Allahabad High Court
Janki vs State Of U.P. on 20 September, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:153746-DB Reserved Case :- CRIMINAL APPEAL No. - 7185 of 2019 Appellant :- Janki Respondent :- State of U.P. Counsel for Appellant :- Ravi Shankar Tripathi Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 6598 of 2019 Appellant :- Jamuna And Anr. Respondent :- State of U.P. Counsel for Appellant :- Ardhendu Shekhar Sharma,Arvind Kumar Tiwari,Dinesh Kumar Mishra,Lavkush Kumar Bhatt,Manoj Kumar Srivastava,Ram Babu Sharma,Ram Bahadur,Ramendra Pal Singh,Saurabh Yadav,Veerendra Kumar Shukla Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 6890 of 2019 Appellant :- Mahesh Respondent :- State of U.P. Counsel for Appellant :- Abhilasha Singh,Anil Kumar Srivastava (Senior Adv.),Araf Khan,Ashutosh Yadav,Atharva Dixit,Bhavya Sahai,Lal Chandra Mishra,Manoj Kumar Srivastava,Mohammad Khalid,Pawan Kumar Yadav,Ram Bahadur,Shyam Lal,Varun Kumar Agnihotri,Waseem Akram Counsel for Respondent :- G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Prashant Kumar,J.
(Delivered by Hon'ble Ashwani Kumar Mishra, J.)
1. All these appeals are directed against a composite judgment and order of conviction and sentence dated 11.10.2019, passed by the Sessions Judge, Budaun, in Session Trial No. 1105 of 2009 (State Vs. Janki and others), arising out of Case Crime No.246 of 2009 and in Session Trial No. 84 of 2011 (State Vs. Mahesh), arising out of Case Crime No. 246 of 2009, Police Station Rajpura, District Budaun; whereby the accused appellants Janki S/o Satyaram, Jamuna S/o Jagjeet and Mordhwaj S/o Satyaram and the accused appellant Mahesh S/o Harpal, respectively, have been convicted and sentenced to life imprisonment alongwith fine of Rs.10,000/-, each, under Section 302/34 IPC and on failure to deposit fine to undergo rigorous imprisonment for one year; and in Session Trial No. 1106 of 2009 (State Vs. Jamuna), arising out of Case Crime No. 305 of 2009, Police Station Rajpura, District Budaun, the accused appellant Jamuna S/o Jagjeet has also been convicted and sentenced to three years rigorous imprisonment alongwith fine of Rs.5,000/-, each, under Section 25 Arms Act and on failure to deposit fine to undergo rigorous imprisonment for three months.
2. Since all the appeals have been heard together, as such, they are being disposed of by this common judgment.
3. Prosecution case relies upon the written report of informant Kunwarpal S/o Triloki, dated 3.4.2009, according to which, he is a resident of Village Pavsara, Police Station Rajpura, District Budaun. Informant's brother Bhikam and Sukhram have already died. After their death, informant's father Triloki bequeathed his entire 24 bigha land upon his four grandsons, namely Ramniwas, Mahesh, Sunil and Kalu. Wife of informant's late brothers, namely Chhoti W/o Sukhram and Bataso W/o Bhikam got their names recorded over eight bigha land, each, in the revenue records on the basis of Pa.ka 11. They (widow of two deceased brothers of the informant) executed sale deeds of eight bigha land, falling in their share, each, to the wife of accused Mahesh S/o Harpal, dispute in respect of which was pending before the Civil Court as also before the Bareilly Commissionerate. Widow of Sukhram, namely Chhoti had started living with one of the accused Janki S/o Satyaram at Pavsara.
