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Neutral Citation No. - 2023:AHC:116734-DB

A.F.R.

RESERVED

Court No.3

Case :- CRIMINAL APPEAL No. - 4774 of 2016

Appellant :- Veerpal And 2 Others

Respondent :- State of U.P.

Counsel for Appellant :- Rajiv Lochan Shukla,Ankur Singh

Kushwaha,Bhishm Pal Singh,J.B. Singh,Jai Prakash Singh,Rudra Pratap

Mishra

Counsel for Respondent :- G.A.,Pradeep Kumar Bhardwaj

Hon'ble Surya Prakash Kesarwani, J.

Hon'ble Jayant Banerji, J.

1.This criminal appeal arises against the judgment of conviction and

sentence dated 31.08.2016 passed by the First Additional Sessions Judge,

Gautam Budh Nagar in Sessions Trial No. 248 of 2013 (State of U.P. Vs.

Veerpal and three others) arising out of Case Crime No.1007 of 2012

under Sections 147, 302/149 IPC, P.S. Kasna, District Gautam Budh

Nagar, whereby, all the appellants have been convicted for offences under

Sections 147, 302/149 IPC and sentenced to go one year rigorous

imprisonment under Section 147 IPC and to undergo life imprisonment

and fine of Rs. 10,000/- each under Section 302/149 IPC and in default of

payment of fine one year of additional imprisonment has been awarded.

All the above mentioned sentences have been directed to run

concurrently.

2.An FIR (Exhibit Ka-2) was lodged on 16.11.2012 on the basis of

information (Exhibit Ka-1) received on that day at 22:30 hours bearing

FIR No.786 under Sections 147/302, 34 I.P.C., Police Station-Kasna,

District Gautam Budh Nagar. The informant, Vedpal s/o Shobha Ram r/o

Village-Chuhadpur, Police Station-Kasna, District Gautam Budh Nagar,

stated that on the previous day, that is 15.11.2012, there was an

altercation between Ved Prakash @ Kalu with Pammi @ Ram Autar s/o

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Veerpal and they had a fight, and with that ill feeling, on 16.11.2012 at

8:30 p.m. in the night, Veerpal and his brother Kalu @ Balraj and his sons

namely Pammi @ Ram Autar and Bhura and two other people came in

their Swift car and one Pulsar motorcycle to the shop of his brother Ved

Prakash @ Kalu when his brother was sitting in his shop. Immediately on

coming, Veerpal hurled abuses and said kill Ved Prakash and he should

not escape. To save his life, his brother ran towards the highway and Veer

Pal and his brother Kalu @ Balraj, Pammi @ Ram Autar and Bhura,

chased him to the open space near his shop and caught him and, they

assaulted him with knives and belt, due to which his brother fell on the

spot. On hearing shouts, the complainant and his brother Chetram,

Devendra, Mahendra, Sahamal ran to save him, but seeing them

approach, those people fled away on their Swift car and motorcycle. It

was stated that his brother's corpse was lying at the site.

3.An inquest report (Exhibit Ka-3) was prepared on 17.11.2012 and

a postmortem examination was conducted and a report (Exhibit Ka-4)

was also prepared on the same day. The complainant P.W.- 1 proved his

written complaint (Exhibit Ka-1). The FIR (Exhibit Ka-2) was proved

by the P.W.-2, Balraj Singh, the FIR writer. The inquest report (Exhibit

Ka-4) was proved by P.W.-6, Anand Pal Singh, the Inspector who

conducted the inquest. The postmortem report was proved by P.W.-4, Dr.

Sant Ram Verma, who had conducted the postmortem examination. The

inquest was concluded on 17.11.2012 at 2:00 a.m. in the presence of five

witnesses. The inquest report reflects that on receiving the information

regarding the incident and that the corpse of Ved Prakash was lying on the

road, the officer who conducted the inquest noted that for want of light at

the site and in order to maintain law and order, as per directions of the

Station House Officer, the corpse of the deceased was sent by a police

vehicle to Kailash Hospital for the inquest. The opinion of the witnesses

to the inquest was that the deceased-Ved Prakash was murdered by

causing knives wounds and that a postmortem examination be conducted.

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The postmortem examination was conducted on 17.11.2012 at 2:00 p.m.

by the P.W.-4 and the following injuries were noted :-

i.Incised wound size 3 X 2 cm cavity deep present on right axilla.

ii.Incised wound size 3 X 3 cm bone deep present on right upper arm

medially and situated 2 cm below right axilla.

iii.Incised wound size 6 X 4 cm X bone deep present on right upper

arm situated 12 cm below right shoulder acromion joint.

iv.Incised wound size 14 X 4 cm X muscle deep present on right

elbow joint medially.

v.Incised wound size 6 X 4 cm X bone deep present on right elbow

joint laterally.

vi.Incised wound size 3 X 1 cm X cavity deep present on back of left

lower abdomen situated 2 cm above the iliac crest.

4. It was noted in the postmortem report that brain was congested and

the right lung was lacerated on three sides. There was blood in the right

lung and the left lung was congested. Right chamber of the heart was

filled with blood and the left chamber was empty. There was 100 ml.

Liquid in the stomach. The time since death was noted to be about ¾

days. The cause of death was mentioned as hemorrhage and shock as a

result of the wounds.

5. A recovery memo dated 19.12.2012 (Exhibit Ka-8) reflects

recovery of two weapons on the pointing of each of the two accused,

namely Veerpal and Kalu @ Balraj. Another recovery/arrest memo dated

20.11.2014 (Exhibit Ka-9) reflects that Pammi @ Ram Autar s/o Veerpal

was arrested on whose pointing out a knife was recovered. Another

recovery-cum-arrest memo dated 02.12.2012 (Exhibit Ka-10) reflects the

arrest of one Om Kumar @ Omi, on whose pointing out a knife was

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recovered. Yet, another recovery memo dated 23.12.2012 (Exhibit Ka-15

reflects that on the pointing out of accused-Sumit @ Bhura, a knife was

recovered. On 17.11.2012 from the site of the incident, bloodstained soil

was taken and sealed. Normal soil of a nearby area was also taken in a

different box and sealed. This recovery memo is Exhibit Ka-17. The

aforesaid Exhibit Ka-8, Exhibit Ka-9 and Exhibit Ka-10 were proved by

P.W.-6, Anang Pal Singh, Inspector, and Exhibit Ka-15 and Exhibit Ka-17

were proved by P.W.-9, Shyama Kant Tripathi, the Investigating Officer.

A site plan dated 17.11.2012 (Exhibit Ka-11) was prepared by Shyama

Kant Tripathi, Inspector-in-Charge, Kotwali, Kasna, District Gautam

Budh Nagar who also prepared the site plans of the recovery of weapons

used for murder bearing Exhibit Ka-12, Exhibit Ka-13, and Exhibit Ka-

14, which were proved by him. On record is a report of the Forensic

Science Laboratory, U.P., Agra dated 21.06.2014 (Exhibit Ka-19). After

conducting the investigation, the Investigating Officer filed a charge-

sheet dated 30.12.2012 (Exhibit Ka-18), which was proved by the P.W.-

9, under Sections 147, 302 and 34 I.P.C, implicating the five accused,

namely Veerpal, Kalu @ Balraj, Pammi @ Ram Autar, Bhura @ Sumit

and Om Kumar @ Omi.

6.On 06.09.2013, the First Additional Sessions Judge, Gautam Budh

Nagar charged four of the accused namely, (1) Veerpal, (2) Kalu @

Balraj, (3) Pammi @ Ram Autar, and (4) Om Kumar @ Omi under the

provisions of Section 147 and 302/149 I.P.C. It appears that one of the

accused namely, Bhura @ Sumit was tried by a Juvenile Court in separate

proceedings.

7.The complainant/ eye-witness, Ved Pal (P.W.-1), testified on

20.11.2013 and again, pursuant to a recall application filed by the

defense, on 17.01.2014. He supported the case of the prosecution as an

eye-witness of the incident. P.W.-3, Mahendra, deposed on 09.01.2014

and on that day, he supported the case of the prosecution. However, when

he again testified on 15.10.2015, he turned hostile and whereafter, he was

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cross-examined by the Additional District Government Counsel

(Criminal).

8.On 24.02.2015, Chetram (P.W.-5), the brother of the deceased,

gave his deposition and denied having witnessed the incident. Since he

turned hostile, he was cross-examined by the ADGC (Criminal).

9.Another witness, Devendra (P.W.-7), deposed on 10.03.2015,

turned hostile and was cross-examined by the ADGC (Criminal)

10.Another eye-witness, Shahmal, (P.W.-8), who deposed on

14.12.2015, also turned hostile and was cross-examined by the ADGC

(Criminal).

11.Statements under Section 313 of the Code of Criminal Procedure,

1973

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of all the four accused were recorded on 20.05.2016 wherein they

denied their culpability and said that a false case was set up against them

due to factions in the village and for exacting revenge.

12.After hearing the learned counsel for the prosecution and the

defence, the assailed judgment dated 31.08.2016 was passed whereby the

accused Omi @ Om Kumar was given the benefit of doubt and was

acquitted. As far as the accused Veerpal, Kalu @ Balraj and Pammi @

Ram Autar are concerned, the charges against them were found to be

proved beyond any doubt and they were sentenced to imprisonment and

fine.

