to the accused.

30.It has been held by The Hon'ble Supreme Court in the case

of Ram Lakhan Singh And Ors. vs. The State Of U.P. AIR1977

SCC 1996 that “It is true that no enmity or grudge is suggested against

this witness, but we find that this witness was not even examined by the

police nor was he cited in the chargesheet. In a grave charge like the

present, it will not be proper to place reliance on a witness who never

figured during the investigation and was not. named in the chargesheet.

The accused who are entitled to know his earlier version to the police

are naturally deprived of an opportunity of effective cross-examination

and it will be difficult to give any credence to a statement which was

given for the first time in court after about a year of the occurrence. We

cannot, therefore, agree that the High Court was right in accenting the

evidence of this witness as lending assurance to the testimony of other

witnesses on the basis of which alone perhaps, the High Court felt

unsafe to convict the accused.”

31.Now there remains the testimony of P.W.1 Suresh, who is the

brother of the deceased and the informant.

13

32.It is argued by the learned counsel for the appellants that the

testimony of this witness cannot be relied upon he being an

interested witness. In this regard, it is true that P.W. 1 Suresh is the

real brother of the deceased and comes in the category of related

witness. It has also been stated by P.W. 1 that the appellants

committed murder of his brother owing to the enmity relating to the

village pradhan election but only on account of enmity and being

related witness his evidence cannot be disbelieved, rather his

testimony is to be scrutinized with case and circumspection

because of the alleged enmity.

33.In Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC

2274 (1977) 4 SCC 452, Hon'ble The Supreme Court held: “It is

well settled that the evidence of interested or inimical witnesses is to be

scrutinised with care but cannot be rejected merely on the ground of

being a partisan evidence. If on a perusal of the evidence the Court is

satisfied that the evidence is creditworthy there is no bar in the Court

relying on the said evidence.” In such cases, their evidence is to be

scrutinized with great circumspection.

34.Further it is contended by the learned counsel for the

appellants that no independent witness has been examined by the

prosecution, therefore, the testimony of P.W. 1 cannot be relied

upon in absence of corroboration with some independent source. It

is to note that in the F.I.R., P.W. 1 named his bua (aunt) Maunshree

and Surajpal as eye witnesses of the incident but both of them had

not been examined before the trial court and there was no other

witness said to be present at the time of occurrence. On the basis

of non-examination of these two eye witnesses, the testimony of

P.W. 1 cannot be discarded at all because ordinarily in village, no

person wants to become a witness by putting his life in risk of

inviting enmity with other villagers named as accused, therefore,

non examination of independent eye witness cannot affect the

14

reliability of related witness.

35.In the case of Darya Singh Vs. State of Punjab AIR 1965

SC 328, Hon'ble The Supreme Court observed that “It is well-known

that in villages where murders are committed as a result of factions

existing in the village or in consequence of family feuds, independent

villagers arc generally reluctant to give evidence because they are

afraid that giving evidence might invite the wrath of the assailants and

might expose them to very serious risks. It is quite true that it is the duty

of a citizen to assist the prosecution by giving evidence and helping the

administration of criminal law to bring the offender to book, but it would

be wholly unrealistic to suggest that if the prosecution is not able to

bring independent witnesses to the Court because they are afraid to

give evidence, that itself should be treated as an infirmity in the

prosecution case so as to justify the defence contention that the

evidence actually adduced should be disbelieved on that ground alone

without examining its merits.”

36.It is also argued that there are omissions, discrepancies and

contradictions in the testimony of P.W. 1 which do not inspire

confidence. It is well settled law that minor discrepancies are not to

be given undue emphasis and the evidence is to be considered

from the point of view of trustworthiness. The test is whether the

same inspires confidence in the mind of the Court. If the evidence

is incredible and cannot be accepted by the test of prudence, then

it may create a dent in the prosecution version. If an omission or

discrepancy goes to the root of the matter and ushers in

incongruities, the defence can take advantage of such

inconsistencies. It needs no special emphasis to state that every

omission cannot take place of a material omission and, therefore,

minor contradictions, inconsistencies or insignificant

embellishments do not affect the core of the prosecution case and

should not be taken to be a ground to reject the prosecution

15

evidence. The omission should create a serious doubt about the

truthfulness or creditworthiness of a witness. It is only serious

contradictions and omissions which materially affect the case of the

prosecution but not every contradiction or omission. (See Rammi

@ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram

(dead) through Duli Chand Vs. State of Haryana and Another,

(1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh

& Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya

Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of

Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs.

