Allahabad High Court
Kala Alias Ankit vs State Of U.P. on 26 August, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 13.07.2022 Judgment delivered on 26.08.2022 Court No. - 29 Case :- CRIMINAL APPEAL No. - 7306 of 2010 Appellant :- Kala Alias Ankit Respondent :- State of U.P. Counsel for Appellant :- Saurabh Gour,A.B.L.Gour,Birendra Singh Khokher,Brij Raj Singh,Kailash Prakash Pathak Counsel for Respondent :- Govt.Advocate Hon'ble Manoj Misra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
(Delivered by Hon'ble Syed Aftab Husain Rizvi,J.)
1. Heard Mr. Amit Kumar Mishra, learned counsel for the appellant, Sri H.M.B. Sinha, learned A.G.A. for the State and perused the record.
2. This criminal appeal has been filed against the judgment and order dated 28.10.2010 passed by Additional Sessions Judge, (F.T. Court No. 1) Bagpat in Sessions Trial No. 166 of 2007 (State of U.P. Vs. Kala @ Ankit), Case Crime No. 16 of 2007, under section 302/34 IPC, P.S. Baraut, District Bagpat. By the impugned judgment and order the learned trial court has convicted the appellant for offence under section 302/34 IPC and sentenced him to imprisonment for life and a fine of Rs. 20,000/- and in default of payment of fine imprisonment of six months.
NARRATION OF FACTS
3. The complainant Madan Singh gave an application dated 12.1.2007 at P.S. Baraut alleging therein that he is resident of village Luhara, P.S. Chhaprauli, District Bagpat and runs a medical store at his village. His son Badal aged about 18 years was studying in Priya Bharati School Baraut in class 12. He also used to sit at the medical store in morning and evening. On 2.1.2007 at about 7:00 P.M. his son was in the shop. Manish came to purchase some medicine. When his son asked for payment he refused to pay but his son took the price of the medicine. Manish left extending death threat. After this Manish once committed marpit for which he made a complaint to the family of Manish. On 12.1.2007, his son, Badal had come to Baraut to attend his college. At about 12:30 noon Manish and his friend Kala caught his son near C field Nehru Road and Kala inflicted knife blows on his head, neck and other parts of the body with intention to cause death. His son fell down on the spot. Deepak and Kripal who were with his son saw the incident and tried to catch them but, wielding the knife, the accused ran away towards the C-field. Kripal, Deepak and other boys Ankit, Puneet and Mohit took Badal to Akshaya Nursing Home but he died on the way. The complainant was at his medical store. Kripal Singh came there and informed him about the incident. The dead body of his son is kept in the nursing home.
4. A chik report no. 14 of 2007, under section 302 IPC, was registered against Manish and Kala at P.S. Baraut at 14:00 hours. S.I. Rajvir Singh (P.W. 5) was entrusted with the investigation of the case. He recorded the statement of complainant, thereafter went to Akshaya Nursing Home and conducted the inquest proceeding on the dead body, prepared the related papers and sent the body for postmortem examination. Thereafter, he recorded the statements of other witnesses and went to the place of occurrence and at the indication of Deepak and Kripal inspected the place of occurrence and prepared the site plan, collected blood stained and plain concrete of the road and prepared its memo. A register of the deceased was also recovered from the place of occurrence. The Investigating Officer took it into his possession and prepared its memo. From the (pant) jeans of the deceased one currency note of Rs. 20/-, two currency notes of Rs. 10/- and one currency note of Rs. 5/-, one match box and one ball pen was also recovered during inquest proceeding. The I.O. prepared its memo. He also prepared the site plan of Akshaya Nursing Home where the dead body of the deceased was kept. On 14.1.2007 on the information of the informer accused Kala was arrested. On interrogation he confessed his crime and also disclosed that he can get the weapon used in the crime recovered. Memo of interrogation was prepared by the I.O. Thereafter, the police party along with the accused came at the C field from where at the pointing out of the accused Kala one knife was recovered from the bushes at 8:00 hours. The I.O. sealed the knife and prepared its memo. Further investigation of the case was entrusted to S.I. Nathi Ram Panwar (P.W. 6). He took up the investigation on 26.01.2007. Recorded the statements of other witnesses and the accused Manish. Prepared the site plan of the place of recovery of knife and after completion of the investigation submitted charge-sheet against accused Kala and Manish.
