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A.F.R.

Court No. - 44

Case :- CRIMINAL APPEAL No. - 6351 of 2007

Appellant :- Naresh Chandra

Respondent :- State of U.P.

Counsel for Appellant :- R.P.S. Chauhan,Narendra Kumar,Rabindra

Bahadur Singh,Shahabuddin

Counsel for Respondent :- Govt. Advocate

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(By Nalin Kumar Srivastava, J.)

1.This criminal appeal has been preferred by the

appellant against the judgement and order dated

13.09.2007 passed by the Additional District & Sessions

Judge, Court No.9, Moradabad in Session Trial No.127

of 2004 (State vs. Naresh Chandra) (case crime no. 211

of 2003) convicting and sentencing the appellant for the

offence punishable under Section 302 IPC to undergo

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

stipulation of default clause.

2.Brief facts of the case, as unfolded by the

informant Shyam Lal son of Daulat in the First

Information Report (in short 'F.I.R.'), are that on

9.10.2003 at about 9.30 a.m. while the informant

alongwith his son Natthu and daughter-in-law

Shakuntala was standing at Sirswan crossing in village

Manpur in front of Stall (khokha) of Pandit Ji, Naresh,

son of his brother Masih Charan, suddenly came from

behind the Stall and catching the hair bun of

Shakuntala, stabbed with knife many times on her body

due to which she fell down on another side of the road.

The son of the informant made noise but no one

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turned-up to save her. When the informant rushed

towards the Chauki Manpur situated nearby, he saw one

Inspector and two Sepoy coming there. Having seen the

policemen, Naresh ran away at once towards the Vidhya

Niketan School but the policemen caught him alongwith

the knife. Recovery memo Ext. A-4 was prepared and,

thereafter, informant took away injured Shakuntala to

hospital where she was declared dead. The dead body

of deceased was sent to Manpur Chauki and accused

Naresh was also brought to the Police Station

concerned.

3.On the basis of the written report (Ext. ka-1)

scribed by one Rajveer Singh, chik First Information

Report (Ext. Ka-5) was registered at Police Station

concerned on 9.10.2003 at 12.10 p.m. mentioning all

the details as described in Ext. Ka-.1. G.D. entry was

also made at the same time, which is Ext. Ka-6.

4. Investigation was entrusted to sub-Inspector

Sanjiv Kumar (PW-7). He inspected the spot and

prepared site plan - Ext. ka-7. He also prepared the

inquest report of the deceased (Ext. ka-8) and papers

relating to post mortem Ext. A-9 to Ext. A-14. The

Investigating Officer also took the sample of plain earth

and bloodstained earth from the place of occurrence

and prepared the memo Ext. ka-15.

5.Autopsy report (Ext. ka-19) was prepared by Dr.

Allauddin Saifi after performing the post mortem of the

deceased on 10.10.2003 at 2.00 p.m. On examination

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of the dead body of the deceased, following ante-

mortem injuries were found:

“i.A stabbed wound 3.0 x 2.0 cms. x cavity deep in left

axilla.

ii.A stabbed wound 3.5 x 2.5 cms. x muscle deep on

anterior surface of left arm 4.0 cms below top of shoulder

(Not exposed).

iii.Multiple abrasion in an area 20 x 6.0 cms. on posterior

lateral surface of left arm with elbow

iv.An abrasion 6.0 x 4.0 cms. on left side of back of

chest 8.0 cms. below left shoulder.”

6.In the opinion of the doctor, death was caused due

to haemorrhage and shock as a result of ante-mortem

injuries.

7.After completing the investigation, charge-sheet

(Ext. ka-16) against the appellant was filed. Concerned

Magistrate took the cognizance. The case being

exclusively triable by sessions court, was committed to

the Court of sessions.

8.Appellant appeared before the trial court and

charge under Section 302 IPC was framed against

him. He denied the charge and claimed his trial.

9.Trial proceeded and in order to prove its case

prosecution has examined in all seven witnesses,

namely, PW-1 Shyam Lal (informant), PW-2 Natthu

(eye witness), PW-3 Dr. Alauddin, PW-4 Sub-Inspector

Anil Kumar Yadav (eye witness), PW-5 Constable

Shyam Singh (eye witness), PW-6 H.C.P. Khem Singh

(scribe of F.I.R.) and PW-7 Sub-Inspector Sanjiv Kumar,

the Investigating Officer.

The following documents were exhibited :

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10.Written report Ext. A-1, Recovery and arresting

memo Ext. A-2, Ext. A-3 and Ext. A-4, F.I.R. Ext. A-5,

G.D. Ext. A-6, site plan - Ext. A-7, inquest report Ext.

A-8, photo lash Ext. A-9, paper No.33 Ext. A-10, challan

lash Ext. A-11, letter to R.I. Ext. A-12, letter to C.M.O.

Ext. A-13, sample seal Ext. A-14, seizure memo of plain

and bloodstained soil Ext. A-15, charge sheet Ext. A-16,

Analysis report from Forensic Science Laboratory Ext.

A-17 and Ext. A-18, Autopsy report Ext. A-19.

11. After closure of evidence, incriminating materials

appearing in the prosecution evidence were put to the

appellant in his statement under Section 313 CrPC. He

denied all the incriminating evidence including the

alleged recovery of knife by claiming it to be false and

bogus and also claimed false implication due to enmity.

12.Appellant in his defence has examined DW-1

Shomit Kumar, DW-2 Dal Chandra, DW-3 Narendra

Sharma and DW-4 Constable Brajmohan Rana. DW-4

has proved the copy of G.D. as Ext. kha-1.