13. Shri V.P. Srivastava, learned Senior Advocate assisted by Shri J.P.

Singh, learned counsel for the appellants, submitted that the prosecution

has placed reliance on the testimonies of P.W.-1 and P.W.-3. It is

submitted that all the accused were allegedly armed with knives who had

given knife blows to the deceased. It is submitted that the P.W.-1 and

P.W.-3 were not present at the time of incident and in any view of the

matter, they were chance and partisan witnesses being relatives of the

deceased and, therefore, their testimonies have to be seen very cautiously

1Cr.P.C.

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by the court. It is urged that as per the FIR, the deceased took his last

breath at the site of the incident which is corroborated by the FIR, but the

inquest was admittedly done at Kailash Hospital, Gautam Budh Nagar

and the inquest memo was proved by the P.W.-6. It is submitted that in

the inquest report, there is overwriting on the date of inquest and it is

reflected therein that there was insufficient light on the spot and also to

maintain law and order, under orders of the SHO, the P.W.-6 carried the

dead body in a police vehicle to Kailash Hospital where the inquest was

conducted. It is contended that there is no valid reason for conducting the

inquest at a place other than the site of the incident. It is urged that as per

the prosecution case itself, there was ample light at the site and as per

Regulation 132 of Chapter-XII of the U.P. Police Regulations read with

Section 174 Cr.P.C., the police was required to conduct the inquest at the

site. The learned counsel has stated that the P.W.-6 has failed to specify

the time of commencement of the inquest. It is stated that the only

plausible reason for transfer of the deceased to Kailash Hospital was that

the deceased was alive when the P.W.-6 visited the site and he rushed to

him to the Hospital accordingly.

14.It is further urged by the learned counsel for the appellants that as

revealed in the FIR, the deceased was also assaulted with a belt, but there

is no allegation that belt was tied on the neck of the deceased. It is

submitted that in the entire postmortem report, there is no injury that can

be said to be caused by a belt. It is stated that Pammi @ Ram Autar was

arrested on 20.11.2012 and a knife was recovered on his pointing out that

was hidden underground. Om Kumar @ Omi was arrested on 02.12.2012

and a knife was recovered on his pointing out from a bush near the

underpass. Bhura @ Sumit (who was a juvenile) was arrested on

20.03.2012 and on his pointing out, the knife was recovered from Zero

Point from a bush. All these recovered knives were blood stained and

blood on them was found disintegrated as reflected in the report of the

Forensic Science Laboratory. The two other accused Veerpal and Kalu

were arrested on 19.12.2012 and one knife each was recovered from near

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a shop and from a bush on which no bloodstains were found. These

recoveries, it is submitted, have been made purportedly under Section 27

of the Indian Evidence Act, 1872.

15.The learned counsel for the appellants has referred to the site plan

(Exhibit Ka-11) and submitted that the Investigating Officer has not

shown where the P.W.-1 and P.W.-3 and other witnesses were present at

or during the incident. He states that even the FIR is silent as to where the

witnesses were present. The postmortem report reflects six injuries of

which, five wounds were found on the right side and one wound is on the

left side of the deceased. While referring to the report of Serologist

(Exhibit Ka-19), the learned counsel for the appellant has stated that the

bloodstains that were found on the exhibit reflect that other than the item

nos.1, 2, 3 and 4 (which are pant, shirt, underwear and handband

[kalava]), none of the bloodstains found on the other item have been

identified as human blood. It is contended that the consequence of this is

in favour of the defence.

16.Learned counsel for the appellants has referred to the provisions of

Sections 25, 26 and 27 of the Indian Evidence Act, 1872 to contend that

the word 'deposed' appearing in Section 27 denotes words “taken down in

writing” which are the actual words spoken by accused in the presence of

the two independent respectable witnesses who would sign on that

deposition. It is stated that it is evident from the recovery memos of each

of the alleged weapons of murder, namely knives, that it is not in

accordance with the procedure prescribed for taking the deposition of the

accused persons. Therefore, in the absence of such a deposition appearing

in the recovery memos, no proof of the alleged confession is permissible.

In support of his contentions, the learned counsel for the appellants has

referred to the judgments of the Supreme Court in the case of

Subramanya vs. State of Karnataka

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; Ramanand @ Nandlal Bharti

22022 SCC Online SC 1400; AIR 2022 SC 5110

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vs. State of U.P.

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and the judgment of the Privy Council in the case of

Pulukuri Kottaya & Ors. vs. The King Emperor

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.

17.On the issue of testing the veracity of the evidence of the P.W.-1

and P.W.-3, it is submitted by the learned counsel for the appellants that

they are partisan and chance witnesses and their testimonies have to be

strictly and carefully considered in view of the judgments of the Supreme

Court in the case of Harjinder Singh @ Bhola vs. State of Punjab

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(Paras 6 and 14) and in the case of Ganapathi & Anr. vs. State of Tamil

Nadu

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. It is contended that in view of the facts and circumstances, the

accused deserve to be acquitted.

18.On behalf of the State, it has been urged by Shri Rupak Chaubey,

learned Additional Government Advocate that for proving the offence, the

prosecution has to prove (i) the place of occurrence; (ii) time of incident;

and (iii) the participation of the accused. It is submitted that subsequent

events that do not directly affect the outcome of the investigation, may

not be looked into by the courts.

19.It is submitted by the learned AGA that the General Diary entry and

FIR were duly proved by the P.W.-2. With regard to the inquest report, it

is submitted that the purpose of inquest is only to assess the apparent

cause of death and for no other reason. Certain minor irregularities

appearing in the inquest report would have no affect on the merit, where

other aspects are proved. It is contended that the witnesses turned hostile

for the first time only in the year 2015 whereas the deposition of the

witnesses had started in the year 2013. It is urged that the P.W.-1 is not a

partisan witness but he is a related witness. P.W.-1 is not a chance witness

inasmuch as the usage of the road and time is regular for the P.W.-1. The

village of the P.W.-1 is near the site of the incident and, therefore, it was

natural for him to visit. It is contended that no adverse suggestion/leading

question was put to the P.W.-1 by the defence. Learned AGA has referred

32022 SCC Online SC 1396; AIR 2022 SC 5273

4AIR (34) 1947 Privy Council 67

5(2004) 11 SCC 253

6(2018) 5 SCC 549

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to the testimony of P.W.-7 who was examined as a prosecution eyewitness

who turned hostile later, to contend that this witness has testified having

seen the dead body of the deceased at the site. It is contended that the

postmortem report corroborates the testimony of the P.W.-1. It is

submitted by the learned AGA that the FIR was promptly lodged and the

accused persons were named. It is submitted that the time of incident took

place in the winter season and, therefore, it is quite unlikely that belt

injury marks would appear due to clothes worn by the deceased. It is

urged that in any view of the matter, it is a minor contradiction which

would have no bearing on the case of the prosecution. It is stated that

there is no material discrepancy in the testimony of the P.W.-1. It is

further stated that suggestion put to the witness regarding his presence

would have no bearing as it does not affect the merit of the case.

20.It is further urged by the learned AGA that P.W.-3 is also a natural

witness as he regularly passed that way. Two of the witnesses went to

lodge the FIR. It is submitted that the benefit of Section 27 of the Indian

Evidence Act may not be available to the prosecution but other facts that

are material to ensure conviction of the accused have been duly proved.

While referring to the provisions of Section 134 of the Evidence Act, the

learned AGA has submitted that even one witness is sufficient to prove

the case of the prosecution and the P.W.-1 has proved the case of the

prosecution.

21.The point that arises for consideration is that whether the

prosecution has been able to prove the guilt of the accused beyond

reasonable doubt.

22.The prosecution case is primarily based on eye witnesses account.

The FIR dated 16.11.2012 was lodged by the PW-1 as eye witness.

23.In his testimony (examination-in-chief) on 20.11.2013, the PW1-

Vedpal supported the case of the prosecution. He has stated that near

about the time of the crime, he had gone to the office of the under-

construction building (Durga Green), for his business of supply of

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building materials. When he suddenly heard shouts, he came out of the

building and he saw five people whom he could identify as Veerpal, Kalu,

Pammi, Bhura and Om Prakash, who had caught hold of his brother, Ved

Prakash, and were stabbing him with knives. During his testimony, the

PW1 identified Veerpal, Kalu and Pammi who were present in Court and

said that they were present at the time of incident. He further stated that

two persons were not present in Court, one of whom Omi @ Omkar had

his presence exempted and another Bhura @ Sumit was declared a

juvenile. He stated that all five of them were stabbing his brother with

knives and had held his neck with belt. He saw all of them in the light of

electricity as at the site the work of building construction were going on

and lights were on. He has stated that on hearing the shouts, his two

brothers Chet Ram and Mahendra (Mahendra stated to be not his real

brother but a family relation) came to the site and saw the incident as they

were returning after selling bricks in Greater Noida. When the PW1

shouted in order to save his brother, the accused persons threatened him.

Thereafter they ran away from the site in their Swift car and one Pulsar

motor bike and thereafter his brother died at the spot after much agony.

