1

AFR
Court No. - 42

Case :- CRIMINAL APPEAL No. - 1122 of 1993

Appellant :- Mahak Chand And Others

Respondent :- State Of U.P.
Counsel for Appellant :- D.S.Tiwari, Jagdish Prasad Tripathi,
Urmila Tripathi, S C Pandey
Counsel for Respondent :- A.G.A.

Hon'ble Manoj Misra,J.

Hon'ble Pankaj Bhatia,J.
This appeal assails the judgment and order dated
29.06.1993 passed by Additional Sessions Judge/ Special
Judge, Meerut in S. T. No.294 of 1989 by which the appellants,
namely, Mahak Chand and Mahkar both sons of Jai Lal; and
Nand Kishore son of Phool Singh have been convicted under
Sections 302 / 34, 307 / 34 and 449 I.P.C and punished as
follows: life imprisonment for offence punishable under section
302/ 34 I.P.C.; three years R.I. each for offences punishable
under Sections 307 / 34 and 449 I.P.C. All the sentences to run
concurrently.

The prosecution case as narrated in the first information

report (for short FIR), which has been lodged by Charat Singh
(P.W.1) at P.S. Kithore, District Meerut as Case Crime No. 227
of 1987 on 25.09.1987, at 3:30 AM, is that Mahak Chand
(appellant no.1) is a dacoit. He threatens villagers therefore
nobody complains against him. The informant's family however
had been opposing him. As a result, Mahak Chand had been
inimical towards the informant. In the night of 30/31.07.1987 an
attempt on the life of informant's brother Bharat Singh was
made by Mahak Chand in association with Nand Kishore
(appellant no.3) and Ashok of which information was given at
the police station. Ashok and Nand Kishore had obtained bail
 2

but Mahak Chand was absconding. On 15.09.1987, Mahak

Chand and his brother Kallia (who expired before the trial)
threatened the informant that if he does not enter into a
compromise in that case his entire family would be eliminated.
Thus, pressure was being continuously exerted on informant's
family to file affidavit in their favour. After narrating the above
background, it was alleged that in the night of 24.09.1987, while
the informant (P.W.1) and Mathura (P.W.2) along with others
were present at the house of Ram Chandra (cousin of the
informant), to look after Ram Chandra, who was seriously ill, at
about 11 pm, they heard cries of ladies coming from informant's
house. Upon hearing those cries, informant and P.W.2 rushed
towards the house. As they reached the gate of the house, in
the light of a torch, they saw accused Mahak Chand (appellant
no.1); Kallia; Mahkar (appellant no.2); and Nand Kishore
(appellant no.3) coming out from the gate. Mahak Chand and
Kallia had Bhala and Mahkar and Nand Kishore had Ballam in
their hand. They all ran away towards the west in the Gali.
When PW1 and PW2 went upstairs on to the second floor, they
found Kailaso (informant's wife) lying dead on one cot and
Sarmoz (Kailaso's sister's daughter - niece) lying injured and
unconscious on another cot laid just next to the cot of the
deceased. Harpati (wife of Bharat Singh – Bhabhi of P.W.1) and
P.W.1's niece (Km. Babita – P.W.3) came and told P.W.1 and
P.W.2 that Kallia; Mahak Chand; Mahkar; and Nand Kishore
have killed informant's wife (Kailaso - the deceased) and
caused injury to Sarmoz (deceased's niece) with Ballam and
Bhala.

After the FIR was lodged, the Investigation Officer (for

short I.O.), namely, Satyabir Singh Chauhan -P.W.8, proceeded
to the spot, recovered bloodstained and plain scrapes of the
 3

floor beneath the two cots as well as the bloodstained covers

etc., and prepared a fard (Ex Ka-9). Inquest report (Ex Ka 8)
was also prepared, which revealed that inquest proceedings
started at about 7 am and concluded by 9 am on 25.09.1987. In
the column relating to clothes found on the body of the
deceased, it was recorded that the body was having just a
lower undergarment on it. A Chithi Majrubi (letter for medical
examination/ treatment of the injured) addressed to the In-
charge Primary Health Centre, Machare, Meerut was prepared
for Sarmoz. She was however referred to P.L. Sharma Hospital,
Meerut. At P.L. Sharma Hospital, Meerut, at about 7.15 AM, on
25.09.1989, she was examined by Dr. S.C. Nigam (P.W.6), who
prepared her injury report (Ex. Ka-5). A punctured wound 2.8
cm x 0.8 cm x depth not probed on right side abdomen, 8 cm
above the umbilicus, at about 11 o'clock position, margin clean
cut and everted, with Omentum protruding out from the wound,
was found. Injury was kept under observation and X-ray was
advised. The injury report observes that detailed examination
could not be done due to serious condition of the patient.
Duration of the injury was found fresh, caused by sharp, hard
and pointed object.

The autopsy of the deceased was conducted by Dr. G.C.

Gaur (P.W.5) on 25.09.1987, at about 4:30 pm. The autopsy
report (Ex.Ka-4) discloses following ante-mortem injuries:

"(i) Incised wound measuring 4 cm x 1.5 cm x

bone deep with underlying 5th vertebrae cut on
right side of neck, 3 cm below the angle of right
mandible placed horizontally;

(ii) Incised wound measuring 8 cm x 1 cm x skin

deep on upper surface of right shoulder;
 4

(iii) Incised wound measuring 2.5 cm x 1 cm x

chest cavity deep on left side of chest, 10 cm
below the left axilla."

As per the report the estimated time of death was about

one day before. The age of the deceased was estimated 40
years. According to the doctor, death was due to shock and
haemorrhage as a result of the ante-mortem injuries noticed.

On 02.10.1987, the second I.O., namely, Rangnath

Pandey (P.W.7), who took over investigation on 30.09.1987
from PW8, disclosed recovery of lantern and torch and
prepared its Fard.

P.W.7 completed the investigation and submitted charge-

sheet (Ext. Ka-8) against all the four accused, namely, Mahak
Chand, Kallia and Mahkar, sons of Jai Lal; and Nand Kishore
son of Phool Singh. The charge-sheet enlisted as many as 21
witnesses including Charat Singh (P.W.1); Mathura (P.W.2);
Smt. Harpati (not examined) and Km. Babita (P.W.3) but the
name of Km. Sarmoz (the person injured in the incident) was
conspicuous by its absence.