Evidence led by the Prosecution :

13.PW-1 Shyam Lal is the informant and eye witness

of the occurrence. In his examination in chief he has

stated that he reached the spot after receiving the

information of murder and he did not see as to who has

murdered the deceased. No one even told him the

name of the accused. In his deposition he has proved

the written report as Ext. A-1 and has stated that he

had dictated the report to Rajveer Singh and

whatsoever he has stated the same was written in the

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report. He has also stated that on his report F.I.R. was

lodged. The witness was declared hostile by the

prosecution and in his cross examination he denied so

many contents of the written report Ext. ka-1. On the

recovery memo of murder weapon ‘knife’ he has

identified his thumb impression which has been

exhibited as Ext. A-2 but he has deposed that his

thumb impression was taken on a blank paper by the

police. When the witness was cross-examined by the

defence, he has stated that since he was not in a fit

mental condition, he could not understand as to what

was written in the Tehrir and the villagers had dictated

the report to Rajveer Singh.

14.PW-2, minor son of the informant, is also said to

be the eye witness of the occurrence. He is also a

hostile witness and has categorically stated that at the

time of occurrence he was not present over there and

he does not know as to who murdered the deceased.

He has also shown his ignorance about the presence of

his father Shyam Lal on the spot. In his cross-

examination the witness has identified his signature

over the recovery memo and Ext. A-3 has been marked

over it but he has denied his statement under Section

161 CrPC given to the Investigating Officer. This witness

has also stated that his signature was obtained on a

blank paper at the Police Chauki, Manpur. Accused

Naresh was not arrested before him and no knife was

recovered from the accused before him.

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15.PW-3 Dr. Alauddin Saifi has performed the autopsy

of deceased and has proved the autopsy report as Ext.

A-19.

16.PW-4 S.I. Anil Kumar Yadav is said to be present

over the place of occurrence at the time of crime. He

has stated in his examination in-chief that on 9.10.2003

about 9.30 a.m. while coming to P.S. Bhagatpur from

Chauki Manpur alongwith Constable Shyam Singh and

Constable Brijesh Kumar Tyagi, he saw from a distance

of 50 yards (gaj) that at Sirswan Mod one person was

stabbing a lady with knife and other person and a boy

were shouting to save her. The aggressor fled towards

Tanda but the policemen chased and caught him in

front of Vidhya Niketan College at about 9.45 a.m., with

a knife in his right hand. He was arrested on the spot.

Murder weapon ‘knife’ was also taken into possession

by the police and seizure memo Ext. A-4 was prepared

on the spot. This witness has also proved the murder

weapon ‘knife’ as Material Ext.-1. In his cross-

examination PW-4 has stated that he did not give any

information to Tanda Police and he brought the

deceased alongwith the accused to the Hospital.

Deceased at that time was alive.

17.PW-5 Shyam Singh is also said to be the eye

witness of the occurrence. In his deposition he has

corroborated the evidence of PW-4 and has proved the

factum of arrest of accused as well as recovery of

murder weapon from his possession. He, claiming

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himself to be the eye witness of the occurrence, has

identified his signature over recovery memo Ext. A-1.

18.PW-6 Head Constable Khem Singh is the scribe of

the F.I.R. and has proved the chik F.I.R. and G.D. Rapat

No. 24 at 12.10 p.m. as Ext. A-5 and Ext. A-6

respectively. In his cross-examination he has deposed

that the scribe of report Rajveer Singh did not come to

the police station alongwith the complainant.

19.PW-7 Sub-Inspector Sanjiv Kumar, the

Investigating Officer of the case, has proved the

proceedings of investigation in his examination-in-chief

and also proved the site plan – Ext. A-7. Inquest of the

body of the deceased has been performed by this

witness and papers relating to the post mortem have

also been prepared by him. He has proved the inquest

report, photo nash, Form No. 33, challan nash, letter

to R.I., letter to C.M.O. and specimen seal as Ext. A-8

to A-14 respectively in his evidence. He has also

collected the bloodstained and plain soil from the place

of occurrence and its seizure memo Ext. A-15 has also

been proved by him. In his cross-examination he has

stated that as per the memo, the deceased was taken

to the hospital by her father in-law Shyam Lal and his

companions but the police had not accompanied the

informant Shyam Lal, according to the memo. He has

also narrated that in the memo the doctor has endorsed

that the stabbing was caused by an unknown person.

Evidence led by the Defence :

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20.DW-1 Shomit Kumar, DW-2 Dal Chandra and DW-3

Narendra Sharma, the witnesses produced by the

accused, have stated in their deposition that at the time

of occurrence they were present on the spot and had

seen an unknown person stabbing a lady and accused

Naresh Chandra was not present over there at that

time. They have also stated that they know the accused

very well and they were present at their respective

shops at the time and place of occurrence.

21.DW-4 Constable Brajmohan Rana has deposed

that on 9.10.2003 at 10.00 a.m. sweeper Awadhesh

working at C.H.C. Tanda had given a memo to him at

the police station bearing seal of C.H.C. Tanda and

signature of doctor, which was entered by him in G.D.

Rapat No.17 at 11.00 a.m.. The information was sent to

police station Bhagat Pur, District Moradabad through

wireless. DW-4 has proved the carbon copy of the G.D.

as Ext. kha-1.

22.On the basis of aforesaid evidence, learned trial

court came to the conclusion that the prosecution has

succeeded to establish the guilt against the accused

person on the basis of cogent, consistent and reliable

evidence and charge against accused was proved

beyond reasonable doubt and accordingly conviction

order was passed.

23.Learned counsel for the appellant has assailed the

impugned judgment and order on various grounds. It

has been argued that prosecution version rests upon

the ocular testimony of PW-1, PW-2, PW-3 and PW-4.

