AFR

Court No:- 52

Reserved on:- 31.3.2022

Delivered on:- 29.9.2022

CRIMINAL APPEAL No. - 487/2020

Appellant :- Krishna Veer @ Pinkoo

Respondent :- State of U.P. and Anr.

Counsel for Appellant :- Durgesh Kumar Singh, Anshu

Chaudhary

Counsel for Respondent :- A.N. Mulla, G.P. Singh, Sri Narain

Mishra, A.G.A.’s

Hon'ble Mahesh Chandra Tripathi,J.

Hon'ble Chandra Kumar Rai,J.

(Delivered by Chandra Kumar Rai, J.)

1.Heard Sri Durgesh Kumar Singh and Sri Anshu

Chaudhary for the appellant and Sri A.N. Mulla / Sri G.P. Singh /

Sri Shri Narain Mishra, learned A.G.A’s for the State.

2.This appeal has been preferred against the judgment and

order dated 17.12.2019 passed by the Special Judge

(S.C./S.T.) Act, Mathura in Sessions Trial No.239/2003 (State

vs. Krishna Veer and Others), arising out of Case Crime

No.130/2001, under Section 302 I.P.C. and 3(2)(v) of the

S.C./S.T. Act, Police Station-Baldev, District Mathura, convicting

and sentencing the accused-appellant under Section 302 IPC

for life imprisonment and fine of Rs.30,000/-, in default of

payment of fine, they have to further undergo imprisonment of

one year and under Section 3(2)(v) of S.C./S.T. Act, rigorous life

imprisonment and fine of Rs.30,000/-, in default of payment of

fine, they have to further undergo imprisonment of one year,

both the sentences will run concurrently.

3.The prosecution case as per the First Information Report

lodged by Ram Khilari (P.W.-1) is that applicant is resident of

Laxmi Nagar, Police Station Jamunapar, District Mathura. On

5.6.2001, applicant had come to his brother’s village –

Darghata, Police Station Baldeo, District Mathura who lives in

his in-law’s house. On 5.6.2001, applicant’s brother and sister-

in-law Smt. Sukhdevi were sitting on the platform outside the

house after taking food. One Krishna Veer @ Pinkoo son of

Maharaj Singh Jaat, resident of village Darghata, Police Station

Baldeo, District Mathura came to the house of Vimla Devi, wife

of late Devjeet who is neighbour of applicant’s brother Mohan

Lal, at about 9.30 P.M., with a bad intention, then Vimla Devi

raised a noise, the applicant’s brother Mohan Lal saw Krishna

Veer is coming out from her house, he interrupted him then

Krishna Veer told to applicant’s brother “sale dhar”, you sit silent

otherwise I will kill you. There was exchange of talk between

them then Maharaj Singh, son of Deep Chandra Jatt who is

father of Krishna Veer came running with country-made pistol in

his hand and started abusing him and commented on his caste

then applicant’s brother told that why you are abusing me, in

between Maharaj Singh fired shot upon applicant’s brother

Mohan Lal from country-made pistol which passed from his side

then Maharaj Singh told his son Krishna Veer @ Pinkoo to fire

shot upon him then Krishna Veer took out his country-made

pistol from his side and fired shot upon applicant’s brother

which hit his chest and Mohan Lal died on spot. Bengali son of

Katila and Atar Singh son of Shiv Lal witnessed the incident.

Dead body of applicant’s brother is lying on the spot. Legal

action be taken by writing a report.

4. On the basis of written report, Case Crime No. 130/2001

under Sections 302 IPC and section 3(2)(v) SC/ST Act was

registered against accused Krishnaveer Singh and Maharaj

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Singh on 5.06.2001 at 10:45 PM and investigation of the case

was handed over to station Officer who went to the place of

incident. Panchnama of the dead body was conducted and after

completing the formalities, dead body was sent for postmortem,

the spot map of the place of incident was prepared, one empty

cartridge was recovered by the police from the place of

incident, the memo was accordingly prepared. Investigation

Officer submitted charge-sheet against accused Krishanveer

Singh under section-320 IPC and section 3(2)(v) SC/ST Act. No

charge-sheet has been sent against Maharaj Singh. Charges

were framed against accused Krishanveer Singh under section-

320 IPC and section 3(2)(v) SC/ST Act to which he denied and

claimed trial.

5. The prosecution in order to prove its case, produced as

many as 9 witnesses whose particulars are as follows:

P.W.1 Ram Khilari son of Shri Ram (First informant and

alleged eye- witness)

P.W.2 Atar Singh son of Shiv Lal (alleged eye-witness)

P.W.3 Dr. Subhash Chandra Chief Medical Officer

P.W.4 Sukh Devi wife of late Mohanlal (allege eye-witness)

P.W.5 Veer Singh son of Khazan singh (I.O. of Case Crime

No.130/2001)

P.W.6 Gauri Shankar son of Hari Singh (witness of inquest)

P.W.7 Jhinguria son of Puran Singh (witness of inquest)

P.W.8 S.I. Mahendra Giri

P.W.9 C.I.S. Jagmohan Shukla son of late Awadh Narain

Shukla (IO of Case Crime No- 130/01)

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6. In support of the occular testimony of the witnesses,

prosecution filed following documentary evidence:

1. FIR dated 5.6.2001 (Ex Ka-1)

2. Chik (Ex Ka-4)

3. Site plan (Ex Ka-3)

4. Panchnama dated 5.6.2001 (Ex Ka-6)

5. Postmortem report dated 6.6.2001 (Ex Ka-2)

6. G.D.No. 35 (Ex Ka)

7. Recovery Memo of Empty Cartridge (Ex Ka-7)

8. Photo Lash (Ex Ka-9)

9. Letter to CMO (Ex Ka -11)

10. Charge-sheet dated 15.4.2021 (Ex Ka-8)

7.The accused - appellants in their statements recorded

under Section 313 Cr.P.C denied the prosecution case and

disputed the veracity of the evidence adduced by the

prosecution.