5. The Chief Judicial Magistrate, Bagpat committed the case to the Court of Session. Co-accused Manish was declared juvenile and his case was forwarded to Juvenile Justice Board, Meerut. The trial court framed charge under section 302/34 IPC against appellant-accused Kala. The accused denied the charge and claimed for trial. In oral evidence the prosecution examined seven witnesses while in documentary evidence twenty papers Ext. Ka. 1 to Ka. 20 were produced. The incriminating circumstances against the accused were put to him under section 313 Cr.P.C. The accused denied the whole prosecution case. He has also stated that the witnesses have deposed against him due to enmity and a false case has been lodged. In defence, one witness Mohit Tomar (D.W. 1) was examined. The learned trial court after hearing the arguments, by the impugned judgment and order held the appellant-accused guilty for the offence under section 302/34 IPC and sentenced him as above.
AUTOPSY REPORT
6. According to autopsy report (Ext.Ka.2) the postmortem of the deceased was conducted on 13.1.2007 at 12:00 noon.
External Examination:
The age of the deceased was about 18 years. Body was average built. Rigor-mortis was all over the body. Abdomen distended, decomposition started. Eyes were closed. Following ante mortem injuries were on the body.
1. Incised wound of size 10.0 x 3.0 cm x bone deep on mid of top of head.
2. Incised wound of size 4.0 x 05 cm x bone deep on left side back of head 4.0 cm turn to left ear.
3. Incised wound of size 5.0 x 2.0 cm x bone deep on left side head just behind left ear pinna.
4. Incised wound of size 2.0 x 0.5 cm x bone deep on left side head 2.0 cm from injury no. 2.
5. Incised wound of size 2.5 x 0.75 x through & through on left ear lobule & pinna.
6. Incised wound of size 3.5 x 1.5 cm x cavity deep on left side back of neck. On dissection left clavicle bone cut, left major blood vessels also cut & Apex of left lung also cut.
7. Incised wound of size 11.0 x 4.0 cm x bone deep on left mid scapular area.
8. Incised wound of size 2.0 x 1.0 cm x muscle deep on back, 2.0 cm below & lateral to (6-7) cervical spine.
9. Multiple incised wounds of size smallest (2.0 x 1.0 cm x muscle) & largest 8.0 x 3.0 cm x muscle deep (4 in number) on outer and front part of left arm upto elbow joint in the area 21.0 x 12.0 cm.
10. Multiple incised wound in the area 13.0 x 7.0 cm (7 in number) on inner & back of right hand & wrist (Largest size 4.0 x 1.5 cm & smallest 1.0 x 0.5 cm x muscle deep).
Internal Examination:
First rib and left clavicle were fractured. Left pleura and left lung were cut. About 800 c.c. free and clotted blood in thoracic cavity was present. Stomach was empty.
Cause of death was shock and haemorrhage due to ante mortem injuries and death could have occurred about one day before the postmortem. The aforesaid autopsy report has been proved by Dr. Krishna Kumar (P.W. 3) as Ext. Ka.2. The witness has admitted the suggestion of the prosecution that injuries of the deceased may be caused on 12.1.2007 at 12:30 p.m. PROSECUTION EVIDENCE
7. Madan Singh (P.W. 1) is the informant. In his examination-in-chief the witness has stated that his son Badal aged about 18 years was a student of class 12 of Priya Bharati School Baraut. He also used to sit at the shop of complainant in the morning and evening. On 2.1.2007 at about 7:00 p.m. his son was sitting at the shop. Manish came there to purchase some articles. His son after giving articles asked for payment. Manish refused to make payment but his son took the payment. On this Manish threatened him with death and went back from there. Thereafter, Manish once committed marpit with his son. He (the witness) made a complaint of this to the family of Manish. The witness has stated that the incident is of 12.1.2007 at 12:30 p.m. His son had gone to school at Baraut. Manish and Kala caught his son near C field of Jain College Nehru Road. Manish caught hold his son and Kala inflicted knife blows on his son's head, neck and other parts of the body. His son fell down. The incident was witnessed by Deepak, Kripal and Dharmendra and they tried to catch the accused. The accused wielding knife escaped towards C field. Kripal, Deepak, Ankit, Puneet and Mohit took his son to Akshaya Nursing Home, Baraut but he died on the way. Deepak, Kripal and Dharmendra informed him at Vardhman medical store, Baraut, then he came at the nursing home and found that his son was dead. The witness has further stated that he lodged the report of the incident scribed by his brother Manoj Saroha. The witness has proved it as Ext.Ka.1. The witness has further stated that his village and village of the accused Kala are adjacent, hence, he knows Kala very well. Manish and Kala are friends.