Thereafter PW1 came to the police station and lodged the report. He

identified his report Exhibit Ka-1. The PW1 further stated that the police

came along with him and took the corpse to Kailash Hospital in order to

maintain law and order. The inquest report was prepared at the hospital in

the presence of five witnesses. After seeing the record of the inquest, the

PW1 said that it is the same inquest report which was prepared in the

presence of five witnesses and the PW1 identified his signature thereon.

Thereafter the police sealed the corpse and took it for post-mortem. The

PW1 further stated that he had shown the site of incident to the police

officer who had questioned him and he had told them the truth.

24.In his cross-examination, the PW-1 stated that he was sitting at a

distance of 60 to 70 steps away from the site of incident in the office

regarding supply of building material. In that office the door is situated

outside and contains glass and the door was open at the time of incident.

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On the query made to him regarding non-mentioning of existence of light

in the FIR, the PW1 stated that at the time of lodging of the FIR he was

consumed with grief. He denied the suggestion that on the basis of legal

advice he stated in his testimony regarding presence of electric light. With

regard to non-mentioning in the FIR about the belt being used on the neck

of the deceased, the PW-1 stated that at that point of time he was

consumed with grief. He has stated that each of the five accused had

knives. He stated that Pammi had stabbed his brother twice and others

had stabbed his brother once each. He stated that other than his four

brothers there were some other people also. The PW-1 denied the

suggestion that he was not present at the site of the incident and that

therefore he could not save his brother. He stated that at the time of

making of the site plan by the Investigating Officer, he had pointed out

the electricity lights that were lit at the time of the incident. The PW-1 has

stated that there were three shops at a little distance from his brother's

shop and people from Bihar and Bengal who were mostly labourers used

to come and purchase items from his brother's shop.

He stated that he did not take his brother to the hospital because he

had already died. He further stated that he had no hope and, therefore, he

had not taken him to the hospital. He also stated that neither he nor any of

his other brothers touched or held the deceased. However, later he stated

that he had touched his brother to see whether he was breathing but his

brother was not breathing.

He denied the suggestion that due to dispute regarding money

transactions, people from Bihar and Bengal had murdered his brother. He

further denied the suggestion that he had falsely implicated the accused

on the basis of village partisan politics and enmity. The PW-1 stated that

the belt was held by two persons namely Om Pal and Bhura in one hand

each and in the other hand they held knives. He has stated that six injuries

were inflicted on his brother. He stated that perhaps one knife injury was

on the elbow, one on the upper arm, one of the abdomen and three to four

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knife wounds on the right side of his chest. He further stated that he could

not see who stabbed his brother on the elbow as he was at a little distance.

The PW1 has further stated that in his presence one knife was recovered

from the site which had fallen as the accused were running away and one

belt was also recovered. He identified Om Pal and Bhura as the accused

who fled on the motor bike and the rest of the accused had fled by car.

25.On 17.1.2014, the PW1 was recalled as witness on an application

made by the defense. The PW1 stated that he had two other brothers, Ved

Prakash and Chet Ram. Chet Ram was a witness in the case. It was stated

that the other witnesses of the case namely Devendra and Shahmal were

the cousins of the PW1. The PW1 and the aforesaid two other witnesses

stay in separate houses in the village and they work in different places.

They do agricultural work. The PW1 works in the field of supply of

building material. His father does agriculture work and dairy farming.

The PW1 denied having any license for his work for supply of building

material. The PW1 stated that his shop of building material is outside the

village and is situated on his farm. The name of his shop is Jai Durga

Material which is not registered. People engaged in construction used to

purchase material from his shop. He denied the suggestion that at the time

of the incident the PW1 had no work for supply of building material. He

has stated that his shop is situated towards the highway at a distance of

half to 3/4th kilometer. The PW1 further stated that from the site of the

incident his brother's shop was about 20 to 30 steps away in which he

used to run a grocery store. The shop was temporary, made from tin

sheets. He further stated that the shop of the deceased would be about 40

to 50 steps away from the building of Durga Green and that building was

on the same road on which the shop existed. The PW1 further stated that

when he heard shouts, he was in the office. The office is along side the

road in which there were one or two people. It was night time and other

people had gone away. He stated that the person of the office with whom

he had gone to meet was not present in the office but had gone to the

work site. He stated that around 8 p.m. he had gone to that office in his

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vehicle A-Star which was parked outside the office. He had gone to the

police station in that vehicle. He stated that when he had gone to the

office he had seen his brother Ved Prakash in his shop, no conversation

took place between them. One or two customers were standing in his

shop. The PW1 admitted that in the FIR he had not mentioned that he had

gone to the office of Green Durga to speak to the clerk. He stated that on

15.11.2023 there was an altercation between the accused Pammi and his

brother Ved Prakash at the shop of Ved Prakash and the PW1 was not

present at the spot when the altercation took place. He stated that Pammi

had a business of illicit liquor at that place which was being objected to

by his brother Ved Prakash. The PW1 had come to know about the

altercation about one or two hours after the altercation. He stated that he

did not mention about the altercation that occurred on 15.11.2012 because

the matter was settled in the village. The PW1 stated that after hearing the

shouts he had come out of the office and other people present in the office

also came out. When he came out of the office, his brother was at the

same spot where he was found dead. His brother was stabbed when he

was standing and even after he fell down he was stabbed. His brother was

being stabbed from the side and while standing he was being held from

all four sides. After he fell down he was stabbed twice or thrice with

knives. When his brother was being stabbed, the PW1 was standing

outside the office of the Durga Green about 30 to 40 steps away. When

the accused was stabbing his brother the Swift car and the Pulsar

motorbike were parked near the shop. The PW1 stated that he tried to

save his brother but the accused persons threatened him with knives. He

stated that he had shown the spot to the Investigating Officer where the

Pulsar motorbike and the Swift car were parked. The PW1 had showed

the Investigating Officer the site after preparation of the inquest report

and the Investigating Officer had gone to see the site after the postmortem

report. He stated that his mobile phone was discharged and therefore he

did not attempt to dial no. 100 for informing the police. He stated that his

servant was there at the site and he was sent home to inform about the

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incident and he alongwith his other brothers went to the police station to

lodge a report. He stated that they had reached the police station around

9:30 to 10:00 at night and the report was written at the police station. He

spent nearly one hour in the Police Station in writing the report. After

lodging the report, the PW1 went in the police vehicle to the spot of the

incident and thereafter were present along with the Investigating Officer

for one to one and half hours. Thereafter, along with the Investigating

Officer they took the corpse of the deceased to the hospital where they

reached about 12:30 at night. The PW1 stated that the Investigation

Officer had collected the soil etc. in the night itself after preparing the

inquest report which inquest report bears the signatures of the PW1. The

PW1 denied the suggestion that his brother (deceased) used to sell liquor.

He further denied the suggestion that his brother was killed by unknown

persons and he has filed a false report against the accused. He further

denied the suggestion that he was not present at the spot.

26.The testimony of the PW2, Balraj Singh who was posted as a clerk

on 16.11.2012 at the police station was recorded on 9.1.2014. He proved

the FIR Exhibit Ka-2. He proved the entries made in the general diary. He

denied the suggestion that the report was ante-time.

27.The testimony of Mahendra, PW3, an eye witness, was first

recorded on 9.1.2014. He stated that his occupation is dairy milk

business. He stated that on 6.11.2012 at 8:30 PM when he was returning

with Chet Ram then when they went towards their village from

Chuhadpur underpass at that time the accused were stabbing the deceased

with knives. He identified Veerpal, Kalu, Pammi, Bhura and Om Pal @

Om Kumar as the accused. He stated that he knew them as they belong to

his village and in the village Kalu is known as Balraj and the Pammi is

also known as Ram Avatar. He stated that all the accused were stabbing

the deceased with knives and the time of the incident was 8:30 PM. The

PW3 stated that he saw the incident as there were electricity lights on the

highway. He stated that in view of the shouting Ved Pal, Devendra and

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Shahmal had come to the spot and he saw the accused stabbing Ved

Prakash with knives and thereafter they went to lodge the report. He

stated that they shouted at the accused then the accused threatened them

that whatever had happened to the deceased would happen to them and

threatened them with knives and thereafter, all the accused fled away in

motor bike and car. The PW3 stated that he along with Ved Pal, Shah Mal

and Chet Ram gone to the police station where they had lodged the

report.