After taking cognizance on the charge-sheet, the case

was committed to the court of sessions. Before the charges
could be framed, Kallia expired and the case against him
therefore abated.

Charge of offences punishable under sections 302/ 34;

307/ 34; 449 IPC was framed against the accused-appellants.
They pleaded not guilty and demanded for trial.

The prosecution examined nine witnesses, namely,

Charat Singh (informant - P.W.1); Mathura (P.W.2); Babita
(P.W.3); Chandrabir Singh (P.W.4); Dr. G.C. Gaur (P.W.5); Dr.
S.C. Nigam (P.W.6); Rangnath Pandey (P.W.7); Satyabir Singh
 5

Chauhan (P.W.8); and Shaukat Ali (P.W.9). Their testimony in

brief is as follows:

P.W.1 - Charat Singh reiterated what was stated in the

FIR. He proved the written report i.e. the FIR (Ex Ka 1) and
stated that it was scribed by Brahmpal under his instructions.
He stated that at the time of the incident, he was at the house
of distant relative Ram Chandra, who was on death- bed. Ram
Chandra's house was just about 25-30 paces away from his
house. When he heard cries of ladies coming from his house,
he and P.W.2 rushed towards the house and saw Mahak Chand
and Kallia with Bhala, and Nand Kishore and Mahkar with
Ballam, coming out and running away towards the west in the
Gali. He stated that he rushed upstairs to find out that on the
roof of the second floor his wife was lying dead and his wife's
sister's daughter Km. Sarmoz lying unconscious in an injured
condition and, from the third floor, his brother's wife Smt.
Harpati (not examined) and his brother's daughter (Babita-
P.W.3) shouting. After informant's arrival they came down to the
second floor and informed the informant and P.W.2 that Mahak
Chand; Kallia; Mahkar and Nand Kishore have killed them.
Soon thereafter, on a tractor, he went to the Police Station
Kithore, with Sarmoz, to lodge the FIR and secure medical
attention for the injured.

In his cross-examination, he stated that he was in the

armed forces. He retired in 1983. He has a factory in Noida
where polythene bags are manufactured. His son manages the
factory. He also visits Noida. His son's children had gone to
their maternal grand parents home. He has 30 bighas of
agricultural land in the village which is managed through
servants though sometimes he manages it himself. He stated
that at the time of incident there was no servant in the house
 6

though he had a servant by the name of Manoj, aged 25-30

years, who is a resident of Bihar. He admitted that his servant
used to stay in his house but his family resided in the village.
However, on the date of the incident he was looking after the
tube well and was not present in the house. With regard to Km.
Sarmoz, he stated that she is yet to get married. At the time of
the incident she must have been 15-16 years old. He stated
that from the police station, Sarmoz was taken to the hospital.
On the next day, he met Sarmoz in the hospital but she could
not speak as she was unconscious and was being taken for
surgical procedure. He stated that his brother (Bharat Singh)
had a licensed gun. At the time of the incident, Bharat Singh
was at Noida with his son. He stated that his father Mehar
Singh had contested election against Mahak Chand's brother
Jai Pal. Thereafter, his brother Bharat Singh contested election
against Mahak Chand and lost. He stated that his cousin Ram
Chandra died on 25.09.1987, at about 6 pm. Ram Chandra had
multiple civil litigation with Nand Kishore. He stated that prior to
this incident Bharat Singh was shot at by the accused. The shot
had hit him on or about the knee.

In his cross examination, he stated that his brother's

house, that is Bharat Singh's house, is separate from his own
and both the houses had separate staircase up to the second
floor. The roofs however were joint. In informant's house there
are two floors whereas the third floor is open with grill. In
between his house and Bharat Singh's house there is a partition
wall, which is of full height to the extent of one-half the length of
the house and of one-half height in the remaining portion. He
stated that at Bharat Singh's house, informant's father, Bharat
Singh's wife and two daughters were there on the date of the
incident whereas Bharat Singh's sons had gone to Noida.
 7

In his cross-examination, P.W.1 disclosed that the third

floor of his brother's house has no staircase. To have access to
it one has to use a ladder from the roof of informant's house.
He stated that when he had reached the second floor of his
house, there was no one next to the deceased or Sarmoz but
soon after his arrival PW3 and her mother (informant's Bhabhi)
had come down. He stated that the main gate of the house is at
a distance of about 4 or 5 paces from the staircase and is
located in the middle of the two houses. It has an iron gate
which was not locked by him. He stated that in the verandah,
on the ground floor of Bharat Singh's house, on the date of the
incident, his father was sleeping.

In his cross-examination, he also stated that Nand

Kishore had lodged a case against him, his brother and two
others, which was pending. He denied the suggestion that the
crime was the doing of some one within his own house and that
he has falsely implicated the accused-appellants on account of
enmity.

P.W.2 - Mathura reiterated the prosecution case as

narrated by P.W.1. He admitted that he comes from the same
'Khandan' (ancestry) as of Charat Singh- P.W.1.

In his cross-examination, he stated that he and the

informant were the first to reach the spot and after they had
reached, Harpati and Babita (PW3) arrived from the third floor
and told them that it was the doing of the accused-appellants.
He stated that after he, P.W.1, Harpati and Babita (P.W.3) had
arrived, several other persons also arrived. He stated that
Sarmoz was unconscious and that he has not spoken to her
about the incident till date. He admitted that he knew about
Manoj, the servant of P.W.1, but, at that time, Manoj was at the
tube well. He stated that he did not see Manoj at the police
 8

station also. In his cross-examination, he admitted that Sarmoz

had gained consciousness after two days; and that he had not
spoken to her even after she gained consciousness as he did
not consider it necessary to inquire from her. He denied the
suggestion that on the date of the incident, the informant was at
Noida and, after getting information, had rushed back. He also
denied the suggestion that he is lying because he comes from
the same ancestry.

