Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1180 OF 2004

State of U.P. ... Appellant

Versus

Krishna Master & Ors. ... Respondents

J U D G M E N T

J.M. Panchal, J.

1.The State of Uttar Pradesh has questioned legality of

judgment dated April 12, 2002 rendered by Allahabad High

Court in Criminal Appeal No.574 of 2001 by which judgment

dated February 20, 2001 passed by the learned Special Judge

(EC Act)/Additional District Judge, Farrukhabad in Sessions

Trial No.17 of 1992 convicting the three respondents herein

under Section 302 IPC and sentencing each of them to death

with fine of Rs.10,000/- in default RI for two years for

commission of murder of six persons is reversed and they are

acquitted.

2.The facts emerging from the record of the case are as

under:

The incident in question took place on August 10/11,

1991. The first informant is one Jhabbulal. He, as well as the

respondents, are residents of Village Lakhanpur, District,

Farrukhabad, Uttar Pradesh. About one year before the date

of incident, Sontara, daughter of the respondent No.1 had

eloped with Amar Singh, son of Jhabbulal. On one day, Amar

Singh was spotted in the village and on learning that Amar

Singh was back in village, the respondents had made an

attempt to find him out to assault him and to take revenge.

However, Ramwati, wife of Guljari, had learnt about the plans

of respondents. She was neighbour of Jhabbulal. Therefore,

she had given prior intimation to Amar Singh about the ill

designs of respondents to assault him. Thereupon Amar

Singh had left the village and this is how his life was saved.

2

Later on, the respondents had learnt that because of the

intimation given by Ramwati, Amar Singh had left the village

and he could not be targeted. Since then, the respondents

were bearing a grudge against Ramwati. It may be mentioned

that after 3-4 days Sontara and Amar Singh had returned to

the village. It is the prosecution case that at that time, Guljari

Lal, husband of Ramwati had suggested the Respondent No. 1,

in presence of first informant Jhabbulal to get his daughter

married to the son of Jhabbulal. Thereupon, respondent No.1

had taken exception and told Guljari Lal not to play with the

honour of his family. Because of the suggestion made by

Guljari Lal, the respondent No.1 was highly agitated and had

animus against Guljari Lal and first informant, Jhabbulal.

Some 10 to 15 days prior to the date of incident, Sontara

had again eloped with Amar Singh. Due to this reason the

respondents had become restive and uneasy with the family of

Jhabbu Lal and his neighbour Gulzari Lal. The respondent

No.1, Sri Krishna Master had gone to meet Jhabbulal and told

Jhabbulal that Sontara must come back to him by Sunday

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failing which no one in the world would be able to save him

and family of Guljari. Because of the threat given by

respondent No.1, Jhabbulal had gone to the residence of his

relatives in search of his son and daughter of the respondent

No.1, but he was unable to trace the missing boy and the girl.

3. On August 10, 1991, Ram Sewak, announced while

sitting on Chabutra of Ram Sewak that, at all costs, the girl

Sontara should come back. Otherwise, no one would be kept

alive even for the name sake. Sontara did not come back to

the village. In the midnight of August 10/11, 1991, at about

12 hours, the respondent No.1, i.e., Shrikrishna, the

respondent No.2 Ram Sewak and the respondent No.3 Kishori

carrying country made pistols in their hands entered the

house of Guljarilal by jumping the southern wall of the house.

After entering into the house of Guljari, the respondents

started firing shots indiscriminately. Because of the gun

shots, Guljari, Ramwati, wife of Guljari, Rakesh, Umesh and

Dharmendra sons of Guljarilal, were injured. PW2 (Madan

Lal) who was sleeping at the place of incident, got up after

4

hearing gun shots and hid himself under the cot. He

witnessed the whole incident from there. First Informant

Jhabbulal and his wife Lilawati, on seeing this ghastly

incident, left their house and while making hue and cry

entered the house of Khemkaran. The respondents after

killing Guljari and his family made search for the complainant

and his family members but they did not find them present in

the house. At that very time, Baburam, brother of the first

informant, who had entered his shop out of fear, was also

dragged out by the respondents from the shop and shot dead.

After resorting to indiscriminate firing, the respondents left the

village and went towards the south by making two fires in the

air.

At the time of incident, the respondents were carrying

firearms and, therefore, no one dared to go near them. In the

incident, Umesh and Dharmendra who had received injuries

were removed to hospital but later on they also succumbed to

their injuries. The written report relating to the incident was

got scribed by Jhabbulal through a person named Radhey

5

Shyam and it was submitted at the police station at about

3.30 a.m. on 11.8.1991. The Investigating Officer, Mr. Gajraj

Singh recorded statements of those who were found to be

conversant with the facts of the case. During the course of

investigation, he took into possession Ban (the thread by

which cot is woven), bed sheets etc. and prepared a memo. He

also picked up 315 bore bullet lying near the dead body of

Rakesh. Similarly, bullets of 315 bore lying near the cot on

which Dharmendra and Umesh slept were also seized. He

inspected the place of incident and prepared the sketch. The

incriminating articles seized were sent to forensic science

laboratory for analysis. He held inquest on the dead bodies

and made arrangements for sending the dead body of four

persons to hospital for post mortem examination. On

completion of investigation, the three respondents were

charged sheeted in the court of learned Chief Judicial

Magistrate, Farrukhabad for commission of offences

punishable under Section 302 read with 34 IPC. In due

course, the case was committed to Sessions Court for trial.

6

The learned Additional Sessions Judge to whom the case

was made over for trial framed charges against the

respondents under Section 302 read with Section 34 of the

Indian Penal Code 1860. The charge was read over and

explained to them. However, the respondents denied the same

and claimed to be tried. The prosecution, therefore, in all,

examined nine witnesses including two eye-witnesses and

produced documents to prove its case. After the recording of

evidence of prosecution witnesses was over, the respondents

were explained by the learned Additional Sessions Judge, the

circumstances appearing against them in the evidence of the

witnesses and recorded their statements under Section 313 of

the Code of Criminal Procedure, 1973. In their further

statements, case of each of the respondent was that he was

falsely implicated in the case and, therefore, should be

acquitted.