28.In his cross-examination, the PW3 stated that his occupation is

selling dairy milk. He collects the milk from his village and sells them in

Noida and Greater Noida. He named the places where he distributes

milk. He stated that he leaves his house at 5:30 in the evening to

distribute the milk. His village is one kilometer away from the underpass

and from this underpass the site of the incident would be about 20 to 30

steps away. He stated that after distributing the milk he returned via the

underpass and not over it. He stated that he had seen the incident after

crossing the underpass. He stated that his statement was recorded by the

Investigating Officer on 15.12.2012. He stated that the deceased Ved

Prakash as well as Ved Pal were like brothers to him. At the time of

writing the report he came to know that he would be called as witness. He

stated that he had gone on his motor bike to the police station and Ved Pal

has gone to the police station on his car along with Devendra, Shah Mal

and Chet Ram. He stated that the site of the incident was four to five

Kilometers away from the police station and the report had been written

sitting outside the police station. To write the complaint, paper from the

car was taken. He further stated that the complaint was written in the park

within the boundary of the police station. He stated that he had first seen

the accused from a distance of 10 to 15 steps and at that time he had

crossed the underpass. The accused had surrounded the deceased. The

PW3 stated that after the accused had left, he did not go to see the

deceased that whether he had died or alive, it was Ved Pal who had gone

to see the deceased who had shaken the body of the deceased. He denied

16

the suggestion that the deceased was taken to the hospital in an injured

state. He stated that it was he who had first seen the accused stabbing the

deceased and Ved Pal and others had come later. He stated that Ved Pal

and others had come from the side of the village. He stated that the Ved

Pal and others were standing on the side of the village around 20 to 25

steps away. He stated that when he and Ved Pal and others tried to save

the deceased, the accused threatened them with knives. He stated that the

electric lights were on the highway. The weather was cold but there was

no fog. He denied the suggestion that the incident had not taken place in

front of him and he also denied that he was giving a false statement.

29.When the cross-examination of the PW3 was again held on

15.10.2015, that is, after more than one year and nine months from the

date of his first initial testimony, he turned hostile. He stated that dispute

between the deceased and the accused was not so big due to which

someone could murder somebody else. He stated that near the grocery

shop of the Ved Prakash, Bengalis, Biharis and Nigerians used to stay.

These people used to purchase items from the shop of the deceased. He

stated that the deceased used to sell country liquor from his shop which

used to be purchased by the aforesaid people. This shop used to remain

open till 11 PM at night. People used to drink liquor at the shop itself. He

stated that near the shop there is a small boundary wall having iron grille

which look like knives. There used to be fights at the shop on drinking

liquor. People used to drink liquor in the open space which was objected

by the deceased and then they used to fight with him. The PW3 along

with Chet Ram and Shahmal used to come after selling milk and stop for

sometime at the shop and the deceased had informed them that there used

to be fights between him and Bengalis and Biharis over drinking and

information was given to the police on several occasions. The police used

to catch them and take them to the police station. He stated that near the

shop of the deceased, mostly Nigerians used to stay in apartments. He

stated on the basis of hearsay that the Nigerian people had earlier taken

away an auto driver and stabbed him to death. He further stated that there

17

was a Government liquor shop in his village but these people did not

purchase liquor from there as it was expensive and therefore they used to

purchase liquor from the shop of Ved Prakash. He stated that there was

once a fight and many people including the PW3 were called to the place

by Ved Prakash, the deceased, and they had beaten the people who were

creating nuisance. This incident had taken place about 8 to 10 days prior

to 16.11.2012. The PW3 stated that the deceased had told him that the

people with whom they had fought, used to move around his shop. He

stated that when he reached the site of the incident, Ved Prakash was

lying dead. He stated that this testimony is correct and the testimony that

he has given earlier was under pressure. He stated that his first testimony

was dictated to him by Advocate and thereafter he had given testimony.

He stated that he had not seen the accused stabbing the deceased. In the

cross-examination of PW3 done by the ADGC (Criminal), the PW3

admitted that his testimony was recorded on 9.1.2014 in which he had

also been cross-examined by the accused. He denied the suggestion that

he was giving his testimony in view of the settlement before the

Panchayat only in order to save the accused who were of the same caste.

He also denied any pressure or threat or any inducement.

30.The PW4 was Dr. Sant Ram Verma, Senior Physician, District

Hospital Gautam Budh Nagar who had performed the postmortem

examination of the deceased. He proved the postmortem report and stated

that during the postmortem examination six incised wounds were found

on the deceased. He stated that the injuries was possibly caused by a

sharp weapon which could also be a knife.

In his cross examination, he denied suggestion that as far as wound

no.1 is concerned, he had not written lacerated wound. He further stated

that he had not mentioned the state of the edges of any of the wounds. On

the suggestion being put to him, he admitted that the deceased did not

have any injuries caused by stab wounds.

18

31.The testimony of another eye witness Chet Ram, who was the PW5

was recorded on 24.2.2015 who turned hostile. He stated that on the date

of the incident he and Mahendra had returned after distributing milk. He

had not seen the accused at the site nor he had heard the shouts or seen

anything. He stated that he had not seen accused running away on a Swift

car or on motor bike. In his cross-examination by ADGC, the PW5 stated

that he returned by 7 to 7:30 PM after supplying milk. He admitted Ved

Pal's brother Ved Prakash was murdered. However, he denied having seen

the accused beating or stabbing the deceased and that he had heard the

shouts. He further admitted that the accused Veerpal is referred by him as

uncle, being resident of the same village.

32.The PW6, Anang Pal Singh, was Sub-Inspector of police who

proved, inter alia, the inquest report and the recovery memo. He stated

that after the written complaint of Ved Pal (complainant) was registered,

he visited the spot of the incident along with the SHO, Shyam Kant

Tripathi. The SHO had sent the corpse of the deceased to Kailash

Hospital and had directed him to prepare the inquest. The proceedings for

inquest was started at Kailash Hospital. He stated that the inquest

proceedings started at 11:30 at night and concluded at 2 AM on

17.12.2012. He also proved the letter sent to the Chief Medical Officer in

Form No. 13, the photographs of the corpse and sample seal. He stated

that on 19.12.2012, the accused Veerpal and Kalu were arrested by the

SHO who questioned them. After questioning, the two accused were

taken to Chuhadpur underpass on the official vehicle and Veerpal pointed

out the knife which was recovered from behind the shop. Another knife

was recovered on the pointing out by Kalu from the bushes on the other

side of the shop. The accused admitted that they had murdered the

deceased Ved Prakash using those knives. Both the knives were taken in

possession and sealed. The memo was written by the PW6 on the

dictation by the SHO. The police team and the accused were read out the

19

memo and they were asked to sign on that. The accused were also given a

copy of the same.

It was further stated that on 20.11.2012, the PW6 along with the

SHO had arrested the accused Pammi from Kasna Bus Stand. On

questioning he informed that the deceased Ved Prakash used to tease girls

and he was warned many times. Pammi stated that on 16.11.2012 after it

was dark, he and his cousin Om along with his father Veerpal and others

went to a building under construction near Chuhadpur and there we

murdered Ved Prakash by stabbing him with knives and escaped on

vehicles. He said that he buried his knife near a tube-well room. Witness

from the public was sought but was not found. Thereafter, Pammi asked

the vehicle to be stopped at the location and walked to the rear side of the

room of the tube-well and dug the soil with his hands and took out a knife

which was stained with blood. The recovered knife was taken in

possession and duly sealed. On the dictation of the SHO, the memo was

prepared by the PW6 and thereafter it was read out to the accused Pammi

and police personnel signed it. This recovery memo Ka-9 was proved by

him. A copy of the recovery memo was given to the accused Pammi and

he signed on it.

The PW6 further stated that on 2.12.2012 he and the SHO got

information about a murder accused being near a temple in Kasna and

around 10:15 AM, he was surrounded and apprehended. The accused

identified himself as Om Kumar @ Omi. The accused admitted that he

along with Pammi, Bhura, Veerpal and Kalu murdered Ved Prakash with

knives and after murdering him they ran away. On his pointing out a knife

was recovered from bushes in the underpass towards Chuhadpur ATS.

The knife was caked with soil and blood and on the dictation of the SHO,

the PW6 wrote the memo. The PW6 proved the recovery memo and it

was exhibited as Ka-10. The accused was given a copy of the recovery

memo and he signed on it.

20

During testimony of PW-6, one sealed package bearing stamp

containing the recovered items was opened with the permission of the

court, on which a slip of the Legal Forensic Laboratory, Uttar Pradesh

was affixed. The PW6 identified the five knives which were recovered on

the pointing out of the accused. All the recovered items were proved and

exhibited.

In his cross examination, the PW6 stated that the investigation was

given to Shri Shyama Kant Tripathi (SHO). The PW6 was called shortly

after lodging of the FIR. They left the police station after 10 to 11

minutes alongwith Vedpal, brother of the deceased. He could not

remember whether there were other persons alongwith Vedpal. When they

reached the site of incident by 11-11:15 P.M., there was a crowd of people

at the site, whom he could not name. The items recovered from the body

of the deceased was sealed by him. The places from where the weapons

of murder were recovered were thoroughfares. He had asked persons who

were passing that place to bear witness but they declined and did not give

their names and addresses. He did not recollect whether before recovery

of murder weapons they had frisked each other or not. He thereafter said

that frisking was done. The weapons were sealed at the spot itself. He

denied that the recovery memo and inquest report were not prepared at

the spot but were prepared at the Police Station. He denied that the

weapons of murder were not recovered from the accused and were from

the Police Station, and that he had not prepared the memo at the site. Due

to a crowd of people and being dark and for want of adequate light, the

SHO got the corpse of the deceased sent from the site to Kailash Hospital

Greater Noida where the inquest was prepared. He admitted that due to

crowd and less light (darkness) the inquest proceedings could not be done

at the site. The witnesses of the inquest reached the hospital directly from

the village. Several people from the village had reached Kailash Hospital.