P.W.3 - Babita -In her statement in chief stated that in the

night of the incident, at about 11:30 pm, while she was sleeping
on the the third floor of her house with her mother Harpati, she
heard shrieks of her Chachi (Aunt - Smt. Kailaso – the
deceased) and her Bhanji (neice - Sarmoz, the person injured)
coming from the second floor of their house. Upon hearing the
shrieks, she woke up and saw Mahak Chand with Bhala; Nand
Kishore with Ballam; Mahkar with Ballam; and Kallia with Bhala
assaulting her Aunt (Chachi) and Sarmoz with the weapons.
She stated that the night was dark but a lighted lantern was
hanging from the rack placed towards the head side of the bed
of the deceased. She could recognize the accused in that light.
Upon witnessing the incident she raised an alarm upon which
the accused ran away. Soon, thereafter, his uncle Charat Singh
(P.W.1) and Mathura (P.W.2) arrived. On their arrival, she
descended from the third floor to the second floor and told them
about the incident.

A suggestion was given to her that talks regarding

marriage of Sarmoz (the person injured) with Rakam Singh son
of Maglesh were on but her aunt-deceased was not agreeable
to the relationship. She refuted that suggestion but admitted
that Rakam Singh had come to the village 2-3 days later. She
also stated that she saw him in the village 2-3 months before.
 9

She, however, admitted that Sarmoz had come to the village

about four days before the incident and had never come earlier.
She also admitted that in the house of her uncle (P.W.1), his
servant (Manoj) used to stay. Manoj used to look after her
uncle's agricultural operations as well as the tube-well. She
stated that her father and brother used to stay at Noida; that her
father and uncle (P.W.1) had factory at Noida. But PW1 had
been in the village since 5-10 days before the incident. She
stated that two months after the incident, Manoj left his job and
went away. She admitted that fodder for the animals of her
house was brought by servants.

In her cross-examination, she stated that in the night of

the incident, she slept at 11 pm. Like every day, she used to
sleep on the third floor of her house. In the night of the incident,
she had taken the bedding and a quilt to the third floor. She
had a separate cot for herself whereas her mother slept on a
separate cot laid just next to her cot.

In her cross-examination, she admitted that there is no

staircase to gain access to the third floor of her house. The
height difference between the third floor and second floor of her
house is just 2 - 3 feet. She stated that the roof of her house
and the deceased's house is joint. On that day, she had used a
wooden ladder to go to the third floor. On a daily basis, she
used to go to the third floor in the same manner. She stated that
in the night of the incident, when she heard the noise, she
peeped down to discover that the accused were assaulting the
deceased and the injured. According to her the cot of the
deceased and the injured were at a short distance of about two
paces from her place though at a lower height on the second
floor roof. When she woke up, she saw accused persons
inflicting injuries on the deceased and the injured. Firstly, she
 10

stated that the accused persons' face was towards the

deceased and the injured and their back was towards her but,
later, she corrected herself and stated that their face was
towards her. She stated that the cots of the deceased and
injured were laid towards west from her position. The accused
persons were seen towards north of the cots. Behind the cots
there was a room and adjoining that room there was staircase
which could be seen from the place from where she saw the
incident, though the main gate could not be seen from that
place. She stated that Charat Singh (P.W.1) and Mathura
(P.W.2) had arrived soon after the accused had left.

In her cross-examination, she stated that the I.O. had

recorded her statement in the morning itself, at about 5 am, at
her house; and her mother's statement was also recorded
there. Thereafter, the I.O. had again visited the village five days
later and recorded her as well as her mother's statement.

She stated that at the time of the incident, the deceased -

Kailaso was just wearing a Nikkar (lower undergarment) and
apart from that there was no cloth on her body. Sarmoz was
wearing a Salwar suit.

She denied the suggestion that on the night of the

incident, she was sleeping inside her room and that she had not
seen the incident. She also denied the suggestion that the
accused have not committed any offence and that she is lying.

P.W.4 - Chandravir Singh proved the G.D. entry of the

first information report and the chik FIR. In his cross-
examination, he stated that the Inspector had left the police
station to go to the spot at about 3:30 am. He also proved that
Chitthi Majrubi was issued to the constable for examination of
the injured at PHC, Machara.
 11

P.W.5 - Dr. G.C. Gaur proved the autopsy report. He

stated that all the three injuries were by sharp edged weapon;
autopsy was conducted on 25.09.1987 at about 4.30 pm; and
that the death could have occurred about a day before though it
is possible that the injuries could have been caused in the night
of 24/25.09.1987.

In his cross-examination, he stated that the injuries could

have been caused by a knife as well as Ballam if the top had
sharp edges. But the injuries could not have been from a Bhala.
He stated that there could be variation of six hours on either
side in the estimated duration of death.

P.W.6 - Dr. S.C. Nigam stated that he examined Sarmoz

for her injuries on 25.09.1987 at 7:15 hours. He stated that
Sarmoz was aged about 15 years and was brought by
constable. He proved the injury report. He stated that it is
possible that the injury caused to her was by a pointed weapon.
He stated that it is possible that the injuries could have been
caused to her on or about midnight between 23.00-24.00 hours.
He stated that the injury was grievous in nature.

In his cross-examination, he stated that he was not shown

any report of the Primary Health Centre, Machara. He could not
tell whether the injured was provided any medical aid at the
Primary Health Centre. He stated that he cannot say whether
any information was given for recording of the dying declaration
of the injured. He stated that he has not mentioned in his report
whether the injured was conscious. He also stated that he has
not mentioned about the pulse rate and the blood pressure of
the injured. He admitted the possibility of the injury being on
account of falling over pointed object but stated that if that was
the case then injuries would have been there on other parts of
the body also.
 12

P.W.7 - Rangnath Pandey stated that he took over

charge of police station Kithore on 29.09.1987 and prior to his
posting, the investigation of the case was conducted by
Satyabir Singh (P.W.8). He stated that on 30.09.1987, he took
over the investigation of the case. On 02.10.1987, he recorded
statement of Mathura; Smt. Harpati; Km. Babita; Mahkar Singh,
etc. He stated that he had taken the torch from Mathura and
prepared a Fard (Memo) in front of Jaikaran and Tikaram.
Witness Charat Singh had also provided torch and lantern to
him of which Fard (Memo) was prepared. He stated that on
06.10.1987, he recorded statement of Sarmoz and, on the
same day, he also recorded the statement of her mother
(Prakasho) and brother (Rajesh). He stated that on 08.11.1987,
he had completed the investigation and prepared charge-sheet
(Ex. Ka-8).

