1

RESERVED

AFR

Court No. - 42

Case :- CRIMINAL APPEAL No. - 288 of 1991

Appellant :- Mahesh

Respondent :- State

Counsel for Appellant :- D. Dahma,Divya Ojha,Prem

Chandra,Sangam Lal Kesharwani

Counsel for Respondent :- D.G.A.

Hon'ble Manoj Misra,J.

Hon'ble Virendra Kumar Srivastava,J.

(Delivered by Hon'ble Manoj Misra, J)

This appeal has been filed by Mahesh son of Dibbu

Mehtar against the judgment and order dated 13.02.1991

passed by the Ist Additional Sessions Judge, Aligarh in

Sessions Trial No. 662 of 1987 by which the appellant, along

with Gajendra Singh @ Gajpal son of Girraj Singh Jat; and

Jagdish son of Ram Swarupa Mehtar, has been convicted for

offence punishable under Section 302 read with Section 34

I.P.C. and awarded life imprisonment as well as fine of Rs.

2,000/- and, in case of default in payment of fine, to undergo

one year additional rigorous imprisonment. The other two

convicted accused, namely, Jagdish and Gajendra Singh, had

jointly filed a separate Criminal Appeal No. 232 of 1991 which

stood abated as they expired during the pendency of appeal.

Thus, this judgment deals with the appeal filed by Mahesh only.

Briefly put the prosecution case is as under. The

deceased - Mahendra Singh was working as a Homeguard

attached to Police Station (for short P.S.) Pisawa, Aligarh. Like

every day, on 11.07.1987, at about 6.45 p.m., he, along with

his father Todar Singh (informant-P.W.1) who had to sleep over

night at the shop of his other son (Mehtab Singh) at Pisawa,

was going on a bicycle to P.S. Pisawa to attend his duty. As

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they reached near Kumargarha Nala, four persons, namely,

Jagdish son of Swarupa Mehtrar; Mahesh son of Dibbu Mehtar

(appellant); Gajendra Singh @ Gajpal son of Girraj Jat; and an

unknown person (later disclosed as Biri Singh), who were all

hiding behind Patel bushes, came out and surrounded them.

Gajendra shouted at Mahendra (the deceased) as to why he

did not allow the pigs of Jagdish and Mahesh to graze in his

field. Upon which, the deceased - Mahendra responded by

saying that they would have destroyed his maize crop. On

hearing the reply, Gajendra exhorted the other accused persons

to finish off Mahendra (deceased) whereafter all four accused

took out their knives and after putting the deceased on ground

started assaulting him with knives, as a result, the deceased

received injury on his neck. Witnessing attack on his son, the

informant (P.W.1) cried for help, upon which, villagers, namely,

Gulzar (P.W.2); Girraj (not examined); Tara Singh (not

examined); and Harveer Singh (not examined) arrived. On

seeing them coming, and sensing that the deceased had died,

the accused escaped. Thereafter, Mahendra was brought in an

injured condition to P.S. Pisawa where the report (Ex. Ka 1) was

scribed by Kishan Singh (not examined) on dictation of the

informant (P.W.1). After signing the same, PW1 got the first

information report (FIR) (Ex Ka 2) registered at P.S. Pisawa at

20:15 hours (8:15 p.m.) which was entered by Head Moharir

Ramvir Singh (P.W.3) in the register on 11.7.1987 as case

crime no.32 of 1987 for offences punishable under sections

307/324 IPC. Thereafter, P.W.5 – Rajendra Singh Tomar,

Investigation Officer (I.O.), proceeded to record the statement

(Ex Ka 10) of Mahendra Singh (the injured), under section 161

CrPC, at about 9.00 p.m. However, as the condition of the

injured was very serious he was taken to Pisawa hospital.

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There no doctor could be found. Hence, he was taken to J.N.

Medical College Hospital, Aligarh and was admitted there at

about 10.50 p.m. However, he succumbed to his injuries at the

hospital at about 11.20 p.m. on 11.07.1987 itself. As the said

hospital was under P.S. Civil Lines, Aligarh, information of

Mahendra Singh's death was given by the hospital to P.S. Civil

Lines, Aligarh, which prepared the inquest report (Ex Ka 12).

Thereafter, upon receipt of death report, on 12.7.1987, the

offences were altered and Sections 302 read with 34 IPC were

added.