8. Deepak Kumar (P.W. 2) is the eye witness. In his examination-in-chief the witness has stated that the incident is of 12.1.2007 at 12:30 P.M. He along with Kripal and Badal were going on Nehru Road and reached near C-field of Jain College. At that time, accused Kala and Manish came there. Manish caught hold Badal and Kala inflicted knife blows on the neck and head etc. with intention to kill Badal causing serious injuries to Badal. Kala continued stabbing Badal till he fell down. Badal fell down on the ground. They tried to catch Kala and Manish and to save Badal but Kala wielded knife towards them and escaped towards C-field. Ankit, Puneet and Mohit also came on the spot. They took Badal to Akshaya Nursing Home on a richshaw. Badal died due to the injuries. Witness has further stated that in the year 2006 when he was studying at Baraut, he used to go to the house of her aunt (Bua) at village Sherpur Luhara, because of this he knows the accused persons. They used to come by bus with him and they also use to meet at Baraut. He, Kripal and Dharmendra informed Madan Singh, the father of Badal, at his Vardhman Medical Store. On receiving information, Madan Singh came to nursing home and thereafter went to the police station to lodge the FIR.
9. Constable Sahab Singh, P.W. 4 is the chik and G.D. writer. The witness has stated that on 12.1.2007 on the written information of Madan Singh he prepared chik no. 14 and registered case crime no. 16/07, under section 302 IPC and made G.D. entry of it at serial no. 30 at 14:00 hours. The witness has proved chik FIR and copy of G.D. as Ext.Ka-3 and Ext.Ka-4. The witness has further stated that on 14.1.2007 on the basis of recovery memo he prepared chik no. 16 case crime no. 18/07, under section 4/25 Arms Act and made the G.D. entry of it at serial no. 36 at 21:15 hours. Witness has proved the chik and copy of the G.D. as Ext.Ka-5 and Ext.Ka-6.
10. S.I. Rajvir Singh, P.W. 5 is the Investigating Officer. The witness has stated that on 12.1.2007 after registration of the case the investigation was entrusted to him. He recorded the statements of complainant and other witnesses. Thereafter, he proceeded for Akshaya Nursing Home and conducted the inquest proceeding of deceased Badal. His body was in the general ward of the Nursing Home. The witness has proved inquest report and related papers as Ext.Ka-7 to Ext.Ka-12. The witness has further stated that he recorded the statements of witnesses present at Akshaya Nursing Home, thereafter, he proceeded to the place of occurrence and on the pointing out of witnesses inspected it and prepared the site plan. He also collected blood stained and plain concrete from the road and one register which was lying at the place of occurrence and prepared its memo. The witness has proved the aforesaid documents as Ext.Ka-13 to Ext.Ka-15. The witness has further stated that during inquest proceeding he recovered one currency note of Rs. 20/-, two currency note of Rs. 10/- and one currency note of Rs. 5/- and one match box and one ball pen from the pocket of the deceased and prepared its memo as Ext.Ka-16. He also prepared the site plan (Ext.Ka-17) of Akshaya Nursing Home where the dead body of the deceased was lying. He recorded the statements of witnesses of inquest proceeding. On 14.1.2007 he arrested accused Kala @ Ankit near Puliya of Malakpur drain and interrogated him. The accused confessed his crime and disclosed that the knife used in the murder has been concealed by him in the bushes of C-field. On the aforesaid disclosure statement he along with witnesses Dayanand Malik and Pramod Kumar and accused came there and at the pointing out of the accused recovered one knife from the bushes of C-field at about 8:00 P.M. He sealed it and prepared its memo as Ext.Ka18. The witness has also proved the recovered knife, clothes and other articles found from the body, blood stained and plain concrete as material Ext.Ka1 to Ext.Ka-14. The witness has also proved the articles recovered from the dead body at the time of inquest proceeding and the register taken into possession from the place of occurrence as material Ext.Ka.17 to Ext.Ka-23.
