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RESERVED

A.F.R.

CRIMINAL APPEAL NO. 3587 OF 2006

SUNIL PASI.......................................................APPELLANT

VERSUS

STATE OF U.P................................................RESPONDENT.

CONNECTED WITH

CRIMINAL APPEAL NO.3573 OF 2006

VINOD AND ANOTHER....................................APPELLANTS.

VERSUS

STATE OF U.P................................................RESPONDENT.

HON'BLE VINOD PRASAD J.

HON'BLE SURENDRA SINGH J.

(Delivered by Hon'ble Vinod Prasad J.)

Three appellants herein Sunil Pasi (A-1), Vinod (A-2) and

Harendra Singh (A-3), in above two connected criminal appeals,

have challenged impugned judgment and order of their conviction

and sentence dated 9.6.2006, recorded by Session's Judge, Deoria

in S.T. No. 112 of 2005, State versus Sunil Pasi And Others, by which

learned trial Judge has convicted all of them under sections 148

I.P.C. and (A-1) under section 302 I.P.C. and (A-2) and (A-3) under

sections 148,302/149 I.P.C. P.S. Gauri Bazar, district Deoria. All the

appellants were sentenced to 3 years RI U/S 148 I.P.C. and life

imprisonment U/S 302 and 302/149 I.P.C. respectively. Both the

sentences of all the appellants have been ordered to run

concurrently.

Narrated concisely prosecution allegations against the

appellants, as are evident from the written report Ext. Ka-1, lodged

by the informant Manish Yadav PW1, and testimonies of fact

Neutral Citation No. - 2013:AHC:67165-DB

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witnesses- informant PW1, Radhey Shyam Yadav PW2 and Ram Yadi

PW4, are that on 15.6.2004 at 8 A.M., on his TVS victor motor cycle,

informant P.W. 1 and his elder brother Ram Kripal Yadav (deceased)

had gone to tempo stand under Baitalpur Block to fetch two masons

and four laborers. Because laborers told them that they will come

after sometimes, therefore, informant and the deceased sat down

on two benches facing each other under a tin shed, in front of

Lootan Gupta S/O Ram Suchit Gupta's tea shop situated close by

besides Baitalpur Barpar road, to enjoy tea. At 8.50 A.M. three

appellants (A-1) to (A-3) accompanied with two unknown socio

criminis companions arrived at the said tea shop and in no time (A-

1) shot the deceased at his back from his country made pistol from

point blank range causing his instantaneous death. (A-2) and (A-3),

thereafter, hurled bombs on the opposite side, on the road, making

threatening utterances to facilitate their escape. Committing murder

all the malefactors escaped towards the south. Soon after the

murder 3-4 police personnel of police outpost Baitalpur arrived at

the incident scene on their motor cycles.

After half an hour informant Manish Yadav PW1 got a written

report, Ext. Ka-1, scribed from his uncle Shiv Charan Yadav about

the murder and leaving the corpse of his elder brother at the murder

spot in the guard of arrived police personnel, covered 8 kms distance

to P.S. Gauri Bazar, and lodged his written report at 9.30A.M. same

day.

HM Dhananjai Kumar Pandey, PW7 registered the crime by

preparing chik FIR Ext. Ka-6, of crime no. 356 of 2004, under

sections 147/148/149/302/504/506 I.P.C. and 7 Criminal Law

Amendment Act. However, the corresponding crime registration GD

entry, Ext. Ka-4, was prepared by HM Shiv Kumar PW5.

Station Officer Raghuvir Singh, PW8, was entrusted with

investigation who was informed about the murder on RT set.

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Receiving the message PW8 came to the incident scene where

constable Ram Narain handed over Chik FIR and GD entry to him.

Commencing investigation S.O.(PW8) copied chik FIR and GD

entry, penned down informant’s statement and got inquest on the

dead body performed under his supervision by SI Brij Raj Yadav,

who had penned down inquest memo Ext. Ka-2 and other relevant

papers Ext. Ka-11 to Ext. Ka-16. I.O also conducted spot inspection

and sketched site plan Ext. Ka-7. From the spot I.O. collected

splinters of bombs, empty cartridges, blood stained and plain earth

and prepared their seizure memos Ext.Ka-8 to Ka-10. Subsequent

thereto, I.O. recorded 161 Cr.P.C. statements of Raj Kumar Yadav,

Radhey Shyam Yadav, Ram Yadi (PW4), Virendra Yadav, Shiv Charan

Yadav (scribe) and other witnesses. Identities of two unknown

assailants surfaced during the investigation as Vijai Pratap Mani @

Dablu Mani and Chhotai @ Jai Nath. Appellants (A-1) to (A-3) were

arrested on 19.6.2004 and were interrogated by PW8. Noted here is

the fact that pending investigation Vijai Pratap Mani @ Dablu Mani

and Chhotai @ Jai Nath moved to the higher police authorities

against their false implication in the incident and consequently, on

their application, further investigation was ordered which was

conducted by Circle Officer Arvind Kumar Pandey, PW6. Aforesaid

Circle Officer visited the place of the incident and interrogated

Vishambhar Singh, Kuber Singh, Ajai Mani, Mohan Yadav, Ravindra

Yadav, Ram Asray Yadav, Lal Bahadur, Lootan Gupta (tea shop

owner) and Fagu and recorded their statements. Concluding

investigation PW6 laid charge sheet, in the court of CJM, Deoria,

only against the present three appellants u/s

147,148,149,302,504,506,I.P.C., 7 Criminal Law Amendment Act and

2/3 Explosive Substances Act vide Ext Ka-5. Since Circle Office PW6,

found implication of Vijai Pratap Mani @ Dablu Mani and Chhotai @

Jai Nath to be false, hence he exonerated and did not charge sheet

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them. Thus in the incident participation of only three accused could

be established. We have noted it as we will demonstrate later on

that it is of much significance.

Dr. S.N. Singh, PW3 performed post mortem examination on

the cadaver of the deceased on 15.6.2004 at 3P.M. and had

prepared his autopsy report Ext. Ka-3. Deceased was found to be

32 years of age having an average built body and one forth day had

lapsed since his death. Rigour mortis was present in his both the

limbs and stomach contained 200ml of semi digested food. Small

intestine had chyme and large intestine contained gases and fecal

matter. On external examination following ante mortem injuries were

detected on the corpse of the deceased:-

“(1) wound of entry of firearm 3 cm x 1.5 cm x chest cavity

deep is present over Lt side of back 13 cm below the top of Lt

shoulder (middle) margin of the wound are inverted Tattooing and

singing of hair in the area of 7 cm around the wound .Bleeding

present from the wound.

(2) Fire arm wound of exit 3.5 cm x 2 cm present on anterior

side of chest , left side, 3cm below the lateral end of Lt clavicle,

margin everted. It was communicating injury No. 1.”

Chief Judicial Magistrate, Deoria, summoned (A-1) to (A-3) on

the strength of laid charge sheet Ext. ka-5, and finding the disclosed

offences triable exclusively by Sessions Court committed their case

to the Sessions Court for trial on 16.6.2005 and consequently before

the Sessions Judge, Deoria S.T. No. 112 of 2005,State versus Sunil

and Others, was registered.

Learned Sessions Judge charged (A-1) with offences under

sections 148 and 302 I.P.C. and (A-2) and (A-3) under sections 148

and 302/149 I.P.C. on 15.7.2005. None of the accused was charged

for any other crime not even under Explosive Substances Act. Here

we hasten to add that even during trial framed charges were never

added or amended. This we have mentioned as we will demonstrate

in the later part of this judgment that the said lapse on the part of

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the trial Judge, per-se, has affected adversely the outcome of

instant appeal. All the charges were read out and explained to all the

accused who all abjured them and claimed to be tried and hence to

establish their guilt Sessions Trial procedure was adopted.

During the trial prosecution examined, in all, eight witnesses

out whom informant Manish Yadav, PW 1, Radhey Shyam Yadav,

PW2 and Ram Yadi, PW4 were the fact witnesses. Rest of the

formal witnesses included post mortem doctor S.N. Singh PW3, Head

Constable Shiv Kumar PW5, Second investigating officer CO Arvind

Kumar Pandey PW6, Head Constable D.K. Pandey PW 7, and first

investigating Officer Raghuvir Singh PW8.