The lodging of the FIR was proved by P.W. 1 and P.W.-3.

Dr. Mohd. Arshad (P.W.4), who had examined the deceased -

Mahendra at the hospital, proved the injury record (Ex Ka 5)

and confidential memo (Ex Ka 6) to demonstrate that Mahendra

(the deceased) was brought by his brother Mehtab (not

examined) to the hospital at 10:50 p.m. on 11.07.1987 as a

case of cut-throat (stab injury neck), where he expired at 11:20

p.m.

The post mortem report (exhibit Ka-13) was proved by Dr.

R.P. Gupta (P.W.6) of Malkhan Singh Hospital, Aligarh. The post

mortem examination disclosed a solitary ante mortem injury as

follows:-

“An incised wound measuring 4 cm x 2 cm (in middle)

muscle deep on left side neck, 5 cm above the medial

end of left clavicle, oblique in direction. Spindle shaped

in figure. Margins are well defined. On exposure, the

wound runs towards right side downwards, cutting

through and through trachea and oesophagus, reached

right side in muscles. Great vessels of right side are also

cut.”

The prosecution examined six witnesses. Only two were

witnesses of fact, namely, P.W.1- informant -Todar Singh (father

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of the deceased) and P.W.2 – Gulzar. P.W.-3- Ramveer Singh

was head moharir at the police station who made GD entry of

the first information report; P.W.5 - Rajendra Singh Tomar

conducted the investigation; P.W.4-Dr. Mohd Arshad is the

doctor who examined the deceased when he was brought to

the hospital in the night of 11.07.1987; and P.W.6 - Dr. R.P.

Gupta is the doctor who conducted the post-mortem

examination.

P.W.4 in his testimony stated that the injured Mahendra

Singh was brought to the hospital by his brother Mehtab Singh,

where he died at 11:20 p.m. in the night of 11.07.1987 and

information of his death was given to P.S. Civil Lines.

P.W.6-Dr. R.P. Gupta proved the post-mortem report

which disclosed that post mortem examination was conducted

on 12.7.1987 at about 3.30 p.m. and a solitary incised wound

was found on the neck region. He stated that, according to his

opinion, the deceased died due to excessive bleeding caused

by the injury. He stated that it was possible that the deceased

died on 11.07.1987 at 11:20 p.m.; that the injury was caused by

a knife; and that the injury might have been inflicted at about

6:45 p.m. on 11.07.1987. On cross-examination, he stated that

after receipt of such injury though it was possible that the

injured might have been able to speak but the probability that

he might not have been able to speak is higher. He also stated

that if he could have managed to speak then such speech

would not have lasted for more than 5-10 minutes after such

injury. He stated that the possibility that the injury was caused

between 8:30 and 9 p.m. of 11.07.1987 is there.

P.W.1-Todar Singh, who is the informant, reiterated the

story narrated in the first information report except that in his

testimony he also named the fourth accused, who was left

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unnamed in the FIR, as Biri Singh. He stated that all four had

assaulted the deceased with knives though the knife blow of

Gajendra caused the injury. He stated that he had raised alarm,

upon which, Gulzar, Tara, Harveer and Girraj arrived. Seeing

them, the accused ran away. As his son was injured and

bleeding, he tied a Tahmat (head-cloth) on the neck of his son.

Thereafter they arranged for a cot and carried the injured

Mahendra to P.S. Pisawa where the FIR was written by Kishan

Singh on dictation of informant and thereafter informant got it

lodged after putting his signature. He disclosed that the

deceased had been working as a homeguard and, on the

fateful day, he was going to attend his duty at P.S. Pisawa. As

regards the motive for the crime, he disclosed that 5-7 days

before the incident, pigs of Jagdish and Mahesh had entered

the field of the deceased and the deceased had scolded them

therefore they had a grudge against the deceased. The fourth

accused, namely, Biri Singh, was disclosed as brother-in-law

(Behnoi) of Mahesh. P.W.1 stated that he had taken his injured

son Mahendra to M.S. Hospital and there he expired at about

midnight. He stated that at the time of the incident, there was

sunlight.

