Allahabad High Court
Sushil Kumar Dwivedi @ Sonu Dwivedi vs State Of U.P. on 14 May, 2024
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:86212-DB AFR Reserved Court No.43 Case :- CRIMINAL APPEAL No. - 2558 of 2014 Appellant :- Sushil Kumar Dwivedi @ Sonu Dwivedi Respondent :- State of U.P. Counsel for Appellant :- Balendra Kumar Singh,Arpit Srivastava,Parijat Kumar Tiwari,Rakesh Chandra Upadhyay,Ram Surat Patel,S.P. Tewari,Udai Karan Saxena,Veerendra Singh,Vijay Singh Sengar Counsel for Respondent :- Govt. Advocate,Anil Srivastava,B.N.Singh,Ram Bahadur,Ravi Yadav WITH Case :- CRIMINAL APPEAL No. - 2582 of 2014 Appellant :- Anil Kumar Shukla Respondent :- State of U.P. Counsel for Appellant :- Balendra Kumar Singh,P.K. Singh,Sanjeev Kumar Singh Ac Counsel for Respondent :- Govt. Advocate,Anil Srivastava,B.N.Singh,Ram Bahadur,Ravi Yadav WITH Case :- CRIMINAL APPEAL No. - 2639 of 2014 Appellant :- Santosh Kumar Dwivedi @ Guddu Dwivedi Respondent :- State of U.P. Counsel for Appellant :- Balendra Kumar Singh,Parijat Kumar Tiwari,Rakesh Chandra Upadhyay,Udai Karan Saxena Counsel for Respondent :- Govt. Advocate,Anil Srivastava,Ram Bahadur,Ravi Yadav WITH Case :- CRIMINAL APPEAL No. - 2640 of 2014 Appellant :- Shrawan Kumar Shukla @ Tanu Shukla Respondent :- State of U.P. Counsel for Appellant :- Balendra Kumar Singh,Sanjeev Kumar Singh Ac Counsel for Respondent :- Govt. Advocate,Anil Srivastava,Ram Bahadur,Ravi Yadav Hon'ble Siddhartha Varma, J.
Hon'ble Vinod Diwakar, J.
(Per : Vinod Diwakar, J.)
1. Criminal Appeal No.2558 of 2014 has been filed along with Criminal Appeal Nos.2559 of 2014, 2582 of 2014, 2639 of 2014 and 2640 of 2014 challenging the judgment and order dated 26.6.2014 passed by the Court of Additional District & Sessions Judge, Court No.5, Kanpur Nagar.
2. On 5.3.2014 at about 9.00 pm, it has been alleged in the FIR which itself was lodged on 5.3.2014 at 23.00 pm (11.00 pm) at police station Govind Nagar, District Kanpur Nagar, that in Flat No.HIG 304 Ratan Lal Nagar Rudra Vatika, Kanpur Nagar the first informant along with his real brother's wife Neeta Singh, his maternal brother (mamera bhai) Tilak Singh along with Nishi, Nidhi, Abhay, Tushar, the children of his real brother was present. At around 9.00 pm the call bell rang and in response thereto Neeta, the wife of his brother, opened the door. Upon opening the door, Sonu Saxena, who lived in a neighbouring flat, enquired as to where Puti (husband of Neeta) was and to this question Neeta had replied that he had gone to Lucknow. Along with Sonu Saxena, Sonu Dwivedi had also come and very abusingly he said that she would not tell where Puti was unless they made her naked and was taken around. When the first informant and his cousin Tilak heard about this statement being made by Sonu Dwivedi, then the first informant along with his nephews and nieces came to the door to inquire as to who was being disrespectful to his brother's wife. Upon reaching there, the first informant has stated, in the FIR, that he along with others saw that Sonu Saxena @ Anesh Saxena, Guddu Dwivedi @ Santosh Kumar Dwivedi had revolvers in their hands while Sonu Dwivedi, Anil Shukla and Tanu Shukla had country made pistols in their hands. Upon reaching the door, when Tilak the Mama's son of the first informant told Sonu that he may not be disrespectful to Neeta Singh then Guddu Dwivedi said that Tilak be also picked up from the house and taken away. While this was happening Tanu Shukla @ Shravan Kumar Shukla and Anil Shukla put their country made pistols on the temples of the foreheads of Neeta Singh and Tilak Singh and took them downstairs and throughout they kept asking as to where Puti was and said that if they did not reveal where Puti was, they would kill them with their guns. While this was happening, the first informant and the young nephews and nieces shouted for help. However, Sonu Saxena and Guddu Dwivedi who were having revolvers in their hands shot at Neeta Singh and Tilak Singh indiscriminately and thereafter they all got into their Santro Car which was parked outside and went away. It has been stated in the FIR that the whole incident had occurred in a crowded area and that after the incident had occurred the whole area was gripped with fear and everybody of the area closed their doors and windows. He has categorically stated in the FIR that the incident occurred due to the fact that there was some transaction of money and old enmity. It has further been stated that after the incident had occurred, the local police had taken the injured to the Hallet Hospital where Neeta Singh was declared dead and Tilak Singh was directed for being further treated to a better hospital. Through the FIR, the first informant had prayed that the FIR be lodged and action be taken. Specifically the first informant had stated that other than Sonu Saxena, all the other three accused persons were residents of Nauraiya Kheda, Police Station Govindpur.
3. Upon the FIR being lodged, the police got into action and the investigation thereafter commenced. On 10.3.2009, the Sub-Inspector B.P. Mishra along with Constable Ashutosh Mishra and Vinod Kumar who were in their Jeep along with the driver J.P. Yadav while they were searching for the accused of the incident which had occurred on 5.3.2009 and of which FIR was lodged on the same date and was registered as Case Crime No.127 of 2009 under sections 147, 148, 149, 307, 308, 504 and 506 IPC and section 7 of Criminal Law Amendment Act, they reached the Dada Nagar factory area crossing and when they reached the Factory No.H-10, they spotted someone who panicked on seeing the police jeep. Before being spotted, he was hiding behind the Factory No.H-11. Upon being suspicious the Sub-Inspector B.P. Mishra along with the Constables and the Driver who were accompanying him at 6.30 in the morning caught hold of that person. When the name of that person was asked, he informed that he was Sonu Saxena @ Anesh Saxena, resident of 405, Flat Rudra Vatika Apartment, area 304 Ratan Lal Nagar. Upon further searching him, it was found that he had a licensed revolver No.NPG-21798 and that it was a .32 bore revolver. Along with the revolver, four live cartridges of .32 bore were also recovered from him. After the recovery of the firearm along with bullets, a case was registered as Case Crime No.134 of 2009 under sections 25/27-A of the Arms Act read with section 7 of the Criminal Law Amendment Act. The apprehended person Sonu Saxena @ Anesh Saxena upon being questioned, informed that on 5.3.2009 he had, with his licensed revolver, fired at Neeta Singh and Tilak Singh. Thereafter Sonu Singh was arrested.