In his depositions informant PW1, supported his FIR version

and narrated the same story which he had got slated in Ext. Ka-1,

already mentioned herein above, and therefore for the sake of

brevity we do not repeat them. Besides supporting his aforesaid

version, informant further stated that at the time of the incident he

and the deceased were sitting on two benches facing each other

east and west. After the incident scribe Shiv Charan Yadav had

accompanied him to the police station for lodging of the FIR. He has

also proved his signature on the inquest report and has further

deposed that he had signed the recovery memos also which were

prepared by the first I.O. PW8. Albeit, at one point informant has

deposed that the incident was witnessed by him alone but he

immediately made correctional statement in the second breath and

stated that gathered public, who had witnessed the murder, had

informed him the names of two unknown assailants as Vijai Pratap

Mani @ Dablu Mani and Chhotai @ Jai Nath, non-charge sheeted

accused. He has admitted that many cases were pending against the

deceased from various police stations of Gauri Bazar and Chauri

Chaura etc. regarding heinous offences of murder, decoity,

abduction, rape, Gangster's Act, criminal intimidation, forgery,

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Goonda Act, NSA etc. His depositions reveal that he had negated

presence of Raj Kumar Yadav and Radhy Shyam Yadav PW2 at the

time of the incident. Resiling from his 161 Cr.P.C. statements he has

deposed in para 22 and 23 of his deposition that the two appellants

Vinod and Harendra Singh had exploded bombs on the road in the

opposite direction of the tea shop where he and the deceased were

sitting. He has further stated that he waited for half an hour and

then had proceeded for the police station. He has also deposed in

para 28 and 29 of his examination that police outpost Baitalpur was

at a distance of fifty paces from the place of the incident and soon

after the murder 3 or 4 police personnel of the said outpost had

arrived at the murder spot on their motor cycles but he had not

informed them about the murderers nor had disclosed their identities

even though he had a conversations with them so much so that

those police personnel had told him that he can go and lodge the

FIR at the police station leaving the deceased corpse in their guard

and he (informant) had followed suit. Without ambiguity informant

has admitted that prior to informing the I.O. during recording of his

interrogatory statement u/s 161 Cr.P.C. he had not disclosed the

names of the assailants to anybody. Informant has further admitted

that he had signed the FIR inside the police station where he had

stayed for one and half hour.PW1 further deposed that after his

return to the spot all alone from the police station, police personnel

of Baitalpur out post were present there and they (police of out

post) remained present till the police of P.S. Gauri Bazar had arrived

at the incident scene later on. Depositions of the informant further

indicates that he was not sure whether he was informed about the

names of unknown assailants prior to dictating of Ext. Ka-1 or

subsequent thereto. He was also not confident as to whether he

came to know about their identities prior to recording of his 161

statement or not? PW1 informant has admitted that prior to the

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murder he had no acquaintances with those two unknown assailants

and subsequent to the incident he had not heard about them. Very

significantly informant PW1 has admitted that in fact assailants

wanted to annihilate him because of already existing political rivalry

with him since prior to the incident and therefore he used to shield

himself from them. There are some laconic and insignificant

omissions and contradictions in his depositions and since nothing

turns on them we eschew to record them for the sake of brevity.

Radhey Shyam Yadav, PW2, deposed in the trial that he was

returning to his house from cobbler's shop of Ashraf, where he had

gone to purchase shoes but did not purchase it as the same were

not sold on credit. When this witness was close by the crime spot

then the incident happened. PW2 admitted that at that time but for

cobbler’s shop no other shop was open. About the actual incident he

has testified that (A-2) & (A-3) were throwing bombs to deter the

public, whereas Dablu Mani and Chhotai were armed with country

made pistols and were instigating. He has further deposed that he

had come to district Deoria for excursion and there were many big

cobblers shops in Deoria town. He has admitted a conglomeration

of people at Lootan's tea shop at the time of the incident. PW2 has

contradicted informant PW1 regarding the manner in which actual

incident happened and has disclosed altogether a nascent version.

According to his depositions Vinod (A-2) was armed both with fire

arm and bombs and had also fired shots during the incident. Vijai

Pratap Mani @ Dablu Mani and Chhotai @ Jai Nath were also

carrying fire arms besides bombs and were instigating standing from

behind the shop, from were 10-15 shots were fired and during

course of the incident 2-4-10 bombs were hurled. He had no

conversation with the police of P.S. Baitalpur. He is a relative of the

informant and the deceased and has admitted that Rinki, cousin

sister of the informant, (daughter of Rama Shankar, uncle of

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informant) has been married to his younger brother Ram Pravesh

Yadav. PW2 too had not informed the police personnel about the

murderers while claiming that he had witnessed the incident. Toeing

line of the informant this witness PW2 had also not disclosed the

identities of any of the assailants to anybody prior to recording of his

161 Cr.P.C. statement and he had acknowledged his acquaintances

with a sub Inspector of P.S. Gauri Bazar. He admitted that four days

after the murder that the I.O. had interrogated him.

Ram Yadi, PW4, last eye witness of fact has turned hostile and

did not support the prosecution allegations and since in his evidence

we do not find anything worth recording therefore we rest here our

mentioning of his statements.

Amongst formal witnesses, Dr. S.N.Singh, PW3 has proved

deceased post mortem examination report and besides testifying

those very facts already mentioned herein above and has further

deposed that no tea contents were found in the stomach of the

deceased and had he been shot dead while consuming tea, the

contents of tea should have been present in his stomach. According

to him deceased must have taken meal four hours prior to his death

and it was an incident of a single shot from a close range with no

other injury.

Another formal witness Shiv Kumar PW5, has stated that the

FIR about the incident was registered by PW7 Dhananjai Pandey and

he had prepared the crime registration GD which he has proved.

Second investigating Officer/ Circle Officer Arvind Kumar PW6,

has testified various investigatory steps taken by him, which have

already been noted earlier by us and hence we do not repeat them

for the sake of our convenience.

Head Moharrir, Dhananajai Pandey PW 7 has evidenced

registration of FIR by him and preparing of chik FIR Ext. Ka- 6. He

has further deposed that copy of the FIR was dispatched to CJM,

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Deoria on 16.6.2004.

First investigating Officer Raghuvir Singh PW8 described in

extenso various investigatory steps taken by him and has further

proved recoveries made from the spot as material Exts. 1 to 3. He

has admitted presence of police personnel of police outpost Baitalpur

at the incident scene when he had arrived there after receiving

information on the RT set. PW8 has admitted criminal history of the

deceased. He has also deposed that during the incident many people

were present at Lootan's tea shop. He however, has denied the

defence suggestion that the FIR was cooked up after his return

from the spot.

All the accused in their examination u/s 313 Cr.P.C. denied

incriminating prosecution evidences put to them and pleaded the

defence of their false implication and occurrence taking place in the

night when the deceased was all alone but they have not examined

any defence witness.

Session's Judge, Deoria/trial Judge, vide his impugned

judgment and order dated 9.6.2006, found prosecution witnesses

reliable and their testimonies confidence inspiring, resultantly has

held appellants guilty of murder and consequently convicted and

sentenced them as has already been slated in the opening

paragraph of this judgment, hence instant appeal by the appellants

challenging the impugned judgment and order and thereby their

conviction and sentence.

We have heard Sri G.S. Chaturvedi, Sr. advocate assisted by Sri

P.C. Srivastava advocate for the appellants in support of this appeal

and Sri Sangam Lal Kesarvani, learned AGA for the respondent State

and have gone through and examined entire trial court record

critically and carefully.

Assailing the impugned judgment it was vehemently urged by

appellants counsels that the same is illegal, indefensible and has

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been recorded contrary to the weight of evidence on record and

testimonies of witnesses. Learned trial court completely ignored

significant evidences creating a doubt in the prosecution case and

vetted the entire case discriminately with lop sided approach, which

is per-se defective and hence his entire analysis is faulty. Evidences

favourable to the accused and crumbling edifice of the prosecution

version was eschewed and no attempt was made to sift grain from

the chaff. First information report is the outcome of deliberations

and concoction and was prepared at the police station in connivance

with the informant and the police to eliminate political rivals of the

informant. It was submitted with vehemence that both PW1 and

PW2 are wholly unreliable witnesses and their depositions are un-

creditworthy. They are got up witnesses and neither of them were

present at the spot nor had seen the incident. Their testimonies are

tutored, full of embellishments, concoctions, and contradictions and

must be discarded and it is very unsafe to rely upon them.