State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas

Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC 796).

37.It is also contended that there was no motive to commit the

murder of the deceased by the appellants, even though the trial

court has convicted the appellants. As per the F.I.R., there was

enmity between both the parties relating to the election of the

village Pradhan and that was the reason of the appellants to

commit murder of the deceased, as stated by P.W. 1 during his

examination before the court. Further it is settled legal proposition

that even if there is absence of motive, as argued, that itself is of

no consequence and it pales into insignificance when direct

evidence establishes the crime. In case there is direct, trustworthy

evidence of the witnesses as to commission of an offence, motive

looses its significance and if genesis of the incident or motive of the

occurrence is not proved, the ocular testimony of the witnesses as

to the occurrence can not be discarded only on the ground of

absence of motive if otherwise the evidence is worthy of reliance.

38.Last argument on the part of the learned counsel for the

appellants is that the presence of P.W.1 at the place of occurrence

is also disputed because he did not fix his presence in the F.I.R.

16

and his statement before the trial court is nothing but an

improvement of the other witnesses who as per the statement in

the F.I.R. had seen the occurrence were not examined.

39.In this regard, it is noteworthy that in the written report given

by P.W.1 himself, he did not mention of having witnessed accused

persons firing at the deceased but wrote clearly that the incident

was witnessed by his bua (aunt) Maunshree and Surajpal ßbl ?kVuk

dks esjh cqvk ekSuJh o lwjtiky us ns[kk gS AÞ which infers that this witness

himself had not seen the occurrence.

40.During his examination before the trial court, PW-1 projected

himself as a witness of the incident. In the cross-examination, he

stated that his brother was taking water when the accused persons

came from the North side of the way. There was sound of fire which

he heard. About the presence of PW-2, he stated that his mother

Sheetla Devi (PW-2) was inside the house alongwith other family

members such as his sister-in-law and wife with children. He then

stated that when the appellants shot the deceased, all persons

present there were disbursed and he alone was left there. He

carried the deceased to his house who was alive at that time.

When he carried his brother to some distance, his mother came

and then both of them put the deceased on a cot. Thereafter, he

went to Jindpur to the doctor who did not meet and then PW-2

stated that he went for arranging the vehicle to bring the doctor and

when could not get the vehicle he came back from Jindpur which

was around 1 KM from his village. When he came back, his brother

had already died. He then stated that he put his brother in a tractor

to take to the doctor and then saw he did not have pulse, so came

back. His three uncles and brother were with him. Then police was

called through telephone from the police station. The Station House

Officer came on his own from somewhere. The incident was

17

narrated to him and he noted it down. He went to lodge the first

information report alongwith the Investigating Officer after the

inquest was concluded and the body was sent for the postmortem.

PW-1 stated that whatever was dictated by the Investigating

Officer, he wrote the same. In this testimony, PW-1, stated that he

was outside the gate of his house at the time of the incident and

other witnesses were near the handpump. The mother of the

deceased Sheetla Devi (PW-2) stated that at the time of the

incident she came back from the tube well and reached inside the

house. The incident had occurred at that point of time and she

immediately returned back. In the same breath, PW-2 stated that

she was standing at the gate and was waiting for the deceased to

come back so that she could talk to him. PW-1 was also with her at

the gate and then stated that at that time itself, the deceased was

hit and she was standing facing towards the west.

41.The postmortem report indicates only one firearm injuries on

the person of the deceased which means that only one fire was

shot. In light of this medical evidence, when the testimony of PW-2

is examined, her version is that she having returned from the tube

well, reached inside the house and then the incident had occurred

and she immediately came back. According to PW-1, the accused

persons immediately ran away having shot his brother. When PW-

2, mother of the deceased was inside the house she could have

come out hearing the sound of fire which was one only. In all

probabilities, testing the version of PW-2, she did not witness the

appellants accused opening fire at the deceased. Beyond that

nothing has been stated by PW-2 on confrontation, in cross, about

the presence of the accused appellants. Her statement in the

examination-in-chief that the appellant Kripa Shanker Dubey came

and fired at her son while she was standing at her gate could not

be substantiated from her version in the cross-examination. Her

18

statement in cross-examination is found to be inconsistent with the

version of PW-2 in her examination-in-chief. It, thus, appears that

PW-2 had reached at the place of the incident soon after the

incident had occurred but she did not witness the incident i.e. the

accused opening fire at the deceased or them being the assailants.

