http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4

PETITIONER:

STATE OF U.P.

Vs.

RESPONDENT:

ASHOK DIXIT AND ANR.

DATE OF JUDGMENT: 16/02/2000

BENCH:

G.T.Nanavati, S.N.Phukan

JUDGMENT:

PHUKAN, J

This appeal by the State is directed against the

judgment and order dated 16.08.1988 passed by the High Court

of Allahabad in Criminal Appeal Nos. 2742, 2743 and 2338 of

1984 arising out of Sessions Trial No. 202 of 1982. The

learned Additional Sessions Judge, Agra in the above

Sessions Case convicted accused respondents - Ashok Dixit

and Chaman Lal under Sections 302 and 307 IPC and Section 25

of the Arms Act and sentenced them accordingly. Two

separate appeals were filed before the High Court by the

respondents-accused and one appeal by the State for

enhancement of the sentence. The High Court dismissed the

appeal filed by the State and allowed the appeals filed by

the respondents-accused and acquitted them of their charges.

On 8.8.1982, at about 9.00 p.m., on hearing sound of gun

shot coming from the house of deceased Dr. Dubey, his

brother Bhagat Dayal Dubey P.W.1, proceeded to the house

of deceased Dr. Dubey, alongwith his two sons. In the

house of the deceased, he met two police officers Vijai

Bahadur Singh P.W.7, Station House Officer of Police

Station Civil Lines, District Etawah, Sup-Inspector of

Police Uma Shanker Yadav, Raj Narain Singh P.W.15

Compounder of deceased Dr. Dube, Shri S.K. Gupta- Advocate

and one or two other persons of the locality. The house was

dark as there was no electricity and two police officers

took position behind the varendah of the house and P.W.1

alongwith his two sons stood near the grill of the western

varendah. They heard shots from the first floor of the

house where deceased Dr. Dubey, his wife deceased Manorama

Dubey, her daughter Kumari Ritu P.W.3 and Umesh Chand

Mishra P.W.2 maternal uncle of deceased Manorama Dubey

were residing. At the time, they saw accused Brijendra

Kumar tumbling down the staircase to the ground floor

followed by present two accused respondents Ashok and

Chaman Lal, and three accused were apprehended by the two

police officers, P.W.7 and Sub-Inspector Uma Shankar

Dubey. Electricity was restored when the accused were

apprehended. P.W.1 with his two sons went upstairs and

found deceased Dr. Dubey lying in a pool of blood near the

dining table. Deceased Manorama Dubey was lying in a pool

of blood on the dewan by the side of the wall of the drawing

room and Munnu Singh was lying in the injured condition.

PW-2 was also found in injured condition. They were taken

to the hospital by PW-1 and one Pandey a tenant on the first

floor where Dr. Dubey was residing. Dr. Dubey and his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4

wife were found dead. P.W.2 and Munnu Singh were medically

examined and given treatment.

A pistol and four live cartridges were recovered from

the possession of the accused Ashok and country made pistol

and five live cartridges from the possession of accused

Chaman Lal and a country made pistol and two cartridges were

recovered from accused Brijendra Kumar. The two police

officers did not go upstairs where the occurrence took

place. They took the accused persons to the police station.

Police after investigation submitted charge sheet. The FIR

Exh.1 was lodged by P.W.1 on the basis of statement of

injured Munnu Singh but he was not examined, therefore, the

High Court was of the opinion that the FIR cannot be

accepted as corroborating piece of evidence of the statement

of P.W.1. Accused Brijendra Kumar died.

We have heard Shri K.N. Nagpal, learned counsel for

the appellant and Shri K.T.S. Tulsi, learned senior counsel

for the accused respondents.

Umesh Mishra PW2 uncle of the deceased Manorama and

Ritu PW3 daughter of deceased Dr. Dubey were the eye

witnesses. PW-2 used to live in the house of deceased Dr.

Dubey. According to PW-2 while he along with deceased Dr.

Dubey , his wife deceased Manorama and their daughter

Ritu- PW3 were sitting, Munnu Singh, compounder of Dr.

Dubey called Dr. Dubey and he went out. They heard gun

shots stood up and after some time Dr. Dubey came and fell

down near the dining table. Dr. Dubey was followed by

three assailants. One assailant fired at deceased

Manorama. Accused respondent Ashok fired at him and also

at deceased Manorama. He got panicky, went to the

verandah and fell down and from there he heard the sound of

firing. At that point of time PW-1 and his two sons came up

stairs and by that time electricity was restored. Both PW-1

and PW-2 went to the drawing room and they found Dr. Dubey

lying on the floor of the dining room and Manorama on the

dewan of the drawing room. Munnu Singh who was also injured

came in side and fell down. PW-3 came out from beneath a

cot from the bed room.

PW-2 has stated that accused-respondent Ashok was

known to him and Dr. Dubey and used to visit frequently the

house of Dr. Dubey. Accused Chaman Lal was not known to

him earlier. PW-2, Dr. Dubey, Manorama and Munnu Singh

were taken to the hospital by PW-1 with the help of one

Pandey through the ground floor. The accused persons after

being arrested were kept in the ground floor. PW-2 did not

mention in his statement under Section 161 Cr.P.C that

accused Ashok came along with other two accused to the

first floor and fired at him and Manorama and also the fact

that accused-Ashok and other two accused were in the ground

floor.