4. In a similar fashion on 13.3.2009 at around 2.00 am in the morning Santosh Kumar Dwivedi, Anil Shukla, Shravan Kumar Shukla @ Tanu Shukla and Sushil Kumar Dwivedi @ Sonu Dwivedi were apprehended. On 12.3.2009 the Sub-Inspector B.P. Mishra had got an information from a Mukhbir Khas that four named accused in the murder case of Puti Singh's wife and Tilak Singh were hiding in the factory area and upon getting this information, the Sub-Inspector B.P. Mishra had reached the area and had apprehended the four persons and from Santosh Kumar Dwivedi a .32 bore licensed revolver numbered as FG-33215 along with four live cartridges of .32 bore were recovered. The second person namely Anil Shukla was also arrested and from his possession a country made revolver was recovered. The third person Shravan Kumar Shukla @ Tanu Shukla was also arrested with a country made pistol of .315 bore. The fourth person arrested was Sushil Kumar Dwivedi @ Sonu Dwivedi and from his possession also a .315 bore country made pistol was recovered. Against them along with the earlier case crime being Case Crime No.127 of 2009, other cases were added. Case Crime No. No.137 of 2009 under section 25/27 of the Arms Act was imposed against Santosh Kumar Dwivedi; Case Crime No.138 of 2009 under section 25/27 of the Arms Act was imposed against Anil Shukla; Case Crime No.139 of 2009 under section 25/27 of the Arms Act was imposed against Shravan Kumar Shukla @ Tanu Shukla and Case Crime No.140 of 2009 under section 25/27A of the Arms Act was imposed against Sushil Kumar Dwivedi @ Sonu Dwivedi in police station Govind Nagar, District Kanpur Nagar.
5. Here it may be noted that since the initial FIR as was lodged by the first informant Virendra Singh, was lost, the photocopy was kept on the record of the case.
6. The recovery memos with regard to the revolvers and the bullets were also prepared and were exhibited as Exhibit Nos.Ka-14, Ka-15, Ka-16, Ka-17, K-18 and Ka-19 during the sessions trial.
7. Even before the FIR was lodged on 5.3.2009, it is the case of the prosecution that the Sub-Inspector Akhilesh Kumar Shukla (PW-11) who was posted at Chowki Ratan Lal Nagar, Police Station Govind Nagar, had received information of the incident on his mobile phone and upon getting the information, he had rushed along with two accompanying constables and a driver of the jeep to Rudra Vatika Apartment where the Sub-Inspector Akhilesh Kumar Shukla found that the people who had assembles at the spot were running away and that on the spot Shiv Tilak Singh was lying in an injured state and was gasping for breath and Neeta Singh was lying injured in a very quiet state. He picked up both the injured persons in his jeep and took them to the LLR Hospital and upon reaching the hospital, Neeta Singh was declared dead while Shiv Tilak Singh was given medication. He has in his statement, before the Court, stated that because Shiv Tilak Singh required better treatment, he was taken to the Regency Hospital where he died. The PW-11 has stated that thereafter SHO Dinesh Tripathi (PW-8) had taken over the investigation and he had directed him to get the panchayatnama of the two dead-bodies done. On the next day i.e. on 6.3.2009, the panchayatnama of the two bodies was done in the presence of five witnesses in the presence of Akhilesh Kumar Shukla, the Sub-Inspector who had taken the body from the place of incident to the hospital. Thereafter post mortem had followed and from the body of Neeta Singh, three bullets were recovered and from the body of Shiv Tilak Singh, one bullet was recovered. The recovery memo of the five empty cartridges, found at the place of incident, was prepared. So also the recovery memo of the bullets recovered from the body of the deceased was also prepared. The revolvers, the country made pistols, the live bullets recovered along with them, the empty cartridges and the bullets recovered from the bodies were all kept with the police after preparing proper recovery memo and they were also kept in the Malkhana of the police.
8. After around two days i.e. on 7.3.2009, the Sub-Inspector of Police Station Govind Nagar, Kanpur Nagar sent Kumari Nidhi, the daughter of Narendra Singh Chandel @ Puti and the deceased Neeta Singh for the examination of her injury. The doctor's opinion about the injury was that one injury could be caused by a firearm and the other injury by a hard object. It was stated in the injury report that both the injuries were simple and were two days old. The investigation culminated in the submission of a charge sheet before the Court and the Court on 8.1.2010, by five different charge sheets, charge-sheeted the five accused under section 25/27 of the Arms Act. The five accused upon reading and understanding the charges, refused of having committed the crime and prayed for trial. Similarly, on 15.9.2010, the five accused were also charged by the Court of Additional Sessions Judge, Court No.3 under section 302 read with section 149 and under section 307 read with section 149 IPC. Here also, the accused denied the charges and prayed for trial.
9. Before the trial Court as many as 14 prosecution witnesses were examined and from the side of the defence, 3 defence witnesses were examined.
10. PW-1 Head Constable Suraj Singh has proven the FIR, the photocopy of which was available on record. He has stated that the Special Report (SR) of the case was sent on 6.3.2009 at 7.50 am through Constable Raj Bahadur. He has also proven the chik FIR. He has denied the suggestion that the FIR was actually written on 6.3.2009 and not on 5.3.2009.
11. PW-2 is Virendra Singh who is the first informant in the case. He has categorically stated that he personally knew Anesh Saxena @ Sonu Saxena, Sushil Dwivedi @ Sonu Dwivedi; Santosh Dwivedi @ Guddu Dwivedi; Anil Shukla, Shravan Kumar Shukla @ Tanu Shukla and he had also recognized them in the Court. He had very categorically stated that apart from Anesh Saxena, the other four accused were living in the village where the first informant was living. With regard to Narendra Kumar @ Puti, he has stated that he was his younger brother and was staying in Flat No.402 HIG 304 in Rudra Vatika Apartment with his family and the accused Anesh Saxena was also living in the same apartment in Flat No.405 along with his family. He has stated that before the incident, his brother Puti had lent Rs.2,10,000/- to Anesh Saxena. On the date of incident i.e. on 5.3.2009 at around 9.00 pm he was in the same house where Narendra Kumar @ Puti along with his wife Neeta Singh and their children Abhay, Tushar, Nidhi and Nishi was living. On the date of incident his cousin (mamera bhai) Shiv Tilak was also present. When the call bell rang, Neeta Singh had opened the door. Anesh Saxena had inquired as to where Puti was and to that Neeta Singh had replied that he had gone to Lucknow. The other four accused, who were present in the Court, were also there with Anesh. Sonu Dwivedi had said that she would not tell about the whereabouts of Puti and, therefore, she be taken out naked. Upon hearing this, the first informant and his nephews and cousin reached the door. He saw that Sonu Saxena and Guddu Dwivedi had revolvers in their hands and the others had country made pistols. Shiv Tilak reprimanded the five accused as to why they were misbehaving with his cousin's wife (bhabhi). Upon this Guddu Dwivedi asked the others to catch hold of Shiv Tilak also. PW-2 has then stated that Tanu Shukla and Anil Shukla caught hold of Neeta Singh and Shiv Tilak and had took them downstairs throughout flaunting their country made pistols. The first informant, his brother and nephews cried for help. The accused had taken Neeta Singh and Shiv Tilak to the portico of the building. The accused were throughout, while they were taking the two i.e. Neeta Singh and Shiv Tilak, kept saying that they may tell as to where Puti was otherwise they would kill them. When Neeta Singh had nothing else to tell other than that Puti had gone to Lucknow, the accused did not believe this and with their firearms shot at Neeta Singh and Shiv Tilak and thereafter went away on their Santro Car. He has stated that a lot many people had seen the incident specially Amar Singh and Preetam Singh. After the actual firing had happened, the police arrived at the spot and they took Neeta Singh and Shiv Tilak to Hallet Hospital where Neeta Singh was declared dead but Shiv Tilak was given the treatment. There itself the PW-2 had written the report and had also got it photocopied. Thereafter the FIR was lodged.