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PW-1 and PW-2 are hostile witnesses and do not

support the prosecution version at all. PW-3 and PW-4

are the police officials, who are the chance witnesses

and their presence over the place of occurrence is not

proved by any cogent evidence. No independent

witness has been examined by the prosecution in

support of its case. It has also been submitted that the

place of occurrence is doubtful and there is no clinching

evidence as to fact that the alleged occurrence

happened at the same place as the prosecution claims.

It has further been argued that the accused had no

motive to kill the deceased. It has further been

submitted that medical evidence does not corroborate

the ocular version. It has also been submitted that the

learned trial court has illegally relied upon the

statement of accused given to the Investigating Officer

during the course of investigation and in arbitrary and

illegal manner has passed the conviction order on the

basis thereof.

24.Per contra, learned AGA appearing for the State

respondent has vehemently argued that the prosecution

case was proved on the basis of cogent and reliable

evidence. There is no merit in the appeal and the

appeal is liable to be dismissed.

25.We have carefully gone through the record and

have given our thoughtful consideration to the rival

contentions of the parties.

26.Place of occurrence has always been an essential

part of the prosecution story, which is necessary to be

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proved by prosecution by cogent evidence in order to

succeed.

27.Reliance has been placed upon Syed Ibrahim vs.

State of Andhra Pradesh, JT 2006 (6) SC 597 where it

has been expressly held that it would not be proper to

accept the prosecution case when the place of

occurrence itself has not been established. Also in Asraf

Biswas vs. The State of West Bengal, 2016 SCC OnLine

Cal. 4342 which was relied upon by the learned

counsel for the appellant, it was found from the

evidence on record that the place of occurrence was not

proved beyond all reasonable doubts. The Calcutta High

Court held that “Once it is held that the place of

occurrence has not been established beyond all

reasonable doubts, then the other circumstances are

hardly sufficient to establish the guilt of the accused”.

28.In light of the aforesaid observations, the learned

counsel for the appellant has pointed-out that in the

present matter the place of occurrence is highly

suspicious and from the evidence on record a genuine

doubt arises in respect of the certainty of the place of

occurrence. He has submitted that in the F.I.R. (Ext. A-

5) place of occurrence is mentioned at Sirsawa Tiraha,

Village Manpur, P.S. Bhagat Pur, District Moradabad. In

the written report Ext. A-1 it has been mentioned that

at the time of occurrence, informant alongwith his son

and daughter-in-law, was standing in front of Khokha of

Pandit Ji at Sirsawa Tiraha, Village Manpur and that was

the place where the incident occurred. It has also been

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mentioned in Ext. A-1 that when the accused tried to

escape towards Vidhya Niketan School, two policemen

caught him.

29.Learned counsel for the appellant, referring to the

written report Ext. A-1 has submitted that after the

occurrence informant immediately rushed towards

Police Chauki, Manpur but in the site plan (Ext. A-7)

this fact has not been shown. It has also been

submitted that place of occurrence has not been proved

by the so called eye witnesses of the incident, namely,

PW-1 and PW-2.

30.We made a close scrutiny of the oral and

documentary evidence on record in view of the

aforesaid submissions made by the learned counsel for

the appellant.

31.PW-1 and PW-2 have been declared hostile and

have stated that they were not present on the spot at

the time of occurrence. What is the value of their

evidence as hostile witness will be evaluated later on in

this judgment but so far as the place of occurrence is

concerned PW-1 in the opening part of his deposition

has clearly stated that occurrence happened at Manpur

Tiraha.

32.PW-4 and PW-5 are the two policemen, who

happened to be present on the spot when crime was

being committed by the accused and they are the

persons who caught the accused with the murder

weapon. PW-4 has clearly stated that he had seen one

person stabbing a woman by knife at Sirawa Turn (Mod)

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and when he tried to escape and ran away towards

Tanda, he and his associate policeman chased and

caught him in front of Vidhya Niketan College alongwith

knife. PW-5, who was accompanying PW-4 at the time

of occurrence, has also narrated the same facts in his

statement.

33.PW-7 the Investigating Officer has proved the site

plan Ext. A-7 in his deposition. It is pertinent to

mention that nothing adverse has been stated by this

witness in his cross-examination on the point of place of

occurrence.

34.A perusal of the site plan Ext. A-7 reveals that the

Khokha (small shop), where the informant was said to

be standing alongwith his son and deceased, is situated

at Tiraha and at the same place the accused assaulted

the deceased and she fell down. Accused ran away

towards Vidhya Niketan College trying to escape but

policemen, who were coming from Chauki Manpur, saw

the incident and grabbed him in front of Vidhya Niketan

College. All this topography has been shown in clear

terms in Ext. A-7 with specific points and in this way

the place of occurrence as mentioned in Ext. A-1 and

Ext. A-5 finds support from the oral evidence as well as

from the site plan Ext. A-7. Learned AGA has also

pointed out that seizure memo of plain and

bloodstained soil has been proved as Ext. A-15 by PW-7

the Investigating Officer, as PW-7 has deposed that

from the place of occurrence he had collected it and

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thus the place of occurrence is fixed with the aid of

Ext. A-15 also.

35.We, therefore, do not find any force in the

contentions of the learned counsel for the appellant

regarding the fixation of place of occurrence.

36.The prosecution has a definite case that the

deceased was assaulted with knife by the accused and,

therefore, it is very significant to search out from the

evidence on record whether the death of the deceased

was caused by use of knife or not. Learned counsel for

the appellant has vehemently argued that the medical

evidence on this point does not support the prosecution

version and at this juncture the whole prosecution story

fails.