In his cross-examination, he stated that before inflicting

knife blows, the accused persons had exhorted each other and

all four had caught hold the deceased and, after putting him

down, had inflicted knife blows. He stated that while they were

inflicting knife blows, Mahendra Singh was trying to get up and

was twisting and moving sideways. He stated that he did not

make any attempt to catch hold any of the accused persons

while they were inflicting knife blows because he was standing

2-3 paces away and the entire incident just lasted two minutes.

He stated that only a single blow was received by the deceased

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although all four were trying to inflict blows. He stated that he is

not in a position to disclose about the length of the knife. P.W.1

also stated that as soon as Mahendra received knife blow, he

had raised alarm. Immediately, thereafter, he stated that he

raised alarm the moment Mahendra was pinned down. He

stated that Tara Singh and Harveer Singh had arrived before

infliction of knife blow whereas rest arrived later. He stated that

the field of Gulzar - P.W.2 is at a distance of 60-70 paces from

the spot. He stated that the injured was taken on a cot. The cot

was brought from Pisawa. He stated that Mahendra got

unconscious on receiving knife blow but later regained

consciousness and was conscious at the police station. He

stated that in the FIR he had specifically disclosed about receipt

of solitary knife blow by Mahendra but he does not know as to

how it has been written that all four had inflicted knife injuries

on the neck. He further stated that he had told the scribe to

write that knife blow of Gajendra had caused the injury to his

son but the scribe told him that it would result in death penalty.

He also stated that the accused Gajendra is a Jat whereas the

other accused are Bhangi.

In his cross-examination, at the instance of Mahesh and

Biri Singh, he stated that he had seen Biri Singh earlier but he

was not aware of his name and relationship with Mahesh,

though, later, after two days, he became aware of his name and

relationship on being told by the investigation Officer. In his

cross-examination, he stated that the witnesses took 3-4

minutes to arrive after he had raised the alarm. Upon

suggestion that Mahesh was falsely implicated because he had

refused to lift night soil, he stated that Mahesh and his father

never used to clean his toilets. He denied the suggestion that

he had not seen the incident or that he had falsely implicated

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the accused only because they had stopped cleaning his toilets.

He stated that after the incident, about 10 minutes were taken

to arrange a cot as from the spot Pisawa was about a kilometer

away. He also stated that Harveer, Tara had accompanied him

to the Hospital.

P.W.2 - Gulzar Singh stated that he arrived at the spot

upon hearing shouts of Gajendra Singh. When he reached

there, he found that Gajendra Singh; Jagdish; Mahesh; and Biri

Singh were inflicting knife blows on Mahendra Singh

(deceased). He stated that he was just 5-7 paces away from

the spot but he could not notice as to whose blow caused the

injury to the deceased. He stated that at that time Tara, Harveer

and Girraj Singh all had arrived and Todar Singh (informant)

was shouting. He stated that upon seeing them, the accused

escaped. In his cross-examination, he stated that his field is 50-

60 yards away; that before his arrival, Todar Singh had arrived;

that he, Harveer and Tara arrived simultaneously from different

directions; that Girraj arrived later from the village. Harveer and

Tara arrived on a Buggy (cart). He stated that when he had

arrived there all four accused had put the deceased on the

ground and were inflicting knife blows. He stated that he had

seen all the accused inflicting knife blows but he is not sure as

to who caused the injury. He stated that Mahendra was brought

on a cot to P.S. Pisawa. The cot was called from Pisawa. He

stated that the distance between Pisawa and the place of

occurrence is about four furlongs and that Pisawa is about six

furlongs from his village. He stated that about 15-20 minutes

were spent in arranging for the cot. He stated that he had been

with the deceased till 10 p.m. He denied the suggestion that he

has falsely implicated the accused on account of party bandi.

In his cross-examination, he stated that he knew Biri

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Singh from before as Biri Singh happens to be the Behnoi

(brother in law) of Mahesh. However, his name was not known,

which came to be known on the next day. He also stated that

Todar Singh had dictated the first information report in his

presence and he had informed Todar Singh at that time that

Mahesh's brother in law is also one of the persons involved. In

his cross-examination, he admitted that Mahesh had been

cleaning toilets though he claimed that he never used to clean

his toilets. He denied the suggestion that Mahesh was

implicated because he refused to lift his toilet's night soil.