12. In the cross-examination, the first informant had stated that he was 42 years of age and had a Medical Store in Nauraiya Kheda. The Medical Store was functional since 1993 and that it was situated in a small place. It opened at 9.00 am and closed at 10.00 pm and that it was half a kilometer away from his house. He has categorically stated in his cross-examination that he had six more brothers namely Jaswant Singh, Pratap Singh, Rajendra Singh, Babu Singh, Shyam Singh and Narendra Singh. Shyam Singh was an Advocate; Jawant Singh was working in ICI Duncon Factory; Pratap Singh was working in Animal Husbandry; Rajendra Singh had a factory and Babu Singh also had a factory. Narendra Singh also had a factory and was manufacturing plastic. PW-2 has stated that his mobile number was 9451140475 and that all the mobile numbers were fed in his mobile directory. He has stated that the mobile number of Puti at the time of incident was different but at the time of his giving the testimony it was 9670991199. With regard to the fact that he knew Amar Singh and Preetam Singh, he had consistently stated that he had known them for a fairly long time and their houses were also near his house. Upon being asked that why he had gone to the house of Puti Singh on the date of incident, he had stated that his Jija's daughter was getting married and since Puti was out of station, he had come to the house of Puti to take Neeta and her children to the marriage. He had reached the house at around quarter to nine. Since, in the FIR, he had not stated about the fact that he along with Neeta and children had to go to the marriage, he had stated that he was stating the same for the first time in the Court. he had gone to the house of Neeta on his bike and thereafter had to take them all to the marriage in the Santro Car of Narendra. He had stated that he had owned a revolver and it was a lincenced one.
13. He has also stated in his cross-examination that at the time when the incident had occurred, his nephew Tushar was with him behind a particular pillar. He has also stated that in the night of the incident at 01:30 am i.e. on 06.03.2009, he had seen Puti Singh in the hospital. On the date of the incident Putti Singh was not in Kanpur and so was Shyam Singh, another brother, not in Kanpur. The other brothers were in Kanpur. Since on the date of incident the PW-2 had left his mobile at his own house, he was not in possession of any mobile phone. When the PW-2 had gone to get the place of incident inspected, the children had gone to the house of Babu Singh, a brother of the first informant. Upon a question being asked as to whether he had seen any bullet hitting Nidhi, he replied that he had never seen any bullet hitting her. In the cross-examination, he had very categorically stated that he had not stated the fact during investigation that there was a marriage in the family for which he had reached the house of Narendra Singh. He had stated that this fact was also not told by him in the statement recorded under Section 161 Cr.P.C. No invitation card etc. of the marriage was placed on record. The evidence of PW-2 had commenced on 16.12.2010 and on 25.10.2011 for the first time without producing any invitation card etc. he only mentioned that on the date of incident he alongwith Putti's wife was to go to the marriage of the daughter of one Munni Singh who was the daughter of his Fufa. However, he states that the other brothers of his had not attended the marriage.
14. PW-3 is the daughter of Narendra Singh Chandel and Neeta (deceased). When she gave her statement, she was 13 years of age and the Court had tested whether she could give the statement and whether she knew the importance of taking oath. The Court after being convinced that PW-3 had the capacity of understanding what she said and she was conscious of the importance of taking oath, she was permitted to give her statement-in-chief. She had reiterated what had been stated by the first informant. She had stated in her cross-examination that she was not aware if any bullet had hit her. She only came to know about the fact that a bullet had hit her when the medical was done. She had never stated that she had also been injured in the event. She has stated in her cross-examination that her elder sister was Rishi and had been studying in Doon International School and that all the four brothers and sisters were studying in that school for the past 4-5 years. However, in her cross-examination she has again stated that till the standard 5th, she had studied at Nauraiya Kheda and at the moment she had given the statement, she was studying in class six. However, she has stated that before she was studying in class VI, she was studying in Kedar Singh Inter College. A lot of other things had been stated in her cross-examination but only the the relevant portion of her statement has been reproduced in this paragraph.
15. PW-4 was the doctor who had examined the injuries of Nidhi, daughter of Narendra Singh and he had given his statement with regard to the two injuries which were found on the body of Nidhi. He had stated that the injuries were not serious ones and that they were not in any manner infected despite the fact that no medicine was applied on them.
16. PW-5 was the doctor who had conducted the postmortem on Shiv Tilak and he has proven the postmortem report.
17. PW-6 Sri Dileep Singh Sachan who was the Pharmacist of the postmortem house and has proven the postmortem report of the deceased Neeta W/o Narendra Singh.
18. PW-7 who was the Head Constable Promod Kumar Yadav and he has proven the First Information Reports under the Arms Act.
19. PW-8 Inspector Dinesh Tripathi who had, upon information being received, reached the spot where the shooting had occurred and he had taken the two victims Neeta Singh and Shiv Tilak to the hospital. He has stated that on the spot he had not met Narendra Singh and his brother Babu Singh but had met the PW-2 Virendra Singh.
20. PW-9 was the Sub-Inspector V.P. Mishra who was the first Investigating Officer. He has narrated throughout as to how the incident had occurred and how he had taken the statements of various persons.
21. PW-10 Ashutosh Mishra, Constable had proven the arrest memo of the accused persons and had also proven the recovery memo of the firearms which had been recovered.
22. PW-11 the Sub-Inspector Akhilesh Kumar Shukla was the person who had reached on the spot on the date of the incident upon getting an information on his mobile. He has also stated the story of the prosecution as was narrated by the other prosecution witnesses. He had stated that he did not go back to the place of incident as he was suspended from service on that very date.
23. PW-12 the Sub-Inspector Santosh Kumar Awasthi was the formal witness who had proven the recovery memos of the various fire arms.
24. PW-13 is the prosecution witness Ram Sajivan who had carried the firearms, the empty cartridges and the bullets which were recovered from the spot to the forensic laboratory at Agra from Kanpur. He has stated that he had reached Agra on 24.05.2009. He had stated that the Exhibits Ka-33 and Ka-34 were given to him on that very date. He has further stated that for the first time the fire arm, empty cartridges and the bullets were taken out from the Malkhana on 21.05.2009 and on that date they were again deposited in the Malkhana and thereafter, on 24.05.2009 the fire arm, empty cartridges and the bullets in a sealed cover were given to him. On 21.05.2009 the date which is there on Exhibit Ka-33 was the date when the articles were taken out from the Malkhana and 24.05.2009 (Exhibit 34) was the date when he had left station. In between 21.05.2009 and 24.05.2009, taking out of the fire arms and the bullets etc. and of them being again kept in the Malkhana, there was no record. There was no entry in any register.