Impeaching the credibility of PW1 & PW2 it was submitted that their

evidences are so much at variance with each other on all material

aspects of the incident that it cannot be reconciled and in absence of

any other convincing evidence none of two could be relied upon.

Investigation of the crime is perfunctory and has left much to be

desired. From the very inception of the trial, illegality was allowed to

creep in, which has caused irreparable prejudice to the appellants.

Trial court wrongly and illegally applied sections 148/ 149 I.P.C. on

the facts of the case and committed manifest error of law in not

charging the accused under section 2/3 Explosives Substances Act,

without which conviction of two of the appellants Vinod and

Harendra Singh cannot be sustained. Much emphasis was laid for the

argument that the contour of impugned judgment indicate that the

trial judge was not analysing the case to find out the truth by

separating grain from the chaff but it accepted the prosecution case

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without looking into it's intrinsic inherent improbabilities, defects,

un-naturality and unworthiness. Deceased was a man of criminal

proclivities and had several enemies behind his soul who were

always in the look out to annihilate him and any one of them had

committed his murder in darkness and informant grabbed that

opportunity to root out his rivals after discovery of deceased dead

body by cooking up a false case implicating the appellants.

Concludingly it was submitted that the instant appeals be allowed

by setting aside appellants convictions and sentences and they be

acquitted of the charges leveled against them.

Learned AGA rebutting the submissions, contrarily argued that

the impugned judgment requires no interference by this court and

appeal lacks merit and deserves dismissal. It is a day light incident,

with eye witness account and consistent supportive medical

evidence. PW 1 and PW 2 being related and natural witnesses will

not exonerate real culprits to rope in innocent persons submitted

learned AGA. It was further contended that section 34 I.P.C. can be

utilized to convict the appellants and no prejudice will be caused to

the appellants in that respect. It was further submitted that

nondisclosure of names of the assailants at the earliest opportunity

has been explained by the witnesses which explanation is

trustworthy and convincing and therefore on that score prosecution

case cannot be thrown out. It was further contended that the

recoveries made at the spot indicates that bombs were used in the

commission of the murder and more than one accused had

participated in the incident. Closing the submissions it was

contended that convictions and sentences of the appellants be

confirmed and their appeals be dismissed.

In the light of rival submissions we have scanned trial court

record and have critically appreciated evidences of all the

prosecution witnesses for judging the sustainability or otherwise of

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the impugned judgment. Two types of contentions- legal and factual

were raised by the appellants counsels and therefore, ab-initio, we

take up and deal with factual aspects.

Assailing impugned judgment appellant’s counsels harangued

that none of the facts alleged by the prosecution has been

established beyond a pale of reasonable doubt. From the beginning

upto lodging of FIR all are sham and cooked up story. Deceased was

done to death in early hours of morning when he was all alone and

none had witnessed his murder and only after discovery of his dead

body that the entire prosecution story was feigned by the informant

in connivance with the police personals only to implicate informant’s

enemies. In the light of aforesaid contentions when prosecution

evidences are critically appreciated, it transpires that the two facts

witnesses, informant PW1 and PW 2, are not reliable and no

implicit reliance can be placed on their testimonies. They

contradicted each other on all broad material aspects of the matter,

so much so that even in manner of assault and actual incident they

have castigated each other. We don't find them truthful and

creditworthy witnesses when their evidences are appreciated and

analyzed on the anvil of naturality, probability and acceptability. To

start with, prosecution version of informant accompanying the

deceased on a motor cycle to the scene of murder remained an

unproved fact indicating that informant PW1 was not present at the

spot at the time of the incident. In this respect we find that

prosecution allegation that informant and deceased had gone to

tempo stand in block Baitalpur on motor cycle to fetch two masons

and four laborers prior to the incident does not find any mention

either in the written report, Ext Ka 1, nor the same was divulged

to the I.O. during interrogatory statement under section 161 Cr.P.C.

by any of the fact witness, so much so that even in his examination-

in- chief, informant PW1, has not deposed it in the court. He, for the

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first time, divulged it during his cross examination. Thus the said

allegation is an improvement and an embellishment, which does not

inspire any confidence at all. It seems that the said improvement

was done by the informant only to probabalise his presence at the

incident scene and to be an eye witness of the murder. This

conclusion is further cemented by the fact that no labour or mason

was interrogated by the I.O. nor any of them is a witness of charge

sheet. Informant also failed to disclose their names and identities

and hence prosecution version in respect of that part of story that

informant had accompanied the deceased on a motor cycle to the

incident spot to fetch labours and mason is only his ipse dixit without

having any amount of credibility in it. What is still weird is the fact

that there is no reference of any number of motor cycle either in the

case diary nor the same was stated during trial nor the investigating

officer had seen and seized it. Attour, it is alleged that informant

had gone to the spot and to the police station on it but even in the

GD entry of registration of crime there is no reference of any motor

cycle. It is still more unnatural that even PW2, Radhey Shyam Yadav,

who is the relative of the informant, also did not mention about it

anywhere. PW 4 another witness of fact had turned hostile and did

not support the prosecution case at all and therefore his evidence in

all these respect is valueless. In such a scenario it is very difficult for

us to believe that informant had accompanied the deceased on

motor cycle at the spot prior to the incident. We, therefore, find such

an allegation unbelievable and disproved. Such a dicey evidence is

further discredited because of uncertainty of purpose mentioned by

the informant for going to the spot which remains an un-established

fact. Nowhere it is mentioned for what construction masons and

laborers were required? Informant and PW2 are conspicuously silent

over said aspect of the matter. In the F.I.R. and in 161 Cr.P.C.

statement said fact and motor cycle both are missing. This fact, in

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conjunction with other circumstances pointed out herein below,

makes presence of PW1, at the spot during the incident, very dicey

and diminishes the credibility of his testimonies. Genesis of incident

and genuineness of FIR version thus is shrouded in mystery.

Further, it is of significance that first informant PW1 had not

sustained any injury during the incident which could have

established his presence at the spot. It is still more bizarre that

informant escaped unhurt, albeit, according to his own depositions

assailants were in his look out to do away with him and not the

deceased and he used to shield himself from them. It was testified

by him in para 40 of his deposition that “All the three accused were

my blood thirsty and I used to live shielding myself”. Had such a

claim by the informant been true there was no earthly reason for the

assailants to spare him and murder the deceased as he (informant)

was in their closet sight without any hindrance. It is recollected that

some of the murderers even carried bombs with them and

consequently there was no difficulty for them to fatally assault the

informant that too from a slapping distance. Presence of PW1 at the

spot is further diminished because of the fact that he had not

spotted PW2 at the time of the incident although PW2 claims himself

to be witness of the incident and from para 13 of his cross

examination it is well proved that he is a close relative of the

informant. In para 18 it was clearly stated by the informant that “

Raj Kumar Yadav belongs to my village. Radhey Shaym belonged to

village Tenubai. I have not seen them at the spot.” Presence of first

informant further becomes doubtful as he, in para 36, stated that

none of the accused carried two types of weapons, which statement

is contradicted by PW2 when he stated in para 11 that “ None of five

accused carried two weapons. Out of Harendra and Vinod, Vinod

had hurled bomb. Vinod had not made any country made fire. Then

said Vinod had also made fire by country made pistol on deceased

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brother. Rest of the two had also fired at Manish. Vinod had Katta

and bomb both.” It is recollected here according to PW1, vide para

42 of his testimony, only a single fire was made from country made

pistol whereas according to PW 2 many fires were made by various

accused during the incident vide paras 10 and 11 of his testimonies.

He has deposed “

10. From that tea shop 10 paces towards south there is a

kiosk. It is a beetle kiosk. I don’t know name of beetle shop owner.

Behind kiosk accused had also fired. They were firing towards north

where deceased brother was sitting.

11. From the shelter of kiosk 10-15 fires were made. 10 paces

both accused hurled 2-4-10 bombs. Smoke engulfed from bomb

explosion. None of five accused carried two weapons. Out of

Harendra and Vinod, Vinod had hurled bomb. Vinod had not made

any country made fire. Then said Vinod had also made fire by

country made pistol on deceased brother. Rest of the two had also

fired at Manish. Vinod had Katta and bomb both.”