The learned Judge of the Trial Court discussed the

evidence of the witnesses in great detail and found that the

evidence of the two eye-witnesses was trustworthy, cogent,

7

consistent and reliable. On the basis of testimony of the two

eye-witnesses, the Trial Court by judgment dated February 20,

2001 convicted each of the respondents under Section 302

read with Section 34 IPC. The respondents were thereafter

heard by the learned Judge regarding sentence to be imposed

on them for commission of offences punishable under Section

302 read with Section 34 IPC. After hearing the respondents,

the learned Judge awarded capital punishment to each of the

three respondents and fine of Rs.10,000/- in default RI for two

years. A direction was given not to execute capital

punishment until the same was confirmed by the High Court.

It was also directed that the amount of fine paid by the

respondents, be given to Madan Lal who was PW2 and son of

deceased Guljari as compensation. The learned Additional

District Judge, Farrukhabad under a reference sent the

documents to the High Court for confirmation of the capital

punishment imposed on the respondents.

4.Feeling aggrieved, the respondents preferred Criminal

Appeal No.574 of 2001. The reference made by the trial court

8

for confirmation of the death sentence awarded to the

respondents, was heard along with the appeal filed by the

respondents. The High Court by the impugned judgment has

acquitted the respondents and rejected the reference made by

the trial court, for confirmation of the death sentence, giving

rise to the instant appeal.

5.This Court has heard the learned counsel for the parties

at length and in great detail. This Court has also considered

the documents forming part of the record.

6.The fact that each of the six deceased had died homicidal

death is not disputed before this Court. The said fact was also

not disputed by any of the respondents before the High Court

or the trial court. From the evidence of two eye-witnesses as

well as that of Dr. S.K. Gupta, PW4, who had conducted

autopsy on the dead body of six deceased persons and on

perusal of their respective post-mortem notes, there is no

manner of doubt that the six deceased persons had died

homicidal death on account of firearm injuries. The said

9

finding recorded by the trial court and confirmed by the High

Court, being eminently just, is hereby upheld.

7. The time of occurrence is also not disputed by the

learned counsel of the respondents. It is admitted before this

Court that all the murders were committed in the night of

August 10, 1991. However, it was maintained by the learned

counsel for the respondents that none of the respondents were

assailants and, therefore, acquittal of the respondents

recorded by the High Court should not be lightly interfered

with by this Court.

8.Before appreciating evidence of the witnesses examined

in the case, it would be instructive to refer to the criteria for

appreciation of oral evidence. While appreciating the evidence

of a witness, the approach must be whether the evidence of

witness read as a whole appears to have a ring of truth. Once

that impression is found, it is undoubtedly necessary for the

Court to scrutinize the evidence more particularly keeping in

view the deficiencies, drawbacks and infirmities pointed out in

the evidence as a whole and evaluate them to find out whether

10

it is against the general tenor of the evidence and whether the

earlier evaluation of the evidence is shaken as to render it

unworthy of belief. Minor discrepancies on trivial matters not

touching the core of the case, hyper-technical approach by

taking sentences torn out of context here or there from the

evidence, attaching importance to some technical error

committed by the investigating officer not going to the root of

the matter would not ordinarily permit rejection of the

evidence as a whole. If the court before whom the witness

gives evidence had the opportunity to form the opinion about

the general tenor of the evidence given by the witness, the

appellate court which had not this benefit will have to attach

due weight to the appreciation of evidence by the Trial Court

and unless the reasons are weighty and formidable, it would

not be proper for the appellate court to reject the evidence on

the ground of variations or infirmities in the matter of trivial

details. Minor omissions in the police statements are never

considered to be fatal. The statements given by the witnesses

before the Police are meant to be brief statements and could

not take place of evidence in the court. Small/trivial

11

omissions would not justify a finding by court that the

witnesses concerned are liars. The prosecution evidence may

suffer from inconsistencies here and discrepancies there, but

that is a short-coming from which no criminal case is free.

The main thing to be seen is whether those inconsistencies go

to the root of the matter or pertain to insignificant aspects

thereof. In the former case, the defence may be justified in

seeking advantage of incongruities obtaining in the evidence.

In the latter, however, no such benefit may be available to it.

In the deposition of witnesses, there are always normal

discrepancies, howsoever, honest and truthful they may be.

These discrepancies are due to normal errors of observation,

normal errors of memory due to lapse of time, due to mental

disposition, shock and horror at the time of occurrence and

threat to the life. It is not unoften that improvements in

earlier version are made at the trial in order to give a boost to

the prosecution case albeit foolishly. Therefore, it is the duty

of the Court to separate falsehood from the truth. In sifting

the evidence, the Court has to attempt to separate the chaff

from the grains in every case and this attempt cannot be

12

abandoned on the ground that the case is baffling unless the

evidence is really so confusing or conflicting that the process

cannot reasonably be carried out. In the light of these

principles, this Court will have to determine whether the

evidence of eye-witnesses examined in this case proves the

prosecution case.

9.From the impugned judgment, it becomes evident that

the High Court took into consideration the evidence tendered

by PW1 Jhabbulal and PW2 Madan Lal. The High Court, at

the very outset examined the evidence adduced by the

prosecution with regard to five murders committed in the

house of Guljari Lal and scanned the evidence of PW1,

Jhabbulal. After noting that his house was undisputedly

situated to the north of house of Guljari and that both the

houses were separated by an intervening wall running East to

West, the High Court analysed the evidence of PW1 Jhabbulal.

The High Court took into consideration the claim of PW1

Jhabbulal that at the time of the incident, he was sleeping in

the courtyard of his house and that he had woken up on

13

hearing sounds of gun shots and was scared as a result of

which he stood by the side of the wall of courtyard to save

himself. On scrutiny of this witness, the High Court came to

the conclusion that on his own showing, it was not possible for

PW1, Jhabbulal to have witnessed the incident which occurred

inside the house of Guljari, more particularly when the two

houses were separated by a wall having height of more than

that of a normal person. The High Court thereafter proceeded

to examine the site plan Exhibit- Ka14 and concluded that

when the investigating officer had made inspection of the

scene of occurrence, PW1, Jhabbulal had claimed to have seen

the incident through holes (mokhana) in the intervening wall,

but in his substantive evidence tendered before the Court,

Jhabbulal had not claimed to have seen the incident through

the holes in the intervening walls. Thereafter, the High Court

again took notice of the statement made by PW1, Jhabbulal

that he was standing by the side of the wall of courtyard and

finally concluded that it was highly doubtful that Jhabbulal

who was present inside his own house had seen the incident

which occurred inside the house of Guljari.