8.P.W.1 Ram Khilari has stated in his examination-in-chief

took place on 12.05.2008 as follows:-

Accused persons Krishnaveer and Maharaj Singh belong to

Jaat caste and they are residents of Dagheta Police station

Baldev. His brother Mohanlal's in-laws home is situated at

Dagheta. He has been visiting there before the occurrence of

this incident that is why he was acquainted with the accused

persons. His brother was residing at village Dagheta. He had

gone to his brother's in-laws home at Dagheta on 05/06/01.

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His brother Mohanlal, sister-in-law Sukhdevi and he were

sitting on the raised platform after taking food. His brother's

in-laws’ neighbour Vimla came in the house of Late Devjeet at

9.30 pm and Krishnaveer had also come with her and entered

in the house of Vimla with malafide intention. Vimla shouted.

His brother Mohanlal saw Krishnaveer coming out of Vimla's

house. His brother objected Krishnaveer, then Krishnaveer

said, “Saale, shut your mouth otherwise I will kill you.”

Verbal fight occurred between them. Krishnaveer's father

Maharaj Singh came carrying country-made pistol uttering

caste based word to Mohanlal, Maharaj Singh opened fire at

him with intent to kill him. But this fire passed by the side of

Mohanlal. Then Maharaj Singh asked his son Krishnaveer to

kill him. Then Krishnaveer took out country-made pistol from

his side and opened fire at Mohanlal with intent to kill him

which hit on his chest due to which he succumbed on the spot.

Atar Singh Bangali belongs to that village came on the spot

and saw the incident. It was moonlight in which he had seen

the incident. He got the report of this case written by Atar

Singh. Atar Singh read over to him and he heard the report.

In the cross examination P.W.1 has stated as

follows:- There was no enmity between his brother Mohanlal

and accused Krishnaveer and there was no friendship between

them. Krishnaveer belongs to Jaat caste and he belong to Jatav

caste. Colony of Jatav is separate and colony of Jaat is also

separate. He and his brother Mohan Lal had taken meal

containing a dish of potato and brinjal, and chapatis at around

8:00 o' clock. The platform (chabutra), where they were sitting,

is adjacent to the home in the east. He further stated that he is

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acquainted with Vimla for many years. Vimla's house is 8-10

steps away from his brother's house to the west. No house falls

in-between them, rather there is a vacant land which belongs to

them. When Vimla raised alarm, Atar Singh Bengali and his

sister-in-law (elder brother's wife) Sukhdevi had also arrived

there. He fruther stated that Vimla must be around 35-40 years

old.

In the examination in chief took place on 15.04.20017

P.W.1 has stated as follows:-

He lives in Lakshmi Nagar, PS Jamuna Nagar, Mathura. His

elder brother Mohan Lal would reside with his in-laws at

Village Dagheta, PS Baldev where Mohan Lal was shot dead

on the night of 05.06.2001. He had got the report/complaint of

this incident being ext. ka-1 written through Atar Singh, a

resident of Dagheta against the accused persons Krishnaveer

and Maharaj Singh and had submitted the same at PS Baldev.

He got to know about the said incident on an information sent

by his sister-in-law (bhabhi) in Lakshmi Nagar. He

immediately left the village. He reached PS Baldev where

many persons from the village were present. Atar Singh was

also there. Atar Singh had prepared this report/complaint as

stated by the villagers. He had made his signature on the

report/complaint. He had directly reached to his brother’s in-

laws’ place Dagheta after making his signature on the

report/complaint. The situation there was sorrowful. He found

his sister-in-law disturbed there. They could not speak with

each other. He had heard from the villagers that it was a

murder case and there was a rumour in the village that the

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accused persons Krishnaveer and Maharaj Singh were

involved in this incident. He was not present in Village

Dagheta at the time of the incident. He was in Lakshmi Nagar.

Earlier he had given his statement on the basis of that very

information. Consequent to this, the witness was declared

hostile on request by ADGC and opportunity was granted for

cross-examination.

In the cross examination P.W.1 has stated as follows:-

In connection with this incident, his statement had been

recorded in the court earlier as well. It is correct that in the

said statement, he had stated that Krishnaveer and Maharaj

Singh had shot Mohan Lal due to which Mohan Lal had died.

Volunteered to state today that he had given his statement in

line with the case diary at the instance of the police. It is

wrong to say that on 05.06.2001 at 9:30 pm, he had witnessed

the murder of Mohan Lal by the aforesaid Krishnaveer and

Maharaj Singh of Dagheta by way of shooting him with a

country made pistol while his brother Mohan Lal was sitting

on a platform in the village within PS Baldev. It is also wrong

to suggest that he was present in village Dagheta at the time of

the incident and had given his previous statement on the basis

of witnessing the entire incident. He is Jatav by caste.

Accused persons are Jat by caste. It is also wrong to say that

he has, in collusion with the accused persons or out of fear,

today retracted his earlier statement to save them in this case.

No police officer had recorded his statement in connection

with this incident. The witness, on hearing his statement u/s

161 Cr.P.C., stated, “I did not give such a statement to the

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police. I cannot tell any reason as to how they recorded my

statement.”

9.P.W.2 Atar Singh has stated in his examination in chief

took place on 11.01.2011 as follows:-

That on 05.06.2001, he drafted the complaint in this case at the

instance of Ram Khiladi, s/o Shri Shriram Jatav, r/o Lakshmi

Nagar Bagheecha, Jamunapar, which is available on the record

and is before him. It is in his handwriting bearing his signature

and marked as ext. ka-1. He further submitted that he has made

his signature on the Panchnama 'Paper No. 04 Aa/10'. The

Panchnama is related to the deceased Mohan Lal. The

deceased Mohan Lal died from bullet injury, but who fired the

bullet, it was not seen. On being shown the affidavit (Paper

No. 4A/50) submitted by him, the witness said that the

photograph affixed on it was his, but whose signature it was,

he could not recognise.

In the cross Examination P.W.2 has stated as follows:-

That he did not give any affidavit to CBCID on his own free

will. He cannot state if he had given his photos for the card or

any other purpose. He can't state who has signed the affidavit.

He hasn’t seen any occurrence.