P.W.3- Ramveer Singh, Head Moharir (clerk), who made

the GD entry of the FIR at P.S. Pisawa, though proved the

lodging of the FIR but, during cross-examination, upon

suggestion that FIR was ante-timed and was lodged after death

of Mahendra, after denying the said suggestion, admitted that

on that day other than the concerned FIR only a non-cognizable

report was registered at 6:40 am in the morning. He also stated

that information / special report of the concerned FIR was sent

on 13.7.1987 at about 8.00 am in the morning as in the night no

vehicle was available.

P.W.5- Rajendra Singh Tomar, who conducted the

investigation, stated that he first recorded the statement of the

injured Mahendra Singh; thereafter of the informant Todar

Singh and of the scribe Ramveer Singh and, thereafter, he

proceeded to the spot, collected samples of blood stained and

plain earth and prepared site plan. On his return, on receipt of

information regarding death of the injured, the case was

converted into one under section 302 / 34 IPC on 12.07.1987.

He stated that inquest was carried out by P.S. Civil Lines. He

stated that after completing the investigation the charge-sheet

was filed under his signature.

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In his cross examination, he stated that along with

informant and the injured several others had come to the police

station. He stated that although the condition of the deceased

was serious when he was brought to the police station but he

could speak therefore, after lodging of the first information

report, his statement was recorded and thereafter he was sent

to the hospital. He stated that Mahendra was sent to Pisawa

hospital but there the doctor was not available and therefore he

was taken to Malkhan Singh Hospital. He stated that the

informant had stayed back at the police station whereas the

rest had gone to the hospital with the injured. He stated that the

injured had a cloth tied around his neck of which possession

was not taken by him. He stated that the informant had gone

with him to the spot and had remained with him till about 6.30

am (next day morning). He stated that he had reached the spot

at about 10.30 p.m. on the night of the incident. The site plan

was prepared next day morning, at about 5:45 am. He stated

that blood stained earth was found at that spot where, as per

the site plan, knife blow is stated to have been inflicted, and at

no other place. He stated that the deceased Mahendra was

Home Guard posted at P.S. Pisawa and his duty hours were

from 6 pm to 4 am. He admitted that he had not noted the

location of the fields of Gulzar and Girraj in the site plan.

Upon recall, he stated that the statement of Mahendra

(deceased) had been recorded by him. The statement was

thereafter exhibited as Ex Ka 10.

In his cross-examination, upon recall, he stated that he

had recorded the statement of the injured at about 9 pm and

that he took about 20 minutes to record the statement. He

stated that he had not taken adequate precaution while

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recording statement and that he did not take the signature of

the injured on his statement. He stated that when he recorded

his statement no other person was present. He stated that the

injured was in a fit condition to give his statement. He denied

the suggestion that the injured was not in a position to give his

statement and that the recorded statement is bogus.

The accused were confronted with the prosecution

evidence. They denied the prosecution case in their statement

recorded under section 313 CrPC and claimed that they have

been falsely implicated.

The trial court on the basis of the evidence produced by

the prosecution convicted Jagdish; Mahesh (Appellant) and

Gajendra Singh but acquitted Biri Singh by giving him benefit of

doubt on the ground of non disclosure of his name or identity in

the first information report even though his identity as Behnoi of

Mahesh was known. The trial court also discarded the alleged

dying declaration recorded by the Investigating Officer by

observing that from the medical evidence it becomes clear that

the deceased was not at all in a condition to get his statement

recorded.

We have heard Sri Sangam Lal Kesarwani and Sri Prem

Chandra Yadav for the appellant; the learned A.G.A. for the

State; and have perused the record.

Sri Sangam Lal Kesarwani, learned counsel for the appellant,

has submitted that according to the prosecution case all four

accused were armed with knives and they had put down the

deceased on the ground and had inflicted several knife blows

and that the incident lasted for about two minutes but the post

mortem report of the deceased reveals a solitary incised wound.

This would suggest that the incident was not witnessed by the

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witnesses and the story was subsequently developed.

He submitted that the presence of P.W.1 on the spot

becomes doubtful for the following reasons: (a) his son was

being assaulted in front of his eyes yet he makes no attempt to

save him; (b) no bloodstained clothes of PW1 have been

collected to demonstrate that he had been with the deceased at

the time of the incident and had carried the deceased to the

hospital; (c) that the medical papers suggests that the

deceased was brought to the hospital by his brother - Mehtab

Singh and not by PW1, whereas Mehtab Singh has not been

examined as a witness. Moreover, it has not been disclosed as

to how Mehtab Singh was with the deceased at the time of his

medical examination.