37.The post mortem report is on record, which has

been proved by the Dr. Alauddin Saifi – PW-3. PW-3

while proving the autopsy report Ext. A-2 has clearly

and in specific terms stated that death of the deceased

was caused due to haemorrhage and shock and injury

no. 1 and 2 may have been inflicted by knife. He has

also pointed out that death may have occurred on

9.10.2003 at 12.00 noon. It is to be reminded here that

injury no. 1 and 2 are stab wounds. PW-3 in his cross

examination has clarified that injury no. 1 and 2 were

sufficient to cause death.

38.It is noteworthy that in the inquest report Ext. A-8

the panchas have also opined that death of deceased

seems to be caused by stabbing.

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39.Learned trial court has discussed the prosecution

evidence with a view to find out whether it is in

conformity with the medical evidence or not and has

correctly opined that the prosecution version finds

corroboration with the medical evidence. Hence, we are

of the considered view that the prosecution story is fully

supported with the medical evidence and on this point

the objections raised by the learned counsel for the

appellant are proved to be futile.

40.The point, which has been most vehemently

argued by the learned counsel for the appellant is that

there is no independent witness of the occurrence

except PW-1 and PW-2, who are the father-in-law and

brother-in-law of the deceased respectively. Two other

persons allegedly the eye witness of the occurrence are

the police personnels and are only the chance witnesses

and their presence on the spot is highly improbable. No

other independent witness has been examined and

more over PW-1 and PW-2 have been declared hostile

by the prosecution and they do not support the

prosecution version at all.

41.PW-1, the informant / father in-law of the

deceased, has stated in his examination in-chief that he

reached the spot after being informed regarding the

murder of his daughter-in-law. He did not see as to who

was the author of the crime. He has been declared

hostile by the prosecution. In his cross examination he,

though identifying his thumb impression on seizure

memo of knife Ext. A-2, has stated that it was a plain

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paper when his thumb impression was taken over it. He

also resiled from his statement made to the

Investigating Officer under Section 161 CrPC and has

also stated in the cross-examination that the written

report was written by Rajveer Singh on the dictation of

villagers and he never narrated this fact to Rajveer

Singh, the scribe, that this was the accused Naresh who

had assaulted his daughter in-law with knife and was

caught on the spot.

42.PW-2 was also declared hostile by the prosecution

when he stated in his examination in- chief that at the

time of occurrence he was not present over there and

he even does not know who has murdered the

deceased. He has also resiled from his statement under

Section 161 CrPC and has identified his signature as

Ext. A-3 over the seizure memo – Ext. A-2. It has also

been stated by him that his signature was obtained by

police on plain paper. He has also deposed that accused

was never arrested before him nor any recovery of knife

was made from him.

43.In an honour killing case reported as Bhagwan

Dass vs. State (NCT) of Delhi, AIR 2011 SC 1863 (C),

the Hon’ble Supreme Court found that the mother of

the accused stated before the police that her son (the

accused) had told her that he had killed the deceased

but when she was confronted with this statement in

Court she resiled from her earlier statement and was

declared hostile. The Hon’ble Apex Court held that her

subsequent denial in the Court is not believable

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because she obviously had afterthoughts and wanted to

save her son (the accused) from punishment. The

Hon’ble Supreme Court further held that “we are of the

opinion that the statement of Smt. Dhillo Devi to the

police can be taken into consideration in view of the

proviso to Section 162(1) CrPC and her subsequent

denial in Court is not believable because she obviously

had afterthoughts and wanted to save her son (the

accused) from punishment.”

44.The principle laid down in the aforesaid judgment

is clearly applicable in this case where PW-1 and PW-2,

father and brother of the accused, respectively are

trying to save the accused and with this motive they

have resiled from their statement given to the

Investigating Officer under Section 161 CrPC.

45.The law, so far as the evidentiary value of a

hostile witness is concerned, is settled. In a catena of

decisions the Hon’ble Supreme Court and this High

Court have held that the evidence of a hostile witness

would not be rejected if spoken in favour of prosecution

but it can be subjected to close scrutiny and that

portion of the evidence, which is consistent with the

case of prosecution, may be accepted. In C. Muniappan

v. State of T.N., (2010) 9 SCC 567, the Hon’ble Apex

Court settled the legal position as “the evidence of a

prosecution witness cannot be rejected in toto merely

because the prosecution chose to treat him as hostile

and cross-examined him. The evidence of such

witnesses cannot be treated as effaced or washed off

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the record altogether but the same can be accepted to

the extent their version is found to be dependable on a

careful scrutiny thereof.”

46.In State of Gujarat vs. Anirudhsing and another,

(1997)6 SCC 514, it has been held that :

“29. In view of the above settled legal position,

merely because some of the witnesses have

turned hostile, their ocular evidence recorded by

the court cannot be held to have been washed off

or unavailable to the prosecution. It is the duty of

the court to carefully analyse the evidence and

reach a conclusion whether that part of the

evidence consistent with the prosecution case, is

acceptable or not. It is the salutary duty of every

witness who has the knowledge of the

commission of crime, to assist the State in giving

evidence; unfortunately for various reasons, in

particular deterioration in law and order situation

and the principle of self-preservation, many a

witness turn hostile and in some instances even

direct witnesses are being liquidated before they

are examined by the Court……………..”

47.Virtually it is a legal duty of the Trial Judge or the

Appellate Judge to scan the evidence, test the anvil of

human conduct and reach a conclusion whether the

evidence brought on record even if the witnesses

turning hostile would be sufficient to bring home the

commission of crime. In continuity of this discussion

this fact is also to be examined whether ocular evidence

of PW-4 and PW-5 are credible of evidence or not on

the two fold tests : (i) they are police personnel, and

(ii) they are the chance witnesses.