10.P.W.3 Dr. Subhash Chandra in his examination-in-chief

took place on 02.05.2012 has stated as follows:-

That on 6.6.2001, he was posted as Orthopaedist in the District

Hospital, Mathura. On the said date, at 3:40 p.m., He had

conducted the post-mortem on the body of Mohan Lal s/o Shri

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Ram, aged about 50 years, resident of Village - Dagheta, PS -

Baldev, District - Mathura. The dead body was brought by

Constable - 1090 Vimlesh and Constable - 1174 Munesh, PS -

Baldev in a sealed condition along with 08 police papers. He

had perused the police papers. The deceased was average

build. The effect of rigor mortis from the neck of the deceased

had passed after death, but its effect was present in the hands

and feet.

He had found the following ante-mortem injury on the

body -

The firearm wound of entry, 2 cm x 1.5 cm x chest cavity

deep, 100 cm below the nipple at 6 O'clock position. There

was blackening, tattooing and scorching on the wound.

The direction of the wound was from left to right and

upwards.

On internal examination, the ninth rib bone on the left side of

the chest was found to be broken. The right lung and its

membrane were found to be ruptured. A metal bullet was

recovered from the right chest cavity. The heart and its

membranes were ruptured. There was about two litres of blood

in the chest cavity. There was about 100 grams of fluid inside

the stomach. Fluid and gas were present in the small intestine.

Faecal matter and gas were present in the large intestine. The

deceased died due to haemorrhage and shock. The death of the

deceased occurred about 3/4 (18 hours) - 1 day before the post-

mortem examination. He had prepared post-mortem report at

the time of post-mortem of the deceased ‘Paper No. 4A/20’,

which is in his writing and signature.

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In the cross examination P.W.3 has stated as follows:-

That it is possible that the deceased might have been hit with

firing from a distance of 01 to 03 feet. The barrel of the

firearm was to the left of the deceased at the time of the

occurrence. He was saying this on the basis of the direction of

injury. The barrel of the firearm must have been slightly

upward at the time of the occurrence. There was no solid food

in the stomach of the deceased. 100 grams of fluid was

present in the stomach. It usually takes about 04 hours for the

solids to pass from the stomach to the small intestine. The

deceased must have eaten something about 04 hours before

the occurrence. For this reason, some digested fluid was found

in the small intestine. The said liquid cannot be alcohol. It can

be water, tea, cold drink.

11.P.W. 4 Sukh Devi wife of Late Mohan Lal in her

examination-in-chief took place on 21.03.2013 has stated as

follows:-

That the incident took place on 05.06.2001 around 9.30 p.m.

She was sitting on the raised-platform of her house with her

husband Mohan Lal and her brother-in-law Ram Khiladi and

were talking. Just then they heard some hue and cry from the

house of her maternal aunt Vimla Devi. Krishna Veer @ Pinku

S/o Maharaj Singh, Caste: Jat came outside. Her husband tried

to stop Krishnaveer, Krishnaveer shouted, “You bastard, sit

quietly or else I will kill you.” During this hot exchange,

Krishnaveer’s father Maharaj came running, holding a katta

country made pistol in his hand and started abusing. When her

husband forbade Maharaj from abusing, he with the country

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made pistol in his hand, shot at her husband which narrowly

passes beside his hand. Then Maharaj Singh exhorted his son

Krishnaveer, “.the bastard Chamra, or else he will create

problem again.” Then Krishna Veer took out the country made

pistol from his pocket and shot at her husband. Immediately

after receiving the gunshot, her husband fell down on the

raised-platform and died. The gunshot hit her husband in his

chest. My brother-in-law Ram Khiladi and others reached the

spot. She did not reach the spot (then stated that) she was

present at the spot. She further stated that it is around 16 years

back. It was 9-10 pm. Her husband Mohan Lal had been

murdered by firing bullet shots. Her brother-in-law had lodged

the report against Krishnaveer and Maharaj of her village. A

woman namely Vimla of her locality had altercation against

Krishnaveer. When she returned from Nauhare after giving

fodder to her cattle, her husband was lying dead on the

chabutara. She had not seen Krishnaveer and Maharaj present

in the court firing bullet shots to her husband.

In her cross examination P.W.4 stated as follows:-

That no Police Officer had recorded her statement in regard to

this incident. When the witness was read over her statement u/

s 161 Cr.P.C., she stated that she can't tell the reason how the

S.I. had recorded it. She had given her statement in this court

earlier too. She stated that earlier too, she had given the same

statement that she was not present at the spot. It is wrong to

state that she had seen accused persons Krishnaveer and

Maharaj present in the court firing bullet shots at her husband

at the spot. The accused persons are the native of her village.

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They are Jat by caste, she is Jatav. It is wrong to state that

today she is giving false statement in collusion with or under

pressure or fear of the accused persons. Her brother-in-law is

working in post office. His posting is at Sahawan. After the

death of her husband, someone from the village had called her

brother-in-law Ram Khiladi for lodging the report. Mostly

there are persons of Jat caste. When her brother-in-law came,

then he would have lodged the report. She had been

unconscious since evening. Earlier, the statements she had

given was given on behest of the people of the village.

12.P.W.5 Veer Singh C.O. in his examination-in-chief took

place on 28.03.2018 has stated as follows:-

That on 6.6.01 he was posted as C.O. at PS Baldev Circle

Jamunapar. On the aforesaid date on being commanded by the

then Senior Superintendent of Police, the investigation of

C.No. 130/01 was handed over to him. After taking over the

investigation, firstly the copy (parcha no. 1) of written report

was prepared by him. Thereafter the statement of HM 74CP

Mahendra Giri was recorded by him. Further the statement of

informant Ram Khiladi s/o Shri Ram Jatav r/o Lakshminagar

PS Jamunapar was recorded. After recording the aforesaid

statements, the scene of occurrence was inspected at the

instance of informant. The site map was prepared on the spot.

In the original file of site map, paper number 4A/3 is enclosed

marked as Ex Ka-3. After the inspection of scene of

occurrence, the statements of witnesses Horilal s/o Kashiram,

Kishan Swaroop s/o Nekram were recorded as hearsay

evidence in C.D. (parcha 1). On 6.6.01 as he was transferred

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from the aforesaid circle, the investigation of the said case was

conducted by the then S.P. Dwivedi.