In his cross-examination, he stated that the previous

Investigation Officer Satyabir Singh had filled Parchas in the
case diary up to page no. 88. However, the Parchas entered by
him in the case diary starts from page no. 92. He stated that
probably pages 89 to 91 were filled in respect of some other
case but he is not aware of that. He stated that during
investigation he had heard that statement of Km. Sarmoz was
recorded by the doctor as a dying declaration. He admitted that
he had recorded the statement of Km. Sarmoz and had also
incorporated the statement given by her to the doctor in the
case diary . However, he had not recorded the statement of that
doctor. He admitted that he had not put the accused for
identification by Sarmoz because he had ample evidence and
therefore he did not consider it necessary. He stated that he
had recorded the statement of Mathura, Smt. Harpati and Km.
Babita in the village itself. He had seen the house of Mathura.
 13

He does not remember as to how far it is from the place of

occurrence. He stated that he did not consider it necessary to
make any alteration in the site plan prepared by the first I.O.
even though in the site plan prepared by the first I.O., the place
from where Mathura saw the assailants was not shown. He
stated that he had recorded the statement of Sarmoz at the
police station and had entered her age as 15 years and, at that
time, her mother and brother were there.

P.W.8 - Satyabir Singh stated that since April 1987 to 27 th

September 1987, he was the Prabhari Nirikshak at P.S. Kithore.
He stated that the FIR was registered at 3:30 hours on
25.09.1987 in his presence. The Chik FIR was entered by the
Head Moharir where after he recorded the statement of the
informant (Charat Singh – P.W.1) and visited the spot. He
proved the inquest report; recovery of blood-stained and plain
floor scrapes along with bed pieces, covers etc. He proved that
the body was sealed and thereafter handed over to the
constable for autopsy. He stated that inquest proceedings were
got over by 9 am where after he examined the site and
prepared site plan (Ex. Ka 14). He also prepared the site plan
for the lower floor, which was marked Ex. Ka-15.

In his cross-examination, he stated that within 10-15

minutes of the registration of the first information report, he had
left for investigation. He stated that when he had recorded the
statement of Charat Singh (PW1), at that time, no other witness
was present though he had searched for the witness but they
were not found and Mathura was not there at that time. He
stated that the informant stayed with him in the village till 12
noon and thereafter he had left for the hospital. He stated that
he had searched for Babita but she was not found in the house.
He stated that he had not inquired about Harpati. Thereafter, he
 14

left in search of the accused. He stated that he had prepared

the site plan, as per the directions of Harpati. He stated that
after getting the site plan prepared, he could not find Harpati as
he had gone in search of the accused. He admitted that in the
site plan, he had not shown the place from where the informant
had seen the accused. He stated that the distance between the
house of Ram Chandra and the place from where the witnesses
had seen the accused must be about 65 paces. Though the
distance of the place from where the witnesses saw the
accused must have been 3-4 paces. He stated that Sarmoz
was in a serious condition and therefore she was sent to the
hospital from the police station. He stated that he neither
recorded the statement of Sarmoz nor he went to the hospital.
He stated that as far as he remembers he had sent a report for
recording of her dying declaration. He denied the suggestion
that the case was not registered in his presence and he did not
visit the spot and did paper work while sitting at the table. He
also denied the suggestion that he got the accused falsely
implicated.

P.W.9 - Shaukat Ali. He stated that he had taken the

body for autopsy and that he did not let anybody touch the body
in between.

In his cross-examination, he stated that the body was

taken in an ambassador car of which number was DEB 1202.
He does not remember whose car it was. He stated that the
injured was not with him.

The entire incriminating evidence was put to the accused

at the time of recording their statement under Section 313
Cr.P.C.

The accused (Mahak Chand) challenged the correctness

 15

of the prosecution evidence and claimed that informant's

brother Bharat Singh had contested Pradhan election against
him and had lost just before the incident and, therefore, out of
enmity, he has been falsely implicated. The accused (Mahkar)
denied the prosecution evidence and claimed that he is a
lawyer and that to prevent him from doing pairvi in the court
cases and to get his arms license canceled, he has been falsely
implicated along with other accused. The accused (Nand
Kishore) also challenged the correctness of the prosecution
evidence and claimed that the informant - Charat Singh, who is
brother of Bharat Singh, had disturbed his 'barja' and that a civil
litigation is pending as a result of which there is enmity and
therefore he has been falsely implicated.

The trial court, after considering the evidence led by the

prosecution, held the appellants guilty for offences punishable
under Sections 302/34, 307/34 and section 449 I.P.C. The trial
court took the view that the prosecution case was duly proved
by the eye-witness account of Babita (PW3) and by the
testimony of two witnesses of circumstance, namely, Charat
Singh (PW1) and Mathura (PW2). Further, the testimony of
Babita (PW3) was corroborated by the medical evidence. In
respect of non-examination of the injured (Km. Sarmoz), the
trial court took the view that it is quite possible that Km.
Sarmoz, being new to the village, may not have been able to
recognize the accused and therefore the prosecution may not
have considered it necessary to examine her. Hence, no
adverse inference is to be drawn on non-examination of Km.
Sarmoz.

We have heard Sri S.C. Pandey for the appellant no.1

(Mahak Chand); Sri Jagdish Prasad Tripathi for appellant nos. 2
and 3 (Mahkar and Nand Kishore); and Sri Deepak Mishra,
 16

learned A.G.A., for the State.

Learned counsel for the appellants contended that

admittedly the three accused, namely, Mahak Chand, Mahkar;
and Kallia are real brothers; that informant's father (Mehar
Singh) had contested election of Gram Pradhan against Mahak
Chand's brother Jai Pal; that election was won by Jai Pal; that,
thereafter, an election petition was filed, which was decided in
favour of informant's father, namely, Mehar Singh; that in the
subsequent election, which was just before the incident, Mahak
Chand won election of Gram Pradhan against informant's
brother Bharat Singh; that, according to the prosecution, the
brother of the informant was shot at by the accused in
connection with which another case of attempt to murder was
lodged in which Mahak Chand, amongst others, was an
accused; that, in that case, Nand Kishore had obtained bail but,
according to the prosecution, Mahak Chand was absconding;
that it has come on record that Nand Kishore was having
litigation with the family of the informant and that Mathura
(P.W.2) had the same ancestry as the informant; and that eye-
witness Babita (P.W.3) is daughter of Bharat Singh, the brother
of the informant. Thus, it is clear that all the three eye-
witnesses, namely, P.W.1; P.W.2; and P.W.3 were not only
inimical but highly interested in seeking conviction of the
accused. Hence, their testimony ought to be considered with
great caution and tested on the touchstone of probabilities.