4. On account of aforesaid dispute of land the accused Mahesh S/o Harpal; Janki S/o Satyaram; Jamuna S/o Jagjeet and Mordhwaj S/o Satyaram were maintaining enmity with the informant. On 3.4.2009, informant's son Mahesh (deceased) alongwith Ramniwas (PW-2) were returning alongwith milk from Jaidaspur on their motorcycle. While returning from Jaidaspur to Pavsara, on the rough road, near the field of Ramveer at about 7.30 pm, Mahesh S/o Harpal alongwith Janki S/o Satyaram; Jamuna S/o Jagjeet and Mordhwaj S/o Satyaram stopped the motorcycle of Mahesh (deceased) and Ramniwas. Accused Mahesh S/o Harpal then fired on the deceased. Ramniwas (PW-2) fled towards the field and reached Jaidaspur. Veerpal Singh S/o Ramsaran and Giriraj S/o Jay Narayan alongwith several others including Ramniwas (PW-2) came to the place of occurrence and saw all the four accused dragging Mahesh to the wheat filed of Amar Singh, where informant's son Mahesh was again shot and he died. On raising of alarm by Giriraj and Veerpal, etc., all four accused fled. The informant also came to the place of occurrence and found dead body of his son lying in the wheat field. With these allegations, the first information report came to be lodged on the date of incident i.e. 3.4.2009 at 9.15 pm in respect of incident occurred on the same day at 7.30 pm. Distance between the place of occurrence and police station is stated to be three kilometres. Accused Mahesh S/o Harpal; Janki S/o Satyaram; Jamuna S/o Jagjeet and Mordhwaj S/o Satyaram were specifically named as accused in the first information report, which has been duly exhibited as Ex.Ka.10.
5. For better appreciation of prosecution case regarding enmity it would be helpful to extract the family tree of Triloki, which is as under:-
Triloki Kunwarpal Bhikam =w/ Smt. Bataso Sukhram=w/Smt. Chhoti (informant) (dead) (dead) Ramniwas Mahesh Sunil Kalu (PW-2) (deceased)
6. Prosecution case is that Triloki had 24 bigha land. Two sons of Triloki, namely Bhikam and Sukhram died during the lifetime of Triloki. A will is alleged to have been executed in favour of four sons of Kunwarpal (informant), namely Ramniwas, Mahesh, Sunil and Kalu by Triloki. However, after the death of Triloki name of widows of Bhikam and Sukhram namely Smt. Bataso and Smt. Chhoti came to be entered in the revenue records on the basis of Pa.Ka.11. Smt. Bataso and Smt. Chhoti then transferred their share in the agricultural land, inherited from their deceased husbands, in favour of wife of accused appellant Mahesh S/o Harpal. Litigation between Mahesh S/o Harpal and sons of informant is pending, both, before the Civil Court and also before the revenue court.
7. Prosecution case is that while informant's son Mahesh and Ramniwas were returning on the motorcycle driven by deceased Mahesh, all four accused stopped them. The informant's son alongwith PW-2 were returning from Jaidaspur on way to village Pavsara on the motorcycle carrying milk. PW-2, namely Ramniwas, brother of the deceased is the eye-witness of the incident who claims that the deceased was shot at firstly on the rough road and later he was dragged to the field of one Amar Singh where he was again shot causing his death.
8. Inquest on the body of the deceased was conducted on 4.4.2009 at 6.30 am. Condition of dead body has been mentioned in the inquest, according to which, the dead body was lying in the wheat field of Amar Singh S/o Devi near his western medh. The deceased was found to be around 22 years of age. The Investigating Officer collected plain earth and bloodstained earth from the place of occurrence vide Ex.Ka.2. An empty cartridge of 315 bore as well as empty cartridge of 12 bore was also recovered from the place of occurrence vide Ex.Ka. 3.
9. Investigating Officer received inputs from the informer and relying upon it the accused Jamuna and Janki were arrested on 27.4.2009. From the possession of Jamuna one 12 bore tamancha was recovered. From the other pocket of arrested accused one 12 bore live cartridge was also recovered. No recovery was made from accused Janki. These two persons allegedly confessed that the deceased Mahesh was shot dead by them. They also stated that the 12 bore country made pistol was actually used in the offence. On the basis of such disclosure, subsequent FIR came to be registered as Case Crime No. 305 of 2009 at 8.55 am on 27.4.2009 in respect of the incident occurred at 7.20 hours on 27.4.2009. The investigation proceeded further and on the basis of statement of witnesses recorded during the course of investigation pursuant to Case Crime No. 246 of 2009 chargesheets against three accused namely Janki, Jamuna and Mordhwaj came to be submitted on 18.7.2009. Chargesheet was also submitted in Case Crime No. 305 of 2009, under Section 25 of the Arms Act on 4.7.2009 against accused Jamuna. Separate chargesheet was also submitted against accused Mahesh S/o Harpal, under Section 302 IPC on 11.9.2009. The District Magistrate also granted permission to institute prosecution under the Arms Act against accused Jamuna. The concerned Chief Judicial Magistrate, Budaun vide his separate order committed the case to the Court of Session where it got registered as Session Trial No. 1105 of 2009, under Section 302 r/w 34 IPC. The charges were read out to the accused on 4.3.2010, which they denied and demanded trial. Charges were framed against accused Mahesh on 14.4.2011, under Section 302 r/w 34 IPC, wherein also the accused denied his implication and demanded trial. Charges were also framed against accused Jamuna, under Section 25 of the Arms Act.