He denied that the recovery of murder weapons and the inquest report and

other proceedings were not done at the site but at the Police Station, and

21

that they were wrongly done. He denied the suggestion that the recovery

memos were not made by SHO but made by him.

33.On 10.3.2015, the testimony of PW7 Devendra s/o Buddhan Singh

(eye witness) was also recorded who turned hostile. He identified the

accused who were stated to be residents of his village. The complainant

Vedpal was stated to be resident of same village. Deceased Ved Prakash

was his cousin. He admitted having reached near Chuhadpur underpass

on the date and time of the incident. He denied hearing Kalu’s (alias of

the deceased) shouts for help. Many people had congregated there. He

denied having seen Veerpal, Kalu, Pammi alias Ram Autar, Bhura alias

Sumit, or any other persons murder Ved Prakash with knives and belt on

the vacant land near the shop.

He denied that there was any altercation in the village between the

accused and the deceased. He, however, admitted having seen the dead

body of the Ved Prakash covered in blood lying on the open land near

Chuhadpur underpass.

In his cross-examination by the ADGC, the PW7 admitted that the

deceased Ved Prakash is the son of his uncle (Chacha). He stated that the

Veerpal and others (the accused) being members of the village were like

brothers to him but they were separate from his family. He denied that

while returning from his office he had stopped near Chuhadpur underpass

on hearing shouts for help from Ved Prakash, and that the accused were

stabbing Ved Prakash and beating him with belt. He denied that they

killed Ved Prakash and ran away. He admitted having seen Ved Prakash

covered with blood. He denied that on 15.11.2012 there was an

altercation in the village between Ved Prakash and the sons of Veerpal.

He stated that Mahendra (brother of complainant) is the son of his uncle.

He denied having seen and recognized the accused persons in electric

light. He admitted that the police personal had questioned him regarding

the incident. With respect to the statement made under Section 161

Cr.P.C. before the police, the PW7 stated that he had not told the

22

Investigating Officer that on the date of the incident he had seen accused

assaulting the deceased Ved Prakash with knives and belt. He denied the

suggestion of any covert agreement with the family members of the

accused Veerpal and others. He further denied that he was afraid of

Veerpal and others and therefore, he is not telling the truth. In his cross-

examination by counsel for the accused, the PW7 stated that when he

reached the site many people were present over there. He stated that he

did not know the names of the other persons. He admitted that when he

reached the site, it was quite dark.

34.On 14.12.2015, the PW8, Shahmal son of Bachan Singh, whose

occupation was stated to be welding material work, testified that he knew

Ved Prakash. He was murdered on 16.11.2012. He knew the accused who

were residents of Chuhadpur. On 15.11.2012 there was no altercation

between the deceased and the accused. On 16.11.2012 at night around

8:30 he had not heard the shouts of Ved Prakash. He denied having seen

the accused assaulting the deceased with knives and belt and running

away from the vacant land near the shop.

He was cross-examined by ADGC (Criminal). The statement under

Section 161 Cr.P.C. was read out to the witness. He said that neither

police took his statement nor did he give it. He denied the suggestion that

on 16.11.2012 at 8:30 at night when Ved Prakash was murdered, he was

present there. It is denied that he reached the site on hearing the cries for

help from Ved Prakash. He denied having seen the accused assaulting Ved

Prakash with knives and belt. He denied that at the site of the incident

there were electricity lights and that in that light he had seen the accused

present in court assault the deceased Ved Prakash with knives and belt

and they ran away after committing the crime. He admitted having gone

with Vedpal to the police station to lodge a report and the report was

lodged in his presence. He admitted that the accused and he are of the

same caste and village. He denied that the accused are of the same

brotherhood, neighbours and under pressure of the panchayat held in the

23

village, he was defending the accused. He admitted that the accused

Veerpal and others were like brothers to him, being of the same village. It

was denied that due to fear, pressure and allurement by the accused he

was not telling the true facts.

In cross-examination by counsel of the accused, the PW8 stated

that he has work of ‘building material’, his office is near Amrapali

building from where he carries on business. His office is around 300

meters away from the incident site. The deceased Ved Prakash had a

grocery shop where he sold country made liquor of Haryana. He also

used to sell eggs, etc. Some Nigerians, Biharis and Bengalis used to live

near the shop of the deceased Ved Prakash, and used to drink liquor at his

shop which used to remain open till 11-12 at night. Ved Prakash used to

have fights with them over liquor etc. About 4-5 days prior to the

incident, there was a fight with Nigerians, Biharis and Bengalis in which

15-20 persons were called from the village of Ved Prakash to beat them

up. At the time of that incident, the police had come to the shop. In that

fight there was a lot of altercation between the police and Veerpal, Pammi

and Balraj, who prevented Ved Prakash (the deceased) from being taken

away by the police to the police station. 2-3 days after that incident Ved

Prakash had told him that ever since the day of the fight, the Nigerians,

Bengalis and Biharis were on the look-out to kill him and used to keep

standing near to his shop till late. He stated that at the time of the

incident, he reached the spot first. The deceased Ved Prakash was hanging

from the top of the 2-3 feet high knife-like grille that was fixed in the

open land near his shop and the knife-like grille was embedded in his side

and arms. Then with the help of the people there, he had taken down the

deceased from the railing and laid him down. By then Ved Prakash had

died and there was no light at the spot. He stated that he had given

information of the incident to Chetram, Mahendra, Devendra and Ved Pal.

They reached the spot half an hour after the information. Thereafter, they

informed the police. He stated that they had asked that the FIR be written

against unknown persons but the police forced them to name Veerpal and

24

others in the report because 2-3 days prior to the incident there was a lot

of altercation between Veerpal and the police. They had told the police

about the fight incident 3-4 days ago with Nigerians and others. However,

they were told that these people are foreigners from outside so the case

would be spoiled and therefore their names were not written and names of

the villagers were written. He said that they were so horrified by the

incident that they did not have mental balance. He stated that he had

spoken to Ved Pal who had given the first testimony and had asked him

how had he given such a testimony. Ved Pal said that under pressure from

the police, he had given false testimony and if the court calls him again,

he would tell the truth.

35.On 11.2.2016 the testimony of PW9, Shyama Kant Tripathi

(Investigating Officer), took place who testified that on 16.11.2012 he

was posted as Inspector Incharge P.S. Kasna.

An FIR was registered on that very night at 10:30 p.m. and after

recording the statement of Vedpal, he reached the site of the murder

alongwith police force. On 17.11.2012, the S.I. Anang Pal Singh was sent

to Kailash Hospital for carrying out inquest of the body of the deceased.

The statement of the eye-witnesses Devendra and Shahmal were recorded

and thereafter a copy of the inquest report and the incident site were

inspected. After copying the memo of recovery of blood-stained soil and

plain soil, the accused were searched for and on 20.11.2012, the accused

Pammi @ Ram Autar was arrested from near the bus stand Kasna. He

was questioned and his statement was recorded in which he voluntarily

confessed to the crime and, on whose pointing out, a murder weapon was

recovered behind a water tank which was blood stained and which was

taken in possession and a plan was prepared at the site. The recovery

memo of the murder weapon was prepared at the site which is Exhibit

Ka-9. He also proved the site plan of the murder which was in his own

hand and signature and on which Exhibit Ka-11 was put. He also proved

the site plan of the recovery of the murder weapon on the pointing out of

25

Pammi as Exhibit Ka-12. He stated that the statement of the witness

Chetram was recorded on 26.11.2012. On 02.12.2012, on information

received from an informant, the accused Omi was arrested around 10:15

a.m. from near Kasna Bridge, who confessed his crime and also pointed

out the murder weapon which was recovered from bushes in the green

belt adjoining ATS near Chuhadpur underpass. The recovery memo was

dictated to S.I. Anang Pal Singh. The murder weapon was sealed and the

memo was proved as Exhibit Ka-10. The site plan of the recovery was

proved as Exhibit Ka-13. The P.W.-9 further stated that the statement of

another eye-witness Mahendra Singh was recorded on 05.12.2012

whereafter the statements of the witnesses to the inquest report were

recorded alongwith the statement of witnesses to the memo. On

07.12.2012, surrender of accused Veerpal, Kalu @ Balraj took place. On

12.12.2012, the accused Bhura @ Sumit was arrested. The statements of

the accused Veerpal, Kalu @ Balraj and Bhura @ Sumit were recorded in

the District Jail, Ghazipur on 13.12.2012 after obtaining the permission of

the court. On 19.12.2012, a murder weapon was recovered on the

pointing out of the accused Veerpal from near a tyre puncture shop which

was taken possession of and sealed. On the pointing out of the accused

Kalu @ Balraj, another murder weapon was recovered. Both weapons of

murder were taken possession of and the memo was dictated to the S.I.