In his cross examination P.W.5 stated as follows:-

That he went on the spot during daytime. He do not

remember time. He did not see the house of Vimla, nor did he

record her statement. He did not arrest any accused. He did

not raid. He issued parcha 1 during investigation. Thereafter he

was transferred. It is right that there was no electricity pole or

bulb on the spot, thus there was no source of light. Therefore

he did not get it written.He cannot tell according to map

whether there was any source of light. He did not see (sic) on

the spot. Many people were visiting the place. When he went

on the spot, nobody told because there was no eye witness. He

is not acquainted with Maharaj Singh and Krishnaveer. Ram

Khiladi gave statement with reference to report. He did not

make any other statement. He did inquire Ram Khiladi about

Ram Khiladi’s report. He did not inquire anyone. It is wrong to

state that he recorded the statements at the police station on the

basis of FIR. It is also wrong to state that he did not meet Ram

Khiladi. It is also wrong to state that harm was caused during

raid at house. It is also wrong that inquiry was made in that

regard.

13.P.W.6 Gain Shanker in his examination-in-chief took place

on 12.07.2018 has stated as follows:-

That the relative of Jagna belonging to their village died. The

police initiated proceeding in this regard. The police

conducted inquest of deceased Mohan Lal in village 16-17

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years before. Mohan Lal died at night. Next day the police

carried away the dead body for inquest. His signature was

obtained. The police asked five elderly people to make

signatures on inquest report. He does not know that what

proceedings were conducted by the police. Inquest report is

paper number 4A/9 to 11 on file. It bears his signature. He

does not know that how Mohan Lal was killed.

14.P.W.7 Jheeguria in his examination-in-chief took place on

12.07.2018 has stated as follows:-

That Around 17-18 years before Mohan Lal, the son-in-law of

Jagna belonging to his village died during night. Next day the

police came on information. He came after the police. The

police conducted inquest of the dead body. The police asked

him to make his signature on document and he did it in

accordance with the instructions of the police. The inquest

report is paper number 4A/9 to 11 in file. It bears his signature.

He does not know that how Mohan Lal died. He does not know

that who is being prosecuted for killing Mohan Lal. When he

came, the police had sealed(sic). He did not see the dead body

of Mohan Lal.

15.P.W.8 Mahendra Giri S.I. in his examination-in-chief took

place on 04.10.2018 has stated as follows:-

That On 5.6.2001 he was posted as HM at PS Baldev. On the

said date at 10.45 pm informant Ram Khiladi s/o Shri Ram

Jatav r/o Lakshminagar PS- Jamunapar District- Mathura

came with a report. Informant’s report was registered by him

as C.C.No. 130/2001 under Section 302 IPC and 3(1) X and

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3(2)5 SC/ST Act and investigation was handed over to CO

Refinery. Paper number 3A/1 is there on file marked as Ex

Ka-4. It is in his handwriting and signature. He entered it in

GD number 35 at 22.45 hours. The carbon copy (paper 4A/5)

of original GD is present on file. The original is destroyed. He

has brought a certificate in this regard. It bears his signature.

He certifies it. It was marked as Ex Ka-5. The inquest of

deceased Mohan Lal was conducted by Shri Ram Pal Singh

after appointing Pyare Lal, Atar Singh, Gauri Shankar,

Bhagwan Singh, Jheeguriya as panchas. Ram Pal Singh was

posted with him at police station Baldev. He identifies Ram

Pal Singh’s signature. Inquest report is 4A/9 and 4A/10. It was

marked as Ex Ka-6.

In his cross examination P.W.8 has stated as follows:-

That after receiving the information of receiving the SR, C.O.

refinery, S.O. Baldev and others had come, but he does not

remember as to when the above officers had come on

06.06.2001, nor does he knows when the dead body was

picked up from the spot in order to seal and stamp it on the

next day. He did not go to the place of occurrence. He does

not have any information as to the spot. He knows that the

murder-case of Maharaj Singh’s brother and Krishnaveer’s

uncle pre-dates his tenure; whose case was pending.

16.P.W.9 Jag Mohan Shukla in his examination-in-chief took

place on 03.07.2019 has stated as follows:-

Parcha no.-IX was prepared by him. On that day, He was

posted as CIS 1

st

at Criminal Investigation Branch, Lucknow.

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On that day, he received investigation of C.No.-130/01, u/s-

302IPC & 3 (2) V SC/ST, Act from previous investigating

officer namley Shri Sanjay Kumar Yadav wherein receiving

the concerned documents related to the investigation,

investigation was initiated. Having prepared C.D. No.-X on

05.09.2002, statements of complainant Ram Khilari, Smt.

Shukhadevi w/o Mohan Lal, Atar Singh, Bengali and Smt.

Vimla Devi were recorded and after verifying the affidavits

given by previous investigating officer, made it the part of his

investigating and inspected the place of occurrence at the

instance of complainant which has been marked as Ext. ka-03.

Parcha no.-XI was prepared on 06.09.2002 wherein

statements of witnesses of the inquest report namely Pyare

Lal, Gauri Shanker, Jhingariya, Bhagwan Singh and

statements of witnesses namely Girij Singh, Ramveer Singh,

Vijendra Singh, Karan Singh, Chote Lal, Ajay Pal, Ramji Lal

were recorded and other persons of the village were

interrogated and statements of witness Ram Khilari and

Shukha Devi were again recorded and statements of Smt.

Shakunkala, Pipendra, Ramveer Singh and Deep Chand,

Maharaj Singh and Smt. Sheela Devi and Krishnaveer Singh,

who were present on the spot, were recorded. Statements of

Dr. Shubash Chand, Medical Officer, who conducted the

postmortem of deceased Mohan Lal, was recorded in which

Medical Officer stated that no injury was found on deceased

except a bullet injury on deceased chest. C.D. No.-XII was

prepared on 07.09.02 wherein preparing the aforesaid parcha

and perusing the parchas of the proceeding done by the

previous investigator, investigator of the local police Shri Veer

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Singh and SP Dwivedi, C.O., prepared parch-1 & parch no.-II

06.06.01 respectively which were inspected. The proceeding

done by previous investigator, which includes site-plan, etc.,

and recovery memo of one empty cartridge which is paper

no.4A/06 was prepared by S.I. Rampal in S.I. Rampal’s

handwriting and signature and the same is before him.