25. PW-14 was the Sub-Inspector Raghuvar Dayal who had proven the recoveries of the various fire arms and was a formal witness.
26. Thereafter the statements of the five accused were recorded under Section 313 Cr.P.C. and they had denied the commission of the crime.
27. DW-1 was Dr. Shailendra Gupta who had been produced to show that Sonu Saxena on the date of occurrence was not in Kanpur but was in Muzaffar Nagar.
28. DW-2 is one Pramod Kumar Srivastava who had told that Anesh @ Sonu Saxena was the husband of her niece Shalini and that he was the uncle (Mama) of Shalini. He had also stated that on 25/26.02.2009 Sonu Saxena had gone to Muzaffar Nagar to get a chek up done of Shalini but in fact he had fallen ill over there and was admitted in a hospital at Muzaffar Nagar. DW-2 had also stated that Anil Shukla also was, on 05.03.2009, with him.
29. After the completion of trial, the accused persons Anesh Saxena @ Sonu Saxena and Santosh Kumar Dwivedi @ Guddu Dwivedi were convicted under Section 302 of IPC and were sentenced for life imprisonment with a fine of Rs. 10,000/-. Whereas, Shushil Kumar Dwivedi @ Sonu Dwivedi, Shravan Kumar Shukla @ Tanu Shukla and Anil Kumar Shukla were convicted under Section 302 read with section 149 of IPC and they were sentenced for life imprisonment with a fine of Rs. 10,000/- each. All the accused were also, under Section 147 of IPC, sentenced for one year of imprisonment and under section 148 of IPC three years sentence was awarded. Again under Section 506 of IPC they were sentenced for one year. In the event, the accused convicted persons did not deposit the fine, then they had to further undergo six months' additional imprisonment. The punishments were to run concurrently. The accused persons were acquitted under Section 307 read with sections 149 and 506 of IPC and under Section 7 of the Criminal Law Amendment Act. They were also acquitted under Section 25/27 of the Arms Act.
30. Learned counsel for the appellants Sri V.P. Srivastava, Senior Advocate assisted by Sri P.K. Singh and Sri Vijay Singh Sengar, Advocates argued as under :-
(i) The FIR was an ante-dated FIR. He has submitted that even though in the FIR which is a photocopy of the original, it was written that the incident had happened on 5.3.2009 at around 9.00 pm, the Chik which was prepared shows that the FIR was actually lodged at 23.00 hours i.e. at 11.00 pm. Learned counsel for the appellants further states that if the Panchayatnama is seen of both the deceased i.e. Neeta Singh and Shiv Tilak then it becomes clear that the time of the information received by Akhilesh Kumar Srivastava (PW-11) was 9.00 pm. Learned counsel for the appellants took the Court through the original record and drew the attention of the Court to the date on the Chik FIR which had an overwriting over the digit 5. There was overwriting on page one and he submits that there was overwriting also in page 2 at the end of the FIR. He submits that in fact at the time of the lodging of the FIR, the names of the accused persons were not known and a plain paper on which the GD was to be written was left unused in the record of the Police which was filled-up later on. He submits that this was the reason why the chick was written on both sides of only one page and in fact the continuation of it was written in the left hand margin of the second page. After the informant side had made up its mind as to who had to be made the accused, the FIR was got registered. Learned counsel for the appellants states that the original Tahreer was made to disappear and a photocopy of it was placed on the record. He submits that in the cross-examination, the chick writer PW-1 Constable Sooraj Singh has very conveniently only stated that he had forgotten to sign over the overwritings. Learned counsel for the appellants further states that when the FIR was lodged at 23.00 hours, how in the Panchayatnama it had been said that the PW-11 i.e. Akhilesh Kumar Shukla had got the information at 09:00 pm.
(ii) Learned counsel for the appellants next submitted that the presence of PW-2 Virendra Singh at the place of incident was absolutely doubtful. He submits that in the FIR the PW-2 who has lodged the FIR has stated that he was there at the spot and he had also overheard what conversation the assailants had with the deceased-Neeta Singh but nowhere in the FIR had he stated that why he was present in the flat in question. Learned counsel for the appellants, therefore, suggests that in fact the PW-2 was not there on the spot and that only to have an eye-witness, as an afterthought, when the FIR was being got lodged by him, he was made to give an eye-witness account. To bolster this argument of his, learned counsel for the appellants states that in the FIR and in the statement under Section 161 CrPC, the PW-2, the first informant, had never stated that he had reached the flat of his brother Putti to take Putti's wife i.e. Neeta (deceased) and the children to some marriage which they had to attend. Learned counsel for the appellants states that for the first time on 07.02.2011 while being cross-examined by the counsel of accused Santosh and Sushil Dwivedi, he had stated that on the date of the incident he had gone to Putti Singh's house as there was a marriage of the daughter of his Jija and since Putti Singh was out of station i.e. in Lucknow, he had gone to fetch Putti Singh's wife Neeta Singh and the children. He had stated that he had reached there at around 08:45 pm and he categorically states that for the first time he was stating this fact in the Court. The relevant portion of the statement is being reproduced here as under :-
"घटना वाले दिन पूती सिंह के यहाँ जाने का कारण था। मेरे जीजा जी की बेटी की शादी थी और पूती सिंह बाहर (लखनऊ) थे इसलिए विवाह समारोह में सम्मिलित होने के लिए बहू और बच्चो को लाने के लिए गया था। मैं पूती सिंह के घर लगभग पौने नौ के आस पास पहुँचा था। उनको पहले पता था कि साथ जाना है। मेरे पहुँचने के लगभग आधे पौपन घण्टे बाद समारोह में जाना था। यह शादी में जाने वाली बात आज न्यायालय में सर्वप्रथम बता रहा हूँ। मैं अपनी बाइक से गया था उनके पास सेन्ट्रो कार नीचे खड़ी थी उससे जाना था। मैनें अपनी बाइक नीचे पोर्टिको में खड़ी की थी।"
He had also stated that he had gone on his motorcycle and not on his car as Putti Singh's car was there which could be taken to go to the marriage. Learned counsel for the appellant has further stated that during trial on 25.10.2011, after a long lapse of time, PW-2 the first informant had stated that he alongwith the family of Putti Singh was to go to the marriage of the daughter of his Behnoi Sri Sultan Singh Chauhan who was his Fufa's daughter's husband. He had stated that all the family members were to go but he has also very categorically stated that in the marriage neither Putti Singh nor Shyam Singh Chandel had gone. The extremely important information with regard to the name of the father of the girl who was to get married was made known to the Court on 25.10.2011 whereas the evidence of PW-2 had begun on 16.12.2010. Learned counsel, therefore, states that the story was a cooked up story. Learned counsel for the appellants further states that if it was so important for everybody to attend the marriage then Putti Singh and Shyam Singh also ought to have been there in Kanpur to attend the marriage. Since the learned counsel for the appellants relied upon the statement which was given on 25.10.2011, the same is being reproduced here as under :-