It has been contended by the learned counsel for the

appellants that admittedly the murder took place on the roof top
of informant's house. The house of Bharat Singh, brother of
informant, was separate though adjacent to the house of the
informant. The deceased and the injured were sleeping on the
roof of the second floor of their house in the open. The eye-
 17

witness Babita had allegedly seen the incident from the third
floor of her house, namely, Bharat Singh's house. The third
floor of her house was barely 2-3 feet higher than the second
floor. Therefore it can not have rooms, etc. In fact, it cannot be
called a third floor as it was a mere platform. This gets
corroborated by the evidence that it had no staircase for
access. Hence, to show that PW3 could witness the incident,
the prosecution has set up an artificial and false story that like
everyday Babita (PW3) used to carry her cot and bedding
including quilt, etc to the third floor of her house by using a
wooden staircase from the adjoining roof of deceased's house.
It has been submitted that in the site plan, no cot is shown on
the third floor of Bharat Singh's house from where Babita
allegedly saw the incident. Even no ladder was shown and its
existence has not been noticed during investigation. It has been
contended that it is highly unnatural that a person would sleep
on a roof which has no staircase for access, more so when the
weather conditions are not so hot as would be clear from the
statement of PW3 that she had carried a quilt (Rajai). Hence,
the presence of Babita at the time of the incident at the place
from where she allegedly saw the incident is highly doubtful.
Consequently, her testimony is not reliable.

It has also been contended that from the testimony of

Babita as well as the inquest report it is established that the
deceased was just in her lower undergarment, which means
that she was naked from top. According to the prosecution
case, there was a lantern lit towards the head-side of the cot of
the deceased and in the light of that lantern, though the night
was dark, the witness saw the incident. It has been submitted
that it is highly improbable that any person who is sleeping
nude would have a lantern placed on her head-side to let
 18

herself be a spectacle for others. This circumstance lends

credence to the probability that P.W.3 was not at the top of the
third floor and in a position to witness the incident.

It has been submitted that if P.W.3 had not witnessed the

incident, then the testimony of PW1 and PW2 falls to the
ground as they have responded to her cries. Hence, the
prosecution evidence is highly unreliable and not worthy of
acceptance.

In addition to above, it has been urged that the injuries

sustained by the deceased appear to be knife injuries and not
from a Ballam as, ordinarily, a Ballam has a pointed top and,
therefore, when it enters the body it would leave sign of a
punctured wound with laceration and not incised wound as
appears to be the case. Hence the medical evidence also does
not corroborate the ocular evidence of Babita. Otherwise also,
two persons are stated to have carried Bhala whereas only a
solitary Bhala injury has been found and that too on the body of
the injured Sarmoz though, as per the testimony of PW3, all
four accused were seen inflicting injuries without specifying as
to who caused which injury and to whom. Hence, the possibility
of over implication is also there and in absence of clear and
cogent evidence which may allow the court to sift the grain from
the chaff, all the accused are entitled to the benefit of doubt.

It has next been urged that there is no explanation for

non-examination of Km. Sarmoz (injured) as a witness even
though it has come in the statement of the Investigation Officer
that he had recorded the statement of Sarmoz during the
course of investigation after she had gained consciousness.
Moreover, the prosecution has not been able to demonstrate
that she was not available or was won over. The injured witness
would have been the best witness in the facts of the case and
 19

withholding her evidence gives rise to an adverse inference

against the prosecution case and makes a serious dent to its
credibility.

It has also been urged that there has been no recovery of

any weapon of assault. Further, no effort has been made to
recover the weapon of assault which suggests that the police
had made no effort to find out the truth. Hence, there is no link
evidence to corroborate the testimony of highly interested
witnesses.

It has also been pointed out that there is no cogent

reason for the appellants to kill informant's wife and injure
informant's wife's niece inasmuch as if they had any score to
settle it was with Bharat Singh and his family. Hence, why
would they attack female family members of his brother.
Moreover, the allegation that threat was extended that the
entire family would be eliminated, if compromise was not
arrived at in the attempt to murder case, was never reported.
Hence, the motive for the crime is weak though motive to
falsely implicate is strong.

Lastly, it was contended that the crime appears to be

handiwork of some insider or servant of the house and to hide
public shame, the injured witness has not been produced. It has
been submitted that the nude condition in which the body of the
deceased was found, particularly, when the weather was not
hot, as according to witness (PW3) she had carried a quilt to
cover herself, would lend credence to that kind of possibility
more so when the deceased, as per autopsy report, was just
aged about 40 years old. To buttress this possibility, it was
argued that admittedly PW1 was not present in the house and
there were no other male members in the house of PW1 to
keep a check on them. To add to that possibility it has been
 20

argued that it appears that PW1 was not even there in the
village and may have arrived on information which possibility
gets support from use of private Ambassador vehicle to carry
the body of the deceased to the mortuary. It has thus been
argued that the finding of guilt returned by the court below is not
sustainable and is liable to be set aside.

Per contra, the learned A.G.A. submitted that P.W.3 is a

reliable witness, who stood the test of cross-examination and
her presence in her own house, which adjoins the house of the
deceased, is natural and therefore she cannot be discarded as
a person who had not seen the incident. He also submitted that
mere fact that the deceased was found only in her
undergarment does not make the prosecution case unworthy of
acceptance inasmuch as it is quite possible that the deceased
may have been in a habit of sleeping that way by covering
herself with covers etc. It has been submitted that here is a
case where the time of death has been proved by medical
evidence; the FIR is prompt; and the medical evidence is not in
conflict with the ocular evidence. It was also submitted that
where the ocular evidence is consistent and reliable, motive
loses importance. It was further urged that non-examination of
the injured witness would not prove fatal to the prosecution
case inasmuch as in the darkness of the night Km. Sarmoz,
who was hit by a Bhala and had become unconscious, may not
have been in a position to recognize the persons who inflicted
injury upon her more so because she was not a resident of that
village and had come there just 4-5 days before the incident
and, therefore, may not have been in a position to recognize
the accused. Hence, non examination of Km. Sarmoz is not
fatal to the prosecution case. Learned AGA thus prayed that the
appeal be dismissed and conviction be maintained.
 21

We have considered the rival submissions and have

perused the record carefully.