He submitted that FIR appears to be ante-timed for the

following reasons: (a) no chitthi majroobi (letter for medical

examination of injured) was prepared and produced by the

police and the medical papers also do not disclose that the

injured was taken to the hospital with a letter from the police

station concerned, which suggests that at the time when the

deceased was taken to hospital, no report was in existence and

registered at the police station and that after receipt of

information about the death, first information report was lodged

and the story was developed; (b) the inquest was conducted by

a different police station; (c) the inquest papers do not disclose

about prior registration of case, rather, it discloses that

information was received from the hospital; and (d) that report

under section 157 CrPC was given not on 12.07.1987 but on

13.07.1987, that is, after the post mortem examination of the

deceased.

He also submitted that from the statement of P.W.1 it

appears that Tara and Harveer, who were not examined as

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witness, had arrived earlier whereas the remaining witnesses

arrived later, which suggests that Gulzar had not witnessed the

incident and had arrived later upon getting information about

the incident.

It has been submitted that the nature of the incident

suggests that some unknown assailant had inflicted injury upon

the deceased and had escaped and the story was set up on the

basis of suspicion and guess work.

It has been submitted that neither the weapon of assault

nor bloodstained clothes, if any, of the accused have been

recovered. The prosecution has therefore not been able to

establish its case beyond the pale of doubt. He further

submitted that the very fact that the police had shown that a

dying declaration was recorded when, in fact, the deceased

was not at all in a condition to even speak, would go to show

that there was an effort to falsely implicate persons to solve out

the case as a Home Guard had been the victim.

It was also argued that if the deceased, who was Home

Guard deputed at P.S. Pisawa, been brought injured at the

police station, it is but natural that a police constable would

have accompanied him for medical examination/treatment. But,

from medical papers, it appears, he was brought to the hospital

by his brother who has not been produced as a witness. He

thus submitted that the prosecution has left many questions

unanswered, which leaves a lot of doubt about the truthfulness

of the prosecution case, hence, the appellant is entitled to the

benefit of doubt.

Per contra, learned A.G.A. has supported the judgment

of the court below by submitting that the first information report

was lodged promptly; the doctor in his cross-examination has

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admitted that the incident could have occurred on or about the

time at which it is purported to have occurred; that the presence

of eye-witnesses cannot be doubted as they have appeared

from adjoining fields; and that there is no cogent reason

brought on record as to why the witnesses would be lying. It

has also been submitted that there is no such serious conflict

between ocular and medical evidence as very often blows may

miss the body of the victim and, therefore, under the

circumstances, merely because a solitary injury has been

found, the involvement of four persons in the incident cannot be

ruled out. Moreover, they have been convicted with the aid of

section 34 IPC.

We have given thoughtful consideration to the rival

submissions and have perused the record carefully.

Upon consideration of the rival submissions, one of the

issues that falls for our consideration is whether the FIR was

ante-timed. To find out whether the FIR has been ante-timed

certain external checks are there. Some of these checks have

been noticed by the apex court in Meharaj Singh (L/Nk.) v.

State of U.P., (1994) 5 SCC 188, where, in paragraphs 12 and

13 of the judgment, as reported, it was observed:

12. FIR in a criminal case and particularly in a murder case

is a vital and valuable piece of evidence for the purpose of

appreciating the evidence led at the trial. The object of

insisting upon prompt lodging of the FIR is to obtain the

earliest information regarding the circumstance in which the

crime was committed, including the names of the actual

culprits and the parts played by them, the weapons, if any,

used, as also the names of the eyewitnesses, if any. Delay

in lodging the FIR often results in embellishment, which is a

creature of an afterthought. On account of delay, the FIR not

only gets bereft of the advantage of spontaneity, danger also

creeps in of the introduction of a coloured version or

exaggerated story. With a view to determine whether the FIR

was lodged at the time it is alleged to have been recorded,

the courts generally look for certain external checks. One of

the checks is the receipt of the copy of the FIR, called a

special report in a murder case, by the local Magistrate. If

14

this report is received by the Magistrate late it can give rise

to an inference that the FIR was not lodged at the time it is

alleged to have been recorded, unless, of course the

prosecution can offer a satisfactory explanation for the delay

in despatching or receipt of the copy of the FIR by the local

Magistrate. Prosecution has led no evidence at all in this

behalf. The second external check equally important is the

sending of the copy of the FIR along with the dead body and

its reference in the inquest report. Even though the inquest

report, prepared under Section 174 CrPC, is aimed at

serving a statutory function, to lend credence to the

prosecution case, the details of the FIR and the gist of

statements recorded during inquest proceedings get

reflected in the report. The absence of those details is

indicative of the fact that the prosecution story was still in an

embryo state and had not been given any shape and that

the FIR came to be recorded later on after due deliberations

and consultations and was then ante-timed to give it the

colour of a promptly lodged FIR. In our opinion, on account

of the infirmities as noticed above, the FIR has lost its value

and authenticity and it appears to us that the same has been

ante-timed and had not been recorded till the inquest

proceedings were over at the spot by PW 8.

13.It appears that it was a blind murder and none of the

eyewitnesses were actually present at the scene. The ante-

timing of the FIR was obviously made to introduce

eyewitnesses to support the prosecution case..................”

(Emphasis Supplied)

Though in several subsequent decisions the apex court

has held that no time-limit for a report under section 157 CrPC

could be specified as a rule and that mere absence of mention

of crime number in inquest report or medical papers by itself is

not significant to discard the FIR as ante-timed or to disbelieve

the prosecution case, if otherwise the substantive evidence

brings home the charge without reasonable doubt (vide

Mahmood v. State of U.P., (2007) 14 SCC 16; Jaishree

Yadav v. State of UP, (2005) 9 SCC 788), but, it is equally well

settled that each case would have to be tested on its own facts

and circumstances derived from the evidence led. In cases

where the substantive evidence led throws questions that are

left unanswered or leaves out gaps in the prosecution story,

such latches, as noticed in Meharaj Singh's case

15

(supra), may assume importance as to whether benefit of

doubt is to be provided to the accused.

In the instant case, we find that the injuries sustained by

the deceased were very serious inasmuch as his Trachea as

well as Oesophagus, including the main vessels, were cut

which, in ordinary course, would result in heavy bleeding and

severe pain as well as shock. The doctor (P.W.6) who carried

out the post mortem examination was of the view that with such

an injury ordinarily the victim would not be in a position to speak

and, if he could, that capacity would not last beyond 5 to 10

minutes from the time of infliction of the injury. The doctor

(P.W.6) accepted the possibility that the injury sustained by the

deceased might have been caused between 8.30 p.m. and 9.00

p.m. of 11.7.1987, though he did not rule out the possibility of

the injury being caused at the time stated by the prosecution.

What assumes importance is that the nature of the injury

suffered by the deceased was such that the normal course of

human conduct, particularly, of father or close relative of the

injured, would be to rush the injured to the hospital straight

away for immediate medical attention rather than to take him to

the police station and wait there for over an hour. The medical

papers disclose that the injured was brought to the hospital by

Mehtab Singh and not by the police, without any chitthi

majroobi, which is suggestive of the possibility that the injured

was rushed to the hospital straight away. This possibility gets

credence from other circumstances noticed herein after. The

deceased was a home guard posted at P.S. Pisawa. If he had

been brought in an injured condition at that police station, the

least that was expected is that a constable would have been

deputed to accompany him to the hospital. As per medical

papers/ evidence, deceased's brother, Mehtab Singh, brought

16

him to the hospital. Though the I.O. (P.W.5) stated that a

constable had gone to the Pisawa hospital and he returned

because doctor could not be found there, but neither the name

of that constable is disclosed nor Mehtab, whose name finds

mention in medical papers, has been examined. Interestingly,

the inquest proceeding was conducted at the hospital by the

police of P.S. Civil Lines on information given by the hospital.

Had there been information to the hospital that FIR has already

been lodged at P.S. Pisawa there was a possibility of

information being provided to that police station. Neither any

one from police station Civil Lines nor any of the witnesses of

inquest proceeding has been examined. Importantly, PW1 and

PW2 are not Panch witnesses.