10. Trial proceeded in which informant appeared as PW-1. PW-1 has supported the prosecution case, according to which, his father Triloki owned 24 bigha land which he had bequeathed upon his four grandsons since his two other brothers namely Bhikam and Sukhram had already died. Widow of two brothers got their names mutated in revenue records regarding which dispute is pending before the Civil Court at Gunnaur and revenue court. He has stated that deceased alongwith Ramniwas were returning from Jaidaspur to Pavsara on a motorcycle carrying milk. On the rough road connecting Jaidaspur to Pavsara the four accused persons, namely Mahesh, Janki, Jamuna and Mordhwaj met his two sons. All the accused had firearms. These accused stopped the Vehicle of Mahesh (deceased). Mahesh S/o Harpal fired on the deceased Mahesh S/o Kunwarpal. Ramniwas rushed towards the field to save himself. The incident was seen by Veerpal Singh S/o Ramsaran and Giriraj S/o Jay Narayan of village Jaidaspur. The accused persons then dragged the informant's son Mahesh to the wheat field of Amar Singh where again he was shot and killed. The accused persons then fled. On receiving such information informant also came to the spot and saw the dead body of his son lying in the wheat field of Amar Singh. Informant then came to police station alongwith Chandrakesh and Kalyan to lodge a report. The report was got scribed outside the police station by Viopal Singh. He has proved the written report which contains thumb impression of the informant.
11. In the cross-examination PW-1 has admitted that dead body of his son was lying in the field of Amar Singh. He claims to have heard the gunshots few minutes prior to 7.30 pm. 4-5 shots were fired. However, the witness did not suspect any foul play and it was only when he received phone call from some unknown person that he came to know about the murder of his son Mahesh. The phone call was received by a neighbour. The witness, however, did not remember the name of the person, who had called. PW-1 has admitted that the fact about his having heard the gunshots were not mentioned in the FIR nor was it disclosed to the Investigating Officer in his statement under Section 161 Cr.P.C. He had also not disclosed that the information about murder was received on phone from some unknown person. No reasons have been furnished as to why these facts were not disclosed to the Investigating Officer or mentioned in the FIR. Police arrived at the place of occurrence at about 7.30 pm. Written report was scribed by Viopal. When the informant had gone to police station the dead body was not carried to the police station. Police alongwith informant and several others then came to the place of occurrence where inquest was conducted. The body was sealed at about 8.00 am. The motorcycle was lying at 2-3 paces from the dead body. The Investigating Officer, however, had not inspected the motorcycle though it was parked. The motorcycle was sent through the son of informant Ramniwas. Motorcycle was returned in the morning. There were no milk cans or buckets near the motorcycle. Informant has admitted that he had gone to Jaidaspur to get milk. The milk, however, was kept at Jaidaspur only. The motorcycle was sold by him. Ramniwas is not involved in dairy business. Proceedings were not concluded at Commissionerate and informant had to contest the matter again at the Tehsil. Informant's son did not like the fact that Smt. Bataso and Smt. Chhoti got the lands recorded in their name and later sold it to others. Chhoti and Bataso had sold the land to Smt. Kamlesh W/o accused Mahesh S/o of Harpal. The sale deed was executed nearly 16 years before. Smt. Chhoti was living with accused Janki as husband and wife for the last 16 years. The place where dead body was found was about 100 paces from the house of the informant. Wheat was sown in the field of Amar Singh. Accused Mordhwaj and Mahesh work in Railways. Informant has denied the suggestion that his son had illicit relations with ladies on account of which someone from Jaidaspur had killed his son and looted his money which fact has been misrepresented by the witness.