14

10.This Court finds that the abovestated reasons are the

only reasons specified by the High Court to disbelieve the eye-

witness account given by PW1, Jhabbulal. In order to find out

whether the reasons assigned by the High Court to disbelieve

the episode of five murders narrated by witness Jhabbulal, are

sound, this Court has undertaken the exercise of going

through the entire testimony of witness Jhabbulal recorded

before the Trial Court. As far as the incident which had taken

place in the house of Guljari is concerned, it was mentioned

therein that at about 12 O’clock, in the night, Master Shri

Krishna holding ponia gun and Ram Sewak as well as Kishori

holding country-made pistols tresspassed into the house of

Guljari after jumping over southern side wall of the house of

Gulzari and committed murder of Guljari, his wife Ramwati

and son Rakesh by firing gun shots. He also mentioned in his

testimony that because of the firing of gun-shots Umesh and

Dharmendra who were sons of Gulzari were injured.

According to him, on witnessing the said incident, he with his

wife Leelawati left his home and went into the house of

Khemkaran rasing hue and cry. It was further mentioned by

15

the witness that the respondents had tried to trace his family

and they had gone inside the shop of his brother Baburam

and gunned him down after dragging him out of the shop.

What was claimed by this witness was that the incident was

also witnessed by Sarla Devi, daughter of Guljari, Rakesh and

Madan Lal, sons of Guljari and his brothers Mohanlal,

Rajaram and Kailash who were sons of Jiwan. It was asserted

by him that he had witnessed the incident in the light of

electric bulb. It was frankly admitted by him that no one had

dared to go near to the respondents because they were

carrying with fire arms.

It was further asserted by him that after the respondents

had left the place opposite the shop of his brother, he had

gone near his injured brother who was alive and had tried to

learn from Baburam as to who had assaulted him and

thereupon his brother had informed him that Shrikrishna

(respondent No.1), Ram Sewak (Respondent No.2) and Kishori

(Respondent No. 3) had assaulted him with fire arms. It is

also mentioned by him that at his instance, FIR was reduced

16

into writing by Radhey Shyam as dictated by him and that he

had filed the same at the police station. The record of the case

shows that this witness was cross-examined at great length.

He was subjected to grueling cross-examination which runs

into 31 pages. The first and firm impression which one

gathers on reading the testimony of this witness is that he is a

rustic witness. A rustic witness, who is subjected to fatiguing,

taxing and tiring cross-examination for days together, is

bound to get confused and make some inconsistent

statements. Some discrepancies are bound to take place if a

witness is cross-examined at length for days together.

Therefore, the discrepancies noticed in the evidence of a rustic

witness who is subjected to grueling cross-examination should

not be blown out of proportion. To do so is to ignore hard

realities of village life and give undeserved benefit to the

accused who have perpetrated heinous crime. The basic

principle of appreciation of evidence of a rustic witness who is

not educated and comes from a poor strata of society is that

the evidence of such a witness should be appreciated as a

whole. The rustic witness as compared to an educated

17

witness is not expected to remember every small detail of the

incident and the manner in which the incident had happened

more particularly when his evidence is recorded after a lapse

of time. Further, a witness is bound to face shock of the

untimely death of his near relative(s). Therefore, the court

must keep in mind all these relevant factors while appreciating

evidence of a rustic witness. When the respondents were

firing from their respective fire arms, the High Court should

not have expected PW1 Jhabbulal to mention description of

the whole episode which had happened in a few minutes. The

rustic witnesses cannot be expected to have an exact sense of

time and so cannot be expected to lay down with precision the

chain of events. In the instant case, this Court is of the firm

opinion that the High Court gravely erred in not accepting

evidence of PW1, Jhabbulal. Jhabbulal being a rustic witness

is not expected to always have an alert mind and so have an

idea of direction, area and distance with precision from which

he had witnessed the incident. It is well to notice that in his

examination in chief, Jhabbulal never claimed that he was

standing by the side of the wall of courtyard nor it was claimed

18

by him that he had witnessed the incident through mokhana,

i.e. holes in the intervening walls. Though the witness was

cross-examined for days together, he was never confronted

with his statement recorded under Section 161 of the Code of

Criminal Procedure wherein he had allegedly stated before the

Police Officer that he had witnessed the incident through holes

in the intervening wall. The witness having not been

confronted with his earlier police statement wherein he had

reportedly stated that he had seen the incident through the

holes in the intervening wall, this Court fails to understand as

to how the said statement allegedly made before the police

during the investigation could have been pressed into service

by the High Court to reject the substantive evidence of this

witness tendered before the Court wherein it was specifically

asserted that while in his house, he had witnessed the

incident of killing of five members of Guljari’s family by the

respondents by firing gun shots. The prosecution has

satisfactorily established that Baburam who was brother of

Jhabbulal, PW1, had lost his life because of gun shots fired at

him. The suggestion made by the defence to the witness that

19

he was making a false claim that Baburam was alive and that

on enquiry by him, Baburam had told him that the

respondents had assaulted him with fire arms, as he was

tutored by the police outside the court room was emphatically

denied by him. It is interesting to note that to confuse this

witness he was cross-examined for days together on the point

as to where and in which direction houses of Kailash, Rajaram

Subedar, Darbari etc. were situated. Such an attempt by

defence lawyer can hardly be approved. On re-appreciation of

evidence of Jhabbulal, this Court finds that he has not made

major improvements in his testimony before the Court and the

so-called discrepancies which are blown out of proportion by

the High Court are minor in nature and do not relate to the

substratum of the prosecution story. To say the least, this

Court finds that the approach of the High Court in

appreciating evidence of PW1 Jhabbulal who was a rustic

witness is not only contrary to the well settled principles

governing appreciation of evidence of a rustic witness but is

perverse. At this stage, it would be well to recall to the

memory the weighty observations made by this Court as early

20

as in the year 1988 relating to appreciation of evidence and

the duties expected of a Judge presiding over a criminal trial.