From the testimony of the doctor (P.W.6) the possibility of

recording the statement of the injured by P.W.5 is ruled out, if

the incident had occurred at 6.45 p.m. because the deceased

could not have had sustained his speaking capacity beyond 5

to 10 minutes post the incident so as to enable the I.O. (P.W.5)

to record his statement at about 9.00 pm. and, that too, for

about 20 minutes, as is the claim of P.W.5. This circumstance is

suggestive of two possibilities. One that the incident did not

occur at 6.45 p.m., as alleged, and the other is that the dying

declaration is bogus. What was the reason to show that the

statement of the injured was recorded. Perhaps, the answer of

that can be found in the alleged statement of the injured (Ex. Ka

10), which has been discarded by the court below.

On perusal of Ex Ka 10, the alleged statement of the

injured made before his death, we find that it makes an effort to

explain the absence of more than one injury on the injured as

also to bring out the name of the fourth unnamed person,

namely, Biri Singh. This clearly signifies that the I.O. had tried

17

to fill in the gaps in the prosecution case, after getting

information, by setting up the statement of the deceased.

Further, we may observe that if the I.O. had recorded the

statement of the deceased and had come to know about the

identity of the fourth person there was no reason for him not to

disclose this fact to the informant then and there at the police

station itself on 11.07.1987. The informant (P.W.1), on the other

hand, in his cross-examination, at the instance of Mahesh,

stated that he came to know about the involvement of Biri Singh

through the I.O. about 2 days later. This discrepancy not only

throws doubt about recording of the dying declaration but is

also suggestive of the probability that the I.O. filled up the

police papers some time later to suit the prosecution case.

Another feature which is worthy of notice is that the I.O.

(PW5) stated that the informant stayed with him till next day

morning and in the night of 11.7.1987 itself he went to the spot

and took blood stained earth and plain earth samples. The fard

(Ex-Ka-7) of that recovery discloses Chhido Nath and Vijendra

Singh as witnesses of recovery. Both of them have not been

examined. Interestingly, PW1 states that from P.S. Pisawa he

had brought the injured Mahendra to M.S. Hospital. If that was

so, then how could he have stayed back at the police station as

claimed by the I.O. so as to enable him to visit the spot and

collect blood stained earth, etc in the night of 11.07.1987.

When we see the prosecution evidence in its entirety and

the aspects discussed above, ante-timing of the FIR or the

incident cannot be ruled out. The statement of P.W.3 that prior

to the registration of the concerned FIR only one non

cognizable report had been entered in the morning of that day

(11.07.1987) at the police station concerned shows that there

was sufficient scope in the General Diary to make entries

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without the necessity of overwriting or interpolation.

Now, we shall proceed to examine the reliability of the

ocular evidence. P.W.1 is the father of the deceased. He claims

himself to be an eye witness. He, in his FIR as well as

statement in court, states that four accused surrounded the

deceased, pinned him down, took out knives and inflicted him

blows. As against multiple knife injuries a solitary incised wound

has been found. Even assuming that few blows may have

missed but when some one is pinned down and his entire body

is available for attack it is quite unbelievable that all the blows

would miss. This discrepancy, PW1 sought to explain by stating

that he tried to tell the scribe of the FIR that only the blow of

Gajendra had caused the injury but the scribe retorted that it

would result in death penalty. If P.W.1 had seen the incident

and was convinced about what he saw why would he agree to

dilute the case against Gajendra. Further, P.W.1 stated that

after infliction of injury the deceased stood up, ran few paces

and then fell down unconscious and, thereafter, regained

consciousness and was also able to speak. Interestingly, I.O.

(PW 5) stated that he could find blood at only one spot. When

we appreciate the statement of P.W.1 in the light of the

statement of the doctor that the deceased could not have

sustained his speech faculty for more than 5 to 10 minutes after

the injury, the statement of P.W.1 does not at all inspire

confidence. Doubts as regards the presence of P.W.1 at the

place of occurrence also surface from the medical papers which

indicate that Mehtab Singh, son of P.W.1, who has not been

examined, brought the deceased to the hospital. P.W.1 did not

make any effort to save his son and has suffered no injury. Link

evidence such as blood stained clothes of the informant to

show that he has been with the deceased have not been

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collected and produced. No doubt, every person may react

differently to a given situation and therefore absence of effort

on the part of informant to save his son may not be a clinching

circumstance to discredit him but when all the circumstances

are put together, including attribution of role of inflicting knife

blows on the deceased to four persons as against solitary injury

found on his body, they throw a serious doubt about the

presence of P.W.1 on the spot at the time of occurrence.