12. PW-2 Ramniwas has also supported the prosecution case. In the examination-in-chief he has narrated the incident, according to which, alongwith his brother, he was returning on the motorcycle at about 7.30 pm on the date of incident. They had arranged the milk, which was left at Jaidaspur in milk cans. He claims to have seen accused Mahesh carrying 315 bore country made pistol. Mahesh had stopped their motorcycle. First fire was shot by accused Mahesh on the head of the deceased. The deceased fell. PW-2 fled in order to save his life. PW-2 then came to village Jaidaspur where Veerpal and Giriraj, etc., were informed, who all came with the witness. Neither Veerpal nor Giriraj or anybody else from village Jaidaspur, however, has been produced. On raising of alarm by the witness four accused after dragging the dead body of his brother to another field, again fired on him from 315 bore country made pistol.
13. In the cross-examination PW-2 has stated that accused Mahesh had fired from 315 bore tamancha. He had not recognised the firearms in the possession of other accused. He has stated that apart from 315 bore tamancha he does not recognise other firearms. The witness has been confronted with his previous statement wherein there is no reference to the firing on deceased from 315 bore tamancha. Only one fire was shot in his presence by accused Mahesh. He had run away after the motorcycle was stopped by the accused. Dead body was at a distance of 200 steps from the motorcycle. PW-2, however, did not remember the registration number of the motorcycle. He also lives in the village and works as labourer at Delhi. It is admitted that accused Mahesh works in Railways. He has denied the suggestion that at the time of incident the accused Mahesh was on duty. PW-2 has admitted that dispute in respect of the land was pending with accused Mahesh in respect of the will executed by his grand-father. This litigation is going for the last 12-13 years. The case was filed by PW-2. After he lost the case from the Tehsil, PW-2 had instituted proceedings before the Commissionerate where the matter is pending. Civil dispute is also pending before the Gunnaur Tehsil. That case has also been filed by PW-2. At the time of incident he used to work at Delhi on contract for demolition of houses. Deceased was engaged in dairy work. He used to collect milk at 7.00-8.00 in the morning. He had not gone with him in the morning. The deceased had returned after collecting milk at 12.00-1.00 pm. He had collected milk from 15-20 houses at Jaidaspur. The milk was then left at the house of Rajendra. He does not know the name of father of Rajendra.
14. PW-2 has been confronted with his previous statement under Section 161 Cr.P.C. where he had not disclosed that the milk was left at the house of Rajendra. About 45 Litre milk was collected in a can. This can, however, was not shown to Investigating Officer. PW-2 has specifically stated that after lodging of the report the dead body was not taken to the police station, rather it was left in the village itself. The dead body and the Investigating Officer both remained in the village. Dead body was lying at the house of Atar Singh. The house of Atar Singh and Village Pradhan is almost one. Dead body of deceased Mahesh had reached the house of Atar Singh at about 8.00-8.30 pm and it remained there only. Viopal was called who came at about 8.00 in the morning. PW-2 stated that motorcycle was brought by Investigating Officer and left at the house of Atar Singh. The motorcycle was given in the custody of Atar Singh and 3-4 days later he had taken the motorcycle from Atar Singh. The motorcycle was in the name of Mahesh. This motorcycle was sold in the market by him. He did not remember the name of person to whom the motorcycle was sold. However, it was sold for Rs. 12000/-. PW-2 has denied the suggestion that motorcycle was stolen and that he used to indulge in theft of motorcycle. He has also denied the suggestion that at the time of incident he was returning alongwith his brother on the motorcycle carrying milk. He has denied having given any statement earlier that he was returning alongwith his brother carrying milk on the motorcycle. He has also denied his statement made to the Investigating Officer that he was returning alongwith deceased Mahesh from Jaidaspur on his motorcycle carrying milk. He has further denied the suggestion that only because the milk cans were not recovered from the place of occurrence that a false version is introduced, later, that milk was left at Jaidaspur. He has claimed that he was at a distance of about 100-150 steps from the field of Amar Singh. The accused persons fired in the air and threatened them not to come closer. The dead body was lying in the field of Amar Singh at about 125 steps from the motorcycle. The field was of wheat. It is alleged that when accused person were firing on the deceased then he was watching it alongwith Veerpal and Giriraj from a distance of 100-150 paces. He has also denied the suggestion that only because of promiscuous character of his brother he had been shot dead. Deceased was having a motorcycle which was given to him 3-4 days later. This fact, however, was not disclosed by him to the Investigating Officer. He has admitted that deceased used to carry Rs. 4000-6000/- in his pocket all the time but on that date no amount was found in his pocket. He has reiterated his denial that on account of illicit relations of deceased with several women that he was shot dead.