Such were never the case of the informant at any point of time

and such a nascent version spelt out for the first time in court only

indicates that in fact none of the two fact witnesses were present

during the incident and they vacillated on their imaginations. As

noted earlier, it seems that prosecution has come out with such a

story subsequent to the detection of deceased murder, in

connivance with the investigating officer, only to establish presence

of the informant PW1 during the incident and therefore we reject

said part of prosecution story as unconvincing and unbelievable.

Another unsatisfactory and unconvincing important feature of

the prosecution story, which belies the presence of the informant at

the spot during occurrence, is that, though the incident is alleged to

have occurred only fifty paces from police outpost Baitalpur but

neither the informant nor any other eye witness including PW2,

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though closely related with the deceased, made any effort to seek

police help from that outpost. They made no effort to rush to the

outpost and inform the police regarding happening of the incident.

They even made no attempt to rush the deceased to the hospital for

medical aid. Against all canons of natural human conduct, as is

expected from a man of ordinary prudence, they (both informant

PW1 & PW2), at the earliest opportunity, soon after the incident,

even did not divulged the names of assailants to the police

personnel of Police outpost Baitalpur, who had arrived at the murder

spot on motor cycles soon after the murder. It were they (police

personnel) who had guarded the deceased corpse, when informant

had gone to the police station to lodge his report. None of

prosecution eye witnesses informed those police personnel the

names of the murderers, the direction of their escape and the

manner in which incident had happened. Conduct of both the

witnesses of fact, PW1 and PW2, are so surreal, weird and

incomprehensible that it makes very difficult for us to rely on their

testimonies. Had informant and PW 2 been present at the spot they

would not have eschewed any attempt to inform arrived police

personnel to about the identities of the assailants, weapons used,

and the manner in which the murder was executed. Their passive

resilence is most surreal and unnatural, which does not inspire any

confidence at all. To put forth our point we refer transliteration of

paragraphs 28 and 29 of the testimonies of PW1 as follows:-

“28. Police Chowki is towards east at a distance of 50 paces

from the place of incident. Police came after the incident. 3-4

police personnel had come. I did not tell police personnel that

accused had run in this direction after the murder.

29.Chowki people did not ask the name of accused. They had

come on motor cycle. I did not inform police personnel the names of

accused persons. Because I was crying and panicked therefore I did

not inform the names. Before informing the names of accused to the

Inspector(I.O.) I did not inform the names of those accused to

anybody. Those police personnel were guarding the corpse. They

had told that they are guarding the corpse and I can go to the police

17

station. When I was weeping then 2-4 people had collected there

out of whom only maternal uncle accompanied me to the police

station.............We had gone to the police station on motor

cycle......................We were at the police station for 1-1 ½ hours. I

have studied up to VIII. Head constable had taken my signature.”

Further PW 1 had mentioned in para 31 of his depositions that

when he had returned to the spot then those police personnel were

present. His further testimony that he had informed the names of

the accused with their weapons to the I.O. at the time when the

inquest was being conducted and he had signed the inquest report

after reading it’s contents which contained the names of the accused

persons is falsified by the inquest memo itself which is Ext Ka 2.

PW1, informant had further deposed that he had waited crying at

the spot for half an hour and when people told him to go to the

police station then he had gone to lodge the FIR. All the above facts

coupled with the weird conduct of not seeking police help only at a

distant of 50 paces during and after the incident and to get

immediate medical aid for the injured relative improbablises his

presence at the spot and his chilling silence clamour and

reverberates of his being a wholly unreliable witness. At this

juncture we would like to refer some of the exampler judicial

pronouncements by the apex court supporting our analysis on

similar conduct of witnesses.

In DIN DAYAL VERSUS RAJ KUMAR alis RAJU AND

OTHERS : AIR 1999 SC 537 apex court has held as under:-

“3. What is contended by the learned Counsel for the appellant

is that the High Court should not have discarded the evidence of

these 4 witnesses particularly when the trial Court after carefully

scrutinising it held that it was reliable and trustworthy. We find that

the High Court has given good reasons for taking a different view. It

has pointed the improbability of the version given by them. The

witnesses had not accompanied the deceased to the hospital nor

had taken any trouble of going and informing the police about what

had happened. After seeing the incidence they quietly went back to

their home. It cannot be said that the view taken by the High Court

that the conduct of the witnesses was not natural is unreasonable.

18

They were not merely eye-witnesses. They were closely connected

with the deceased. The High Court was, therefore, justified in not

placing any reliance upon their evidence.

4. Witness Din Dayal had accompanied the deceased to the

hospital but after reaching there he did not disclose the name of the

accused to the Police Constable who was on duty even though he

disclosed other facts regarding the incident. This circumstance has

been relied upon by the High Court together with some other

reasons for doubting truthfulness of the evidence of this witness.

The High Court has also referred to the improvements made by Din

Dayal and those improvements clearly indicate that they were

deliberately made with a view to make the presence of other eye-

witnesses acceptable. Having gone through the evidence we find

that the view taken by the High Court is not unreasonable and no

interference is called for by this Court.”

In Daljit Singh versus State Of Punjab:AIR 1999 SC

324, apex court has observed as under:-

“5. P.W. 3-Sulakhan Singh, who claimed to have seen the

incident while standing his workshop situated on the Kahnuwan

Road was contradicted by the police statement wherein he had

stated that he was standing near his house. He did try to explain

this inconsistency by explaining that his house and workshop are

situate in the same building. This witness had also not rushed to the

place where his brother had fallen down in injured condition.

Instead of inquiring what was his condition he went along with

Balbir Singh in search of the accused. This unnatural conduct

creates a serious doubt regarding his witnessing the incident.

Sulakhan Singh has admitted that even though they went in search

of the assailants, they did not enquire from anyone if they had seen

them. He also stands contradicted by P.W. 4-Gurdip Singh who had

stated that he and Sulkhan Singh had taken injured Dharam Singh in

a car to the hospital. We are inclined to accept this part of the

evidence of Gurdip Singh as it stands corroborated by the FIR

wherein also it is stated that he and Sulakhan Singh had taken the

injured to the hospital. If that is so, his version that he had gone

with Balbir Singh in search of the assailants stands falsified. Thus a

serious doubt arises as regards the presence of Balbir Singh and

Sulakhan Singh at the time of the incident.

6. P.W. 4-Gurdip Singh, had not seen the incident because he

had come out of the workshop only after hearing the noise of firing.

He has merely stated in his evidence that he had seen two Sikh

young boys running away on a Hero Honda motor cycle. He did not

identify them. If really appellant Jaspal Singh was standing near the

place of the incidence, as stated by the other witnesses, then this

witness would have definitely noted his presence and would have

19

identified him because the workshop of Jaspal Singh is situated at a

short distance of about 200 yards from his workshop.

7. Thus the evidence which was led by the prosecution to

prove its case was not such on the basis of which the appellants

could have been convicted. We, therefore, allow these appeals, set

aside the judgment and order passed by the Designated Court and

acquit the appellants of the charges levelled against them.”

In Badam Singh versus State of M.P.: AIR 2004 SC

26, it has been held by the apex court as follows:-

“17. The first striking feature of the case is the highly

unnatural conduct of the alleged eye witnesses. It is really surprising

that having witnessed a ghastly occurrence all the three started

running from the place of occurrence and kept on running till they

reached village Achhroni at about 8 p.m. It is difficult to believe that

they ran for 21/2 hours to cover a distance of about a mile.

According to PW-8, the distance between Kachnaria to Achhroni is

about 11/2 miles and according to PW-4 the distance from Kachnaria

to village Bandala where the occurrence took place is about 1

kilometer. It appears unnatural that the three eye witnesses who

were no other than Forest Officer and forest guards got so scared

that they started running in such a manner that they did not even

bother to go to the nearest village Bandala, two furlongs away or to

inform the villagers. Nor did they stop to inform the villagers of the

villages through which they passed, so that they may visit the place

of occurrence and find out whether the deceased was really dead.