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48.In the impugned judgment the trial court has

discussed the evidence of PW-1 and PW-2 at length and

has found that according to the written report Ext. A-1

accused is the son of Masih Charan, who is the brother

of informant and PW-2 is the son of PW-1, hence,

accused is the nephew of PW-1 and cousin of PW-2. The

trial court has also found that deceased Shakuntala is

the wife of accused. On the basis of the scrutiny of

evidence of PW-1 and PW-2, the learned trial court has

come to the conclusion that PW-1 probably does not

want his nephew to be convicted for murder of the

deceased and that is why he turned hostile. It is also

noteworthy that PW-1 in his examination in-chief has

clearly stated that it was he who dictated the written

report Ext. A-1 to scribe Rajveer Singh and whatsoever

he had spoken was written over it but in his cross

examination he resiled from his earlier statement and

stated that the written report was dictated by the

villagers. Learned counsel for the appellant failed to

explain as to why the earlier statement made by PW-1

in his examination-in-chief should not be relied upon.

This makes it clear that PW-1 has deliberately trying to

hide the truth and at this juncture we find ourselves in

full agreement with the conclusion arrived at by the

learned trial court so far as the evidence of PW-1 is

concerned. Same is the position of PW-2, whose

signature finds place over the arresting and recovery

memo Ext. A-2. In his cross examination he has stated

that his signature was obtained by the police at Chauki

Manpur but according to his statement if he was not

19

present on the spot, how and why he reached police

chauki, Manpur and when his signature was obtained on

Ext. A-2 has not been clarified by this witness. Hence,

this witness is also trying to hide the correct facts of the

case. In Rajesh Yadav and another vs. State of U.P.,

2022 SCC OnLine SC 150 the Hon’ble Supreme Court

held as under:

“21…………………... Once evidence is

completed, the said testimony as a whole is

meant for the court to assess and

appreciate qua a fact. Therefore, not only

the specific part in which a witness has

turned hostile but the circumstances under

which it happened can also be considered,

particularly in a situation where the chief

examination was completed and there are

circumstances indicating the reasons behind

the subsequent statement, which could be

deciphered by the court. It is well within the

powers of the court to make an

assessment, being a matter before it and

come to the correct conclusion.”

49.According to the prosecution story at the time of

occurrence PW-4 and PW-5, the police personnels, were

coming from Police Chauki, Manpur when they saw the

occurrence and caught the accused with the murder

weapon. In this way they may be termed as ‘chance

witness’. Whether a chance witness is devoid of trust and

only by levelling him as chance witness whether his

evidence can be shattered as without any foundation,

has been discussed in the judgment of State of A.P. vs.

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K. Srinivasulu Reddy and another, (2003) 12 SCC 660

wherein the Apex Court has held that :

“(13)………….In a murder trial by

describing the independent witnesses as

“chance witnesses” it cannot be implied

thereby that their evidence is suspicious

and their presence at the scene doubtful.

Murders are not committed with previous

notice to witnesses; soliciting their

presence. If murder is committed in a

dwelling house, the inmates of the house

are natural witnesses. If murder is

committed in a street, only passers-by will

be witnesses. Their evidence cannot be

brushed aside or viewed with suspicion on

the ground that they are mere “chance

witnesses”.

50.When we translate the aforesaid principle with

their application to the facts of this case, we gather an

impression that the learned trial court has rightly relied

upon the evidence of PW-4 and PW-5. It is to be noted

that for the purpose of the present case PW-4 and PW-5

shall be taken as independent witnesses. There was not

even single suggestion to these witnesses that they

had any animosity to the accused. There was no reason

why these witnesses could falsely implicate the accused

in a murder case. Learned counsel for the appellant has

vehemently argued that no Rawangi G.D. has been

produced before the Court to show that PW-4 and PW-5

were coming indeed from Police Chauki, Manpur. We do

not find any force in this contention. Mere absence of

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Rawangi G.D. on record so as to show the presence of

PW-4 and PW-5 on the spot at the time of occurrence

does not affect the prosecution case adversely. The

whole evidence of PW-4 and PW-5 is reliable and

trustworthy. They were not present on the spot as

police personnels but they are simply eye witnesses of

the occurrence. They may be dealt with for violation of

any rule to leave the Police Chauki without rawangi G.D.

but this does not make their presence on the spot

improbable, if a murder suddenly took place before

them. They have not only grabbed the accused red

handed in front of Vidhya Niketan College but also

recovered the murder weapon ‘knife’ from his

possession and arrest and seizure memo Ext. A-2 was

also prepared by PW-4. The T.I. and signatures of PW-1

and PW-2 and of the police personnels present over

there were also obtained. No material contradiction or

unnatural statement may be found in the version of

PW-4 and PW-5. They are wholly reliable witnesses of

fact and their ocular version finds support from other

evidence available on record.

51.It has been held by Hon’ble Supreme Court in

State of Gujarat vs. Anirudhsing case (supra) that

merely because the witnesses are police officers, their

evidence cannot and must not be rejected outright as

unreliable or unworthy of acceptance. It requires to be

subjected to careful evaluation like any other witness of

occurrence.

22

52.Learned counsel for the appellant has taken us

through the evidence on record and has submitted that

no motive has been assigned to the accused to commit

the alleged crime. He has pointed out that no witness

even PW-1 and PW-2, who are said to be family

members of the deceased, no where mentioned in their

entire deposition that the accused had any enmity with

the deceased or he had any motive to kill her.