11. S.I. Nathi Ram Panwar, P.W. 6 is the second Investigating Officer. The witness has stated that further investigation of this case was handed over to him on 26.1.2007. He recorded the statements of witnesses on different dates, visited the place of occurrence from where knife was recovered and prepared its site plan (Ext.Ka-19). After the completion of the investigation, submitted charge-sheet against accused Kala (Ext.Ka-20).
12. S.I. Ram Kishan Rathi, P.W. 7 is the Investigating Officer of Case Crime No. 18/07, under section 4/25 Arms Act. The witness has stated that investigation of this case was entrusted to him. He recorded the statements of witnesses and accused. He also visited the place of incident at the pointing out of the complainant S.I. Rajvir Singh and prepared the site plan (Ext.Ka-21) and after the completion of the investigation submitted charge-sheet (Ext.Ka-22).
DEFENCE EVIDENCE
13. One defence witness Mohit Tomar (D.W.1) has also been examined. The witness has stated that he knows Badal who was his class-mate. The incident is of 3 and a half years before. He along with his friends Puneet, Malik and Ankit Tomar were returning from Baraut after tuition. When they reached near C-field of Jain College seven-eight boys were assaulting Badal holding knives in their hands. It was 2-2:30 p.m. The boys who were assaulting Badal escaped. He and Puneet, Malik and Ankit Tomar took Badal to Akshaya Nursing Home in injured condition. Except them no other person was present there. Thereafter his friend Puneet informed the father of Badal about the incident on the telephone. The father of Badal arrived at the hospital at 3-3:30 p.m. Before the arrival of the father of the deceased at the hospital no other relative or family member of Badal reached the hospital. Neither Deepak Kumar of village Basi nor any other person of the village of the deceased was present at the place of occurrence or at the hospital. The witness after looking at the accused Kala @ Ankit in court stated that this boy was not present with the boys who assaulted Badal.
SUBMISSION ON BEHALF OF APPELLANT
14. Learned counsel for the appellant contended that the sole eye witness Deepak Kumar, P.W. 2 is a close relation of the deceased and resident of other village, so he is related as well as chance witness. The complainant has not taken his name as a person who informed him about the incident. In the FIR the complainant has only taken the name of Kripal as the person who gave him information. Deepak Kumar (P.W. 2) has not suffered any injury nor he made any effort to save Badal which makes his presence on the spot highly doubtful. It is also contended that this witness has stated that knife was used to stab but the deceased has not suffered any stab wound. All his injuries are incised wound, so the manner of assault as stated by this witness does not stand corroborated with the medical evidence. It is further contended that the witness has also stated that Ankit, Mohit and Puneet also reached on the spot and they took Badal to Akshaya Nursing Home in a rickshaw. In such a situation, considering the number and nature of the injuries on the body of the deceased, it was natural that the clothes of witnesses should have blood stains, but it was not so. It is also contended that the presence of defence witness Mohit Tomar (D.W. 1) has been admitted by P.W. 2. Mohit Tomar (D.W. 1) has denied that Deepak Kumar or any other relative or family member of the deceased was present at the time of occurrence or was at the hospital. So the oral statement of the sole eye witness is not trustworthy. The learned trial court has committed illegality in relying on the sole testimony of this eye witness and on its basis held the appellant accused guilty. Learned counsel further contended that the recovery of knife used in the offence as alleged by the prosecution is also not trustworthy and reliable. No public witness of this recovery has been produced and in this regard there is only the statement of I.O. S.I. Rajvir Singh, P.W. 5. Both the Investigating Officers have also admitted that knife was not sent for forensic examination. There is no evidence on record to link the alleged recovered knife with the offence. The learned trial court has therefore erred in placing reliance on the evidence of recovery of knife. It is further contended that the complainant Madan Singh (P.W. 1) in his cross-examination has admitted that his son was surrounded and assaulted by 4-5 boys and at that time he was going with Mohit and Puneet, so Madan Singh (P.W. 1) has also admitted the presence of defence witness Mohit Tomar (D.W.1) at the time of occurrence. The learned trial court has not taken into consideration the statement of D.W. 1 Mohit Tomar. The learned trial court has not analysed the oral testimony of Mohit Tomar (D.W. 1) and has given no reason to disbelieve him. Lastly it is contended that the trial court has committed grave error in recording the finding that the appellant-accused is guilty. The finding of the trial court is illegal and against the evidence on record.