Before we proceed to assess the prosecution evidence it

would be apposite for us to cull out the facts as regards which
there exist no dispute. The admitted position is that the
informant's family and the accused family had been political
rivals. The father of the informant had contested Gram Pradhan
election against brother of the accused Mahak Chand, Kalia
and Mahkar. The informant's father had lost the election but had
filed an election petition which, according to the informant, was
allowed. Likewise, informant's brother, Bharat Singh, contested
election against Mahak Chand. This election of Gram Pradhan
was won by Mahak Chand soon before the incident. Thereafter,
there was a case registered against the present set of accused-
appellants in respect of making an attempt on the life of Bharat
Singh in which Bharat Singh is stated to have received gunshot
injury on or about his knee. According to the prosecution case,
two of the accused persons of that case were granted bail
whereas Mahak Chand was absconding. It has also come on
record that there had been litigation with the other set of
accused, namely, Nand Kishore. P.W.3, the alleged eye-
witness, is daughter of Bharat Singh. Informant (P.W.1) is
brother of Bharat Singh and Mathura (P.W.2) hails from the
same ancestor. It is thus clear that eye-witness of the incident,
namely, P.W.3, and the witnesses of the circumstance, namely,
P.W.1 and P.W.2, are all interested witnesses and none of them
have suffered injury.

Before we proceed further, it would be apposite for us to

take notice of the law as to how the testimony of an interested
witness is to be weighed and dealt with.

In Hari Obula Reddy and others v. The State of

 22

Andhra Pradesh : (1981) 3 SCC 675, a three-judges bench of

the apex court, in paragraph 13 of its judgment, as reported,
has held as follows:-

“................ it is well settled that interested

evidence is not necessarily unreliable evidence.
Even partisanship by itself is not a valid ground for
discrediting or rejecting sworn testimony. Nor can
it be laid down as an invariable rule that interested
evidence can never form the basis of conviction
unless corroborated to a material extent in
material particulars by independent evidence. All
that is necessary is that the evidence of interested
witnesses should be subjected to careful scrutiny
and accepted with caution. If on such scrutiny, the
interested testimony is found to be intrinsically
reliable or inherently probable, it may, by itself, be
sufficient, in the circumstances of the particular
case, to base a conviction thereon. Although in
the matter of appreciation of evidence, no hard
and fast rule can be laid down, yet, in most cases,
in evaluating the evidence of an interested or even
a partisan witness, it is useful as a first step to
focus attention on the question, whether the
presence of the witness at the scene of the crime
at the material time was probable. If so, whether
the substratum of the story narrated by the
witness, being consistent with the other evidence
on record, the natural course of human events,
the surrounding circumstances and inherent
probabilities of the case, is such which will carry
conviction with a prudent person. If the answer to
these questions be in the affirmative, and the
evidence of the witness appears to the court to be
almost flawless, and free from suspicion, it may
accept it, without seeking corroboration from any
other source.”
In Pandurang Chandrakant Mhatre and others v. State
of Maharastra : (2009) 10 SCC 773, the apex court, in
paragraph 60 of its judgment, as reported, had observed as
follows:-

“60. In cases involving rival political factions or

group enmities, it is not unusual to rope in
 23

persons other than who were actually involved.

In such a case, court should guard against the
danger of convicting innocent persons and
scrutinise evidence carefully and, if doubt arises,
benefit should be given to the accused.”
In Jalpat Rai and others v. State of Haryana : 2011 (14)
SCC 208, the apex court in paragraph 42 of its judgment, as
reported, had observed as follows:-

“42. There cannot be a rule of universal

application that if the eye- witnesses to the
incident are interested in prosecution case
and /or are disposed inimically towards the
accused persons, there should be corroboration
to their evidence. The evidence of eye-
witnesses, irrespective of their interestedness,
kinship, standing or enmity with the accused, if
found credible and of such a caliber as to be
regarded as wholly reliable could be sufficient
and enough to bring home the guilt of the
accused. But it is reality of life, albeit unfortunate
and sad, that human failing tends to exaggerate,
over-implicate and distort the true version
against the person(s) with whom there is rivalry,
hostility and enmity. Cases are not unknown
where entire family is roped in due to enmity and
simmering feelings although one or only few
members of that family may be involved in the
crime.”
Having noticed the decisions of the apex court, the legal
principle deducible is that the testimony of an interested witness
no doubt can form basis of conviction but the same must be
accepted with caution only after it is carefully scrutinized and if,
on such scrutiny, is found to be intrinsically reliable or inherently
probable. The first test which is to be applied is to find out
whether the presence of that eye-witness at the place/scene of
occurrence from where he or she has allegedly witnessed the
incident at the material time was probable. Once, the witness
passes that test, his or her testimony has to be tested on other
parameters to rule out possibility of false implication and, at
 24

times, over implication because it is not uncommon that where

there is strong enmity the entire family of the other side is roped
in even though it may be the act of only one or few of them.

Keeping in mind the above legal principle, now we shall

examine the reliability of the prosecution evidence led in the
instant case. To conveniently achieve that object, it would be
useful to divide the evidence led into parts:

(a) First, the occurrence was witnessed by P.W.3 and

her mother Harpati (not examined), from the third floor
of their house/roof top, which adjoins the house of the
deceased. Upon witnessing the incident, they raise
alarm.

(b) Second, upon hearing the alarm, the informant

(P.W.1) and Mathura (P.W.2), who were at the house
of one Ram Chandra, rush to the house of the
deceased/ informant (P.W.1).