In State of U.P. v. Anil singh, AIR 1988 SC 1998, it is observed

as under :

“In the great majority of cases, the

prosecution version is rejected either for

want of corroboration by independent

witnesses, or for some falsehood stated or

embroidery added by witnesses. In some

cases, the entire prosecution case is

doubted for not examining all witnesses

to the occurrence. The indifferent

attitude of the public in the investigation

of crimes could also be pointed. The

public are generally reluctant to come

forward to depose before the Court. It is,

therefore, not correct to reject the

prosecution version only on the ground

that all witnesses to the occurrence have

not been examined. It is also not proper

to reject the case for want of

corroboration by independent witnesses if

the case made out is otherwise true and

acceptable. With regard to falsehood

stated or embellishments added by the

prosecution witnesses, it is well to

remember that there is a tendency

amongst witnesses in our country to back

up a good case by false or exaggerated

version. It is also experienced that

invariably the witnesses add embroidery

to prosecution story, perhaps for the fear

of being disbelieved. But that is no

ground to throw the case overboard, if

21

true, in the main. If there is a ring of

truth in the main, the case should not be

rejected. It is the duty of the Court to cull

out the nuggets of truth from the

evidence unless there is reason to believe

that the inconsistencies or falsehood are

so glaring as utterly to destroy confidence

in the witnesses. It is necessary to

remember that a Judge does not preside

over a criminal trial merely to see that no

innocent man is punished. A Judge also

presides to see that a guilty man does not

escape. One is as important as the other.

Both are public duties which the Judge

has to perform.”

11. There appears to be substance in the argument of the

learned counsel for the State that the feeble and insubstantial

reasons have been given to disbelieve the trustworthy evidence

of eye-witness, Jhabbulal as High Court had decided to give

undeserved benefit of doubt to the respondents and had

appreciated the evidence of PW1 Jhabbulal to find out

drawbacks and shortcomings in his evidence when, in fact,

there were none.

12.Coming to the appreciation of evidence of another eye-

witness, Madan Lal, this Court finds that the first fact kept in

mind by the High Court was that at the time of occurrence,

22

this witness was aged about six years and that his

examination in chief was recorded almost after ten years from

the date of occurrence, because at the time of recording of his

examination in chief before the Trial Court, he had mentioned

his age to be 16 years. It was highlighted by the High Court

that in his examination in chief, it was claimed by this witness

that he was sleeping on a cot along with his two brothers, i.e.,

deceased Umesh and deceased Dharmendra whereas his

mother was sleeping on another cot and that when the

accused had started firing he had slipped beneath the cot over

which he was sleeping, but at another place it was stated by

him that he was sleeping with his mother and had taken

shelter under the said cot and therefore, the witness was not

consistent as to the place from where he had witnessed the

incident. The High Court adverted to the statement made by

this witness that his elder sister, Sarla and elder brother

Rajesh were also sleeping under the Chhapper but had

managed to run away and Sarla had concealed herself behind

a heap of woods lying on the western side in the courtyard

itself. After examining site plan Exhibit- “ka” 14 the High

23

Court observed that in the site plan, place where Sarla had

allegedly taken shelter was not indicated nor any heap of

woods was shown, and finally came to the conclusion that the

witness was not reliable. The High Court took into

consideration the statement made by this witness that when

he had come out from beneath the cot, he had seen Sarla in

the house and that many persons had assembled at his house

after the occurrence but he was not able to identify them as he

was a small child nor any of the persons assembled near his

house had asked him as to who were the assailants and what

they had done and therefore the High Court deduced that this

witness was not present in the house at the time of the

occurrence. A strange reasoning was adopted by the High

Court to come to the conclusion that the witness was not a

reliable one because he was a child of about six years of age at

the time of occurrence. His statement in the trial court was

recorded after a gap of about 10 years. It is inconceivable

that child of his understanding would recapitulate facts in his

memory witnessed by him long ago. One of the reasons

assigned by the High Court to disbelieve this witness was that

24

Rajesh and Smt. Sarla who were of matured age and were in a

better position to depose about the incident were not produced

before the Trial Court for which no explanation whatsoever

was given by the prosecution. The High Court readily

accepted submission made by the counsel for the respondents

that Rajesh and Smt. Sarla were not produced before the

Court because obviously they were not prepared to support

the false story set up by PW1, Jhabbulal in the FIR which was

lodged by him against the respondents on account of his

personal animosity. The High Court also found weight in the

submission advanced by the advocate for the respondents that

had these witnesses been produced before the Court, their

evidence would have gone against the prosecution. The High

Court again took notice of the fact that according to witness

Madan Lal he had taken shelter under the cot over which he

was sleeping along with his two brothers Umesh and

Dharmendra who were killed by the assailants in the incident

and concluded that it was ridiculous to believe that this

witness who was younger than his two deceased brothers had

taken shelter under the same cot without his presence being

25

noticed by the assailants. After noticing that Smt. Sarla and

Rajesh who were elder to the witness Madan Lal were not

alleged to have sustained any injury, the High Court

proceeded to record a finding of fact that these three children

were not present inside the house at the time of occurrence on

the spacious plea that if Madan Lal, PW2, and Rajesh as well

as Smt. Sarla had been present, they would not have been

spared by the assailants and that the theory set up at the trial

that all these three children had concealed themselves at

different places is not only an improvement but does not find

support from the evidence on record as well as the spot

inspection made by the investigating officer.

13. The abovestated reasons are the only grounds on

which testimony of witness Madan Lal is disbelieved by the

High Court. This Court fails to understand as to on what

principle and on which experience in real life, the High Court

made a sweeping observation that it is inconceivable that a

child of Madan Lal’s understanding would be able to

recapitulate facts in his memory witnessed by him long ago.

26

There is no principle of law known to this Court that it is

inconceivable that a child of tender age would not be able to

recapitulate facts in his memory witnessed by him long ago.