SUBMISSION ON BEHALF OF STATE
15. Per contra; learned A.G.A. contended that complainant Madan Singh (P.W. 1) from his statement has proved the motive of the incident. Deepak Kumar (P.W. 2) is an eye witness. Although he is related with the deceased and also resident of other village but he has explained the circumstances of his presence on the spot. He has stated that on the day of incident he came to take his Bua (mother of the deceased) from village Luhara. He reached Baraut by train at 12:00 noon. He contacted the deceased on telephone. The deceased reached the railway station from where both were going towards C-field when the incident occurred. It is further contended that the witness has stated that the deceased was assaulted with knife by appellant-accused. The medical evidence fully corroborates the ocular version. According to postmortem report the deceased has suffered several incised wounds on his body resulting in his death. There is no discrepancy in respect of time of incident. Place of occurrence is also established. The testimony of the sole eye witness Deepak Kumar (P.W. 2) is consistent. There is no major discrepancy in it. There was no reason to disbelieve him. The learned trial court has rightly placed reliance on his statement. It is further contended that blood stained knife used in the offence has been recovered on the pointing out of the appellant-accused. The aforesaid recovery has been proved by S.I. Rajvir Singh (P.W. 5) It is mere lapse on the part of the I.O. that he has not sent it for forensic examination but the recovery is established and it further supports the ocular version. Learned A.G.A. further contended that the testimony of an eye witness can not be discarded solely on the ground that he is interested or chance witness. If his testimony is otherwise reliable and trustworthy and there is no major discrepancy in it, it can be safely relied on and conviction can be based on it. So there is no illegality in the finding of the trial court that the appellant-accused is guilty of offence of murder.
ANALYSIS OF EVIDENCE
16. Out of two public witnesses produced by the prosecution, Madan Singh (P.W. 1), the complainant, is not an eye witness. He has admitted in his cross-examination that he got the information at his shop/medical store and on receiving the information he arrived at Akshaya Nursing Home where the dead body of his son was kept. He was informed about the incident by Kripal and Deepak. He has not witnessed the incident.
17. The prosecution has relied on the sole eye witness account rendered by Deepak Kumar (P.W. 2).. In his examination-in-chief P.W. 2 has said that on 12.1.2007, at about 12:30 p.m., he, Kripal and Badal were going on Nehru Road and when they reached near C-field of Jain College, the accused Kala and Manish came there. Manish caught hold Badal and Kala @ Ankit inflicted knife blows on Badal causing him serious injuries and he fell down. The witness has also stated that Ankit, Puneet and Mohit also came on the spot and they all took Badal to Akshaya Nursing Home on a rickshaw. Admittedly this witness is a close relative of the deceased being the cousin (son of maternal uncle) of the deceased Badal. This witness is also a chance witness. He is a resident of village Bassi, P.S. Khekara while the incident has occurred at Baraut town. It is well settled principle of law that the testimony of a witness can not be discarded solely on the ground that he is an interested witness or a chance witness. What is required is to make a close scrutiny of the probability and reason for a chance witness being present on the spot. The court must also be cautious in appreciating and accepting the evidence of an interested witness. The evidence of a related and a chance witness requires cautious and close scrutiny to test whether it is reliable. Regarding his presence, P.W. 2 has said that on the day of the incident he had come to take his Bua from village Lohara. He reached Baraut by train at 12:00 O'clock. He was alone. Badal met him at the station and they went to Nehru Road from the station. The fact that on the day of incident witness Deepak Kumar had come to Baraut by train to take his Bua, has been disclosed for the first time in the court. In the statement recorded by the I.O. under section 161 Cr.P.C., there is no such statement. From the statement of Deepak Kumar (P.W. 2) it is also not clear that under what circumstances he along with Badal were going to Nehru Road near C-field. In the FIR, the name of Deepak (P.W. 2) has not been taken by Madan Singh (P.W. 1) as a person who has come to his shop to give information of the incident. He has taken only the name of Kripal. P.W. 1 was confronted with this information.