"मेरे बहिनोई श्री सल्तान सिंह चौहान मेरे गाँव में रहते है। यह मेरे सगे बहिनोई नहीं बल्कि फुफेरे बहिनोई है। सगे फूफा? का नाम श्री लल्लन सिंह है। लल्लन सिंह की विटिया और सुल्तान सिंह की पत्नी का नाम श्रीमती मुन्नी है। इन्ही श्रीमती मुन्नी सिंह की सगी बटिया की शादी में घटनावाले दिन मेरे परिवार के सभी लोग सपरिवार आमंत्रित थे। और इस भान्जी की शादी में न पूती सिंह आये और न श्याम सिंह चन्देल आये थे।"
Upon being asked as to whether any invitation card of the marriage was there, PW-2 had stated that the marriage card was not there on record at all. The statement with regard to the marriage card was given by the PW-2 on 22.10.2011. Learned counsel for the appellants further to prove this fact, has relied upon the statement which the PW-2 had given on 22.10.2011. The relevant portion with regard to the invitation card is being reproduced here as under :-
"यह कहना सही है कि 'मेरे घर में आज शादी है" वाली बात न एफ०आई०आर० में है और न बयान 161 सी०आर०पी०सी० में लिखवायी थी। यह कहना गलत है कि अदालत में पहली बार सिखाने पर झूठा ब्यान दिया कि घर में शादी थी। शादी के निमत्रण पत्र या अन्य कोई दस्तावेज प्रमाण पत्रावली पर उपलब्ध नहीं है। यह कहना गलत है कि मैं बिल्कुल झूठ बोल रहा हूँ कि उस दिन मेरे घर में शादी थी। यह कहना भी गलत है कि शादी के सिलसिले में वहाँ गये ही नहीं क्योकि वहाँ कोई शादी थी ही नहीं।"
Learned counsel for the appellants, to show that the PW-2 was a chance witness, has further stated that the family of the first informant had its ancestral home in village Nauraiya Kheda and he states that in his statement he had also stated that Sonu Dwivedi, Anil Shukla and Tanu Shukla also belonged to the same village and, therefore, he stated that they were very well known to the PW-2 and it was just possible that he had some enmity with them and, therefore, the names were introduced in the FIR. Learned counsel submitted that only to give credence to the story about the fact that there was some money transaction, the accused Sonu Saxena was introduced in the FIR as he lived across the house of his younger brother Putti Singh. Learned counsel for the appellants further states that the PW-2 had stated that he had a mobile but he had left it at his ancestral house. He had stated that he had a car also but that car was also not brought and he had come on a motorcycle as he was aware that Putti Singh had a car and in that car he was to take the family of Putti Singh. Upon a question being put that Putti Singh had talked to Anil Shukla (an accused) on 05.03.2009 at around 09:35 pm and also at around 09:56 pm, the PW-2 had denied that he had known about the phone call from Putti Singh to Anil Shukla. Upon being confronted with regard to the call details of the phone number of Putti Singh being 9918560533 by which he had dialled the phone number of Anil Shukla being 9335632772, he clearly states that he was not aware of the fact that Putti Singh had called Anil Shukla. Learned counsel for the appellants relying upon a judgment of the Supreme Court reported in (2023) 2 SCC 352 : Manoj and Ors. vs. State of U.P. has stated that a chance witness is one who appears on the scene suddenly when something is happening and then disappears after noticing the occurrence about which he was required to come later on and give his evidence.
Learned counsel for the appellants states that as per the law laid down by the Supreme Court a testimony of a chance witness should be utilised by the prosecution very cautiously. He submits that the evidence of the chance witness requires a very cautious and strict scrutiny and if there was any slackness in the explanation about the presence of the chance witness at the place of incident then his deposition ought to be rejected. Since learned counsel for the appellants relied heavily on paragraphs 102, 103 and 104 of the judgment reported in (2003) 2 SCC 353 : Manoj & Ors. vs. State of Madhya Pradesh, the same are being reproduced here as under :-
"102. A chance witness is one, who appears on the scene suddenly. This species of witness was described in Puran v. State of Punjab (AIR 1953 SC 459), in the following terms:
"Such witnesses have the habit of appearing suddenly on the scene when something is happening and then of disappearing after noticing the occurrence about which they are called later on to give evidence."
103. This court has sounded a note of caution about dealing with the testimony of chance witnesses. In Darya Singh v. State of Punjab (AIR 1965 SC 328), it was observed that:
"...where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence......If the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised."
104. In Jarnail Singh v. State of Punjab [(2009) 9 SCC 719] again, this Court held that:
"22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh (1997) 4 SCC 192 30, Harjinder Singh v. State of Punjab (2004) 11 SCC 253, Acharaparambath Pradeepan and Anr. v. State of Kerala (2006) 13 SCC 643 and Sarvesh Narain Shukla v. Daroga Singh (2007) 13 SCC 360). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan (2004) 10 SCC 632)."
Since the learned counsel for the appellants also relied upon paragraphs 22 to 24 of the judgment reported in (2016) 16 SCC 418 : Harbeer Singh vs. Sheeshpal & Ors., the same are being reproduced here as under :-
"22. The High Court has further noted that there were chance witnesses whose statements should not have been relied upon. Learned counsel for the respondents has specifically submitted that PW5 and PW6 are chance witnesses whose presence at the place of occurrence was not natural.
23. The defining attributes of a "chance witness" were explained by Mahajan, J., in Puran v. State of Punjab, AIR 1953 SC 459. It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence.
24. In Mousam Singha Roy v. State of W.B., (2003) 12 SCC 377, this Court discarded the evidence of chance witnesses while observing that certain glaring contradictions/omissions in the evidence of PW 2 and PW 3 and the absence of their names in the FIR has been very lightly discarded by the courts below. Similarly, Shankarlal v. State of Rajastahan, (2004) 10 SCC 632 and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719, are authorities for the proposition that deposition of a chance witness, whose presence at the place of incident remains doubtful, ought to be discarded. Therefore, for the reasons recorded by the High Court we hold that PW5 and PW6 were chance witnesses and their statements have been rightly discarded."
Similarly, paragraphs 20 to 23 of the judgment of the Supreme Court in Jarnail Singh & ors. vs. State of Punjab reported in (2009) 9 SCC 719 are also being reproduced here as under :-
"20. After considering the oral as well as documentary evidence on record, the High Court came to the conclusion that the statement of Gurcharan Singh (PW-18) in respect of the fact of hatching of a conspiracy by Balbir Singh and Gurdip Singh, at the Bus-stand Bassi Pathana on 21-6-2000 at 7.30/8.00 p.m. was not worthy of credence. Gurcharan Singh (PW-18), a chance witness could not explain under what circumstances he was present at the bus-stand at the said time.
21. In Sachchey Lal Tiwari v. State of U.P. (2004) 11 SCC 410, this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and passerby had deposed that he had witnessed the incident, observed as under:
"If the offence is committed in a street only a passer-by will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there."
The Court further explained that the expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.