Further, it may be noticed that though P.W.1 states that he had

been to the hospital with his son (injured) but the Investigating

Officer states that P.W.1 had stayed at the police station.

Under the circumstances, the statement of P.W.1 does not

inspire confidence to enable us to uphold conviction of the

accused persons.

The statement of P.W. 2 falls in the same category. More

over, he appears to be a chance witness who came to the spot

on hearing cries. He has neither accompanied the deceased to

the hospital nor has been an inquest witness. He also states

that all four accused pinned down the deceased and inflicted

knife blows, which is in conflict with medical evidence as

noticed above. That apart, from his testimony, it appears that he

had informed the informant before lodging of the FIR that fourth

accused was Behnoi of Mahesh but, interestingly, there is no

such mention in the FIR, which is suggestive of the fact that he

may not have been there with the informant till the time of

lodging of the first information report. Thus, his testimony also

does not inspire confidence to enable us to sustain the

conviction.

Apart from above, there is another unexplained gap in the

prosecution story which is as to why Gajendra would espouse

the cause of the other three co-accused more so when

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Gajendra was Jat by caste and the others were members of

lower caste (Bhangi).

When we test the prosecution case on all the aspects

discussed above and keep in mind that four persons have

been nominated with identical role of pinning down the

deceased and inflicting blows on him with knives as against

solitary injury found on the deceased, we get the feeling that

the prosecution case is not only embellished but also highly

exaggerated. In this context, it would be useful to refer to the

observations made by the apex court in Dinesh and Another

V. State of Haryana (Criminal Appeal No. 1076 of 2000,

decided on October 10, 2001) reported in (2015) 17 SCC

804. In paragraph 17 of the judgment, as reported, it was

observed: “If the prosecution has tried to implicate three

persons-- the father and the two sons, while only one or two of

them might have assaulted the injured Santra Devi and positive

role is assigned to the three accused persons, which is not

corroborated by medical evidence, the court is left guessing

about the exact number of assailants and the manner in which

they may have assaulted the injured. The present one is the

case where a little grain has been mixed up with so much of

chaff that it is almost not possible to separate the grain. Though

a court of facts is obliged to make an effort at finding out the

truth by separating it from the falsehood, but, on finding it not

possible to do so, it is not permissible for the court to spin out

altogether a new case, different from the one alleged by the

prosecution, and to convict the accused.” In the light of the

decision noticed above, when we take a conspectus of the

prosecution evidence it appears to us that so much of chaff has

been mixed with the grain that it becomes almost impossible to

sift the grain from the chaff. The benefit of which would have to

21

be extended to the accused. We are therefore of the considered

view that the prosecution has failed to establish the guilt of the

accused beyond the pale of doubt. The appellant's conviction is

therefore unsustainable.

The contention of the learned AGA that the defense was

not successful in establishing motive for false implication

therefore the prosecution case was worthy of acceptance is

unacceptable simply for the reason that the ultimate burden to

prove the guilt beyond the pale of doubt is on the prosecution.

The prosecution evidence is not to be accepted as gospel truth

merely because no sufficient motive is shown for false

implication. It may be observed that the apex court in

Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2

SCC 35 (paragraph 35) had observed that “different motives

operate on the minds of different persons in the making of

unfounded accusations. Besides, human nature is too willing,

when faced with brutal crimes, to spin stories out of strong

suspicions.” Under the circumstances, the prosecution

evidence has to be tested before its acceptance and conviction

is to be recorded only when it is found reliable. Where doubts

arise about the truthfulness of the prosecution evidence, the

benefit of doubt would always go to the accused.

Thus, for all the reasons recorded above, the appellant is

entitled to the benefit of doubt. The appeal is allowed. The

judgment and order dated 13.02.1991 passed by the Ist

Additional Sessions Judge, Aligarh in Session Trial No. 662 of

1987 convicting and sentencing the appellant is hereby set

aside. The appellant is acquitted of the charge. If the appellant

is on bail, he need not surrender.

Let a copy of the order as well lower court record be sent

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to the court concerned for compliance.

Order Date :-18.09.2019

Sunil Kr Tiwari