53.Although learned trial court has relied upon the

statement of accused given to the Investigating Officer

during course of investigation to determine the motive

behind the crime, yet it has been submitted by the

learned AGA that the present case rests upon the direct

evidence wherein motive has no significance. Emphasis

has been laid down upon the decisions of the Apex

Court in Bikau Pandey Vs. State of Bihar (2003) 12 SCC

616, Anil Rai Vs. State of Bihar (2001) 7 SCC 318 and

Deepak Verma Vs. State of Himachal Pradesh (2011)

10 SCC 129.

54.If we go through the evidence of PW-4 and PW-5,

we have no hesitation to say that both the witnesses

have given ocular evidence regarding the occurrence.

They have seen the accused stabbing the deceased and

have also caught him on the spot with murder weapon.

They are reliable and trustworthy witnesses having no

grudge or enmity with the accused. In these

circumstances, we feel that the prosecution was never

under any obligation to prove the motive in the present

case and accordingly no force is found in the plea of the

23

learned counsel for the appellant so far as the motive is

concerned.

55.The genuineness of the written report Ext. A-1 and

the F.I.R. Ext. A-5 has also been put under challenge by

the learned counsel for the appellant, who has referred

the statement of PW-1 and submitted that this witness

has given contradictory statements in his examination

in-chief and cross- examination as to whether written

report was dictated to the scribe Rajveer Singh by him

or it was dictated by the villagers. It has been pointed

out earlier that if any witness turns hostile, as PW-1

was declared, the portion of his evidence which

supports the prosecution version may be acted upon. In

his examination in-chief PW-1 has clearly stated that he

himself had dictated the written report to the scribe

Rajveer Singh. Learned counsel for the appellant was

unable to explain as to why this portion of his

examination in-chief could be rejected or overlooked.

The occurrence is said to be happened on 9.10.2003 at

9.30 a.m. and F.I.R. Ext. A-5 has been lodged on the

same day at 12.10 p.m.. It is mentioned in Ext. A-5

that the police station is at a distance of 10 kilometers

from the place of occurrence and in the evidence it has

been shown that the deceased was immediately taken

to the hospital after the occurrence to save her life but

she could not be survived and, hence, the F.I.R. is

prompt and not a result of deliberations or after

thought. PW-6, the scribe of the F.I.R., has proved chik

F.I.R. and registration G.D. as Ext. A-5 and Ext. A-6 and

there is no adversity in his testimony.

24

56.Learned AGA has drawn our attention towards the

F.S.L. report Ext. A-18, which reveals that blood clots

were found over all the materials sent to the forensic

laboratory i.e. plain and bloodstained soil, knife,

clothings of the deceased and belongings found over

her body. No doubt the F.S.L. report has also supported

the prosecution version.

57.Learned counsel for the appellant vehemently

argued that from the defence side four witnesses in all

have been examined and documentary evidence has

also been adduced but the learned trial court has

completely ignored the same and he has misinterpreted

the defence evidence. It has also been argued that the

evidence adduced by the defence also gets the same

weight as the prosecution evidence. Reliance has been

placed on a decision of the Apex Court in Munshi Prasad

vs. State of Bihar, (2002) 1 SCC 351.

58.Learned counsel for the appellant has referred the

evidence of DW-1, DW-2, DW-3 and DW-4.

59.DW-1 Shomit Kumar has stated that he is the

Barber and at the time of occurrence he was at his shop

when an unknown person stabbed a woman with knife

and on noise his neighbours Dal Chandra and some

other persons reached there and he escaped from

there. He is acquainted with the accused Naresh

Chandra and he was not present at the place of

occurrence. He has also stated that the police has

enquired with him. In his cross-examination he has

stated that accused Naresh comes to his shop for hair

25

cutting and he does not know his wife. On the fateful

day he had opened his shop at about 9.00 a.m. he had

heard that some person had stabbed a woman by knife

and he does not know whether the accused was caught

with knife or not.

60.DW-2 Dal Chandra has stated that he knows the

accused Naresh present in the Court. He was not

present at the time of occurrence. He has stated that

he has a shop at Sirswa Chauraha and the occurrence

took place about 3- 3 ¼ year s before at about 9.30

a.m.. One stranger had stabbed a woman on the road

by knife and when she cried, Shomit, Narendra Sharma

and he himself and several other persons scolded him

and he ran away with knife in his hand. The police had

enquired with him. In his cross-examination he has

stated that he resides outside the house of accused

Naresh but he had never seen the wife of Naresh and

he does not know the woman who got injured.

61.DW-3 Narendra Sharma has a beetle shop at

Sirsawa Chauraha. He has stated that on 9.10.2003

about 9.30 a.m. when he was present at his shop, he

saw that a male stranger stabbed a lady by knife, who

had come from the direction of village Niwad and ran

away. The occurrence was seen by Dal Chandra, Shomit

etc. and by him also. They went to the police chauki

and on their information police came over there and

brought the injured lady to the hospital. He knows the

accused Naresh, who is present in the Court but he was

not present on the date, time and place of the

26

occurrence. He has also stated that he had narrated the

entire story to the Investigating Officer. In his cross

examination he has stated that at that time there was a

huge crowd over the Chauraha.

62.Learned counsel for the appellant argued that the

real picture, which comes out from the evidence of

DW-1, DW-2 and DW-3 is that the accused was not

present at the place and time of occurrence and he is

not the guilty of the alleged offence. DW-1, DW-2 and

DW-3 are the independent witnesses and there is no

reason to disbelieve their version.