In his cross examination P.W.9 has stated as follows:-

That No lamp-post or light has been mentioned in the site-

plan Ext. ka-03 enclosed with the file. It is correct that the

incident took place at 9:30 pm. Only one empty cartridge was

found on the spot and no mark of any other fire was found. It

is correct that Maharaj Singh and Krishna Singh are father and

son. It is that during his inquiry the witnesses namely Atar

Singh, Bengali and Smt. Vimla mentioned in the FIR did not

support the occurrence of the incident, nor did they claim to

be eye-witnesses. It has also been stated that prior to him, no

investigating officer has recorded any statement regarding this

incident. He recorded the statement of witness Atar Singh,

who stated in his statement “Jaswant Singh repeatedly gave

advise to Ram Khilari that if Maharaj Sigh is named then he

will not be able to follow the case and this case will be strong.

On being asked, he stated that Jaswant Singh and others are

accused of the murder-case of Maharaj Singh’s brother

namely Sultan Singh, at this time (he) is on bail”. It is correct

that Jaswant Singh is of criminal-nature. Smt. Vimla stated in

her statement to him that Krishnaveer Singh did not come to

her home on the fateful day, nor did she raise any noise.

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17. The learned Sessions Judge SC/ST Act Mathura after

hearing the parties and perusal of the record, acquitted

accused Maharaj Singh under Sections 302 IPC and section

3(2)(v) SC/ST Act but convicted accused Krishanveer Singh

under section-302 IPC and section 3(2)(v) SC/ST Act, hence

this appeal.

18.Learned counsel for the appellant submits as follows:-

(i) The first argument is that all the three alleged eye-

witnesses (P.W.’s 1, 2 & 4) have become hostile. He

further submitted that P.W.-2 has become hostile on

first instance while P.W.’s 1 & 4 have become hostile

subsequently at the stage of 319 Cr.P.C., as such, it

cannot be said that prosecution has proved his case

beyond reasonable doubt.

(ii) The second argument is that on the similar set of

evidence, appellant has been convicted and another

accused Maharaj Singh has been acquitted which is

illegal.

(iii) The third argument is that court below has failed

to give an opportunity to offer an explanation of

subsequent statement of P.W.’s 1 & 4 which were

recorded on 15.4.2017 and 4.2.2017 which is

violation of Section 313 Cr.P.C.

(iv) The fourth argument is that appellant cannot be

convicted under Section 3(2)(v) of the S.C./S.T. Act

as there was no evidence regarding intentional insult

to the deceased.

18

(v) The fifth argument is that Smt. Vimla Devi who

was the cause of the alleged incident, has not been

examined and the statement of P.W.-9 S.I.

Jagmohan Shukla in his cross-examination stated

that Smt. Vimla Devi in her statement stated before

him that Krishna Veer has not come to her house on

the date of incident and she has not made any noise

on that day, accordingly, motive was not proved.

(vi) The sixth argument is that two shots were fired

as per prosecution case but only one empty cartridge

was recovered as per recovery memo.

(vii) The seventh argument is that prosecution

version appears to be false as according to

prosecution version, deceased and first informant

were sitting on Chabutra outside the house of

deceased after taking dinner at 8 P.M. but in

postmortem report, no solid food was found inside

the intestine rather 100 mt. Liquid was found inside

the body of the deceased.

(viii) The last argument is that D.W.-1 has stated

about false implication of accused-appellant at the

suggestion of Jaswant Singh who was involved in

the murder of brother of Maharaj Singh but courts

below has not considered the same while passing

impugned judgment.

19.Learned counsel for the appellant placed reliance upon

the following judgments:

19

(i)Notes published in Indian Law Institute on

inseparable and indivisible evidence against all

accused (on the point of argument no.ii)

(ii) Veer Singh Verma vs. State of Uttar Pradesh, Criminal

Appeal No.(s) 154 of 2019, judgment dated 28.1.2019

(on the point of argument no.ii)

(iii) (2015) 1 SCC 496, Nar Singh vs. State of Haryana

(on the point of argument no.iii).

(iv) (2018) 1 SCC 742, Asharfi vs. State of Uttar Pradesh

(on the point of argument no.iv).

20.Learned A.G.A. on the other hand supported the

impugned judgment and order of conviction by contending that

prosecution case is fully proved from the evidence of P.W.’s- 1

to 9 in spite of the fact that eye-witnesses, P.W.-1, P.W.-2 &

P.W.-4 have been declared hostile. He placed reliance upon

2006 (2) SCC 450, Radha Mohan Singh @ Lal Saheb and Others

vs. State of U.P., on the point of hostility of witnesses and

submitted that appeal filed by appellant is liable to be

dismissed.

21.With respect to the 1

st

and 2

nd

argument of appellant, it is

relevant to mention here that P.W.-1, first informant is the real

younger brother of deceased and P.W.-4 is the wife of

deceased who had supported the prosecution case in their

examination-in-chief and cross-examination took place in the

year 2008 to 2014 but in their subsequent statement, took place

in the year 2017, due to application filed by prosecution under

Section 319 Cr.P.C., P.W.-1 and P.W.-4 had clearly denied their

20

presence on spot, as such, they have been declared hostile. So

far as P.W.-2 is concerned, he was declared hostile at the first

instance as he has stated that he had not seen who fired shot,

as such, eye-witness account failed to prove the prosecution

case. The argument of the learned A.G.A on this point on the

basis of judgment of the Apex Court in Radha Mohan Singh

(supra) to the effect that since P.W.-1 & P.W.-4 had supported

the prosecution case in their examination-in-chief as well as in

cross-examination took place at earlier occasion, as such,

entire statement of P.W.’s- 1 & 4 will be seen in spite of the fact

that P.W.’s 1 & 4 have been declared hostile.