42.As a general rule, the Court can and may act on the

testimony of a single eye witness provided he is wholly reliable.

There is no legal impediment in convicting a person on the

testimony of a solitary witness. That is the logic of Section 134 of

the Evidence Act, 1872. As regards the PW-1, from his version that

he wrote the written report at the dictation of the Investigating

Officer and then went to the police station, non-mentioning of his

name as a witness of the incident in the F.I.R. becomes relevant.

PW-1, the informant, thus, remains a solitary witness of the

incident.

43.The law of evidence does not require any particular principle

of witness to be examined in proof of a given fact. However, faced

with the testimony of a single witness, the Court may classify the

oral testimony into three categories namely :- (i) wholly reliable; (ii)

wholly unreliable; (iii) neither wholly reliable nor wholly unreliable.

44.In Vadivelu Dhevar vs. State of Madras AIR 1957 SC 614,

while laying the principle of appreciation of testimony of solitary

witness, as noted above, it was observed that in first two category

there may be no difficulty in accepting or discarding the testimony

of a single witness. The difficulty arises in the third category of

cases. The Court has to be circumspect and has to look for

corroboration in material particulars by reliable testimony, direct or

circumstantial, before acting upon the testimony of a single

witness.

19

45.In light of the above principle, when we examine the

statement of PW-1 there are material improvement on the aspect of

him being eye witness, coupled with the fact that first information

report was found to be ante time and the presence of PW-1 on the

spot was sought to be fixed by him for the first time during his

deposition in the Court, when the report itself was scribed by him,

the testimony of this witness would fall in the third category as this

witness is neither wholly reliable nor wholly unreliable. We can

neither place reliance nor totally discard the testimony of this

witness. We find his testimony to have been substantially improved

at the trial than what it was to began with when the first information

report of the incident was lodged.

46.In the said scenario, we cannot, therefore, agree with the

Sessions Court in accepting the evidence of P.W.2 as lending

assurance to the testimony of P.W. 1 on the basis of which alone

perhaps, the trial Court itself felt unsafe to convict the accused.

47.So far as the recovery of the country-made pistol is

concerned, it was made by the Investigating Officer during the

investigation at the time of arrest of accused persons from the Bus

Stand near the tea stall on the basis of an information given by

informer at about 21.25 o'clock. It has been proved by the P.W. 5,

S.I. Manoj Kumar Pandey who made arrest and recovery, the place

where-from appellants were arrested was a public place, a tea stall

near the bus stand. Ext. Ka-6 site plan of the recovery shows that

there were so many shops of tea, eggs and P.C.O. near the place

of the arrest, where presence of people cannot be disputed at early

hours in the night but no public witness was found by the arresting

officer. It makes the recovery doubtful. Further it is noteworthy that

the arrest of the accused person was made on 25.12.2005 after

three days of the alleged incident of murder while they were

20

allegedly carrying the same country-made pistol with used

cartridge in its chamber and another cartridge in his pocket. It

seems improbable that the culprit who is a named accused in the

F.I.R. would carry the country-made pistol with used cartridge in its

chamber after three days of committing murder with the same

weapon. Even the police personnel accompanying him at the time

of the arrest had not been examined. During the cross-

examination, PW-5 expressed his inability to explain the orientation

of the place of arrest and recovery. The recovery of country-made

pistol and cartridge, as such, cannot be believed being beyond the

shadow of reasonable doubt.

48.After having examined the entire evidence and considering

the circumstances of the case at hand in totality, we are afraid to

affirm the conviction on the oral testimony of the prosecution

witnesses (PW-1 & PW-2) and to hold that the prosecution has

established the charges against the accused persons beyond

reasonable doubt. The benefit of reasonable doubt, therefore, has

to go to the accused persons and they are liable to be acquitted of

all the charges. The judgment and order of the Sessions Court

convicting and sentencing the appellants is hereby set aside.

49.The appellant Kripa Shanker Dubey is in jail who shall be

released from the detention forthwith, if not wanted in any other

case.

50.Appellant Uma Shanker Dubey is on bail. He need not to

surrender, his bail bonds are cancelled and sureties are

discharged.

51.These appeals are, accordingly, allowed.

52.Copy of this judgment alongwith the original record be

transmitted to the Court concerned for necessary compliance. A

21

compliance report be sent to this Court within one month. The

office is directed to keep the compliance report on record.

Order Date :- 30

th

September, 2022

Ashok Gupta/A. Singh

(Subhash Chandra Sharma, J.) (Sunita Agarwal J.)