Anang Pal Singh. The accompanying police personnel signed on the

memo as witnesses whereafter the accused were given a copy thereof and

made to sign. The P.W.-9 also proved the recovery of knife on the

pointing out of the accused Sumit @ Bhura on 23.12.2012 and the memo

of recovery was dictated to the S.I. Anang Pal, a copy of which was given

to the accused Sumit after obtaining his signature. The site plan of the

recovery was also prepared which was proved and marked as Exhibit Ka-

16. The statements of the witnesses and the recovery memo were also

taken and a charge-sheet was filed against the accused on 30.12.2012. He

stated that the recovered murder weapons and blood stained soil and

ordinary soil were sent through a constable to the Forensic Laboratory,

26

Agra which, as per the report dated 30.01.2014 made on the back side of

the document 30Kha/2, was not received till then.

In his cross-examination, he denied having knowledge of the

persons who had gone alongwith Vedpal to the police station to give

information on 16.11.2012. The report was written in police station at

10:30 p.m. He stated that with regard to the incident on 15.11.2012

regarding an altercation, no complaint or information was given. From

the police station, he left for the incident site at 11:00 p.m. and reached

there at 11:30 p.m. which site was at a distance of 4 to 5 kms. from the

police station. He had gone to the site in the government vehicle

alongwith 4 to 5 people including the Sub-Inspector Anang Pal and Sub-

Inspector Veer Singh. He stated that Vedpal and others had gone

alongwith him in their own vehicle. He stated that when he reached the

incident site, Ved Prakash had already died. He could not remember what

all things were present at the site. He admitted that at the site of the

incident, several people were present. He could not name any person

present. He stated that at that point of time, there was a light from high-

mast of the expressway and when he reached the site none of the shops

nearby were open. He could not recollect in which direction the corpse of

the deceased was aligned. He could not recollect that at the time of the

incident, whether the dead body was lying facing up or down. He stated

that at the site he met Shahmal and others. He had sent the dead body

from the site to Kailash Hospital. Alongwith the corpse, the other police

personnel had also gone. He further stated that when he reached the site

of the incident, the shop of Ved Prakash was closed. The inquest was not

done at the site but at the Hospital. The memo was prepared at the

Hospital and not at the site. He stated that to maintain law and order, the

corpse of the deceased was sent to the Hospital. Therefore, the inquest

was prepared in the Hospital. He further stated that the eye-witnesses of

the incident namely Vedpal, Devendra, Mahendra and others were also

present. He denied having knowledge of names of people residing near

the site of the incident. He admitted that many people stayed there.

27

During the period of his posting in the area of Police Station, there were

many incidents of murder. He denied having memory of any incident

prior to the incident in question involving Nigerians, Bengalis, Biharis

and others. When questioned about the motorcycle and the Swift car

mentioned in the FIR, the P.W.-9 stated that he would have to look into

the Case Diary in respect of their registration numbers. He denied the

suggestion that the recovery made by him from the accused was made in

a wrong manner and in the police station. He also denied the suggestion

that the death of the deceased Ved Prakash occurred in the fight with

Nigerians and others and that since they were foreigners, the P.W.-9 had

set up a false case. He further denied the suggestion that the deceased Ved

Prakash had a fight with Nigerians, Biharis and Bengalis 2-3 days prior to

the incident and that he had knowledge of the incident. He also denied the

suggestion that he did not take information at the site or from the people

nearby. He further denied the suggestion that the wounds on the body of

the deceased Ved Prakash occurred from the knifed shaped grille at the

site.

36.In the statement made by the accused Veerpal under Section 313

Cr.P.C. on 20.05.2016, he denied having murdered the deceased and

alleged that a false FIR was lodged against him and that a false testimony

has given against him due to party politics and enmity in the village. The

statement under Section 313 Cr.P.C. was also given by Pammi @ Ram

Autar on 20.05.2015 on the same lines, and also by Om Kumar @ Omi

and Kalu @ Balraj.

37. The P.W.-1, the brother of the deceased, testified on 20.11.2013 and

again on 17.01.2014, when he was recalled on an application filed by the

defence. He has stated that all the people and his brothers had gone to the

police station to lodge the FIR which took about one hour. The P.W.-1,

who is the complainant and eye-witness of the alleged incident, has

remained largely consistent in his testimony regarding the place and time

of the incident and the participation of the accused. His presence near the

28

site of the incident at the stated time, at first blush, appears to be natural

as he states himself to be engaged in the business of supply of building

material and he had gone to the office concerned in his car ‘A-Star’ to

talk to the person in the office of the building under construction.

However, the P.W.-3, Mahendra, in his testimony, held on 09.01.2014,

though has supported the prosecution, but in his cross-examination, he

states that it was he who had first seen the accused attacking the deceased

and the complainant Vedpal and others had come later and he further

states that Vedpal and others had come from the side of the village and

that they were standing at a distance of 20-25 steps towards the village of

the deceased. Thus, there is glaring inconsistency in the statement made

by the P.W.-1 and P.W.-3 regarding who witnessed the incident first and

the location of the P.W.-1 at the time of the incident.

On 15.10.2015 the P.W.-3 turned hostile and said that there were

serious altercations and fights between the deceased and Bengalis, Biharis

and Nigerians.

There is another aspect of the matter. The conduct of the PW 1 does

not seem to be natural, but rather, awkward. In that FIR lodged by him, he

states that the accused persons came and attacked his brother with knives

and belts because of which his brother fell at the site. However, in his

testimony before the court, he states that his brother died at the site in

agony and thereafter he had gone to the police station to lodge a report.

He further stated that he did not take his brother to the hospital because

he was already dead and that he had no hopes left for his survival but

neither he nor his brothers touched or held him thereafter. Subsequently,

the PW-1 states that he touched his brother to see whether he was

breathing but he was not breathing. He further states that there was a

servant with him whom he sent home to inform about the incident then he

and his brothers and others went to the police station to lodge a report. He

states that nearly one hour was spent in the police station in writing the

29

report. Under the circumstances, the unnatural conduct of the P.W.-1 is

reflected in the fact that:

(a) In the FIR, he does not mention about the death of his

brother despite the fact that quite some time was spent by him at

the site of the incident and he gave orders to the servant to go home

and inform the others and thereafter he went alongwith the brothers

and others to the police station where he waited for an hour to

lodge the report.

(b)Further, the fact that he left no one at the site, that is

not even his servant, when evidently there were several people

around that place is unnatural.

(c)The fact that he did not think of taking his brother to

the hospital with the help of others despite having a car at his

disposal is unnatural.

Recently, a three Judge Bench of the Supreme Court in the case of

Narendrasinh Keshubhai Zala vs. State of Gujarat

7

on the issue of

unnatural conduct and unexplained circumstances being a ground for

disbelieving the witness, observed as follows:-

'8. It is a settled principle of law that doubt cannot replace proof.

Suspicion, howsoever great it may be, is no substitute of proof in

criminal jurisprudence [Jagga Singh v. State of Punjab, 1994 Supp (3)

SCC 463]. Only such evidence is admissible and acceptable as is

permissible in accordance with law. In the case of a sole eye witness,

the witness has to be reliable, trustworthy, his testimony worthy of

credence and the case proven beyond reasonable doubt. Unnatural

conduct and unexplained circumstances can be a ground for

disbelieving the witness. This Court in the case of Anil Phukan v. State

of Assam, (1993) 3 SCC 282 has held that:

“3. … So long as the single eyewitness is a wholly reliable

witness the courts have no difficulty in basing conviction on his

testimony alone. However, where the single eyewitness is not

found to be a wholly reliable witness, in the sense that there are

some circumstances which may show that he could have an

interest in the prosecution, then the courts generally insist upon

some independent corroboration of his testimony, in material

particulars, before recording conviction. It is only when the

courts find that the single eyewitness is a wholly unreliable

witness that his testimony is discarded in toto and no amount of

corroboration can cure that defect…”

72023 SCC OnLine SC 284

30

In that case, the Supreme Court further observed as follows:-

“11.Further, his credit stands impeached in the cross- examination

part of his testimony. The witness is an adult, mature and worldly wise.

He is aged 24 years and runs a grocery shop. He is not illiterate, yet he

chose to not take any action, even to save the life of his friend. His

explanation that he went home and slept is uninspiring in confidence

for the incident took place in his presence and in close proximity of

habitation, more specifically at a short distance i.e. just 3-4 minutes of

walking distance from the Police Headquarters where constables are

posted around the clock. He left his friend profusely bleeding on the

spot but did not seek any help and immediately did not report the

incident to the family members of the deceased whose house he visited

only the following day at around 8:00 – 9:00AM. His conduct of going

off to sleep, having seen his friend being murdered right before his eyes

and then not visiting the hospital forthwith is quite unnatural. Also he

did not inform the incident to his parents. It was only when the police

interrogated him that he named the accused. His testimony is not free

from embellishments, nor is not corroborated by any other evidence.

Also, he admits not to have any information of any monetary

transactions between the accused and the deceased.

12. This Court on multiple occasions has held that it is not the quantity

but the quality of witnesses and evidence that can either make or break

the case of the prosecution. It is the duty of the prosecution to prove

that the testimonies of the witnesses that it seeks to rely upon are of

sterling quality, i.e. fully trustworthy and absolutely free from any kind

of blemish. [Prahlad v. State of M.P. (supra); Amrik Singh v. State of

Punjab, (2022) 9 SCC 402; Pramila v. State of U.P., (2021) 12 SCC

550; Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130]”

38.On 25.02.2015, Chetram, the brother of the P.W.-1, who testified as

P.W.-5 turned hostile. However, he admits that Ved Prakash was

murdered. No other details regarding any altercations with Nigerians, etc.

have been disclosed by him.