This witness has claimed on oath before the Court that he had

seen five members of his family being ruthlessly killed by the

respondents by firing gun shots. When a child of tender age

witnesses gruesome murder of his father, mother, brothers

etc. he is not likely to forget the incident for his whole life and

would certainly recapitulate facts in his memory when asked

about the same at any point of time, notwithstanding the gap

of about ten years between the incident and recording of his

evidence. This Court is of the firm opinion that it would be

doing injustice to a child witness possessing sharp memory to

say that it is inconceivable for him to recapitulate facts in his

memory witnessed by him long ago. A child of tender age is

always receptive to abnormal events which take place in its life

and would never forget those events for the rest of his life. The

child would be able to recapitulate correctly and exactly when

asked about the same in future. Therefore, the spacious

ground on which the reliable testimony of PW2, Madan Lal

27

came to be disbelieved can hardly be affirmed by this Court.

One of the reasons given by the High Court to disbelieve

testimony of witness Madan Lal is that Rajesh and Smt. Sarla

who were of mature age and were in a better position to

depose about the incident were not produced before the Court.

It is nobody’s case that witness Madan lal was in charge of

prosecution case. The Public Prosecutor was in charge of the

case and it was for him to decide whether Rajesh and/or Smt.

Sarla should be examined or not. The evidence of witness

Madan Lal, in no uncertain terms, discloses that his brother

Rajesh and sister Smt. Sarla were ready to depose before the

Court about the incident. However, for non-production of his

brother Rajesh and his sister Sarla before the Court, witness

Madan Lal was never responsible. He had not taken any

decision for examining his brother Rajesh and Smt. Sarla. It

was the discretion and decision of the Public Prosecutor due to

which his brother and sister were not examined as witnesses.

At no stage of the trial, the defence had made a request to the

Trial Court to call upon the Public Prosecutor to examine

Rajesh and Smt. Sarla as witnesses. It is the case of the

28

defence that Rajesh and Smt. Sarla had witnessed the incident

and if they had been examined as witnesses, they would have

deposed against the prosecution case that the respondents

were not responsible for murders of five family members of

Guljari and brother of the first informant. In such

circumstances, it was incumbent upon and open to the

defence to examine Rajesh and/or Smt. Sarla as defence

witness. No prayer was made by the defence to examine

Rajesh and Smt. Sarla even as court witnesses. Therefore, for

non-examination of Rajesh and/or Smt. Sarla, witness Madan

Lal could not have been blamed nor his evidence could have

been brushed aside in a casual manner. The acceptance of

submission made by the counsel for the respondents that

Rajesh and Smt. Sarla were not produced because they were

not prepared to support the false story set up by PW1,

Jhabbulal in his FIR against the respondents on account of

his personal animosity, is not understandable at all and

appears to be figment of imagination of the defence. Nothing

could be brought on record or elicited from the cross-

examination of either PW1 Jhabbulal or PW2 Madan Lal to

29

show that they were ready and willing to allow real culprits

who had committed heinous crime and virtually wiped off

family of Guljari and murdered real brother of the first

informant to go scot free and implicate the respondents falsely

in such a serious case.

14. One of the reasons given by the High Court for

disbelieving testimony of PW2, Madan Lal is that the evidence

indicated that a large number of villagers had gathered outside

the door of Gulzari Lal’s house but not even one of them was

examined to justify that PW2 Madan Lal was present in his

house. The High Court has further held that presence of

witness Madan Lal in his house becomes doubtful because if

he had been present inside the house at the time of

occurrence, his presence would have been noticed by the

assailants and he would not have been spared by them. To

say the least, these reasons are not tenable at all. As noticed

earlier, the case of witness Madan lal is that on hearing sound

of gun shots, he had slipped beneath the cot and from there

witnessed the whole incident. This story appears to be

30

probable because the incident had taken place during night

time in the house and therefore it was possible for the witness

to slip beneath the cot without being noticed by the assailants.

It is nobody’s case that the respondents, while killing Guljari

and his family, had seen below the cot to find out whether any

other member of Guljari’s family was alive or not. Therefore,

to say that Madanlal must not have been inside the room

otherwise he would have been killed by the assailants is a far

fitted reason which does not appeal to this Court. It is true

that it has come in evidence that a large number of villagers

had gathered outside the door of Guljari Lal’s house. But this

Court is of the opinion that it was not necessary for the

prosecution to examine any of the witnesses to prove that he

had seen PW2 Madan Lal in Madan Lal’s house. PW2 Madan

Lal himself is competent to state before the Court whether he

was present in his house at the time of incident. Witness

Madan Lal has given evidence in a simple manner without

making any noticeable improvements and/or embellishments

and, therefore, it was not necessary for the court to seek

corroboration to his assertion that he was in his house when

31

the incident had taken place. What is relevant to notice is

that the court cannot forget the fact that at the time of

incident, PW2 Madan Lal was a tender aged child. Normally, a

child aged six years is not expected to be out of house at the

dead of night and he is expected to be in the company of his

parents. Moreover, the testimony of witness Lajveer Singh,

PW3, who was posted at Police Station, Kayamganj,

Farrukhabad shows that after registration of offences, ASI

Gajraj Singh had recorded statements of those persons who

were found to be conversant with the facts of the case and

Gajraj Singh had also recorded statement of witness Madan

Lal on August 11, 1991. If witness Madan lal had not been

present in his house at the time when the incident had taken

place, his police statement would not have been recorded by

ASI Gajraj Singh at all. Thus, the reasons on which presence

of PW2, Madan Lal is doubted is against the weight of

evidence, human conduct and preponderance of probabilities.

Further, at the time of incident, PW2, Madan Lal was of tender

age and, therefore, incapable of nurturing any grudge against

any of the respondents. No evidence could be produced nor

32

any suggestion was made to witness Madan Lal during his

cross-examination that something serious had happened

between the date of incident and recording of evidence of

witness Madan Lal in court, between Madan Lal and the

respondents that Madan Lal was out to implicate the

respondents falsely in such a serious case.