22.Since P.W.’s- 1 & 4 have been examined in the year 2017

on the basis of the application of the prosecution itself to

summon Maharai Singh under Section 319 Cr.P.C. and P.W.’s-

1 & 4 have denied their presence on spot, accordingly, Maharaj

Singh was acquitted on the basis of entire evidence, as such,

the conviction of appellant on the same evidence will be illegal.

23.The Apex Court in the case of Krishna Govind Patil vs.

State of Maharashtra, AIR 1963 Supreme Court 1413 has held

that where, 3 out of the 4 accused charged for an offence under

Section 302 IPC read with Section 34, giving them the benefit

of doubt in view of the fact that their identity was not

established but convicting the 4

th

accused under Section 302

read with Section 34 IPC on the ground that he had committed

the offence along with one or other of the acquitted accused,

the conviction of the 4

th

accused clearly wrong.

21

Notes of Indian Law Institute as well as the judgment of

the Apex Court in Veer Singh Verma (supra) as cited by counsel

for the appellant at Sl. No. (i) & (iii) are on the same points.

24.Accordingly, the argument nos. 1 & 2 advanced by

counsel for the appellant is accepted and it is held that

prosecution has failed to prove his case beyond reasonable

doubt.

25. The 3

rd

argument of appellant and case law cited by him

in the case of Nar Singh (supra) that courts below has failed to

give an opportunity to offer an explanation of the subsequent

statement of prosecution witnesses has also got substance,

paragraph nos. 9, 10, 11 & 34 of Nar Singh (supra) are as

follows:

9. The power to examine the accused is provided in

Section 313 Cr.P.C. which reads as under:-

“313. Power to examine the accused.- (1) In every inquiry

or trial, for the purpose of enabling the accused personally

to explain any circumstances appearing in the evidence

against him, the Court-

(a) may at any stage, without previously warning the

accused put such questions to him as the Court considers

necessary;

(b) shall, after the witnesses for the prosecution have been

examined and before he is called on for his defence,

question him generally on the case:

22

Provided that in a summons-case, where the Court has

dispensed with the personal attendance of the accused, it

may also dispense with his examination under clause (b).

(2). No oath shall be administered to the accused when he

is examined under sub- section (1).

(3). The accused shall not render himself liable to

punishment by refusing to answer such questions, or by

giving false answers to them.

(4). The answers given by the accused may be taken into

consideration in such inquiry or trial, and put in evidence

for or against him in any other inquiry into, or trial for, any

other offence which such answers may tend to show he has

committed.

(5). The Court may take help of Prosecutor and Defence

Counsel in preparing relevant questions which are to be

put to the accused and the Court may permit filing of

written statement by the accused as sufficient compliance

of this section.”

10. There are two kinds of examination under Section 313

Cr.P.C. The first under Section 313 (1) (a) Cr.P.C. relates to

any stage of the inquiry or trial; while the second under

Section 313 (1) (b) Cr.P.C. takes place after the prosecution

witnesses are examined and before the accused is called

upon to enter upon his defence. The former is particular

and optional; but the latter is general and mandatory. In

Usha K. Pillai v. Raj K. Srinivas & Ors., (1993) 3 SCC

208, this Court held that the Court is empowered by

23

Section 313 (1) clause (a) to question the accused at any

stage of the inquiry or trial; while Section 313(1) clause (b)

obligates the Court to question the accused before he

enters his defence on any circumstance appearing in

prosecution evidence against him.

11. The object of Section 313 (1)(b) Cr.P.C. is to bring the

substance of accusation to the accused to enable the

accused to explain each and every circumstance appearing

in the evidence against him. The provisions of this section

are mandatory and cast a duty on the court to afford an

opportunity to the accused to explain each and every

circumstance and incriminating evidence against him. The

examination of accused under Section 313 (1)(b) Cr.P.C. is

not a mere formality. Section 313 Cr.P.C. prescribes a

procedural safeguard for an accused, giving him an

opportunity to explain the facts and circumstances

appearing against him in the evidence and this opportunity

is valuable from the standpoint of the accused. The real

importance of Section 313 Cr.P.C. lies in that, it imposes a

duty on the Court to question the accused properly and

fairly so as to bring home to him the exact case he will

have to meet and thereby, an opportunity is given to him to

explain any such point.

34. In our view, accused is not entitled for acquittal on the

ground of non-compliance of mandatory provisions of

Section 313 Cr.P.C. We agree to some extent that the

appellant is prejudiced on account of omission to put the

question as to the opinion of Ballistic Expert (Ex- P12)

24

which was relied upon by the trial court as well as by the

High Court. Trial court should have been more careful in

framing the questions and in ensuring that all material

evidence and incriminating circumstances were put to the

accused. However, omission on the part of the Court to put

questions under Section 313 Cr.P.C. cannot enure to the

benefit of the accused.

In the present case, non-compliance of the mandatory

provisions of Section 313 Cr.P.C. is not the only ground for

acquittal rather it is coupled with other grounds also.

26.The 4

th

argument of appellant that there was no evidence

of intentional insult to the deceased, as such, no offence is

made out under Section 3(2)(v) of the S.C./S.T. Act is made out,

the case law cited by learned counsel for appellant in the case

of Asharfi (supra) will fully applicable, paragraph nos. 8, 9 & 10

are as follows:

8. In the present case, unamended Section 3(2)(v) of the

SC/ST Prevention of Atrocities Act is applicable as the

occurrence was on the night of 8/9.12.1995. From the

unamended provisions of Section 3(2)(v) of the SC/ST

Prevention of Atrocities Act, it is clear that the statute laid

stress on the intention of the accused in committing such

offence in order to belittle the person as he/she belongs to

Scheduled Caste or Scheduled Tribe community.

9. The evidence and materials on record do not show that

the appellant had committed rape on the victim on the

ground that she belonged to Scheduled Caste. Section 3(2)

25

(v) of the SC/ST Prevention of Atrocities Act can be

pressed into service only if it is proved that the rape has

been committed on the ground that PW-3 Phoola Devi

belonged to Scheduled Caste community. In the absence of

evidence proving intention of the appellant in committing

the offence upon PW-3-Phoola Devi only because she

belongs to Scheduled Caste community, the conviction of

the appellant under Section 3(2)(v) of the SC/ST

Prevention of Atrocities Act cannot be sustained.