(c) Third, as P.W.1 and P.W.2 arrive near the gate of

P.W.1's house they see in torch light the accused with
their respective weapons making a quick exit. They,
however, do not challenge them nor make any attempt
to apprehend the accused, probably, because they
were unarmed.

(d) Fourth, P.W.1 and P.W.2 rush upstairs to find the

deceased lying dead on her cot and Km. Sarmoz lying
unconscious in an injured condition on another cot.

(e) Fifth, P.W.3 and her mother (Harpati) came

downstairs to inform PW1 and PW2 that the accused-
appellants have done the act.

If the presence of eye-witness P.W.3 is found doubtful at

the time and place of occurrence then the entire prosecution
 25

case crumbles because it is only after hearing the cries of P.W.3

and her mother (who has not been examined), that PW1 and
P.W.2 arrived otherwise they were at another house.

When we carefully scrutinize the entire prosecution

evidence including the statement of the witnesses examined by
the prosecution, we find that the presence of P.W.3 at the top of
the third floor roof of her house, at the material time, is highly
improbable and, in our view, highly doubtful. It appears to us
that her presence there has been shown to create an
eyewitness account of the incident. The reasons for the above
view are stated herein below:

(a) The house of the deceased and of PW3 is separate

and there exists a partition wall as would be clear from the
testimony of PW1. The third floor roof from where P.W.3 has
allegedly witnessed the incident does not have a staircase to
access it. According to P.W.3, she used to sleep on that roof
with her mother by climbing on to that roof with the help of a
wooden ladder planted on the roof of the house of the
deceased. According to P.W.3 she and her mother had separate
cots there and she had carried her bedding including quilt to
sleep there. Admittedly, house of PW3 and PW1 was partitioned
by a wall. The third floor of PW3's house was just about 3 feet
higher than the second floor with no staircase to have access to
it, which suggests that it would be more like an open platform
built on a pedestal with no room. Why would a person sleep
there on the top of the roof, which has no staircase for access,
and, that too, by planting a make-shift ladder or staircase on
another person's house. This doubt could have been dispelled if
the Investigation officer had found a staircase or a cot on the
roof of the third floor at the time of making spot inspection. The
site plan (Ext. Ka-14) prepared by the Investigation officer
 26

though discloses the cots of the deceased and the injured lying
adjacent to each other on the roof of the second floor of their
house but no cot is shown over the third floor of the house of
PW3. The place from where P.W.3 and her mother allegedly
witnessed the incident is shown as a platform about three and
one-half feet higher than the roof where the deceased's cot was
placed. No cot or any form of bedding, to enable persons to
sleep on that platform, is shown in the site plan. Even in the
statement of the I.O. existence of a cot or bedding at the top of
the third floor, where the witness P.W.3 and her mother slept,
and from where they saw the incident, is not disclosed. Thus,
what follows is that, firstly, it is highly improbable that two ladies
would climb a wooden ladder planted in another person's house
to sleep at the top of the roof and, secondly, if they had actually
slept there with cots laid there, why the presence of the cot and
the covers etc. were not noticed by the Investigation officer and
noted in the site plan, particularly, when it was allegedly
prepared on the directions of the mother of PW3 who was
allegedly with PW3 at the time of the incident though not
examined as a witness.

(b) The other circumstance which puzzles the court and

lends credence to our belief that PW3 was not there from where
she allegedly spotted the accused is as to why the deceased
would be sleeping nude in just a lower undergarment with a
lantern lit on her head-side and thereby let herself be a
spectacle to P.W.3 and her mother from the top of the third floor
of their house. Normally, a person, particularly a lady, would like
to cover herself if she is aware that she can be spotted by
others with no clothes on. This suggests that either the
deceased was aware that there was no one to see her in that
state or that there was something else.
 27

(c) Apart from above, it has come in the evidence of P.W.2

(Mathura), during his cross-examination, that when they had
reached upstairs, Babita (PW3) and her mother Harpati arrived.
If they had witnessed the incident they would have been the
first to come and check the victims soon after the accused had
left the place.

(d) If P.W.3 and her mother were present there, upon

raising of their alarm, why would they be spared by the
accused. More so, when their enmity with the family of Bharat
Singh was greater than that with the informant and, at that
moment, they were sitting ducks with no male member in the
house.

We thus find substance in the defense argument that the

presence of P.W.3 at the top of the third floor of her house,
which had no access from a staircase, at the material time,
appears to be highly improbable and doubtful and it appears
that she has been set up as an eye-witness of the incident.

At this stage, we would like to notice certain other

features that have surfaced during the course of cross-
examination of the prosecution witnesses which throws
possibility with regard to involvement of some other person in
the crime. It has come on record that there had been a servant
by the name of Manoj, aged about 25-30 years, who used to
reside in the house of the informant. Though he was married
but his family did not reside with him and after the incident he
was not seen. It had come in the prosecution evidence that
later he had left the job. The prosecution tried to explain this by
stating that on the date and time of the incident he was at the
tube-well. How far was the tube-well from the place of the
incident is not disclosed. Apart from that, the main gate of the
adjoining two-houses, that is of informant and his brother, was
 28

common. The father of the informant was sleeping on the

ground floor of informant's brother's house. Ordinarily, when
outsiders enter another person's house in the darkness of night
they are likely to alert or disturb the inmates of the house. This
circumstance probabilizes the involvement of some one from
within. To clarify and to remove all doubts in the prosecution
case as also to throw light on the genesis of the incident, the
injured Sarmoz, who was sleeping next to the deceased, was a
crucial and a material witness but she has not been examined.

We find from the prosecution evidence that Sarmoz's

statement was allegedly recorded by the I.O. during
investigation. But what she disclosed has not been disclosed
by any of the prosecution witnesses. Admittedly, Sarmoz had
gained consciousness. Further, nothing has been brought on
record to demonstrate that she has expired or has been won
over by the accused or for any other reason was not available
as a witness. No explanation whatsoever has come in the
prosecution evidence as to why she has not been produced as
a witness.