15. One of the grounds mentioned by the High Court in

the impugned judgment for disbelieving the case of the

prosecution is that Rajesh who was brother of PW2, Madan Lal

and Smt. Sarla who is sister of witness Madan Lal as well as

few of those who had collected near the door of the house of

Guljari after the incident were not examined as witnesses in

this case. As far as this ground is concerned, the Court

notices that Section 134 of the Indian Evidence Act specifically

provides that no particular number of witnesses shall, in any

case, be required for the proof of any fact. It is well known

principal of law that reliance can be placed on the solitary

statement of a witness if the court comes to the conclusion

that the said statement is the true and correct version of the

33

case of the prosecution. The courts are concerned with the

merit and the statement of a particular witness and not at all

concerned with the number of witnesses examined by the

prosecution. The time-honoured rule of appreciating evidence

is that it has to be weighed and not counted. The law of

evidence does not require any particular number of witnesses

to be examined in proof of a given fact. However, where, the

court finds that the testimony of solitary witness is neither

wholly reliable nor wholly unreliable, it may, in given set of

facts, seek corroboration but to disbelieve reliable testimony of

a solitary witness on the ground that others have not been

examined is to do complete injustice to the prosecution. This

Court, on re-appreciation of evidence, finds that the testimony

of witness Madan Lal is cogent, consistent and reliable.

Taking into consideration the manner in which witness Madan

Lal had testified before the Court and the fact that nothing

could be elicited in his lengthy cross-examination for days

together to impeach his credibility, this Court is of the view

that his testimony is reliable and can be accepted without any

reservations. Therefore, non-examination of his brother or

34

sister or few others who had gathered near the house of

deceased Guljari Lal after the incident is of no significance and

does not affect credibility of testimony of the said witness.

Cumulative effect of the above discussion is that the High

Court was not justified in brushing aside testimony of PW2,

Madan Lal while considering case of the prosecution against

the respondents.

Yet another ground assigned by the High Court for

disbelieving the testimony of first informant Jhabbulal and

that of PW2 Madan Lal is that there was no electricity light in

the village and, therefore, the claim made by both the

witnesses that they had witnessed the incident in the light of

electricity is untrustworthy. To begin with, this Court

proposes to refer to the First Information Report lodged by

witness Jhabbulal. The said report was brought on the record

as Exhibit Ka-1. In the report, it is clearly mentioned that at

the time of occurrence of the incident, there was electricity

light at the place of incident and with the help of the said light,

the first informant was able to witness the incident wherein

35

five members of deceased Guljari’s family came to be

murdered by the respondents. The witness Jhabbulal has

further stated that his brother Babu Ram, who was sleeping in

his shop was dragged out from the shop by the respondents by

breaking open the door of the shop and thereafter was

murdered by them by firing gun shots. Regarding murder of

Babu Ram also, it is mentioned in the First Information Report

that electric bulb was burning at his house at the time of

occurrence of the incident and, therefore, he was able to

witness the murder of his brother Babu Ram. PW2, Madan

Lal has stated that his father, mother and three real brothers

were murdered by the respondents by firing gun shots and

had asserted that at the time of the incident one bulb was

burning on the main gate of his house whereas another bulb

was burning on the thatched roof, i.e., near the place where

the deceased had slept during the night of the incident.

Though both the witnesses were cross-examined at great

length by the learned counsel for the defence, nothing

significant could be brought on record from which one can,

with certainty deduce that there was no light of electricity

36

bulbs at the place of the incident. Apart from what is

mentioned by the two eye-witnesses regarding sufficiency of

electricity light in which they had witnessed the incident, the

sketch of the spot prepared by the Investigating Officer on

August 11, 1991 in the presence of independent witnesses and

produced as Exhibit Ka-14 shows that point ‘L’ mentioned in

the panchnama of place of occurrence, a bulb has been shown

burning at the main gate of the house of PW2 Madan Lal

whereas another bulb is shown burning at the place

mentioned as ‘AL’. Thus, assertion made by the two eye-

witnesses that they were able to witness the incident because

of availability of sufficient electricity light gets corroboration

from contemporaneous document, namely, Exhibit Ka-14.

According to the High Court, the place pointed by PW2, Madan

Lal where an electric bulb was hanging has not been shown in

the site plan and on the contrary it has been shown at a

different place. Even if it is assumed that the place mentioned

by PW2, Madan Lal where an electric bulb was hanging is

different from the place shown in the site plan, the fact

remains that an electric bulb was hanging at the place of

37

incident which is completely ignored by the High Court. It is

relevant to notice that PW2, during the course of recording of

his statement before the Court had mentioned that he had

shown to the Investigating Officer the place where the bulb

was hanging but he was not in a position to specify the reason

as to why the place shown by him to the Investigating Officer

was not mentioned in the site plan. It may be mentioned that

the Investigating Officer ASI Gajraj Singh, unfortunately,

expired before the commencement of the trial and, therefore,

another officer was examined who had taken a little part in the

investigation. Thus, the contradiction and/or omission in the

statement of the witness recorded under Section 161 of the

Criminal Procedure Code could not be brought on the record

of the case. In such circumstances, there was no reason for

the High Court to disbelieve the claim made by PW2 Madan lal

that he had shown to the Investigating Officer the place where

the bulb was hanging. Jhabbulal had stated in this evidence

that Guljari had taken electric line illegally be putting a wire

on the main line which proceeded to the tube well of Suresh

Chand DW1. The High Court relied upon the testimony of

38

Suresh Chand that no villager had taken electricity from his

tube well line and thereafter concluded that there was

complete darkness in the whole village on account of

Amavasya of rainy season and, therefore, it was not possible

for the two eye-witnesses to witness the incident. It becomes

absolutely necessary for this Court to scan the evidence of

DW1. DW1 in his evidence before the Court stated that he

was having a tubewell in village Lakhanpur prior to the date of

incident and that tubewell was being operated with the electric

power. It was also mentioned by him that the electricity

connection was in running condition and that the electricity

line passes through the village. What is stated by the witness

is that during the night of the incident, he was not present in

his village Lakhanpur but had gone to his sister’s house

situated in another village and that he had come back to his

village on the third day of the date of the incident. If this

witness was not present on the date of incident, he was least

competent to depose before the Court as to whether on the

date of incident there was electricity light in the village or not.

A specific question as to whether on the fateful night electricity

39

was taken illegally by putting Katiya to his wire was put to this

witness. This witness was not able to answer this specific

query naturally because he had admitted that on the date of

incident he was not present in the village. The Trial Court

rightly observed that it was not concerned with the question

whether the electric power was being consumed by the

villagers legally or illegally and that the Court was only

concerned with the question whether there was sufficient light

on the date of incident to enable the witnesses to see the

incident. The High Court has misread the evidence of DW1

Suresh Chand as well as that of PW2 Madan Lal, wherein it

was asserted by him that he had also taken illegal electricity

connection and was consuming the same through the bulbs

which according to him were burning on the date of incident.