Normally, one would have expected them to visit the place of

occurrence after the appellant had left if only to verify whether the

victim was really dead, and to render help if necessary, since the

deceased was known to them. In any event their natural conduct

would have been to inform the villagers of the nearest village so that

they could go to the place of occurrence and render whatever help

was possible. If they really started running at about 5.30 p.m., it

would not have taken them about 21/2 hours to cover a distance of

one mile. It is in the evidence of PW-4 that the occurrence took

place at 5.30 p.m. and they boarded the bus at Achhroni at 9.30

p.m. after waiting for about 11/2 hours at Achhroni. It is therefore

apparent that they had reached Achhroni at about 8.00 p.m. and

that they took 21/2 hours to cover a distance of one mile, even

when they claimed to be running in such manner that they did not

even bother to stop in any village even to report the incident to the

villagers. To say the least, their evidence does not inspire

confidence. Their conduct is highly unnatural. Their version that they

kept on running and did not inform anyone about the occurrence, is

not believable. If they really did so, they would not have taken 21/2

hours to cover a distance of 1 mile. The possibility therefore of

20

having come to the place of occurrence much later, and being told

about the occurrence by others, cannot be ruled out.”

Presence of first informant, PW1, at the scene of the incident is

also doubtful because he efforted to rope in two innocent persons in

the crime but failed during investigation as well as during trial, when

application of the prosecution, under section 319 Cr.P.C. to summon

Vijai Pratap Mani @ Dublu Mani and Chhotai was rejected by the

court. No charge sheet was submitted against them and their

complicity in the crime was found to be false by the Circle Officer.

According to the deposition of the informant in para 36, even though

he had come to know the names of these two unknown assailants

prior to lodging of FIR but he had not mentioned their names in his

written report nor he informed the I.O. about them. During the trial

also learned trial Judge did not find it appropriate to summon them

on the prosecution application and therefore participation of only

three accused in the crime surfaced. This fruitless effort by the

informant projects dicey nature of his evidence on which no implicit

reliance can be placed. Here we hasten to add that we don’t mean

to say that falsus in uno, falsus in omnibous applies to our

jurisprudential system but what we impress upon is the fact that a

witness if proved to be a got up and unreliable witness cannot be

relied upon only by merely reading his testimonies pedantically

ignoring relevant damaging evidences occurring in his depositions.

In this respect we rely upon the decision of the apex court in Pohlu

versus State of Haryana :2005 SCC ( Cr) 1496= 2006 CrLJ

532, where in it has been held by the apex court as follows:-

“What is apparent however, is that PW 1 has sought to shift

the place of occurrence where Hukam Chand is said to have been

assaulted. Though, according to her, she was assaulted inside the

house in the sahan and some blood had dropped in the sahan, and

her clothes had also got blood stained, the investigating officer has

categorically stated that he did not find blood at any place either at

the alleged place of occurrence or in the sahan or on the clothes of

the informant. Moreover, this witness named only three accused

21

persons in the FIR. Later she added the name of Prem Singh, and in

the course of deposition in the Court she also implicated Raj Kumar.

These facts lead us to hold that she is not a wholly reliable witness

on whom the Court can place implicit reliance.

….........................................................................................

..........

….........................................................................................

..........

From the deposition of this witness it appears that in the course of

the investigation he had stated that his father had been assaulted

only by Ishwar, and not by others. In the course of deposition he

sought to involve all the accused persons. Having considered the

evidence of this witness in its entirety, we are satisfied that he is

also not a reliable witness on whom implicit reliance can be placed

and his credibility has been sufficiently impeached in his cross-

examination. In fact so far as this witness is concerned he named

Raj Kumar and Prem Singh for the first time in the course of his

deposition, and it appears that he had not even mentioned their

names in the course of the investigation.”

To the same effect is yet another decision by the apex court in

Daljit Singh versus State of Punjab:AIR 1999SC 324

wherein it has been observed by the apex court as under:-

“5. P.W. 3-Sulakhan Singh, who claimed tohave seen the

incident while standing his workshop situated on the Kahnuwan

Road was contradicted by the police statement wherein he had

stated that he was standing near his house. He did try to explain

this inconsistency by explaining that his house and workshop are

situate in the same building. This witness had also not rushed to the

place where his brother had fallen down in injured condition.

Instead of inquiring what was his condition he went along with

Balbir Singh in search of the accused. This unnatural conduct

creates a serious doubt regarding his witnessing the incident.

Sulakhan Singh has admitted that even though they went in search

of the assailants, they did not enquire from anyone if they had seen

them. He also stands contradicted by P.W. 4-Gurdip Singh who had

stated that he and Sulkhan Singh had taken injured Dharam Singh in

a car to the hospital. We are inclined to accept this part of the

evidence of Gurdip Singh as it stands corroborated by the FIR

wherein also it is stated that he and Sulakhan Singh had taken the

injured to the hospital. If that is so, his version that he had gone

with Balbir Singh in search of the assailants stands falsified. Thus a

serious doubt arises as regards the presence of Balbir Singh and

Sulakhan Singh at the time of the incident.

6. P.W. 4-Gurdip Singh, had not seen the incident because he

22

had come out of the workshop only after hearing the noise of firing.

He has merely stated in his evidence that he had seen two Sikh

young boys running away on a Hero Honda motor cycle. He did not

identify them. If really appellant Jaspal Singh was standing near the

place of the incidence, as stated by the other witnesses, then this

witness would have definitely noted his presence and would have

identified him because the workshop of Jaspal Singh is situated at a

short distance of about 200 yards from his workshop.

7. Thus the evidence which was led by the prosecution to

prove its case was not such on the basis of which the appellants

could have been convicted.”

At the cost of repetition we recollect that a striking feature of

the prosecution case which compels us to disbelieve presence of first

informant and PW2 at the spot is that according to the informant,

vide para 40 of his deposition, appellant’s were inimical to him and

he shied away from them but not a scratch was caused to him

during the incident and his escape certainly was not providential.

Assailants, on the other hand had no animosity with the deceased

and there was no motive for them to kill him.

This brings us to another argument that since there was no

motive for the appellants to murder the deceased and consequently

their participation in the crime is highly improbable. We are

conscious of the fact that in cases of an eye witness account motive

relegates into the background but that does not mean that even a

proved unreliable and a planted witness be believed without

scanning intrinsic worth of his depositions on the touch stone of

improbabilities. When the presence of a witness is challenged on the

ground that the whole case is cooked up and witnesses are got up to

settle private scores then motive for false implication do assumes a

bit of importance to judge the veracity and credibility of that

witness. Judging from all the above angles we find informant PW1 is

wholly an unreliable and untrustworthy witness on whom no implicit

reliance can be placed.

Radheyshyam Yadav PW 2, is also an incredible and

23

untrustworthy witness whose testimonies do not inspire any

confidence and are liable to be rejected. Gist of his evidences

indicates that he is related to the informant and the deceased and,

as is clear from his evidence,he is a chance witness from the point of

view of time and purpose for which he claims himself to be present

at the spot. Reason for his presence at the spot is self- contradictory

and wholly absurd without any urgency nobody goes to purchase

shoes so early in the morning and that too to a satellite taken

although the main city has numerable shoe shops. Not only P.W.2

contradicted informant in respect of manner of actual assault but he

also did not inform the police regarding the incident when it had

reached at the spot soon after the murder. His evidence also suffers

from the same vices as that of the informant PW1. Description about

the incident narrated by him, in para 10,11 and 14 of his

depositions, contradicts informant PW1 in every respect about the

manner of assault, weapons carried by each accused and post

occurrence conduct. Transliteration of his depositions in those

paragraphs are as follows:-

“10. From that tea shop kiosk is 10 paces. That kiosk is beetle

kiosk. Name of beetle shop owner is not known. Fire was made by

persons behind kiosk. They were firing towards north where brother

of deceased was sitting.

11-From behind kiosk 10-15 fires were made. 10 paces both

accused threw 2-4-10 bombs. Blast caused smoke. Five accused

did not carry two weapons. Out of Harendra and Vinod ,Vinod threw

bomb. Vinod did not made fire by country made pistol. Then stated

that Vinod also fired from Country made pistol on the deceased

brother. Rest of the two also fired at Manish.

12. Vinod had country made pistol and bomb both.

13.…..........................................................

14. Till police did not arrive I was on the spot. Gauri Bazar

police arrived. Baitalpur arrived earlier. Sub Inspector of Baitalpur

arrived first. I and Manish did not had conversation after the

incident at the spot. He proceeded for the police station immediately

after the incident. He went alone. Don't know by what convenes he

went. I had no conversation with SI or constable of Baitalpur.”