39.In his testimony on 10.03.2015, the eye-witness, Devendra (P.W.-7)

turned hostile but he admits that the deceased Ved Prakash was seen by

him lying in the open land near Chuhadpur underpass covered with blood.

He denied the suggestion in his cross-examination by the ADGC

(Criminal) that he is not stating the correct facts, and that he was

persuaded by some incentive offered on behalf of the accused. The P.W.-7

also did not disclose any previous altercation of the deceased with

Nigerians and others.

31

40.As far as P.W.-8, Shahmal, is concerned, in his testimony on

14.12.2015, he turned hostile. In the cross-examination by the ADGC

(Criminal), he however admitted that when he reached near the deceased,

the deceased had already died and was covered with blood. He denied the

suggestion that the accused being of the same village and brotherhood

and neighbours, he is defending them due to pressure exerted by the

Panchayat held in the village. He further denied the suggestion that he

was giving his testimony out of fear, pressure or some incentive.

In his cross-examination on behalf of the defence, he refers to

Bengalis, Biharis and Nigerians drinking liquor at the shop of the

deceased Ved Prakash and the occasional altercation with the deceased.

He stated that 4-5 days earlier, there was a serious fight in which several

persons from his village were called, and that police had come and they

had prevented the police from taking Ved Prakash (the deceased) to the

police station and since then the Nigerians, Bengalis and Biharis were on

the lookout for murdering the deceased. He claims to have reached the

site of the incident first and that he had found the deceased hanging from

the railing (grille) that was 2-3 feet high on which the knife-like railings

had pierced a side of his body. He further states that with the help of

others, he had removed the body of the deceased Ved Prakash from the

railing and laid him down but till then Ved Prakash had died and

thereafter he informed the complainant and Chetram, Mahendra and

Devendra who reached the site after half and hour of the incident. He

blamed the police for not naming the foreigners in the FIR.

41.It is important to note here that in his cross examination, the PW-4,

who was the doctor who conducted the postmortem, denied the

suggestion that he had not mentioned lacerated wound as far as the injury

no.1 is concerned. He further admitted that the injuries of the diseased

were not stab wounds. Therefore, this testimony of PW-4 in conjunction

with the testimony of PW-8, who had stated that he had found the

diseased hanging from the railing (grille), on which knife shape railing

32

pierced a side of his body, does create a doubt as to the cause of

injuries/wounds on the deceased.

42.It is pertinent to note that in the cross examination of the PW-1 on

his recall, he stated that when he had gone to the office of Durga Green,

he had seen his brother in his shop and one or two customers were

standing in his shop. However, in his cross examination, the PW-9 who

was the I.O. has stated that when he reached the site of the incident after

lodging of the FIR, the shop of the deceased was closed. The time of the

incident is 8.30 pm and the shop of the deceased was stated to remain

open till 11 pm. Therefore, it cannot be denied that after the alleged time

of the incident, the place around the site was apparently not untouched till

the police arrived.

43.It is important to mention here that the Investigating Officer PW-9,

Shyama Kant Tripathi testified that when he reached the site of incident

after the FIR was lodged, the deceased Ved Prakash had already died. He

admits that at the site of incident, there was a crowd of people present and

there was some light from the high-mast on the expressway. He stated

that keeping in view the law and order situation, the body of the deceased

was sent to the Hospital where inquest report was made. As far as the

alleged vehicle used by the accused, PW-9 stated that he could inform

their registration numbers after seeing the case diary. However, there is

no recovery memo of the two vehicles, that is a Swift car and a motor

cycle, allegedly used by the accused for reaching and leaving the site of

the crime. Further, there is no recovery shown of the belt and knife

allegedly used for murder of the deceased near the site of the incident,

which as stated by the PW-1, had fallen at the site of the incident as the

accused were running away. Thus there is glaring inconsistency in the

testimonies in this regard made by the PW-1 and the PW-9. PW-9 denied

the suggestion that death of the deceased took place as a result of fight

with Bengalis, Nigerians or Beharis and that they being foreigners, he had

written a false case. He further denied the suggestion that 2-3 days prior

33

to the incident, the deceased Ved Prakash had fight with the Nigerians,

Bengalis or Beharis and that he had knowledge of the incident. He denied

the suggestion that he did not make inquiry from the people nearby the

incident. He further denied that the deceased died due to injuries caused

as a result of knife shape grille present at the site.

44.With regard to the judgement cited by the learned counsel for the

appellants regarding recovery of alleged weapons of murder on the

pointing out of the accused are concerned, Section 27 of the Indian

Evidence Act has been considered at length by the Supreme Court in the

case of Ramanand @ Nandlal Bharti (supra), in which the Supreme

Court observed as follows:

“53. If, it is say of the investigating officer that the accused appellant

while in custody on his own free will and volition made a statement

that he would lead t the place where he had hidden the weapon of

offence along with his blood stained clothes then the first thing that

the investigating officer should have done was to call for two

independent witnesses at the police station itself. Once the two

independent witnesses arrive at the police station thereafter in

their presence the accused should be asked to make an appropriate

statement as he may desire in regard to pointing out the place

where he is said to have hidden the weapon of offence. When the

accused while in custody makes such statement before the two

independent witnesses (panch witnesses) the exact statement or

rather the exact words uttered by the accused should be

incorporated in the first part of the panchnama that the

investigating officer may draw in accordance with law. This first

part of the panchnama for the purpose of Section 27 of the

Evidence Act is always drawn at the police station in the presence

of the independent witnesses so as to lend credence that a

particular statement was made by the accused expressing his

willingness on his own free will and volition to point out the place

where the weapon of offence or any other article used in the

commission of the offence had been hidden. Once the first part of

the panchnama is complected thereafter the police party along

with the accused and the two independent witnesses ( panch

witnesses) would proceed to the particular place as may be led by

the accused. If from that particular place anything like the weapon

of offence or blood stained clothes or any other article is discovered

then that part of the entire process would form the second part of

the panchnama. This is how the law expects the investigating officer

to draw the discovery panchnama as contemplated under Section 27 of

the Evidence Act. If we read the entire oral evidence of the

investigating officer then it is clear that the same is deficient in all the

aforesaid relevant aspects of the matter.

………

56. The requirement of law that needs to be fulfilled before accepting

34

the evidence of discovery is that by proving the contents of the

panchnama. The investigating officer in his deposition is obliged in

law to prove the contents of the panchnama and it is only if the

investigating officer has successfully proved the contents of the

discovery panchnama in accordance with law, then in that case the

prosecution may be justified in relying upon such evidence and the trial

court may also accept the evidence. In the present case, what we have

noticed from the oral evidence of the investigating officer, PW-7,

Yogendra Singh is that he has not proved the contents of the discovery

panchanama and all that he has deposed is that as the accused

expressed his willingness to point out the weapon of offence the same

was discovered under a panchanama. We have minutely gone through

this part of the evidence of the investigating office and are convinced

that by no stretch of imagination it could be said that the investigating

officer has proved the contents of the discovery of panchnama (Exh.5).

There is a reason why we are laying emphasis on proving the contents

of the panchnama at the end of the investigating officer, more

particularly when the independent panch witnesses though examined

yet have not said a word about such discovery or turned hostile and

have not supported the prosecution. In order to enable the Court to

safely rely upon the evidence of the investigating officer, it is

necessary that the exact words attributed to an accused, as

statement made by him be brought on record and for this purpose

the investigating officer is obliged to depose in his evidence the

exact statement and not by merely saying that a discovery

panchnama of weapon of offence was drawn as the accused was

willing to take it out from a particular place.”

(emphasis supplied)

45.A perusal of the testimony of PW-9 and Anang Pal Singh PW-6

reveal that mandate of the Supreme Court in the aforesaid case of

Ramanand alias Nandlal Bharti has not been complied with. No

independent witnesses were called to the police station by the

Investigating Officer prior to setting out of recovery of alleged weapons

of murder. Moreover, in the testimony of PW-9, the words spoken by the

accused leading to the recovery of weapon of murder have not been

stated.

46.There are four recovery memos pertaining to alleged recovery of

knives allegedly used for murder of the deceased. They are Exhibits Ka-8,

Ka-9, Ka-10 and Ka-15. The Exhibit Ka-8 is the recovery memo dated

19.12.2012, which narrates that the SHO alongwith a Sub-Inspector, a

Head Constable and three other Constables, went on the government

vehicle to recover two murder weapons on the pointing out of the accused

35

Veerpal and Kalu @ Balraj. The recovered knives were stated to be taken

possession at 6:25 a.m. and 6: 30 a.m. which were sealed separately.