Thus the reliable evidence of PW1 and PW2 cannot be brushed

aside on the ground that Investigating Officer had not taken

into possession the bulbs hanging on the place of incident.

Thus, the High Court was not justified in holding that there

was no electric power in the whole village and that there was

complete darkness on account of Amavasya of rainy season

40

due to which it was impossible for the eye-witnesses to witness

the incident. Further, the visibility capacity of urban people is

not the standard to be applied to the villagers. PW2 Madan

Lal has stated that the respondents had brought with them

torches but as light of electricity was available in the house,

torches were not put on. Thus, according to PW2 Madan Lal

the respondents had in the light of electric bulb recognized the

deceased persons and had fired gun shots on them. Further,

if light available was sufficient for the accused persons to

identify their targets for firing shots, there is no reason why

the witnesses would not be able to identify the respondents as

the assailants. The statement of PW1 Jhabbulal that Guljari

had taken electric line illegally by putting a wire on the main

line which proceeded to the tube well was disbelieved by the

High Court on the ground that the Investigating Officer had

not mentioned either in the site plan or in the inspection note

that electric line had been taken in an unauthorized manner

from the main line which proceeded to the tube-well of Suresh

Chand. It is common experience of one and all that site plan

or panchnama of place of incident is being prepared to

41

indicate the state of things found at the place of incident. In

site plan, Investigating Officer is not supposed to note whether

electric line had been taken in an unauthorized manner or

not. That is not the purpose for which site plan is prepared in

a criminal case. Thus, without sufficient reason the High

Court disbelieved the claim made by PW1 Jhabbulal that

deceased Guljari had taken electric line illegally by putting a

wire on the main line. On the facts and in the circumstances

of the case emerging from the record, this Court is of the

opinion that the High Court was not justified in coming to the

conclusion that there was complete darkness in the whole

village and, therefore, it was not possible for the eye-witnesses

to see the incident.

The High Court has further held that motive alleged

against deceased Guljari was developed for the first time

during trial by witness Jhabbulal and there was no motive for

the respondents to commit the murders of as many as five

persons of the family of Gulzari Lal. A conjoint and purposeful

reading of FIR with the reliable testimony of PW1 Jhabbulal

42

and that of PW2 Madan Lal makes it very clear that the

respondents were agitated and angry when the daughter of

respondent No.1 had eloped with the son of the first

informant. The evidence on record further shows that during

the time of first elopement, on one day son of the first

informant, i.e., Amar Singh, was spotted in the village and on

learning about the fact that son of the first informant was seen

in the village, the respondents were prepared to take revenge

to what is known as to maintain honour of the family.

However, the fact that Amar Singh was likely to be assaulted

by the respondents had become known to wife of Guljari who

had fore-warned Amar Singh and Amar Singh had, therefore,

left the village to save his life. The evidence also indicates that

the fact that Amar Singh had left the village all of a sudden

because of information conveyed by wife of the deceased

Gulzari that respondents were to assault him was later on

learnt by the respondents and, therefore, the respondents

were bearing a grudge against wife of Gulzari and against

Gulzari. The record further shows that when the daughter of

the respondent No.1 had returned to the village, Guljari in the

43

presence of the first informant had made a suggestion to the

respondent No.1 that he should get his daughter married with

the son of the first informant upon which the respondent No.1

had taken an offence and asked Gulzari not to play with the

honour of his family. This Court is of the opinion that

sufficient evidence has been led by the prosecution to

establish motive which prompted the respondents to kill five

members of family of deceased Guljari. What weighed with the

High Court in disbelieving the motive suggested by the

prosecution was the fact that in the FIR lodged by PW1

Jhabbulal, it was not stated that because wife of Gulzari had

forewarned Amar Singh about impending assault on him by

the respondents, the respondents were not able to take

revenge against Amar Singh and that Gulzari had suggested to

the respondent No.1 to get his daughter married with son of

PW1. The High Court held that such story was developed for

the first time during trial by witness Jhabbulal who was

admittedly on inimical terms with the respondents. As far as

this aspect is concerned, this Court notices that the FIR need

not be an encyclopedia of all the facts and circumstances on

44

which the prosecution relies. The main purpose of the FIR is

to enable a police officer to satisfy himself as to whether

commission of cognizable offences is indicated so that further

investigation can be undertaken by him. The purpose of the

FIR is to set the criminal law in motion and it is not customary

to mention every minute detail of the prosecution case in the

FIR. FIR is never treated as a substantive piece of evidence

and has a limited use, i.e., it can be used for the corroborating

or contradicting the maker of it. Law requires FIR to contain

basic prosecution case and not minute details. The law

developed on the subject is that even if an accused is not

named in the FIR he can be held guilty if prosecution leads

reliable and satisfactory evidence which proves his

participation in crime. Similarly, the witnesses whose names

are not mentioned in the FIR but examined during the course

of trial can be relied upon for the purpose of basing conviction

against the accused. Non-mentioning of motive in the FIR

cannot be regarded as omission to state important and

material fact. As a principle, it has been ruled by this Court

that omission to give details in the FIR as to manner in which

45

weapon was used by accused is not material omission

amounting to contradiction. Further, this is a case wherein

FIR was filed by a rustic man and, therefore, non-mentioning

of motive in the FIR cannot be attached much importance. In

Superintendent of Police, CBI & Ors. vs. Tapan Kumar Singh,

AIR 2003 SC 4140, it has been held by this Court that mere

absence of indication about source of light in the FIR for

identifying assailants does not, in any way, affect prosecution

version. The FIR is not the last words in the prosecution case

and in some cases detailed FIR could be a ground for

suspicion. What is relevant to find out is whether the FIR was

lodged promptly and whether it is actuated by mala fides. The

record of this case indicates that FIR regarding gruesome

murder of six persons was filed promptly and without any

avoidable delay and, therefore, false implication of any of the

respondents in such a grievous case stands ruled out. There

is nothing on the record to show that FIR was result of

deliberation by the first informant with other persons. As the

FIR was lodged promptly, the informant, i.e., Jhabbulal’s

evidence containing minor variations not affecting substratum

46

of prosecution story cannot be discarded on the ground that

motive which prompted the respondents to kill six persons

was not mentioned in the FIR. Further, it is well settled that

the prosecution is not supposed to prove motive when

prosecution relies on direct evidence, i.e., evidence of eye-

witnesses. In this case, the prosecution has examined first

informant as PW1 who has lost his brother in the incident as

well as PW2 Madan Lal who lost five members of his family.