This witness is a home guard. He was earlier posted at

24

Baitalpur. He is related with the informant as informant's cousin

sister Rinki is the wife of his brother Ram Pravesh Yadav. He,

however, was not interrogated by the I.O. immediately after the

incident but his statement was recorded belatedly after four days of

the incident, without any satisfactory explanation coming forth,

although he was present at the spot at the time of arrival of the I.O.

According to his claim he did not divulge the incident to anybody for

four days, prior to recording of his 161 Cr.P.C. statement. Cause of

his presence at the spot that he had come to Baitalpur to purchase

shoes is wholly puerile. He had come to Deoria on an excursion trip

and there, in down town Deoria, there are many cobbler shops, then

why he will go to a satellite town of Baitalpur to purchase shoes. On

an overall scrutiny of his evidence we find him also to be a worthless

witness who not only deposed contradictory statements than that of

PW1 but also belied his presence at the spot. As has been pointed

out herein above PW1 has stated that he had not seen PW2 during

the incident and this makes presence of PW2 extremely doubtful and

his depositions vulnerable and prone to be rejected. We find it highly

unsafe to act on his evidence and to us he is also a got up witness.

For these reasons we discard his evidence also.

Other factors which further jab down prosecution case are the

facts that neither the scribe Sheo Charan Yadav, who is the

maternal uncle of the deceased and the informant nor any other

person including the tea shop owner Lootan Gupta, outside whose

shop the murder was committed, entered into the witness box to get

accused punished. Another so called independent witness PW4 Ram

Yadi turned hostile and did not support prosecution case at all. Thus

there is absence of any independent corroboration of the

prosecution story. In view of unsatisfactory nature of evidences of

PW 1 and 2, without any independent corroboration, it is very unsafe

to rely on them and to believe the prosecution story spelt out by

25

them during the trial.

Turning towards the FIR, which again is an unsatisfactory

features of the prosecution case, we find that it is a dicey piece of

corroborative document. First of all it was lodged belatedly as

according to the case of the informant himself he waited at the spot

for quite half an hour and meanwhile police personnel of police

outpost had arrived at the incident scene and then informant

proceeded to the police station only when he was told by the public

to lodge the FIR and in such fact scenario it is not difficult to

conclude that time was consumed to fabricate a story. Secondly that

informant himself admitted that he had signed the written report

Ext. Ka-1 at the police station itself. This creates a doubt regarding

scribing of the FIR at the place of the incident and indicates that

probably it was fabricates at the police station itself as was

suggested by the defence. Further, according to the informant he

had proceeded for the police station on his motor cycle along with

his maternal uncle but, as concluded above, there is no reference of

any motor cycle either in the FIR or in the GD entry of registration

of FIR nor the maternal uncle entered into the witness box to

support the informant. Moreover, according to the informant he had

gone to the police station accompanied with his maternal uncle but

PW 2, on the other hand, contradicted him by deposing that he had

gone there all alone. Thus there is incongruity between PW1 and 2

on the material aspect as to who had gone to the police station to

lodge the FIR. Shiv Charan Yadav, the maternal uncle, did not enter

into witness box to lend credence to informant’s claim regarding his

presence along with his motor cycle and scribing of FIR by him. Chik

FIR was also dispatched to the Magistrate the following day although

it was lodged early in the morning. We also find it abnormal that

Chik FIR and the GD entry of registration of crime was penned down

by two different police personnel PW5 and PW7, and it seems the

26

reason was that time was shrinking and therefore to expedite

registration of FIR that such an unusual course was adopted. This

view finds it's support from other circumstances as well and they

are that informant had waited at the police station for two hours

when he had gone to lodge his report and although he is a witness

of inquest memo yet he did not narrate names of culprits nor their

weapons while mentioning his opinion regarding cause of deceased

death. Here we add that we don't mean to say that mentioning of

those facts are legally required under section 172 of the Code but

what we impress upon is the fact that had informant been present at

the spot knowing well about the incident it would have been an

irresistible impulse for him not to divulge the names of accused at

that point of time against all natural human conduct. To us this is

one of the circumstance to judge appellant's contention as to

whether PW1 was an eye witness of the murder or not? It seems

that the inquest was conducted first and FIR was registered later on

and that is why the FIR was registered also under section 147 I.P.C.

although nobody was armed with any blunt object and furthermore

different times were recorded in the inquest memo and chik FIR

regarding time of registration of FIR. In the chik FIR time of

registration of FIR is mentioned as 9.30 A.M. whereas in the inquest

the time is recorded as 9.40 A.M. Although the difference is not

much but what is important to note is that at the time when inquest

was conducted, time recorded in chik FIR was not known to the

person conducting inquest. It seems that because FIR was not in

existence as alleged by the prosecution that is why it was dispatched

to the Magistrate following day and not on the same day. It seems

also because of this reason there is no reference in the chik FIR

about 2/3 Explosive Substances Act. Introduction of Motor cycle and

labour story are still a later development significantly missing from

the earlier prosecution versions during investigation. Compliance of

27

157 of the Code has a solemn purpose to rule out fabrication of a

story against the accused and to lend credence to the prosecution

version. Delay in dispatching special report to the concerned

Magistrate, in a given facts and circumstances like the present one

do caste a doubt on the genuineness of the prosecution version if

no satisfactorily explanation comes forth. Albeit, said aspect by itself

is not sufficient to dislodge entire prosecution story but on the facts

of the present appeal we find it to discredit prosecution version for

the reasons that neither the informant nor another eye witness PW

2 are reliable witnesses, PW4, the third eye witness, turned hostile,

two people were roped in as assailants by the informant during

investigation but their implications was found to be false by the

second I.O., Circle Officer did not charge sheet them. Session's

Judge, also did not find sufficient reasons to summon them wielding

his power under section 319 of the Code. There are glaring defects

and inherent contradictions in the testimonies of two fact witnesses

PW1 and PW2. It is noted here that according to the prosecution

case FIR was registered at 9.30A.M. and hence there was no

difficulty is dispatching FIR to the Magistrate that day itself. This in

our opinion creates a doubt regarding genuineness of registration of

FIR at the time alleged by the prosecution and indicates that the

same is the outcome of deliberations and concoction at a later time.

It is because of this reason that time spelt out by the informant does

not fit in well with the time mentioned in the documents. Significant

omissions of important aspects about the incident in the FIR, leaving

many gray areas to be suitably adjusted later on as per the situation,

also supports our opinion that the earliest version was registered in

a haste with chik FIR and GD being prepared by two different

persons to rope in innocent persons in the murder of a person who

had criminal proclivities. In what we have said herein above delay in

dispatching the FIR to the Magistrate assumes significance and

28

cannot be ignored specially when the appellant accused defence

case is that of cooking up the entire case and murder being a blind

murder. In this respect we draw support from a apex court decision

rendered in Bijoy Singh versus State of Bihar: AIR 2002 SC

1949 wherein it has been held as follows:-

“7. Sending the copy of the special report to the Magistrate as

required under Section 157 of the Criminal Procedure Code is the

only external check on the working of the police agency, imposed by

law which is required to be strictly followed. The delay in sending

the copy of the FIR may by itself not render the whole of the case of

the prosecution as doubtful but shall put the Court on guard to find

out as to whether the version as stated in the Court was the same

version as earlier reported in the FIR or was the result of

deliberations involving some other persons who were actually not

involved in the commission of the crime. Immediate sending of the

report mentioned in Section 157, Cr. P.C. is the mandate of law.

Delay wherever found is required to be explained by the

prosecution. If the delay is reasonably explained, no adverse

inference can be drawn but failure to explain the delay would

require the Court to minutely examine the prosecution version for

ensuring itself as to whether any innocent person has been

implicated in the crime or not. Insisting upon the accused to seek an

explanation of the delay is not the requirement of law. It is always

for the prosecution to explain such a delay and if reasonable,

.plausible and sufficient explanation is tendered, no adverse

inference can be drawn against it.