Exhibit Ka-9 is the recovery memo dated 20.11.2012, which

reflects that the SHO alongwith a Sub-Inspector and three Constables,

departed the police station at 5:45 a.m. for investigation during which

they received information that one accused, namely, Pammi was

preparing to leave and was standing in Kasna Bus Stand. On pointing out

of the police informant, Pammi was arrested at 11:30 a.m.. On being

questioned, he allegedly admitted his crime and said that he can recover

the knife used for the murder. The memo records that members of the

public were asked to witness the recovery but no one was prepared and

thereafter on the pointing out of the accused the police went to the spot

and the accused removed the soil with his hands at the spot and recovered

a knife which was covered with blood and soil and the accused told that

this was the knife used to kill Ved Prakash.

Exhibit Ka-10 is the recovery memo dated 02.12.2012 which

reflects that the SHO alongwith a Senior Sub-Inspector of Police and a

Sub-Inspector and two other Constables with a driver, departed on the

police vehicle from the Police Station at 7:25 a.m. and they received

information from a police informant that the accused Omi is standing

near a temple near a small bridge in Kasna, who was arrested at 10:15

a.m. The accused Omi allegedly admitted his crime and stated that he

could point out the place where the murder weapon had been thrown. It is

recorded that the police asked the members of the public to witness the

recovery but no one was prepared and, therefore, they went with the

accused to the placed pointed out. The accused went ahead and allegedly

recovered a knife which was taken possession of at 12:10 p.m.

Exhibit Ka-15 is the recovery memo dated 23.12.2012 which

reflects that the SHO alongwith a Sub-Inspector and three other

Constables, went in the police vehicle alongwith the accused Sumit @

Bhura from the police station at 13:05 hours. The accused got the vehicle

stopped near Chuhadpur underpass and went ahead and allegedly

36

recovered a knife from behind the bushes and said that this was the

murder weapon. The knife was stated to be taken possession of at 13:30

hours and sealed.

Thus, it is evident that no independent witnesses accompanied the

police and the accused for recovery of the alleged murder weapons.

47.It is pertinent to note that Exhibit Ka-11 is the site plan with Index

prepared by the P.W.-9, the SHO, on 17.11.2012 which reflects the site of

the incident and the alleged location of the eye witnesses as well as the

site of murder and the direction in which the accused had fled after

committing the crime. Exhibit Ka-12 is the site plan regarding the alleged

recovery of the murder weapon on the pointing out of the accused Pammi

that corresponds to Exhibit Ka-9, recovery memo.

Exhibit Ka-13 is the site plan of the recovery of the murder weapon

on the pointing out of the accused Om Kumar @ Omi that corresponds to

recovery memo, Exhibit Ka-10.

The site plan, Exhibit Ka-14, corresponds to the recovery memo,

Exhibit Ka-8, which reflects the site of recovery of the alleged murder

weapons on the pointing out of the accused Veerpal and Kalu @ Balraj.

Exhibit Ka-16, which is the site plan prepared by the P.W.-9,

allegedly showing the site from which the murder weapon on the pointing

out of the accused Sumit @ Bhura was recovered and this corresponds to

Exhibit Ka-15, which is the recovery memo.

It is pertinent to mention here that Exhibits Ka-13, Ka-14 and Ka-

16 reflect the sites of recovery of the alleged murder weapons from near

Chuhadpur underpass.

The Chuhadpur underpass has been shown in the site plan, Exhibit

Ka-11, as 72 steps south-east of the site of the murder. Thus, the recovery

of knives are reflected in site plans Exhibits Ka-13, Ka-14 and Ka-16

from places near the site of murder, whereas the alleged escaped route of

the accused being in the diagonally opposite direction renders the

aforesaid three recoveries of weapons suspect. The above facts, coupled

37

with the fact that the provisions of Section 27, as interpreted by the

Supreme Court in its judgment in Ramanand (supra) have not been

complied with, the recoveries of the alleged murder weapons are not

proved.

48.As already referred to above, other than the testimony of the P.W.-

1, all the other witnesses have turned hostile. One of the eye witnesses

who has turned hostile is the brother (Chetram) of the P.W.-1 and the

deceased. In their statement made under Section 313 Cr.P.C., the accused

have stated that they have been falsely implicated due to village enmity.

Therefore, the P.W.-1 could also be an interested witness.

49.At the site of the incident, even the Investigating Officer has

admitted, there was a crowd of people. Yet, surprisingly, no independent

witness has been examined. The P.W.-6, who is the Sub-Inspector of

Police and the Investigating Officer, P.W.-9, have both testified that for

conducting the inquest, the corpse of the deceased was taken to a hospital

in order to maintain law and order. The PW-6 has stated that there was

lack of adequate light at the site of the incident. The mandate of Section

174 Cr.P.C. read with Rule 132 of Chapter XII of the Police Regulation,

is that the police is to conduct the inquest at the site. This is not supported

by the site plan. However, the fact that there was inadequate light at the

site of the incident is proved.

50.The place from where the P.W.-1 is stated to have witnessed the

murder is shown in the site plan Ka-11 as 67 steps away to the south-west

of the site of the incident. The accused persons are shown in that site plan

to have fled north-west from the site of murder on foot to their parked

vehicles and then northwards in their vehicles. The Investigating Officer,

who went about proving the recovery of the murder weapons and other

items and the entire investigation conducted by him with arrests, has

failed to conduct any investigation with regard to the alleged vehicles

used by the accused for reaching and leaving the site of the crime. In their

entire testimony, neither the P.W.-6 nor the P.W.-9 have mentioned about

38

the recovery of the vehicles used by the accused to reach and leave the

site of the alleged incident. The P.W.-9 in his cross-examination could not

recall that in which direction was the corpse of the deceased lying. He

could not say whether the corpse was lying face up or face down.

51.Though, it may not have any bearing on the present case, it may be

mentioned that in respect of one accused, namely Sunny @ Bhura, his

trial was conducted separately by the juvenile court where the Case No. 6

of 2013 was registered. The P.W.-1 had also appeared in Case No. 6 of

2013 as P.W.-1 and his testimony was recorded on 10.6.2015 in which he

turned hostile. (Paper No.55Kha/26)

52.Be that as it may, the law with regard to the hostile witnesses is that

it is for the Court of fact to consider in each case whether as a result of

such cross-examination and contradiction the witness stands discredited

or can still be believed in regard to any part of his testimony. It is well

within the powers of the court to make an assessment in respect of the

testimony of a hostile witness and come to the correct conclusion. The

evidence of a hostile witness cannot be discredited as whole and the

relevant part thereof which are admissible in law can be used by the

prosecution or by the defence

8

.

53.Under the circumstances, the testimony of P.W.-1 has to be viewed

in light of the testimony of the other eyewitness, P.W.-3 as well as all the

other eyewitnesses, including the brother of the P.W.-1 (that is, the P.W.-

5) who all negated the case of the prosecution regarding the guilt of the

accused. Though leading questions were put to the hostile witnesses

regarding their testimony against the prosecution to the effect that due to

threat or a compromise they were giving such a testimony, the witnesses

denied the same. Chetram (P.W.-5), the witness who turned hostile, was

the real brother of the deceased and no such circumstance or motive has

been demonstrated as proved by the prosecution that would lead to a

finding that his testimony is unbelievable. The testimony made by the

8Rajesh Yadav and another Vs. State of U.P., 2022 SCC OnLine SC 150

39

P.W.-3 and P.W.-8 as hostile witnesses that the deceased was found

impaled on the knife like grille behind the shape of the deceased has not

been explored by the trial court. The admission made by the doctor

conducting the postmortem examination (PW-4) that the injuries of the

diseased were not stab wounds do create a doubt as to the cause of the

injuries on the diseased that are reflected in the postmortem report.

Given, on one hand, the nature of the wounds primarily on one side of the

body, while on the other hand, the fact that the P.W.-1 had testified that

the deceased was being choked by a belt and held by two of the accused

while the others were stabbing the deceased, creates a doubt as to the

manner in which the wounds came to be inflicted on the deceased.

Evidently, neither the P.W.-1 nor the P.W.-3 nor the P.W.-8 were present at

the site when the accused allegedly reached the site of the incident on

their vehicles. It were only the independent witnesses who could have

testified the factum of the accused reaching the site and advancing

towards the deceased. The location of the P.W.-1 at the time of the

incident is itself under cloud in view of the testimonies of P.W.-3 and

P.W.-8. The P.W.-8 has testified the reason for the police directing their

investigation against the accused that the police were angered by the

behaviour of the accused towards them during an incident some days

prior to the death of the deceased. It was also mentioned that the police

had stated that since foreigners were involved, the case would be difficult

to be proved. In this regard, a suggestion was also made to the P.W.-9

who denied the same. There is an important element with regard to lack

of adequate lighting at the site and so it is doubtful that the P.W.-1 could

have actually seen the faces of the accused from a distance of 67 steps on

a winter night. As narrated above, the conduct of the PW-1, after the

incident, is itself unnatural. Given the entire facts the circumstances, as

narrated above, the accused persons are entitled to benefit of doubt. The

case of the prosecution has not been proved beyond reasonable doubt.

54.Under the circumstances, the present criminal appeal is allowed

and the accused are acquitted giving them the benefit of doubt. The

40

accused shall be released from jail as per law if their incarceration is not

required in any other case after compliance of Section 437-A of the

Cr.P.C.. Let a copy of this judgment be sent to the trial court forthwith.

Date :25.05.2023

SK/A.V. Singh