The witness has assigned the role of grasping Badal to co-accused Manish and role of inflicting the knife blows to the appellant-accused Kala @ Ankit. If the statement of Deepak (P.W. 2) that Manish caught hold Badal and Kala @ Ankit inflicted knife blows on his body is to be believed then in such a situation there is no possibility of injuries on the back side of the deceased but in the autopsy report injury nos. 6, 7 and 8 are on the back side of the body. Injury no. 6 is on the back of neck, injury no. 7 is on scapular area while injury no. 8 is on the back. It also appears from the autopsy report that deceased has resisted and tried to save himself from both his hands. He has received injuries on his hands. According to Dr. Krishna Kumar (P.W. 3), there was incised fracture in the bone of the left palm and major blood vessels were cut. Injury no. 9 and 10 which are multiple incised wounds, 4 in numbers and 7 in numbers respectively are also on both the hands. The nature of injuries as mentioned in the autopsy report reflects that the deceased was surrounded and then assaulted with knife. The size of the injuries also differs. The largest is 11 x 4 cm while the smallest is 2 x 0.5 cm. The number and nature of injuries and its size reflects that after surrounding the deceased more than one person have inflicted the knife blows from different directions. The manner of assault as described by Deepak Kumar (P.W. 2) is not in consonance with the autopsy report. So his oral statement does not stand corroborated by the medical evidence.
18. In the FIR Deepak and Kripal are named as eye witnesses. Madan Singh (P.W. 1) has also added the name of Dharmendra as an eye witness in his statement. All the three Deepak, Kripal and Dharmendra are close relations of the complainant. Kripal is the real uncle of complainant and Dharmendra is son of Kripal while Deepak is nephew of the wife of the complainant. So according to prosecution version at the time of incident three close relations of Badal were also present while accused were only two in number. There is no satisfactory explanation that how the accused two in number over powered Badal. It is also not established from the evidence that they made any serious efforts to save Badal. Further in the aforesaid context if the testimony of Deepak (P.W. 2) is to scrutinized then according to his statement the co-accused Manish was catching hold Badal and actually one of the accused the appellant was involved in inflicting knife blows. In such a situation absence of an effort on the part of the three companions of Badal raises serious doubts as regards their presence on the spot.
Deepak (P.W. 2) is a resident of village Bassi, P.S. Khekara while Kripal and Dharmendra are residents of village Luhara, P.S. Chhaprauli. The incident has occurred at Baraut town. According to prosecution, the deceased was a student of class 12 at Priya Bharati School, Baraut and on the date of occurrence he had gone to attend his school. So the presence of witnesses at the place of occurrence is unnatural being resident of distant places. The reason for presence of Kripal and Dharmendra at the place of occurrence is unexplained. All the aforesaid facts and circumstances clearly establishes that the name of close relations as eye witnesses in the FIR is a result of deliberation and it is an after thought. There is no good reason for their presence on the spot at the time of occurrence.
19. There are other serious infirmities in the oral testimony of sole eye witness Deepak Kumar (P.W. 2). In his examination-in-chief the witness has stated that on 12.1.2007 at 12:30 p.m. he, (the witness) Kripal and Badal were going on Nehru Road and when they reached near C-field of Jain College the incident occurred. While in his cross-examination the witness has said that he alone reached Baraut by train and Badal met him at the station and they went to Nehru Road from the station. Further in the cross-examination the witness has stated that when they were going then Kripal was coming towards them. This statement is also contradictory to his statement made during examination-in-chief that he, Kripal and Badal were going to Nehru Road when this incident occurred.