These are material omissions. Therefore, we are of

the opinion that these omissions are fatal for the

prosecution. More, particularly, when accused-Ashok was

related and regular visitor to the house of Dr. Dubey. We,

therefore, hold that there was no identification by PW-2 of

accused- Ashok. Regarding accused-Chaman Lal after the

occurrence there was no test identification parade and for

the first time PW-2 identified the accused- Chaman Lal in

the court. This identification cannot be accepted. PW-3

was a child witness and at the time of occurrence she was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4

aged 9 ½ years old. Occurrence took place on 08.08.82 but

her statement under Section 161 Cr.P.C. was recorded on

10.08.82 though after the occurrence she was residing with

her uncle which was at a stones throw from the house of Dr.

Dubey.

Law is well settled that evidence of a child witness

must be evaluated carefully as a child may be swayed by what

others tell him and as an easy prey to tutoring. Wisdom

requires that evidence of a child witness must find adequate

corroboration before it is relied on. [see Panchhi and

Ors. Vs. State of U.P. 1998 (7) SCC 177].

The High Court was of the view that considering her

age at the time of occurrence PW-3 might have been sleeping.

This cannot be said to be impossible. PW-3 also has deposed

that accused-Ashok was known to her family and used to visit

their house but accused Chaman Lal was not known to this

witness. She identified both the accused in the court. At

a time of occurrence there was no electricity, therefore, it

is difficult to accept that she being aged 9 ½ years old

could have identified accused-Chaman Lal during the

occurrence. From the evidence of PW-1 and PW-2 we find that

when they went to the bed room, PW-3 came out from beneath a

cot. This fact would support the contention that she might

not have seen the occurrence. We have already discarded the

evidence of PW-2 on the point of identification of the

accused, therefore, it will be risky to accept the evidence

of PW-3 for the purpose of identification as her evidence is

uncorroborated. Dr. Dubey was called by Munnu Singh. He

was found in the injured condition in the up stairs by PW-1

and PW-2 and was also taken to the hospital along with

others. This material witness was not examined and no

explanation has been given for his non-examination. This in

our opinion is fatal for the prosecution.

According to Mr. Vijay Bahadur Singh PW-7, Station

House Officer of Civil Lines, Police Station, he along with

sub-Inspector Uma Shanker Yadav was on patrolling duty and

when they were checking the out posts of Civil Lines, Police

Station, they heard sound of gun fire coming from the house

of Dr. Dubey at about 9.00 p.m and he along with

sub-Inspector, Yadav proceeded on the motorcycle to the

house of Dr. Dubey where they met Satyendra Gupta, Advocate

and Raj Narain Singh PW-15. They also saw PW-1 and his

two sons. There was no electricity at that time and these

two police officers did not go inside the house but took

position outside the house. They heard the sound of gun

fire coming from the first floor of the house where

deceased-Dr. Dubey was residing. Thereafter, they saw

accused Brijendra Kumar tumbling down the stair-case to

the ground floor followed by other two accused who were

apprehended and arrested by them. They recovered pistols

and cartridges as stated above from them.

No record has been produced to show that these two

police officers were near the place of occurrence at the

outpost of Civil Lines, Police Station on patrol and

checking duty. This outpost is at the distance of 100- 125

yards from the place of occurrence. After arrest police

officers did not go up stairs where four persons were lying

injured and according to PW-15 he wanted to go up stairs but

he was summoned by these police officers. These police

officers saw PW-1 and his two sons going up stairs. PW-1

with the help of Pandey took deceased Dr. Dubey, his wife

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4

deceased Manorama and injured Munnu Singh and PW-2 through

the ground floor to the hospital. If police officers were

present at that time on the ground floor their immediate

reaction would have been to make proper inquiries, go up

stairs and see the place of occurrence but they did not do

so. This behavior of these two police officers is contrary

to the natural human conduct and it is difficult to believe

their presence at the place of occurrence as deposed by

PW-7.

Exhibit Ka-6 is the medical report of

accused-Brijendra Kumar. Injury Nos. 2 and 3 were caused

as a result of gun shots. All these injuries were bleeding

but police did not find blood on the ground floor or on the

stair case. According to Dr. R.K. Choudhary PW5 due to

the injuries caused to accused-Brijendra, he might have

suffered paralysis and he could not have moved 5-6 steps

after falling down. According to prosecution witnesses

accused-Brijendra came down by stair case to the ground

floor fell down, got up and after going 5-6 steps fell down.

Therefore, medical evidence does not support the evidence of

the witnesses.

Ramashram Pandey PW17 was examined as ballistic

expert. According to him metallic bullets- Exhibit EB-1

recovered from the body of Dr. Dubey and Exhibit EB-2

recovered from the body of deceased Manorama were not

fired from the pistols recovered from the possession of

accused-respondents and Brijendra Kumar. Moreover, there

were gun shot injuries on accused Brijendra Kumar. PW-2 and

Munnu Singh were also injured. No explanation is

forthcoming from the side of prosecution for the above

discrepancies, therefore, we hold that the occurrence did

not take place as alleged by the prosecution. We further

hold that the High Court has rightly acquitted the

accused-respondents. In result, the present appeal has no

merits and accordingly it is dismissed.