22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh (1997) 4 SCC 192; Harjinder Singh v. State of Punjab (2004) 11 SCC 253; Acharaparambath Pradeepan & Anr. v. State of Kerala (2006) 13 SCC 643; and Sarvesh Narain Shukla v. Daroga Singh and Ors. (2007) 13 SCC 360). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan (2004) 10 SCC 632).
23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident. (vide Thangaiya v. State of Tamil Nadu (2005) 9 SCC 650). Gurcharan Singh (PW-18) met the informant Darshan Singh (PW-4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW-18) and Darshan Singh (PW-4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned."
Paragraph 10 of the judgment reported in 1976 Criminal L.J. 1568 : Bahal Singh vs. State of Haryana is also being reproduced here as under :-
"10. As to the presence of P. Ws. 4 and 5 at the time and place of occurrence the trial Court entertained grave doubts. If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. In the instant case, P.Ws. 4 & 5 were agnatic relations of the deceased-one of them a close one. The reason given by them for being at the place of occurrence did not appear to be true to the trial Court. There was not any compelling or sufficient reason for the High Court to differ from the evaluation of the evidence of the two chance witnesses. It may well be as remarked by the High Court that the respondent was also their collateral but they appeared to be partisan witnesses on the side of the prosecution and hence their testimony was viewed with suspicion by the trial Judge."
Learned counsel for the appellants, therefore, in effect argued that the PW-2 was a complete outsider and was not in fact an eye-witness and only to provide an eye-witness account, he had been introduced in the case. However, he submits that this introduction of the PW-2 could not be successfully done. Learned counsel for the appellants, therefore, submits that the testimony of PW-2 be out-rightly rejected.
(iii) Learned counsel for the appellants thereafter has submitted that at the time when the incident had occurred, the Police had reached the spot and had recovered from the spot five empty cartridges and these five empty cartridges were kept in a sealed cover. Recovery memo was prepared on 06.03.2009 in the presence of two witnesses Sanjay Singh and Rajendra Singh. At the time of the postmortem, from the dead bodies of Neeta Singh and Shiv Tilak again four bullets were found. In the body of Shiv Tilak Singh there was a fire wound entry and the bullet which had embedded itself in his body was extricated. Similarly, there were three firearm injuries on the dead-body of Neeta Singh and they were all entry wounds and therefore three bullets were found in the postmortem. These used bullets were also kept by the Police in a sealed cover in Malkhana on 21.05.2009. As per Exhibit Ka-33 the firearm, the empty cartridges and the bullets which were retrieved from the dead-bodies were sent to the forensic laboratory at Agra. The forensic laboratory upon opening the sealed covers numbered the empty cartridges as EC-1 to EC-5. The revolver of point 32 bore which was recovered from Santosh Kumar Dwivedi was numbered as 1/09. The live cartridges of this revolver were given the numbers as LC-1 to LC-4. The revolver which was allegedly that of Anesh Saxena was numbered as 2/09 and the live cartridges which were found were of that revolver were numbered as LC-5 to LC-8. The other firearms and the other bullets, which were found from other co-accused, were also numbered. The four bullets, out of which the three were found from the body of the deceased Neeta Singh were numbered as EB-1, EB-2 and EB-3 and the fourth bullet which was found from the body of Shiv Tilak was numbered as EB-4. The report which the forensic laboratory gave was to the effect that the empty cartridge one, empty cartridge two and the empty cartridge four were fired from the revolver 2/09, while the empty cartridge three and empty cartridge four were fired from the revolver 1/09. However, it gave a definite report that the bullets EB-1, EB-2 and EB-3 did not match the revolvers which were in question. However, EB-4 matched a particular revolver. Learned counsel for the appellants, therefore, states that the entire prosecution case becomes falsified. The Constable, Ram Sajivan PW-13 had taken into custody the firearm and the bullets on 21.05.2009. However, the Exhibit Ka-43 i.e. the document by which the report was given, shows that the bullets and the firearms had reached the forensic laboratory on 25.05.2009. Learned counsel for the appellants states that Kanpur Nagar from Agra is hardly two hours away but it took the firearms and the bullets to reach Agra from Kanpur almost four days. This delay, learned counsel for the appellants states, is unexplainable. The Constable Ram Sajivan PW-13 upon being questioned as to how such a delay occurred in sending the bullets and the firearms, he stated that when the document Exhibit Ka-33 was prepared, the articles which he had to take, were given to him on that very date i.e. on 21.5.2009. But, he states that, thereafter he had kept the articles, which were given to him, again in the Malkhana and thereafter he was again given the articles i.e. on 24.5.2009. He states that his ravangi was entered in the General Diary on 21.05.2009 and on 24.05.2009. He states that after the articles were taken out on 21.5.2009 they were again kept in the Malkhana and thereafter again taken out. However, these activities were not registered in any register. Since learned counsel for the appellants heavily relied upon a certain portion of the statement of PW-13, the same is being reproduced here as under :-
"जिस दिन प्रदर्श क-33 व क-34 तैयार किये गये थे उसी दिन मुझे दे दिये गये थे। ये दोनो प्रपत्र एक ही दिन मुझे मिले थे। जिस दिन ये दस्तावेज तैयार करके मुझे दिये गये थे उसी दिन मुझे वस्तुएं भी प्रदान कर दी गई थी।
प्रश्नः- जिस समय आपको वस्तुए मिली और विधि विज्ञान प्रयोगशाला में दाखिल करने तक आपके कब्जे में रही ?
उत्तरः- डाकेट व वस्तुए मिली थी उनको थाने के मालखाना मे दाखिल किया व विधि विज्ञान प्रयोगशाला में दाखिल करने के लिए रवाना होने पर पुनः मिली उसके बाद विधि विज्ञान प्रयोगशाला में दाखिल करने तक मेरे कब्जे में रही।
पहली बार दिनांक 21.05.09 को प्राप्त हुई और 21.05.09 को ही थाने में जमा कर दी। दुबारा 24.05.09 को वस्तुएं प्राप्त हुई थी। ऐसा नहीं है कि बीच में और कभी मिली हो। दिनांक 24.05.09 को माल निकालने के लिये थाने मे कोई प्रार्थना पत्र नहीं दिया क्योकि जरूरत नहीं थी।
प्रश्नः- दिनांक 24.05.09 को माल निकालने के थाना इन्चार्ज या समाप्त ? अधिकारी की अनुमति प्राप्त की गई?
उत्तरः- मैने मालखाना इन्चार्ज हेड मुहर्रिर ने ही निकालकर दिया था।
दिनांक 21.05.09 व 24.05.09 की जी०डी० मे मेरी रवानगी दर्ज है यह रवानगी माल निकालने के सम्बन्ध में दर्ज है। यदि दिनांक 22.05.09 व 23.05.09 में सामान निकालना दर्ज हो तो वह गलत होगा।"
Learned counsel for the appellants relying upon the statement of the PW-13 states that in fact the firearm and the empty cartridges after they were taken out after 21.05.2009, were again fired and the empty cartridges which the Police now obtained were kept as original empty cartridges. However, since there was no chance of changing the bullets which were retrieved from the dead bodies, they remained the same. He, therefore, states that as per the forensic laboratory's report, the empty cartridges matched but the three out of the four bullets which were retrieved from the dead-bodies had not matched the firearms. He, therefore, submits that the prosecution had tried to come up with an absolutely false case and those very firearm which were sent to the forensic laboratory were not used by the alleged assailants.