20. The presence of defence witness Mohit Tomer (D.W. 1) has been admitted by the complainant Madan Singh (P.W. 1) as well as Deepak (P.W. 2) and the defence witness Mohit Tomer (D.W. 1) has completely denied the prosecution case. He has also denied that Deepak or any other relative or family member of the deceased was present at the time of occurrence or at the hospital. The witness has also stated that Badal was taken to Akshaya Nursing Home by him, Ankit and Puneet.
From the statements of prosecution witnesses also it is established that the deceased was taken on a rickshaw to Akshaya Nursing Home. To establish the presence of the witness Deepak (P.W. 2) at the time of incident the document of admission of the deceased Badal in Akshaya Nursing Home was very relevant but the I.O. has not collected it and this material documentary evidence appears to be intentionally concealed.
21. Applying the test as prescribed for an interested and chance witness, the testimony of the sole eye witness Deepak (P.W. 2) is not confidence inspiring and trustworthy. His presence on the spot is highly doubtful.
22. Madan Singh, complainant (P.W. 1) in his cross-examination has given the following statement:
"करीब बारह एक बजे मेरा लड़का बादल अपने साथी मोहित पुनीत आदि के साथ नेहरू रोड पर जा रहा था। यह सही है कि वहां मेरे लड़के को चार पांच लड़कों ने पकड़ लिया व घेर लिया और उनमे से एक ने कोली भर ली और एक ने चाकू मार दिया।"
The aforesaid statement runs contrary to the prosecution case as alleged in the FIR and the oral testimony of sole eye witness Deepak (P.W. 2).
23. The prosecution has also relied on the evidence of recovery of knife. S.I. Rajvir Singh (P.W. 5), who has made the recovery, has stated that on 14.1.2007 he arrested accused Kala @ Ankit and in presence of the witnesses Dayanand Malik and Pramod Kumar interrogated the accused. The accused confessed his crime and made disclosure statement. A memo of disclosure statement was prepared and got signed. Thereafter, the knife was recovered at the pointing out of accused from bushes of C-field Nehru Road at about 8:00 O'clock. Except the oral statement of S.I. Rajvir Singh (P.W. 5), there is no other evidence in support. No public witness of this recovery has been produced in the court. The knife has also not been sent for forensic examination. Both the Investigating Officers Rajvir Singh (P.W. 5) and S.I. Nathi Ram (P.W. 6) have accepted this in their cross-examination. The place of recovery is an open place accessible to public at large without any hindrance. Considering the aforesaid facts no reliance can be placed on this piece of prosecution evidence.
24. From the analysis of the prosecution evidence it is clear that the ocular testimony of sole eye witness Deepak Kumar (P.W. 2) is not reliable and trustworthy. No reliance can also be placed on the evidence of recovery of knife. So there is no reliable and cogent evidence on record to hold the accused guilty. The trial court has failed to appreciate the evidence in proper manner. The trial court has erred in placing reliance on the testimony of the sole eye witness Deepak Kumar (P.W.2) who is related as well as a chance witness and whose presence at the spot appeared doubtful. The learned trial court has also failed to take into consideration the defence evidence and also ignored the fact that the evidence of recovery of knife is not supported with any forensic report confirming that the recovered knife has been used in the offence. The learned trial court therefore erred in holding that from the prosecution evidence the case stands proved and appellant accused is guilty. The finding of conviction and sentence as recorded by the learned trial court is not sustainable in the eye of law and is liable to be set-aside and the appeal is liable to be allowed.
25. The criminal appeal is allowed. The impugned judgment and order of conviction dated 28.10.2010 passed by Additional Sessions Judge, F.T.C. No. 1, Bagpat in S.T. No. 166 of 2007, Case Crime No. 16 of 2007, under section 302 IPC, P.S. Baraut, District Bagpat (State Vs. Kala @ Ankit) is hereby set-aside. The appellant Kala @ Ankit is acquitted from the charge of offence punishable under section 302/34 IPC. He is in jail. He shall be released forthwith subject to compliance of Section 437A Cr.P.C. to the satisfaction of trial court, if not wanted in any other case.
26. The order be communicated to all concerned for necessary compliance.
Lower court's record along with the copy of the judgment be transmitted to the trial court immediately.
Order Dt/- 26.08.2022 Masarrat