15. PW-3 Sultan Singh is the witness of fard. Dr. S.P. Agrawal is PW-4, who is the autopsy surgeon and has proved the postmortem report. PW-5 Dr. Shambhu Sharan is the witness of inquest. PW-6 Indra Singh is Head Moharrir and has proved the police papers.
16. PW-7 Devraj Singh Rathi is the Investigating Officer. In his testimony Investigating Officer has explained the steps taken during the course of investigation. In his cross-examination Investigating Officer has stated that motorcycle was found at the place of occurrence. It was lying at point 'B' mentioned in the site plan. He did not remember whether motorcycle was taken by him in his possession or not. No memo of recovery of motorcycle was prepared. There is no reference of such fact in the case diary and he also does not know as to what happened to the motorcycle. He made no inquiries from the office of RTO as to who was the owner of the motorcycle. Milk cans were loaded on the motorcycle. He did not remember whether milk was filled in the cans or not. He had recorded the statement of Rajendra from village Jaidaspur and only questions were with regard to the deceased. He has stated that the inquest was conducted at the agricultural field where the dead body was found. Inquest papers were filled in the field of Amar Singh at village Pavsara. Place of occurrence falls within the village Pavsara. He has specifically denied that inquest was conducted at the house of someone else or in the house of the Pradhan. He has denied the suggestion that he had firstly gone to the place of occurrence and after bringing the informant the FIR was got scribed.
17. The Investigating Officer in his cross-examination has further stated that accused Mahesh S/o Harpal is also resident of village Pavsara. He does not know whether accused was on duty at Railways or not. At the time of recovery of tamancha from Jamuna no money, cigarette, bidi, mobile, etc., were recovered. No mobile, money, chain, ring, etc., were found from the body of the deceased. No driving licence or registration certificate were recovered from the motorcycle. He had not seen the diggi of the motorcycle. The Investigating Officer has further stated that PW-2 had not informed him that accused Mahesh had fired from 315 bore tamancha. PW-2 had also not disclosed him that the milk can was kept at the house of Rajendra and the deceased alongwith PW-2 were returning to Pavsara without milk. He has denied the suggestion that the dead body was kept in the house of Atar Singh at Pavsara.
18. In his statement under Section 161 Cr.P.C., PW-2 had stated that he was returning on motorcycle alongwith the deceased Mahesh from Jaidaspur carrying milk to Pavsara. He has further denied the fact that Rajendra was produced before him or that he admitted that the milk was kept at his house. He has also admitted that Ramniwas was not available on that date. The Investigating Officer has further admitted that there is no source of light available at the place of occurrence or is mentioned in the case diary. He denied the suggestion that the deceased alongwith Ramniwas were going on foot and not on motorcycle. He has denied the suggestion that Ramniwas was actually not present. PW-8 Satish Chandra and PW-9 Pradeep Kumar Shukla are the Investigating Officers in the FIR lodged under the Arms Act. PW-9 has admitted that the recovered firearm from accused Jamuna was not sent for any forensic examination. PW-10 Umesh Chandra Pachori has proved the chargesheet.
19. The above referred evidence has been confronted to the accused persons for recording their statement under Section 313 Cr.P.C. All the accused persons have specifically stated that the evidence produced by the prosecution is false. The accused have also alleged that the investigation is not fair. They have stated that on account of village party bandi and enmity the accused persons have been falsely implicated.
20. We may further record that prosecution witnesses Shambhu Sharan; Constable Indra Singh; Kunwarpal; Dr. S.P. Agrawal; Ramniwas and Investigating Officer Devraj Singh Rathi together with Ram Veer Singh were recalled as witnesses and their statements were recorded again. These witnesses have repeated the same version which they had disclosed earlier. The statement of aforesaid witnesses upon being recalled was also confronted to the accused. It is at this stage that accused Mahesh in his statement under Section 313 Cr.P.C. has alleged that on 31.3.2009 he had gone as Attendant with Train No. 4311 and reached on the place of destination on 1.4.2009. He again started his return journey at 11.05 hours on 2.4.2009 and reached Bareilly on 3.4.2009 at 8.30 pm. He has stated that he remained on duty till 9.00 pm and he has been falsely implicated.