8. In the instant case the copy of the report referred to in

Section 157, Cr. P.C. is shown to have been received by the

Magistrate on 27th August, 1991. Even though there is a mention in

the FIR that its copy was sent through special messenger, yet no

date or time of sending the said report is mentioned. The

Magistrate, receiving the copy of the report, has also not noted the

time of its receipt on 27th August, 1991. We are the opinion that the

Magistrates receiving reports under Section 157, Cr. P.C., particularly

when it relates to the commission of heinous crime are required to

note not only the date but also the time of the receipt of the copy

thereof. Mr. B.B. Singh, learned counsel appearing for the State has

pointed out the existence of various circumstances which may

perhaps be the cause of delay in sending the copy of the report and

its receipt by the Magistrate but surely there is a difference between

the "may be" and "must be". The prosecution has apparently failed

to explain the delay in sending the copy of the said report in terms

of Section 157, Cr. P.C. to the Magistrate of the area. This aspect has

been highlighted by the learned counsel of the appellant to content

29

that many of the accused were innocent and wrongly roped in the

case allegedly on account of enmity existing between the

complainant and the accused party. There is some substance in such

a submission.”

It further becomes evident that ocular version is inconsistent

with medical evidence and this also creates a doubt in the

prosecution version. According to depositions of informant PW1 he

and deceased had started from their resident after eating two breads

(Roti). They have arrived at Baitalpur in 10-15minutes and it took

them 5-10 minutes to search for the mason and labours. After that

deceased consumed tea as well. However in the autopsy report semi

digested food was found in the stomach of the deceased. When

autopsy doctor was questioned he opined that it will take four hours

for the food to become semi digested vide para 9 of his testimony.

He further deposed in para 12 in no uncertain terms, that deceased

must have taken meal 4 hours before. This possibility that after

sustaining injury deceased digestive system would have functioned

some more time was also ruled out by the doctor when he deposed

that it was a case of instantaneous death vide para 14 of his

testimony. Vide para 10 doctor even ruled out possibility of

deceased having consumed tea. Thus what we find is there was

irreconcilable evidence of the doctor vis-a vis ocular version which

further crumbles edifice of prosecution version.

Investigation into the crime is yet another unsatisfactory

aspect. No attempt was made by the I.O. to inquire into the aspect

of informant’s presence at the scene. No attempt was made to

record the statement of the eye witnesses without any delay. Motor

cycle was not traced out. Neither in the chik FIR nor in the inquest

memo nor in the crime registration GD nor in the papers prepared at

the time of inquest there is any reference of 2/3 Explosives

Substances Act. No blood stained cloths of the informant etc. were

seized. There is discrepancies in noting of time in documents. All

30

these faults do not still confidence in investigation being fair and

above board.

Now coming to the most serious contentious issue that non

charging the two accused who were alleged to have hurled bombs

during the course of incident with offences u/s 2/3 Explosive

Substances Act, makes their participation in the murder disproved,

we find much force in the submission as only role assigned to them

is of exploding bombs on the other side on road to facilitate

escape. They never attempted to cause any injury to the deceased.

The submission is that for that act those accused were never put to

trial and hence their guilt is not established. If, for the crime

committed by two bomb hurling accused, they were never charged

how can they be convicted for the charge of murder as in that

eventuality shooting down of the deceased would have been

individual act of sole appellant Sunil (A-1) only at the spur of the

moment all of a sudden which is the prosecution version. It is

significant to take note of the fact that charge sheet was also

submitted under section 2/3 Explosive Substances Act and hence it

was incumbent upon the learned trial Judge to charge the two

accused with that offence. In the impugned judgment learned trial

Judge had not adverted to the said aspect of the matter at all. We

are at a loss to note that we have failed to fathom out any reason as

to why that charge was not framed against the two appellants (A-2)

& (A-3). It is needless to say that offence u/s 2/3 Explosive

Substances Act is entirely a different offence from offence of murder

u/s 302 I.P.C. and hence section 464 Cr.P.C. does not have any

application in the present appeal in as much as failure of justice has

in-fact occasioned and ex-facie prejudice has been caused to the

two accused (A-2) and (A-3). For judging prejudice we peep into the

charges framed against those appellants and it is very disturbing to

note that in framed charge dated 15.7.2005, there was absolutely no

31

reference at all for the two appellants Vinod (A-2) and Harendra

Singh (A-3) to have hurled bombs during the incident. First charge is

only for offence u/s 148 I.P.C. and second is u/s 302/149 I.P.C. For

the sake of clarity we reproduce those charges as under-

“I, Vikramajeet Singh, Sessions Judge, Deoria,

hereby charge you (1) Vinod and (2) Harendra Singh, as

follows :-

Firstly, that you, alongwith co-accused Sunil Pasi,

and two others, on 15.6.2004, at about 8.50 a.m., in

qasba Baitalpur, Police Station Gauri Bazar, District Deoria,

were members of unlawful assembly, with the common

object of committing murder of Ram Kripal, son of

Ramakant Yadav, r/o- village Mukundpur, Police Station

Gauri Bazar, District Deoria, and in prosecution of the said

common object of the said unlawful assembly, committed

the offence of rioting and at that time were armed with

bombs and thereby committed an offence/punishable

under Section 148, I.P.C., and within my cognizance.

Secondly, that on the aforesaid date, time and place,

co-accused Sunil Pasi did commit murder of Ram Kripal

aforesaid by intentionally and knowingly causing his death,

in prosecution of the common object of your said unlawful

assembly, and you are, thereby, guilty of causing the said

offence punishable under Section 302 I.P.C. read with

section 149 I.P.C. and within my cognizance.

And I hereby direct that you be tried by this Court

on the aforesaid charges.

July 15, 2005.”

With such framed charges appellants certainly could not have

been convicted for the offence u/s 148,302/149 I.P.C. No doubt both

(A-2) and (A-3) accompanied (A-1) came to the murder scene

together and they also escaped from the incident scene together

after the murder but in absence of any charge of exploding the

bombs during the incident or making any fires does not necessarily

indicate census-id-idum between them with common object to do

away with the deceased and therefore we are in grave doubt as to

whether section 149 I.P.C. can ever be utilized against them. In this

respect we refer some of apex court decisions which are as follows:-

32

Anil versus Administration of Daman and Diu (2008)1

SCC (Cr) 72 it has been held as under:-

“55. The ingredients for commission of offence under Section

364 and 364-A are different. Whereas the intention to kidnap in

order that he may be murdered or may be so disposed of as to be

put in danger as murder satisfies the requirements of Section 364 of

the Penal Code, for obtaining a conviction for commission of an

offence under Section 364-A thereof it is necessary to prove that not

only such kidnapping or abetment has taken place but thereafter the

accused threatened to cause death or hurt to such person or by his

conduct gives rise to a reasonable apprehension that such person

may be put to death or hurt or causes hurt or death to such person

in order to compel the Government or any foreign State or

international intergovernmental organisation or any other person to

do or abstain from doing any act or to pay a ransom.

56. It was, thus, obligatory on the part of the learned

Sessions Judge, Daman to frame a charge which would answer the

description of the offence envisaged under Section 364-A of the

Penal Code. It may be true that the kidnapping was done with a

view to get ransom but the same should have been put to the

appellant while framing a charge. The prejudice to the appellant is

apparent as the ingredients of a higher offence had not been put to

him while framing any charge.

……………………………………………………………………………………

….

58. We, therefore, are of the opinion that the appellant could

not have been convicted under Section 364-A of the Act.”

In Sou. Vijaya @ Baby, Appellant v. State of

Maharashtra: AIR 2003 SC 3787 it has been held by the apex

court as under:-

“Though in a given case defective charge does not vitiate trial

in terms of S. 464 of the Criminal Procedure Code 1974, (for short

'the Code') where the omission is vital and even the substance of

accusations is totally different from what is sought to be established

by the prosecution, and there is no evidence on record to attribute

knowledge of commission of the offence by the other accused that

can be an additional factor for acquitting the accused. Looked at

from any angle conviction of the appellant-accused A-2 cannot be

maintained and is set aside.”