63.Learned AGA has countered by arguing that DW-1,

DW-2 and DW-3 are not the reliable witnesses and they

are telling a lie before the Court. They have stated that

the Investigating Officer had enquired from them

regarding the incident but the Investigating Officer PW-

7 no where states that he ever recorded the statement

of any of the three defences witnesses or made any

query form them. No suggestion is given to PW-7 by

the defence side that he had recorded the statement of

DW-1, DW-2 and DW-3 or enquired the matter from

them. Since the arrest of the accused by the police

personnels with the murder weapon ‘knife’ is proved by

the cogent and reliable evidence, this fact must have

been known to the defence witnesses as well but they

do not speak even a single word that the person who

had stabbed the deceased was also caught then and

there by the policemen with knife and this makes their

whole evidence unreliable and false.

27

64.DW-4 Constable Brijmohan Rana has stated that

on 9.10.2003 he was working as Constable Clerk at

Thana Tanda, Rampur and a memo was received by him

by the sweeper Awadhesh bearing seal of C.H.C., Tanda

and signature of doctor regarding death of a deceased

lady, who was admitted by her father-in-law Shyamlal.

Copy of this memo was entered by him in the general

diary Rapat No. 17 at 11.00 am.. Carbon copy of G.D.

has been proved as Ext. kha-1 by DW-4. He has also

stated that through wireless he had se nt the

information to the police station Bhagatpur, District

Moradabad but he was informed that they have already

got the information about the occurrence.

65.Learned AGA submitted that this memo Ext. kha-1

actually supports the prosecution version and shows

that immediately after reaching the hospital the doctor

sent the memo for information to the concerned police

station and hence this document also is of no help to

the appellant. We are in full agreement with the learned

AGA.

66.Learned trial court has also analysed the defence

evidence, oral and documentary, in the impugned

judgment and has correctly found it as not reliable.

67.Therefore, from the defence evidence also the

accused appellant gets no help at all.

68.Learned counsel for the appellant has also argued

that the Investigating Officer has been negligent in

performing the investigation and the investigation is

faulty. However, he could not point out any material

28

defect or irregularity in the investigation of the case.

We also feel that the investigation conducted by the

Investigating Officer in this case suffers with no

material omission or irregularity. If there are some

minor irregularities they are ignorable in the light of all

other reliable and cogent evidence produced by the

prosecution.

69.In a catena of decisions, it has been settled that

for certain defects in the investigation the accused

cannot be acquitted if the prosecution case is proved by

other cogent evidence. In C. Muniappan vs. State of

T.N. case (supra), it has been held that :

“55. There may be highly defective investigation

in a case. However, it is to be examined as to

whether there is any lapse by the IO and whether

due to such lapse any benefit should be given to

the accused. The law on this issue is well settled

that the defect in the investigation by itself cannot

be a ground for acquittal. If primacy is given to

such designed or negligent investigations or to the

omissions or lapses by perfunctory investigation,

the faith and confidence of the people in the

criminal justice administration would be eroded.

Where there has been negligence on the part of

the investigating agency or omissions, etc. which

resulted in defective investigation, there is a legal

obligation on the part of the court to examine the

prosecution evidence dehors such lapses,

carefully, to find out whether the said evidence is

reliable or not and to what extent it is reliable and

as to whether such lapses affected the object of

finding out the truth. Therefore, the investigation

is not the solitary area for judicial scrutiny in a

criminal trial. The conclusion of the trial in the

case cannot be allowed to depend solely on the

probity of investigation.”

29

70.Considering the evidence of the witnesses and

also considering the medical evidence including the post

mortem report there is no doubt left in our mind about

the guilt of the convict – appellant Naresh Chandra.

71.However, the question which falls for our

consideration is whether, on reappraisal of the peculiar

facts and circumstances of the case, the conviction of

the appellant under Section 302 of the Indian Penal

Code should be upheld or the conviction deserves to be

converted under Section 304 Part-I or Part-II of the

Indian Penal Code. It would be relevant to refer Section

299 of the Indian Penal Code, which reads as under:

"299. Culpable homicide: Whoever causes death

by doing an act with the intention of causing death,

or with the intention of causing such bodily injury

as is likely to cause death, or with the knowledge

that he is likely by such act to cause death,

commits the offence of culpable homicide."

72.The academic distinction between ''murder' and

''culpable homicide not amounting to murder' has

always vexed the Courts. The confusion is caused, if

Courts losing sight of the true scope and meaning of

the terms used by the legislature in these sections,

allow themselves to be drawn into minute abstractions.

The safest way of approach to the interpretation and

application of these provisions seems to be to keep in

focus the keywords used in the various clauses of

Section 299 and 300 of I.P.Code. The following

comparative table will be helpful in appreciating the

points of distinction between the two offences.

Section 299 Section 300

30

A person commits culpable

homicide if the act by which

the death is caused is done-

Subject to certain exceptions

culpable homicide is murder is

the act by which the death is

caused is done.

INTENTION

(a) with the intention of

causing death; or

(1) with the intention of

causing death; or

(b) with the intention of

causing such bodily injury as is

likely to cause death; or

(2) with the intention of

causing such bodily injury as

the offender knows to be likely

to

cause the death of the person to

whom the harm is caused;

KNOWLEDGE KNOWLEDGE

(c) with the knowledge that the

act is likely to cause death.

(4) with the knowledge that the

act is so immediately

dangerous

that it must in all probability

cause death or such bodily

injury as is likely to cause

death, and without any excuse

for incurring the risk of causing

death or such injury as is

mentioned above.