21. Accused appellants have also produced their defence witness. DW-1 Javed Akhtar is the Senior Section Engineer in Northern Railway at Bareilly. He has stated that accused Mahesh was on duty as Attendant in Train No. 4311/4312 and had spotted AC Coach and Train had left on 31.3.2009 and reached Bhuj at 3.00 pm on 1.4.2009. Accused Mahesh left Bhuj on 2.4.2009 and reached Bareilly Junction at 8.30 pm on 3.4.2009. He was relieved from duty at 9.00 pm. He has certified that accused Mahesh was on duty from 5.10 am on 31.3.2009 to 9.00 pm on 3.4.2009. He has also certified that the accused Mahesh had not left in between. Certificate issued by the Senior Section Engineer, Exhibit Kha-1, has thus been proved by DW-1. In the cross-examination, DW-1 has proved the signatures of Deepak Varshney, Senior Section Engineer, who had issued the certificate (Exhibit Kha-1).
22. Ajay Kumar Rastogi has been produced as DW-2. He has proved the certificate issued by Deepak Varshney, Senior Section Engineer (Ex.Kha-1). In the cross-examination, he has stated that the Pass issued to the Staff is usually destroyed after five years. He did not come with the log book and has denied the fact that he has intentionally not produced the log book.
23. Deepak Varshney has been produced as DW-3. He has proved the certificate issued by him, according to which, the accused Mahesh was on duty between 31.3.2009 to 3.4.2009 and was relieved at 9.00 pm.
24. Prahalad Narain Bhatnagar, Retired Section Engineer, has been produced as DW-4. He has identified accused Mahesh. He has stated that Train No. 4311/4312 had left Bareilly on 31.3.2009 for Bhuj at Gujarat. He has certified that accused Mahesh had travelled with him in the AC Coach. This witness has however retired on 31st December, 2013. It is stated by him that most of the records are maintained for a period of five years and are weeded out thereafter. It is also stated that the original records in respect of information furnished is no longer maintained in the office.
25. It is on the basis of the aforesaid evidence led in the matter that the Court of Session has come to the conclusion that prosecution has successfully proved the charges levelled against the accused persons and consequently has convicted and sentenced the accused appellants, as per above.
26. Learned counsel for the appellants argues that the accused appellants have been falsely implicated in the present case and that the testimony of witnesses, particularly PW-2 is not reliable and surrounding circumstances on record do not justify the conclusion drawn by the Court of Session that the prosecution has succeeded in establishing its case beyond reasonable doubt. It is argued that the story of carrying milk on motorcycle is extremely doubtful and various circumstances have been highlighted in support of such plea. The place of occurrence is also questioned. It is further submitted that motive is obscure. Learned Senior Counsel for the appellant also submitted that the defence evidence has been erroneously discarded, which clearly proves that accused Mahesh S/o Harpal was actually on duty as Attendant in the Train No. 4311/4312 going from Bareilly to Bhuj and return. Submission is that the evidence on record has not been carefully analysed. Reliance is placed upon a Division Bench Judgment of this Court in Emperor Vs. Janki Prasad and another, (1921) ILR 43 All 283; Vadivelu Thevar Vs. The State of Madras, AIR 1957 SC 614.
27. On the strength of the judgment in Vadivelu Thevar (supra), it is submitted that testimony of PW-2 cannot be treated to be wholly reliable, rather it can be classified as wholly unreliable. Recent judgment of the Supreme Court in Javed Shaukat Ali Qureshi Vs. The State of Gujarat, 2023 INSC 829 has also been relied upon to submit that the testimony of witnesses is not reliable. Learned Senior Counsel also places reliance upon the judgment of the Supreme Court in Balaram Vs. The State of Madhya Pradesh, Criminal Appeal No. 2300 of 2009 reported in 2023 INSC 1000 to submit that previous enmity is a double edged weapon and while it provides the motive for committing the offence but simultaneously it also provides the possibility for false implication.