In Sukhram versus State of Maharastra: AIR 2007 SC

3050 it has been laid down by the apex court as under:-

33

“11. We have perused the Trial Courts record. We find that

though charge for offence punishable under Section 302 of IPC had

been framed against appellant A-1, no such charge was framed

against appellant A-2, even with the aid of Section 34 IPC. The only

charge framed against A-2 was for an offence punishable under

Section 201 read with Section 34 of IPC. True that Section 222

Cr.P.C. clothes the Court with the power to convict a person of an

offence which is minor in comparison to the one for which he is

charged and tried, but by no stretch of imagination, offences under

Sections 304-B and 498-A IPC, under which appellant A-2 was

convicted by the Trial Court, could be said to be minor offences in

relation to that under Section 201 IPC, for which he was charged. In

fact, the three offences are distinct and belong to different

categories. The ingredients of the offences under the said Sections

are vastly different. Therefore, Section 222 Cr.P.C. had no application

on facts in hand.

12. At this junction, we may also note that conviction of

appellant A-2 by the High Court under Section 302 IPC cannot also

be held to be valid when tested on the touchstone of the provision

contained in Section 464(2)(a) Cr.P.C. If it was convinced that a

failure of justice had, in fact, been occasioned, the High Court was

required to follow the procedure laid down in the Section, which was

not done. That apart, even on the proven facts on record, a case for

conviction under Section 302 IPC was not made out against the said

appellant.

13. Bearing in mind this factual and legal backdrop, we are of

the opinion that the High Court was not justified in convicting

appellant A-2 for having committed a major offence punishable

under Section 302 IPC.”

In Main Pal Versus State of Haryana: AIR 2010

SC3292 it has been held by the apex court as under:-

“11. As noticed above, in this case, the charge was that

appellant committed trespass into the house of Prakashi Devi for

assaulting Prakashi Devi, and assaulted the said Prakashi Devi and

outraged her modesty. The accused concentrated his cross-

examination with reference to the said charge and elicited answers

showing that he did not assault or outrage the modesty of Prakashi

Devi. He did not try to challenge the evidence let in to show that he

had tried to outrage the modesty of Sheela Devi, as he was not

charged with such an offence. The evidence of PW-1 and PW-2 was

that the appellant did not touch or tease or abuse Prakashi Devi.

Their evidence was that he touched/caught the hand of Sheela Devi

and when she raised an alarm he ran away. When the charge was

that the accused attempted to commit trespass into the house of

Prakashi Devi with intent to outrage the modesty of Prakashi Devi,

34

the conclusion of the appellate court and the High Court that there

was no failure of justice if he is punished for the offence of having

assaulted Sheela Devi and outraging her modesty, is opposed to

principles of fair play and natural justice embodied in sections 211,

212, 215 and 464 of the Code. When the accused is charged with

having entered the house of Prakashi Devi and assaulted the said

Prakashi Devi with intent to outrage her modesty and when the

accused defended himself in regard to the said charge and

concentrated on proving that the said charges were not true, he

cannot be convicted for having assaulted and outraging the modesty

of someone else, namely Sheela Devi. The accused did not have any

opportunity to meet or defend himself against the charge that he

assaulted Sheela Devi and outraged her modesty. Nor did he

proceed with his defence on the understanding that he was being

charged with having committed the offence with reference to Sheela

Devi. One of the fundamental principles of justice is that an accused

should know what is the charge against him so that he can build his

defence in regard to that charge. An accused cannot be punished for

committing an offence against 'Y' when he is charged with having

committed the offence against 'X' and the entire defence of the

accused was with reference to charge of having committed offence

against 'X'.”

Yet another glaring defect in framing of charge is that on the

own showing of the prosecution it was not a case of any unlawful

assembly at all with no applicability of section 147/149 I.P.C. and in

fact the charge should have been framed only with the aid of section

34 I.P.C as participation of five persons during the incident was not

proved at all. It is recollected here that the I.O. had found

participation of two other accused Chhotai @ Jai Nath and Dablu

Mani @ Vijai Pratap Mani false and had not charge sheeted them.

This had dwindled the number of assailants to less than five. During

the trial also prosecution application u/s 319 Cr.P.C. to summon them

as accused was rejected and hence at no point of time participation

of more than three accused surfaced. In such a view framing of

charge u/s 302/149 I.P.C. and also charging the appellants u/s 148

I.P.C. was wholly illegal. We cannot resist the temptation of

observing that the learned trial Judge was not oblivious of the case

being tried by him and he committed patent illegality and ex facie

35

error in charging the accused. Time and again apex court as well as

this court has cautioned trial courts to be careful in framing of

charges and we remind the trial courts again of the same. Framing

of charge is not an empty formality and section 464 Cr.P.C. is no

escape goat for the trial courts to eschew their most solemn act of

charging the accused with correct charges. As a note of caution we

point out that nobody can be prosecuted and punished except for

the offence time being in force is the Constitutional mandate and

hence framing appropriate charge is inherent in it. Drawing a

distinction between ‘common intention’ and ‘common object’ is such

an elementary thing in a criminal trial that we cannot but express

our serious displeasure and unhappiness over framing of charges in

the case at hand and we say no more.

Before we part away with this appeal we note that findings and

observations recorded by the learned trial Judge in the impugned

judgment are contrary to the evidences on record and are lopsided

and does not indicate dispassionate analysis of entire material on

record to fathom out the truth. To note a few of them the

mentioning of fact at page 3 of the impugned judgment that “Vinod

and Harendra assaulted with bomb which did not hit” is contrary to

the evidence on record. It is the conspicuous case of the prosecution

that both the aforesaid accused exploded bombs on the opposite

side on the road and they never attempted to hit the deceased.

Likewise the mentioning of fact that incident occurred due to political

rivalry is also against evidence on record as there is no reliable

evidence in that respect but for a single line ipse dixit of the

informant in his cross examination. Similarly the finding at page 4 of

the impugned judgment that “ Witness clearly states that except the

three present in court accused, he had not seen anybody else

committing the murder” is also contrary to the evidences on record

as according to the informant Chhotai @ Jai Nath and Dablu Mani @

36

Vijai Pratap Mani had also participated in the crime and had fired

shots. Going by the analogy drawn and slated by the learned trial

Judge, even (A-2) and (A-3) did not participate in the murder. A

perusal of findings at pages 4/5 of the impugned judgment not only

indicates that it were oxymoron but also shows them to be perverse.

Further, the evidences, which according to the trial Judge are

insignificant are so glaringly damaging, noticeable and important

that they could not have been ignored or brushed aside. As has been

pointed out here in above no prudent person would have arrived at

such a conclusion as has been arrived at by the learned trial Judge if

he would have examined, sift and weighed evidences to separate

grain from the chaff, which he never endeavoured. At page 5 learned

trial Judge has himself mentioned that the bombs were not hurled

aiming at the deceased but that does not make any difference as

their “crime falls within the ambit of section 302/149 I.P.C. and

charge for the same has also been framed” is again a perverse

finding as no charge for hurling of bombs was framed and when only

participation of three accused surfaced no unlawful assembly exited.

Furthermore findings at page 6 of the impugned judgment regarding

FIR and arrival of police personnel and non-disclosure of the names

of the assailants to them by the witnesses is also incomprehensible

and perverse findings being contrary even according to the opinion

of the apex court as well. Ignoring criminal background of the

deceased and defence version of him being shot dead in loneliness is

yet another defect of significance in the impugned judgment.

Furnishing a wholly unacceptable explanation regarding

inconsistency between medical and ocular version against too

settled expert view is yet again an error committed by the learned

trial Judge. Other findings are also discredited by evidence on

record.

The residue of our discussion is that the prosecution has failed

37

to bring home the charges against the appellants by leading cogent

and reliable evidences and all the accused are entitled to the benefit

of doubt.

Resultantly both the appeals being Criminal Appeal No. 3587 of

2006, Sunil Pasi Versus state of U.P. and Criminal Appeal No.3573 of

2006 Vinod and another versus State of U.P. are allowed. Impugned

judgment of conviction and sentence dated 9.6.2006 recorded by

Session's Judge, Deoria, in S.T. No. 112 of 2005, State versus Sunil

Pasi And Others, relating to P.S. Gauri Bazar, district Deoria is hereby

set aside and all the three appellants Sunil Pasi, Vinod and Harendra

Singh are acquitted of all the charges against them. The two

appellants Vinod and Harendra Singh are on bail, they need not

surrender, their personal and surety bonds are discharged. Appellant

Sunil Pasi is in jail, he shall be released from jail forthwith.

Let a copy of this order be intimated to the trial court.

Dt/3.5.2013

Rk/Arvind/Tamang-