(iv) Learned counsel for the appellants states that PW-3 who was the daughter of the deceased-Neeta and was named Nidhi was also such a witness who could not be relied upon. He submits that the PW-3 was of a tender age at the time when the incident had occurred. She was, at the time of incident, just ten years of age and on the date of the recording of her examination-in-chief she was thirteen years of age. Learned counsel for the appellants states that the deceased had four children namely Nidhi, Nishi, Abhay and Tushar. Nishi was elder to Nidhi, yet no evidence of Nishi was got recorded. Nidhi who got tutored, gave her evidence. Learned counsel for the appellants states that the incident in question occurred on 05.03.2009. There is absolutely no reference of any injury to the PW-3 Nidhi on that date. Even in his statement under Section 161 Cr.P.C., the PW-2 first informant, did not mention about any injury to Nidhi. Suddenly on 07.03.2009, Shyam Singh, an uncle of the child witness Nidhi, who was a lawyer got a recommendation from the Police for medical examination of the child witness Nidhi. Even the recommendation did not mention about any particular injury. The injury report which was given by Dr. Shailendra Tiwari does not say that the injury was serious. In his examination-in-chief and in his cross-examination, the doctor clearly states that he had never stated that the injury was because of any firearm and it could also have been by the heat emitted from a candle. He had stated that there was no infection in the injury and there was absolutely no doubt about the fact that it was a harmless injury. Learned counsel for the appellants thereafter took the Court to the statement of the PW-3 the child witness and he submits that there were major contradictions in the statement of the child witness. Learned counsel for the appellants stated that on 27.06.2011, in her cross-examination before the Court, she states that her elder brother was studying in Doon International School and thereafter she again says that all the four children were studying in Doon International School. She states that her residential address in the school was given as Nauraiya Kheda. However, subsequently in her cross-examination on 29.06.2011, she states that till the 5th standard, she had studied in Nauraiya Kheda and that the name of the school was Kedar Singh Inter College. These two statements which the PW-3 gave on 27.06.2011 and 29.06.2011 are being reproduced here as under :-
"27.6.2011 मेरी बडी बहिन ऋषि दून इन्टरनेशनल स्कूल में पढ़ती है। हम चारो भाई बहिन दून इण्टरनेशनल स्कूल में पढ़ते है। हम दोनो बहिने पिछले 4-5 साल से व कक्षा-2 से इस स्कूल में पढ़ रहे है। स्कूल में हम लोगों का पता नौरैया खेड़ा का शायद लिखा है।
29.6.2011 मैनें कक्षा 5 नौरया खेडा से पढ़ी हूँ इस समय कक्षा 6 में पढ़ रही हूँ। इन स्कूल से पहले केदार सिंह इण्टर कालेज में पढ़ते है। मेरे भाई लोग केदार सिंह इण्टर कालेज में नही पढ़ते थे वह छोटे थे।"
Learned counsel for the appellants, therefore, states that when there was no injury on the body of the child witness Nidhi and the same was created by the family members and thereafter an injury report was obtained, it all clearly went to show that the child witness was being used for the purposes of giving credence to the prosecution case. Learned counsel for the appellants further states that under no circumstance could it be established that the injury was an injury caused during the incident. He, in fact, goes to the extent of pointing out from the judgement of the Sessions Court where he had disbelieved the injury. Learned counsel for the appellants also states that the contradiction in the statement of the child witness also goes to show that she was a tutored witness. What is more, learned counsel for the appellants submits that none of the other witnesses were brought-forth in the evidence box as they could not be tutored and only one child witness could be tutored. To bolster this argument, learned counsel for the respondents, relied upon a judgment of the Supreme Court in AIR 2023 SC 3245 : Pradeep vs. State of Haryana and specifically relied upon paragraphs 8 and 9 which are being reproduced here as under :-
"8. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution.
9. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court."
He further relied upon a judgment of the Supreme Court in State of M.P. vs. Ramesh & Anr. reported in 2011 Cri.L.J. 2297 and since he relied upon paragraph 13, the same is being reproduced here as under :-
"13. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an interference as to whether child has been tutored or not, can be drawn from the contents of his deposition."
Similarly, in paragraph 9 of the judgment of the Supreme Court in K. Venkateshwarlu vs. State of Andhra Pradesh : 2012 Cri.L.J. 4388, the law is clear that a child witness, unless his witness is corroborated, should not be relied upon. Ultimately, learned counsel for the appellants relied upon the judgment of the Supreme Court in Radhey Shyam & Ors. vs. State of Rajasthan : (2023) 6 SCC 151 and here he relied upon paragraph 6 which is being reproduced here as under :-
"6. The age of PW3 was 12 years at the time of the recording of her evidence. Evidence of PW 3 cannot be rejected only on the ground that her age was 12 years. However, being a child witness, her evidence needs a very careful evaluation with greater circumspection considering the fact that a child witness can always be easily tutored. Therefore, we have made a careful scrutiny of her version"
Learned counsel for the appellants, therefore, states that the evidence of a child witness needs a careful evaluation with a great circumspection as a child witness is always amenable to tutoring. In the instant case, learned counsel for the appellants states that if proper scrutiny of the evidence of the child witness is done then definitely the evidence of the child witness had to be rejected.
(v) The other eye-witnesses Amar Singh and Preetam Singh, it was argued, were also created as eye-witnesses but they never cared to come in the witness box.
(vi) In the end learned counsel for the appellants states that the husband of the deceased-Neeta Singh though had appeared on the spot, as per the statement of PW-2, at 01:30 am after the incident had taken place at 09:00 pm on 05.03.2009, was never produced as an eye witness. Learned counsel for the appellants states that in fact the PW-2 had gone to the extent of saying that the husband of the deceased-Neeta had also appeared on the scene of the incident at the time of the postmortem on the next date i.e. on 06.03.2009 at around 10:00 to 11:00 am. He states that a husband whose wife had died and who as per Police had even talked to the accused person namely Anil Shukla on the date of the incident and who chose never to appear in the witness box, makes the prosecution story highly improbable and in fact puts the story of the prosecution in the realm of suspicion.
31. Ms. Archana Singh, learned Additional Government Advocate for the State, however, has argued that the arguments of the learned counsel for the appellants with regard to the FIR being ante-dated does not stand on any firm ground. She submits that when the FIR was lodged on 05.03.2009 at around 23:00 hours i.e. at 11:00 pm then it definitely narrated the incident which had occurred at 09:00 pm and if the PW-11 Akhilesh Kumar Shukla had stated that he had taken Neeta Singh and Shiv Tilak Singh upon an information which he had received at 09:00 pm then there was absolutely nothing wrong in it. He could have received, as had been brought on evidence, the information at about 09:00 pm from other sources on his mobile number and this if has not been questioned, then the question with regard to the FIR being antedated, could not be agitated in the criminal appeal. Learned Additional Government Advocate further submits that the chik which was written on receiving of the Tahreer was so written on one page because it got contained in that one page itself. Learned Additional Government Advocate thereafter answering to the submission of learned counsel for the appellants that the PW-2 was a chance witness and, therefore, he was never there, was also not having any ground to stand. She submits that it was very natural for PW-2 to have reached the house of the deceased-Neeta Singh as he was to take Neeta Singh and her children to a marriage ceremony. Still further, learned Additional Government Advocate has submitted that the testimony of PW-3 the minor daughter of Smt. Neeta i.e. Ms. Nidhi also could not be ignored. A child witness normally speaks the truth and even if there were minor contradictions in her statements, they could not be ignored. Still further, learned AGA submitted that it mattered little if the articles which were to be taken to the forensic laboratory were taken out on 21.05.2009 and that they reached the forensic laboratory at Agra on 25.05.2009. She submits that after the articles were taken out, they must have been taken by the PW-13 Ram Sajivan at his own convenience.