Their evidence is found to be trustworthy and unimpeachable.

As observed earlier, their evidence does not suffer from major

contradiction and/or improvements nor noticeable

embellishment have been made by them. As the prosecution

has led acceptable eye-witnesses account of the incident, this

Court is of the firm opinion that failure to establish motive

would not entitle the respondents to claim acquittal.

16. There is yet another evidence in form of oral dying

declaration which implicates the respondents in the murder of

six persons i.e. oral dying declaration made by deceased

Baburam before his brother Jhabbulal. The High Court

47

committed serious error in disbelieving the oral dying

declration made by deceased Baburam before his real brother

Jhabbulal (PW1) implicating the respondents as his assailants.

The reasons given by the High Court for disbelieving oral dying

declaration was that it was not mentioned by witness

Jhabbulal either in his FIR or in his statement recorded under

Section 161 of Cr.P.C. As observed earlier FIR need not be an

encyclopedia of minute details of the incident nor it is

necessary to mention therein the evidence on which

prosecution proposes to rely at the trial. The basic purpose of

filing FIR is to set the criminal law into motion and not to state

all the minute details therein. It is relevant to notice that six

brutal and gruesome murders had taken place wherein fire

arms were used. The hard reality of life is that the persons

who has lost kith and kin in horrific incident is likely to suffer

great shock and therefore law would not expect him to

mention minutest details either in his FIR or statement under

Section 161. The question before the Court is whether the

assertion made by the witness that soon after the incident he

had gone to the place where his injured brother was lying and

48

on enquiry by him, his brother had told him that the

respondents were his assailants, inspires confidence of the

Court. Reading the evidence of the witness as a whole, this

Court points that it has ring of truth in it. There is nothing

improbable if a brother approaches his injured brother and

tries to know from him as to how he had received the injuries

nor it is improbable that an enquiry being made the injured

brother would not give reply/information sought from him.

The assertion by witness Jhabbulal that after the incident was

over he had gone near his injured brother and tried to know as

to who were his assailants, whereupon his injured brother had

replied that the appellants had caused injuries to him, could

not be effectively challenged during cross-examination of the

witness nor it could be brought on record that because of the

nature of the injuries received by Baburam he would not have

survived even for few minutes and must have died immediately

on the receipt of the injuries.

17. The net result of the above discussion is that the

High Court has acquitted respondents who were charged for

49

commission of six murders in a casual and slipshod manner.

The approach of the High Court in appreciating the evidence is

not only contrary to the well settled principles of appreciation

of evidence but quite contrary to ground realities of life. The

High Court has recorded reasons for acquittal of the

respondents which are not borne out from the record and

quite contrary to the evidences adduced by the reliable eye-

witnesses. The High Court was not justified in upsetting well

reasoned conviction of the respondents recorded by the Trial

Court which after observing demeanour of the eye-witnesses

had placed reliance on their testimony. The High Court has

not taken into consideration the full text of the evidence

adduced by the witnesses and picked up sentences here and

there from the testimony of the witnesses to come to a

particular purpose. For example, the High Court has not

taken into consideration the whole testimony of DW1 before

coming to the conclusion that there was complete darkness in

the village which prevented the eye-witnesses from witnessing

the incident. The general impression this Court has gathered

is that appreciation of evidence by the High Court is cursory

50

and has done injustice to the prosecution.

18. On the facts and in the circumstances of the case,

this Court is of the firm opinion that it is firmly established by

the prosecution that respondents are persons who had

committed six murders on August 10/11, 1991 and, therefore,

liable to be convicted under Section 302 read with Section 34

IPC.

19. This Court has heard the learned counsel for the

parties regarding sentence to be imposed on each respondent

for having committed offence punishable under Section 302

read with Section 34 IPC. This Court notices that the Trial

Court had sentenced all the three respondents to capital

punishment. There is no manner of doubt that killing six

persons and wiping almost the whole family on flimsy ground

of honour saving of the family would fall within the rarest of

rare case evolved by this Court and, therefore, the Trial Court

was perfectly justified in imposing capital punishment on the

respondents. However, this Court also notices that the

incident had roughly taken place before 20 years, i.e., on

51

August 10/11, 1991. Further, the High Court had acquitted

the respondents by judgment dated April 12, 2002. After April

12, 2002 till this date, nothing adverse against any of the

respondents is reported to this Court. To sentence the

respondents to death after their acquittal in the year 2002

would not be justified on the facts and in the circumstances of

the case. Therefore, this Court is of the opinion that interest

of justice would be served if each of the respondent is

sentenced to RI for life and a fine of Rs.25,000/- each in

default RI for two years for commission of offence punishable

under Section 302 read with Section 34 IPC.

20. For the foregoing reasons, the appeal succeeds. The

judgment dated April 12, 2002 rendered by the High Court of

Judicature at Allahabad in Criminal appeal No.574 of 2001

acquitting the respondents of the offences punishable under

Section 302 read with Section 34 IPC is hereby set aside. The

judgment of the Trial Court convicting each of the respondents

under Section 302 read with Section 34 IPC is hereby restored

and each respondent is accordingly convicted under Section

52

302 read with Section 34 IPC. For the commission of offence

punishable under Section 302 read with Section 34 IPC, each

respondent is sentenced to RI for life and fine of Rs.25,000/-

each, in default, RI for two years. Out of the amount of fine, if

paid, a sum of Rs.50,000/- be paid to PW2, Madan Lal, as

compensation in view of the provisions of Section 357 of the

Code. The appeal accordingly stands disposed of.

……………………….J.

[Harjit Singh Bedi]

……………………….J.

[J.M. Panchal]

New Delhi;

August 03, 2010.

53