10. In the result, the conviction of the appellant under

Section 3(2)(v) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 and the sentence of

life imprisonment imposed upon him are set aside and the

appeal is partly allowed.

27.In the present case also incident is of 9.30 P.M. i.e. of

night and took place in the year 2001 i.e. before Amendment

Act 1 of 2016 in respect to Section 3(2)(v) of the S.C./S.T. Act

and there is no evidence on record that accused – appellant

has committed offence as accused belong to scheduled caste.

Accordingly, on the basis of 4

th

argument, it is held that no

offence is made out under Section 3(2)(v) of the S.C./S.T. Act

against the appellant.

28.The 5

th

argument is concerned, the statement of P.W-9,

Jag Mohan Shukla, Sub-Inspector will be relevant, the cross

examination of P.W.-9 is as follows:

AFRCourt AC Nr:- -52o -eCt ARCs2v d

-3

में कोई कोई

लैम्पपोस्ट या लाईट का जरिया नहीं दिखाया है। यह सही है या लाईट या लाईट का जरिया नहीं दिखाया है। यह सही है का जरिरया न नक्शा नजरी प्रदर्श कही पर संलग्न नक्शा नजरी प्रदर्श कं रिदखाया है। यह सही है यह सही पर संलग्न नक्शा नजरी प्रदर्श क है

26

रिक घट या लाईट का जरिया नहीं दिखाया है। यह सही हैन नक्शा नजरी प्रदर्श का रारित्र के साढ़े नौ बजे बताई है। मौके वारदात पर साढ़े साढ़े नौ बजे बताई है। मौके वारदात पर न नक्शा नजरी प्रदर्श कौ बजे बताई है। मौके वारदात पर बजे साढ़े नौ बजे बताई है। मौके वारदात पर बताई है। यह सही है मौ बजे बताई है। मौके वारदात परके साढ़े नौ बजे बताई है। मौके वारदात पर वारदात पर

के साढ़े नौ बजे बताई है। मौके वारदात पर वल एक खोखा रिमला और कोई रिन नक्शा नजरी प्रदर्श कशान नक्शा नजरी प्रदर्श कात रिकसी पर संलग्न नक्शा नजरी प्रदर्श क अन्य फायर

के साढ़े नौ बजे बताई है। मौके वारदात पर न नक्शा नजरी प्रदर्श कही पर संलग्न नक्शा नजरी प्रदर्श कं रिमले साढ़े नौ बजे बताई है। मौके वारदात पर। यह सही है यह सही पर संलग्न नक्शा नजरी प्रदर्श क है रिक महाराज रिसंह व कृष्णवी पर संलग्न नक्शा नजरी प्रदर्श कर रिसंह

रिपता,

पुत्र है। यह सही है यह रिक मे साढ़े नौ बजे बताई है। मौके वारदात पररी पर संलग्न नक्शा नजरी प्रदर्श क जांच में में कोई

fir

में कोई रिलखे साढ़े नौ बजे बताई है। मौके वारदात पर गवाहान नक्शा नजरी प्रदर्श क

अतर रिसह

,

बंगाली पर संलग्न नक्शा नजरी प्रदर्श क व

smt.

रिवमला न नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर घट या लाईट का जरिया नहीं दिखाया है। यह सही हैन नक्शा नजरी प्रदर्श का का करि0त होन नक्शा नजरी प्रदर्श का

nImvF -MtN Id9o aC - KA-4 ,A d1 Uynsts guoM

होन नक्शा नजरी प्रदर्श का बताया। यह सही है यह भी पर संलग्न नक्शा नजरी प्रदर्श क बताया रिक मुझसे साढ़े नौ बजे बताई है। मौके वारदात पर पूuv Id t eoNU

अरि6कारी पर संलग्न नक्शा नजरी प्रदर्श क न नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर इस घट या लाईट का जरिया नहीं दिखाया है। यह सही हैन नक्शा नजरी प्रदर्श का के साढ़े नौ बजे बताई है। मौके वारदात पर सम्बन्6 में कोई कोई बयान नक्शा नजरी प्रदर्श क न नक्शा नजरी प्रदर्श कही पर संलग्न नक्शा नजरी प्रदर्श कं रिलये साढ़े नौ बजे बताई है। मौके वारदात पर। यह सही है

n0-4 guoM KFC I NM d4 /9o- sev Id94 M0P KFC I NM -4

मुझे साढ़े नौ बजे बताई है। मौके वारदात पर अपन नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर बयान नक्शा नजरी प्रदर्श क में कोई यह बयान नक्शा नजरी प्रदर्श क रिदया 0ा रिक

"

जसवंत रिसंह

,

वादी पर संलग्न नक्शा नजरी प्रदर्श क मुकदमा राम रिखलाडी पर संलग्न नक्शा नजरी प्रदर्श क को बार बार राय मशरिवरा दे साढ़े नौ बजे बताई है। मौके वारदात परते साढ़े नौ बजे बताई है। मौके वारदात पर 0े साढ़े नौ बजे बताई है। मौके वारदात पर

रिक यरिद महाराज रिसंह का भी पर संलग्न नक्शा नजरी प्रदर्श क न नक्शा नजरी प्रदर्श काम रिलखवा दोगे साढ़े नौ बजे बताई है। मौके वारदात पर तो यह

मुकदमें कोई की पर संलग्न नक्शा नजरी प्रदर्श क पैरवी पर संलग्न नक्शा नजरी प्रदर्श क न नक्शा नजरी प्रदर्श कही पर संलग्न नक्शा नजरी प्रदर्श कं कर पाये साढ़े नौ बजे बताई है। मौके वारदात परगा और यह के साढ़े नौ बजे बताई है। मौके वारदात पर स पक्का हो

जाये साढ़े नौ बजे बताई है। मौके वारदात परगा। यह सही है पूछन नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर पर यह भी पर संलग्न नक्शा नजरी प्रदर्श क बताया रिक जसवन्त रिसंह आरिद न नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर

nMoCoe I NM d4 Go. f(Fo- I NM d4 nTvC d4 KIG9f5F M0

,

इस समय जमान नक्शा नजरी प्रदर्श कत पर आये साढ़े नौ बजे बताई है। मौके वारदात पर हुए है। यह सही है

"

यह सही पर संलग्न नक्शा नजरी प्रदर्श क है रिक जसवन्त

रिसंह अपरारि6क रिकस्म का है। यह सही है

smt.