32. Sri Anil Srivastava, learned Senior Counsel appearing for the first informant adopted the arguments of the learned AGA and vehemently argued that the appeal, on the basis of the direct eye-witnesses account, be dismissed.
33. Having heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri P.K. Singh and Sri Vijay Singh Sengar, learned counsel for the appellants; Sri Anil Srivastava, learned Senior Advocate assisted by Sri Ram Bahadur, learned counsel for the informant and Ms. Archana Singh, learned Additional Government Advocate for the State, we are of the view that the criminal appeals deserve to be allowed. The fact that the PW-2 reached at the spot on the relevant date is very doubtful in view of the extremely shaky evidence of his. He had reached the flat where Neeta Singh was staying on a motorcycle whereas he was in possession of a car. When he was conscious that he had to take the whole family the natural thing would have been that he ought to have gone on a car. However, not taking of the car to the house of Neeta Singh, could have been ignored, had, upon a specific question being asked as to where was the invitation card, he had given an absolutely unacceptable reply with regard to the invitation card. Still further, had the story about going to the marriage, not been told, we would have considered the presence of PW-2 at the house of Neeta Singh, a close relative, a very natural thing to happen. However, what makes the prosecution case doubtful is that when the PW-2 was to take the family of the deceased to a marriage, then he ought to have mentioned about it in the FIR itself. Further in the very beginning of his testimony, he should have told about the place where he along with the deceased and her family was to go to the marriage. Still further he states that no invitation card was there on record. At one place he had stated that he was going to attend the marriage of the daughter of his Jija and at another place he had stated that the marriage was not of a very close niece but of the daughter of a Jija who was married to the daughter of a Fufa of PW-2. We also find that the PW-2 has not been able to definitely produce any invitation card for the marriage to which he intended to take Neeta Singh and her children. Still further, we find that the husband of Neeta Singh was not in Kanpur Nagar but was in Lucknow. He had no intention of attending the marriage. Similarly, we find that the other brothers who were six in number of PW-2 had also no plans of attending the marriage. In fact there is no case put-forth by the prosecution that the other brothers were to attend the marriage. What is more we find from the record that the husband of Neeta Singh had called up Anil Shukla on his phone on the date of the incident at around 09:35 pm and it has been stated that Anil Shukla was attending some other marriage. All this clearly goes to show that PW-2 was only making out a case so as to show that he was available at the flat when the incident happened and thus he was a chance witness who had been created to become an eye-witness.
34. The appellants' side, by their arguments, had clearly been able to dislodged the PW-2 as an eye-witness. Here it might suffice to say that the appeals could have been allowed by this Court on this ground itself. However, we are dealing with the other issues also as they were argued at length by the counsel for the appellants.
35. The PW-3, it has been submitted by the learned counsel for the appellants, was a child witness and, therefore, her evidence should be evaluated with caution. We find from a perusal of the FIR that it does not mention about any injury to the child witness Nidhi. We also find that for two good days the child witness and all her relatives had remained quiet about the alleged injury on her body. Suddenly on 07.03.2009 upon the entry of an uncle Shyam Singh who himself was a lawyer of some standing, the child witness was sent for medical examination. The medical examination was preceded by a chitthi majroobi which did not contain any elaborate description of any injury which had to be examined. She was sent for a general medical examination. The doctor who examined the injuries has appeared in the witness box and had stated that the injuries were definitely not of a gun shot. In fact the Court below had disbelieved the case which had been brought-forth by the child witness with regard to the injuries on her person. Still further, we find that the child witness had faltered in giving description of the school which she and her siblings were studying in for the past five years.
36. We also find that none of the brothers of PW-2 Virendra Singh appeared in the witness box. It is alright if all the brothers had not appeared but definitely the Court gets a feeling that all evidence brought-forth by the prosecution should be analysed with some trepidation and caution when a very important witness i.e. the husband of the deceased Neeta Singh was not produced as a witness of the prosecution. He was the person who could have definitely told in the first person as to whether there were any commercial transaction between him and Sonu Saxena which had been made to appear to be a cause for the murders which had taken place. We find from the evidence that on the date of occurrence i.e. 05.03.2009, the PW-2 Virendra Singh (first informant) had testified before the Court that the husband of the deceased i.e. Putti Singh had come to the hospital at around 01:30 am in the morning of 06.03.2009. He states that he was also present at the time of postmortem but what prevented him from actually participating in prosecution, makes the whole story of the prosecution very mysterious and weak.
37. With regard to the report of the ballistic expert also, this Court is of the view that when the ballistic expert stated that the empty cartridges matched, but the bullets which had entered the body did not, then it creates a definite doubt that there was some tampering done with the firearms. The firearms, as per the statement given by PW-13 Ram Sajivan, were taken out from the Malkhana on 21.05.2009 and again they were kept inside the Malkhana after one day and were handed over to PW-13 on 24.05.2009. This time, the Court feels, which the prosecution got, definitely must have enabled the prosecution to tamper with the firearms and therefore, the case of the prosecution becomes doubtful.
38. So far as the antedating of the FIR is concerned, definitely a doubt is created when the chick is seen. The chick is transcribed only on one page and if one looks at the hand-writing then it appears that efforts had been made to make the chick FIR fit into one single page. The effort was to the extent that even in the margin of the page, the chick was written. However, since there is no definite proof of any antedating, we cannot wholly rely upon this argument of the appellants.
39. From the record, we find that the appellant-Anesh Saxena @ Sonu Saxena, who had filed Criminal Appeal No.2559 of 2014, had died on 19.4.2016 and, consequently the appeal vide order dated 27.2.2017, stood abated.
40. Thus, for all the reasons which form part of this judgment, the Criminal Appeal Nos.2558 of 2014; 2582 of 2014; 2639 of 2014 and 2640 of 2014 are allowed. The judgment and order dated 26.6.2014 passed by the Additional Sessions Judge, Court No.5, Kanpur Nagar is quashed. The appellants namely Sushil Kumar Dwivedi @ Sonu Dwivedi, Anil Kumar Shukla; Santosh Kumar Dwivedi @ Guddu Dwivedi and Shrawan Kumar Shukla @ Tanu Shukla, who are in jail, be released forthwith unless they are required in any other case.
Order Date :- 14.05.2024 GS (Siddhartha Varma, J.) (Vinod Diwakar, J.)