73. From the upshot of the aforesaid discussions, it

appears that the death caused by the accused was not

premeditated, injury caused was not on the vital part of

the body, accused though had knowledge and intention

to cause bodily harm to the deceased but did not want

to do away with the deceased. Hence the instant case

falls under the Exceptions 1 and 4 to Section 300 of

31

IPC. While considering Section 299 IPC as reproduced

herein above offence committed will fall under Section

304 Part-I IPC as per the observations of the Apex

Court in Veeran and others Vs. State of M.P., (2011) 11

Supreme Court Cases 367 which have to be also kept in

mind.

74. This takes us to the alternative submission of

learned counsel for the appellant that the quantum of

sentence is too harsh and requires to be modified. In

this regard, we have to analyse the theory of

punishment prevailing in India.

75. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC

1926], explaining rehabilitary & reformative aspects in

sentencing it has been observed by the Supreme Court:

"Crime is a pathological aberration. The

criminal can ordinarily be redeemed and

the state has to rehabilitate rather than

avenge. The sub-culture that leads to

ante-social behaviour has to be countered

not by undue cruelty but by

reculturization. Therefore, the focus of

interest in penology in the individual and

the goal is salvaging him for the society.

The infliction of harsh and savage

punishment is thus a relic of past and

regressive times. The human today vies

sentencing as a process of reshaping a

person who has deteriorated into

criminality and the modern community

has a primary stake in the rehabilitation

of the offender as a means of a social

defence. Hence a therapeutic, rather than

an 'in terrorem' outlook should prevail in

our criminal courts, since brutal

incarceration of the person merely

produces laceration of his mind. If you

are to punish a man retributively, you

32

must injure him. If you are to reform

him, you must improve him and, men are

not improved by injuries."

76. 'Proper Sentence' was explained in Deo Narain

Mandal Vs. State of UP [(2004) 7 SCC 257] by

observing that Sentence should not be either

excessively harsh or ridiculously low. While determining

the quantum of sentence, the court should bear in mind

the 'principle of proportionality'. Sentence should be

based on facts of a given case. Gravity of offence,

manner of commission of crime, age and sex of accused

should be taken into account. Discretion of Court in

awarding sentence cannot be exercised arbitrarily or

whimsically.

77. In Ravada Sasikala vs. State of A.P. AIR 2017 SC

1166, the Supreme Court referred the judgments in

Jameel vs State of UP [(2010) 12 SCC 532], Guru

Basavraj vs State of Karnatak, [(2012) 8 SCC 734],

Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323],

State of Punjab vs Bawa Singh, [(2015) 3 SCC 441],

and Raj Bala vs State of Haryana, [(2016) 1 SCC 463]

and has reiterated that, in operating the sentencing

system, law should adopt corrective machinery or

deterrence based on factual matrix. Facts and given

circumstances in each case, nature of crime, manner in

which it was planned and committed, motive for

commission of crime, conduct of accused, nature of

weapons used and all other attending circumstances

are relevant facts which would enter into area of

33

consideration. Further, undue sympathy in sentencing

would do more harm to justice dispensations and would

undermine the public confidence in the efficacy of law.

It is the duty of every court to award proper sentence

having regard to nature of offence and manner of its

commission. The supreme court further said that courts

must not only keep in view the right of victim of crime

but also society at large. While considering imposition

of appropriate punishment, the impact of crime on the

society as a whole and rule of law needs to be

balanced. The judicial trend in the country has been

towards striking a balance between reform and

punishment. The protection of society and stamping out

criminal proclivity must be the object of law which can

be achieved by imposing appropriate sentence on

criminals and wrongdoers. Law, as a tool to maintain

order and peace, should effectively meet challenges

confronting the society, as society could not long

endure and develop under serious threats of crime and

disharmony. It is therefore, necessary to avoid undue

leniency in imposition of sentence. Thus, the criminal

justice jurisprudence adopted in the country is not

retributive but reformative and corrective. At the same

time, undue harshness should also be avoided keeping

in view the reformative approach underlying in our

criminal justice system.

78.Keeping in view the facts and circumstances of the

case and also keeping in view criminal jurisprudence in

our country which is reformative and corrective and not

34

retributive, this Court considers that no accused person

is incapable of being reformed and therefore, all

measures should be applied to give them an

opportunity of reformation in order to bring them in the

social stream.

79. As discussed above, 'reformative theory of

punishment' is to be adopted and for that reason, it is

necessary to impose punishment keeping in view the

'doctrine of proportionality'. It appears from perusal of

impugned judgment that sentence awarded by learned

trial court for life term is very harsh keeping in view the

entirety of facts and circumstances of the case and

gravity of offence. Hon'ble Apex Court, as discussed

above, has held that undue harshness should be

avoided taking into account the reformative approach

underlying in criminal justice system.

80.Recently in Khokan Alias Khokhan Vishwas vs.

State of Chhattisgarh, (2021) 2 Supreme Court Cases

365, the Hon’ble Supreme Court in almost similar

circumstances modified the sentence under Section 302

IPC for life imprisonment for the offence under Section

304 Part-I IPC sentencing the convict to the period

already undergone by him that was 14.5 years in that

case.

81. For the reasons recorded herein above and

following the dictum given by the Hon’ble Apex Court in

Khokan Alias Khokhan Vishwas case (supra), we hold

35

the accused-appellant, Naresh Chandra, guilty of

commission of offence under Section 304 Part I IPC and

sentence him to 10 years rigorous imprisonment. The

fine and default sentence is maintained. If the accused-

appellant, Naresh Chandra, is not wanted in any other

offence, he shall be set free.

82. Appeal is partly allowed, as modified above.

83. Record and proceedings be sent back to the Court

below forthwith.

Order Date :-30.09.2022

safi

(Nalin Kumar Srivastava, J.) (Dr. Kaushal Jayendra Thaker, J.)