रिवमला न नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर अपन नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर बयान नक्शा नजरी प्रदर्श क में कोई

मुझे साढ़े नौ बजे बताई है। मौके वारदात पर यह बताया 0ा रिक कृष्णवी पर संलग्न नक्शा नजरी प्रदर्श कर रिसंह घट या लाईट का जरिया नहीं दिखाया है। यह सही हैन नक्शा नजरी प्रदर्श का वाले साढ़े नौ बजे बताई है। मौके वारदात पर रिदन नक्शा नजरी प्रदर्श क मे साढ़े नौ बजे बताई है। मौके वारदात पररे साढ़े नौ बजे बताई है। मौके वारदात पर घर

न नक्शा नजरी प्रदर्श कही पर संलग्न नक्शा नजरी प्रदर्श कं आया 0ा और न नक्शा नजरी प्रदर्श क मैन नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर कोई शोर मच में ाया 0ा। यह सही है

29.Perusal of the cross-examination of P.W.-9, it is

established that Smt. Vimla Devi has denied that Krishna Veer

has not come to her house on the date of incident and she had

not made any noise on that day. The further circumstance that

Smt. Vimla Devi was not produced in the Court by the

prosecution will also go against the prosecution. Accordingly,

prosecution case that accused Krishnaveer entered into the

house of Smt. Vimla Devi with malafide intention at 9.30 P.M.

on 5.6.2001 and Smt. Vimla Devi made noise is false and

prosecution case cannot be believed.

27

30.The 6

th

argument of learned counsel for the appellant that

according to prosecution, two shots were fired on spot, one by

Maharaj Singh and other by Krishnaveer but according to

recovery memo, only one empty cartridge was recovered from

the spot, this also makes the prosecution case doubtful.

31.The 7

th

argument advanced by counsel for the appellant

that according to prosecution case, deceased was sitting on

Chabutara in front of his house along with first informant after

taking dinner at 8 P.M. while in the postmortem report, no solid

material found inside the intestine rather 150 ml. liquid was

found inside the body, the cross-examination of P.W.-3, Dr.

Subhash Chandra was as follows:-

मृFd d4 ,noy9 n3 d1. )1 Asomv -MtN moP

100

ग्राम तरल

Asomv Knoy9 n3 moP )1 Asomv d1 ,noy9 4 J1it ,NF n3

जान नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर में कोई सामान्यतया

04

घन्ट या लाईट का जरिया नहीं दिखाया है। यह सही हैे साढ़े नौ बजे बताई है। मौके वारदात पर का समय लगता है। यह सही है मृतक न नक्शा नजरी प्रदर्श के साढ़े नौ बजे बताई है। मौके वारदात पर घट या लाईट का जरिया नहीं दिखाया है। यह सही हैन नक्शा नजरी प्रदर्श का

से साढ़े नौ बजे बताई है। मौके वारदात पर करी पर संलग्न नक्शा नजरी प्रदर्श कब

04

घण्ट या लाईट का जरिया नहीं दिखाया है। यह सही हैे साढ़े नौ बजे बताई है। मौके वारदात पर पहले साढ़े नौ बजे बताई है। मौके वारदात पर कु छ खाया होगा इसी पर संलग्न नक्शा नजरी प्रदर्श क कारण से साढ़े नौ बजे बताई है। मौके वारदात पर छोट या लाईट का जरिया नहीं दिखाया है। यह सही हैी पर संलग्न नक्शा नजरी प्रदर्श क आंत

में कोई पच में ा हु, df J FCr Asomv Inro moP c5F FCr Asomv 2Co/

न नक्शा नजरी प्रदर्श कही पर संलग्न नक्शा नजरी प्रदर्श कं हो सकता है। यह सही है वह पान नक्शा नजरी प्रदर्श की पर संलग्न नक्शा नजरी प्रदर्श क

, च में ाय,

कोल्ड रिड्रंक हो सकता है। यह सही है

32.From the perusal of cross-examination of P.W.-3 as well

as from the postmortem report, the prosecution version that

deceased was sitting after taking dinner at 8 P.M. and was

murdered at 9.30 P.M. appears to be false.

33. In view of the facts and circumstances of the case and

evidence available on record as discussed above, we find that

the evidence of the alleged eye-witnesses produced by

prosecution does not inspire confidence. There exist a doubt

whether they are witnesses of the incident, on the same set of

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evidence, the courts below has acquitted one accused (Maharaj

Singh) and convicted another accused (Krishna Veer-appellant)

which is wholly illegal. There can be no conviction under

Section 3(2)(v) of S.C./S.T. Act as there is no evidence for the

intentional insult to the deceased. There is non-compliance of

Section 313 Cr.P.C. on the subsequent statement of P.W.’s- 1 &

4 recorded in 2017. The non-examination of Smt. Vimla Devi by

prosecution, statement of P.W.-9 that Vimla denied the fact that

Krishna Veer came to her house on the date of incident as well

as postmortem report and statement of P.W.-3 (doctor) also

demonstrate that the incident has not taken place at 9.30 P.M.

after taking dinner, which proves that the prosecution case is

doubtful and prosecution has failed to prove the charges

against the appellant – accused beyond reasonable doubt.

34.Accordingly, the appeal is allowed. The impugned

judgment / order of conviction and sentence dated 17.12.2019

passed by the Special Judge, S.C./S.T. Act, Mathura is set

aside. The accused-appellant Krishna Veer @ Pinkoo in

Criminal Appeal No.487/2020 in in jail. He shall be released

from the jail forthwith, if not wanted in any other case.

35. Let a copy of the judgment along with the original record

be sent to the court below for compliance.

Order Date :- 29.9.2022

C.Prakash

(Chandra Kumar Rai, J.) (Mahesh Chandra Tripathi,J.)

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