The court below has not drawn adverse inference on

account of her non-examination by observing that she was an
outsider in the village and might not have been able to
recognize the accused persons. This view of the court below
does not appeal to us. Firstly, because even if she had been an
outsider she may have been able to recognize her assailants
when they were put in the dock. And, secondly, even if she had
not been able to recognize the accused persons, she could
have thrown light on the number of persons involved; the
presence of PW3 on the spot; and whether any insider was
involved. Thus, in our considered view, she was a material
witness who could have unfolded the true facts. The
 29

prosecution by not examining her as a witness and by not

tendering any explanation in that regard has invited an adverse
inference with regard to the credibility of its case.

It is well settled that a material witness must not ordinarily

be withheld. And, if withheld, in absence of cogent explanation,
adverse inference is to be drawn, particularly, where the
prosecution evidence available is coming through highly
interested witnesses, who are not injured. It is equally well
settled that an injured witness in terms of credibility is put on a
higher pedestal than other witnesses because, firstly, his
presence at the place of occurrence is guaranteed by his
injuries and, secondly, why would he let off his assailants.

In Prabhat v. State of Maharastra : (2013) 10 SCC 391,

failure to examine a crucial injured witness who could have
thrown light on the prosecution narrative was held to have
dented the credibility of the prosecution case.

No doubt, non-examination of an injured witness by itself

may not be sufficient to discard the prosecution case
particularly when it is not shown that the witness was alive or
was in a position to depose in court or where there is a
plausible explanation for his non-examination or where there
are more than one injured witnesses and some or one of them
have already been examined. Otherwise also, by mere non-
examination of a witness the entire prosecution case is not to
be discarded if, otherwise, the evidence led is highly reliable
and satisfactorily proves the case beyond the pale of doubt. But
where the prosecution evidence is coming from highly
interested witnesses and there appears a doubt with regard to
their presence and there appears a possibility of false
implication or over implication, non-examination of an injured
person as a witness, who is the lone survivor of the incident, in
 30

absence of any explanation in that regard, would assume

importance and may dent the credibility of the prosecution
case.

In the instant case, we find that all the prosecution

witnesses are inimical and highly interested. Not a single
independent witness has been examined to even demonstrate
that shrieks were heard at Ram Chandra' house coming from
the house of the informant, which according to the I.O. (P.W.8)
was 65 paces away, thereby giving opportunity to the informant
(PW1) and PW2 to rush to the spot. The place from where
P.W.3 saw the incident and raised an alarm is an unnatural
position inasmuch as that is a place which has no permanent
staircase for access. Apart from that, the deceased was found
only in a lower undergarment, with no other clothes on, which
throws various questions for which, in our view, the injured
alone, who was lying next to the deceased, was the best
person to answer. Hence, in our considered view, non-
examination of the injured witness, namely, Km. Sarmoz, in
absence of any explanation offered by the prosecution for her
non-examination, has seriously dented the credibility of the
prosecution case.

There is another aspect of the matter which is with regard

to strong possibility of over implication or false implication. It
may be noticed that out of four accused persons, three are
brothers and one, namely, Nand Kishore, is a person with
whom litigation had been going on. The three injuries found on
the body of the deceased could be from at the most three
weapons and could also be from one, as they were all of similar
nature i.e. incised wounds. Incised wound could be caused by a
knife as well as Ballam, as is the case of the prosecution,
provided the Ballam has sharp edges. The doctor (PW5) has
 31

ruled out the possibility of use of Bhala in causing injury to the

deceased. On the body of the injured Sarmoz a solitary
punctured wound, which could have been inflicted by Bhala,
was found. Two persons are stated to have been armed with
Bhala and two are stated to have been armed with Ballam.
Under the circumstances, at least one person, who was armed
with Bhala, has not caused injury. This gives rise to possibility
of over implication.

Another aspect which needs to be considered is whether

P.W.3 was really in a position to recognize the assailants in the
light of a lantern and whether she could see as to who carried
which weapon. In her testimony, P.W.3 stated that she heard
mumbling sounds which woke her up. Thereafter she peeped
down and could see the accused persons inflicting injuries with
two types of weapon.

In her cross-examination, she, initially, stated that the

back of the accused was towards her though, later, she
corrected herself and stated that the face of the accused was
towards her. The site plan prepared by the Investigation officer
discloses the position of the two cots, that is of the deceased
and of the injured. Both are in east-west direction. The head
side of the cot is towards west. The cot of the injured is towards
the south of the cot of the deceased. A lantern is shown to have
been hanging from point 'G' which is at the head side of the cot
of the deceased that is towards the western side. The location
of P.W.3 and her mother is shown on the eastern side on the
third floor of their own house. In her statement she has
disclosed that she saw the accused towards the north of
deceased's cot. When we see the site plan, if the accused
were on the northern side of the cot of the deceased then they
would have been far away from the cot of the injured, which
 32

was placed south of the cot of the deceased, and therefore they
would not be at a striking distance. Hence, it appears that eye-
witness may not have been able to witness the infliction of
injury on the body of the injured. More over, from that position
P.W.3 would get only the side view of the face of the accused
as they would be looking towards the south.

When we take a conspectus of the entire prosecution

evidence, we find that the prosecution has withheld the best
evidence, namely, the person injured. They have not examined
any independent witness. No recovery of any weapon of
assault has been made. And above all, the place from where
PW3 allegedly saw the incident is not a place where ordinarily a
person would be, inasmuch as that place, firstly, was not
accessible from the house of PW3 and, secondly, it had no
permanent staircase access even from the house of the
deceased. To top it all the I.O. has not shown that any cot or
bedding was noticed by him lying there during the course of
investigation or while preparing the site plan. Once, we doubt
the presence of PW3 at the place of occurrence at the material
time, the credibility of the remaining two witnesses of
circumstance falls to the ground as they have allegedly
responded to the cries of PW3 and her mother (who has not
been examined).

In view of the discussion made above, we are of the

considered view that the prosecution evidence on the whole
fails to inspire our confidence as it poses more questions than
what it seeks to answer. Hence, the benefit of doubt must go to
the accused. Consequently, the appeal is allowed. The
judgment and order dated 29.06.1993 passed by Additional
Sessions Judge/ Special Judge, Meerut in S. T. No.294 of 1989
is set aside. The appellants are acquitted of the charges framed
 33

against them. If they are on bail, they need not surrender.

Let a copy of this order be sent to the trial court for

compliance.

Order Date :- 21.10.2019

Sunil Kr Tiwari