28. On behalf of State it is submitted that the testimony of PW-2 is wholly reliable and since there was a strong motive for the accused persons to commit the offence, as such, the court below has rightly construed the evidence to hold that offence was committed by the accused persons. Learned AGA points out that the defence evidence has been disbelieved for right reasons, inasmuch as, the original log book was not produced which alone could have proved the plea of alibi set up by the accused Mahesh S/o Harpal. Learned State Counsel also argued that minor contradictions in the testimony of witnesses cannot be grown out of proportion nor can be a ground to disbelieve the version of prosecution witnesses. In that regard reliance is placed upon the judgment of the Supreme Court in Kalabhai Hamirbhai Kachhot Vs. State of Gujarat, reported in (2021) 19 SCC 555, wherein the Supreme Court observed as under:
"24. ...............in the case of Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra : (2000) 8 SCC 457, this Court has considered the effect of the minor contradictions in the depositions of witnesses while appreciating the evidence in criminal trial. In the aforesaid judgment it is held that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. Relevant portion of Para 42 of the judgment reads as under:
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness.''
29. It is in the context of above submissions and upon perusal of materials on record that we proceed to examine the evidence in support of the prosecution case. Written report of the informant since is the first report soon after the incident, its contents assume significance. The first information report has been lodged at 9.15 pm on the date of incident which is less than two hours from the incident itself. The incident is of 7.30 pm. The FIR contents are to the effect that the deceased Mahesh S/o Kunwarpal alongwith his brother Ramniwas (PW-2) were returning from Jaidaspur on the motorcycle alongwith milk. The place of incident is the rough road near the field of Ramveer. Allegation is that all four accused came armed with tamancha (country made pistol) to stop the motorcycle of Mahesh and PW-2 whereafter accused Mahesh fired from his country made pistol on deceased Mahesh S/o Kunwarpal. PW-2, who was the pillion rider rushed towards the fields to save himself. This is the first part of the incident.
30. The second part of the incident is when PW-2 reached village Jaidaspur and alongwith Veerpal Singh S/o Ramsaran and Giriraj S/o Jay Narayan, etc., came to the place of occurrence and found that deceased Mahesh was dragged by the accused persons to the wheat field of Amar Singh. It was at this place that Mahesh was again shot at and killed. On raising of alarm by Veerpal and Giriraj the accused persons fled. The dead body was lying in the field of Amar Singh.
31. We take up the first part of the incident in which all four accused stopped the motorcycle of the deceased and accused Mahesh fired on the deceased. The prosecution case as per FIR allegation is that the deceased alongwith PW-2 was returning alongwith milk to village Pavsara when the incident occurred. Apart from the testimony of PW-2 there are two other circumstances relating to the first incident. Deceased and PW-2 were returning on a motorcycle carrying milk. However, at the place of occurrence no milk was found. This fact is specifically acknowledged by the Investigating Officer in his testimony. So far as the motorcycle is concerned, we find that though prosecution witnesses alleged that the motorcycle was left at the spot and it was later returned but there are different versions of it in the prosecution case. The Investigating Officer in his testimony has admitted that there is no reference of recovery of motorcycle on the spot in the case diary, nor any recovery memo of motorcycle was prepared. Though Investigating Officer has stated that he saw the motorcycle at the place of occurrence, but this oral statement is not supported by any material on record. The testimony of Investigating Officer (PW-7) in that regard is as under:
"मौके पर मोटर साइकिल मिली थी। मोटर साइकिल सड़क के किनारे बी० स्थान पर पड़ी हुई थी। मुझे अब यह ध्यान नहीं है के मोटर साइकिल मैंने कब्जे में ली या नहीं। कोई मोटर साइकिल की फर्द बरामदगी नहीं बनायी और न केस डायरी में इसका जिक्र किया कि उस मोटर साइकिल का क्या हुआ। उस मोटर साइकिल के बारे में मैंने आर०टी०ओ० आफिस में पता नहीं लगाया कि वह किसकी मोटर साइकिल थी।"
32. It is admitted that no record in respect of recovery of motorcycle is available, nor it finds mention in the case diary. PW-2 in his testimony has neither been able to specify the make of the motorcycle, nor its registration number and but for the bald statement that the deceased was returning on the motorcycle there is no other evidence to show existence of motorcycle on the spot. Witnesses have come out with distinct versions of the manner in which the motorcycle was returned to the informant. PW-1 has stated that the Investigating Officer had sent the motorcycle to his house through his son Ramniwas. PW-2, however, says that the motorcycle was brought by I.O. and kept at the house of Atar Singh and after paper work gave it in the custody of Atar Singh from whom he took it 3-4 days after. He later sold it to someone for Rs. 12,000/-. The statement of PW-2, in this regard, is reproduced hereinafter:-
"घटना स्थल से मोटर साईकल दरोगा जी लेकर आये थे और वह मोटर साईकिल दरोगा जी ने अतर सिंह के घर रख दी थी और मोटर साइकिल की लिखा पढी करके अतर सिंह के हवाले की थी। उसके तीन-चार दिन बाद अतर सिंह से मोटर साईकिल मैनें ले ली। मोटर साइकिल महेश के नाम था। मैनें वह मोटर साइकल बाजार में बेची थी। किसको बेची थी उसका नाम ध्यान नहीं। मैनें मोटर साइकिल आर०एस० 12000/- रूपये में बेचीं थी। मोटर साइकिल बेचने की कोई रसीद मेरे पास नहीं है। मोटर साइकिल का नम्बर नहीं मालूम। मुझे यह भी नहीं पता कि मेरे भाई ने यह मोटर साइकिल किससे और कितने में खरीदी थीं।
यह कहना गलत है कि यह मोटर साईकिल चोरी की थी। और मैं व मेरा भाई मोटर साइकिलों की चोरी करते हों।
मुझे नहीं पता कि मोटर साईकिल पर खून के धब्बे पड़े थे या नहीं।"
33. PW-5 Dr. Shambhu Sharan is also a police personnel, who claims that on receiving information of the offence at 9.15 pm on 3.4.2009, he reached the place of occurrence at 10.00 pm. This witness is essentially the person who conducted inquest. He has specifically stated that he found no motorcycle at the place of occurrence, nor he found any motorcycle on the way. The version of PW-5 is categorical in that regard and is reproduced hereinafter:-
"मुझे घटना स्थल के आस-पास अथवा मृतक के लाश के पड़े होने के स्थान के आस-पास कोई मोटर साइकिल नहीं मिली थी मैं रास्ते से गया था मुझे रास्ते में कोई मोटर साइकिल नहीं मिली थी।"
34. Interestingly, Investigating Officer (PW-7) not only stated that he found motorcycle at the place of occurrence, but he found milk cans loaded on the motorcycle. This fact is clearly stated by him in his cross-examination, which reads as under:-
"दूध के डिब्बे मोटर साइकिल पर ही लदे हुए थे। मुझे यह याद नहीं कि उनमें दूध भरा हुआ था या नहीं।"
35. PW-1 in his examination-in-chief has although reiterated the FIR version that deceased alongwith Ramniwas were returning from Jaidaspur on motorcycle carrying milk but in the cross-examination, PW-1 made a departure stating that there was no milk can nor buckets near the motorcycle. Contrary to his earlier version PW-1 in cross examination stated that the milk was kept at Jaidaspur itself. He had also sold the motorcycle. The version that the milk can was left at Jaidaspur is, therefore, an embellishment and improvement and inconsistent with the statement of PW-1 in the examination-in-chief that the deceased alongwith PW-2 was returning on motorcycle carrying milk.
36. Interestingly, we find that the initial version that the deceased was returning alongwith PW-2 on a motorcycle carrying milk was also given up at the stage of trial. PW-2 in his testimony has come out with an entirely different version. In his testimony PW-2 has stated that he was returning from Jaidaspur on a motorcycle after arranging milk, but the milk was kept in cans at Jaidaspur itself. This is clearly reflected in the following statement of PW-2:-
"मैं तथा मेरा भाई महेश जैदास पुर से अपनी मोटर साईकल पर दूध दुलाकर अपने गांव पवसरा आ रहे थे और दूध डिब्बों में जैदासपुर रखकर आये थे।"
37. It is in the above context that we find that witnesses are not consistent on the factual plea as to whether deceased was returning on motorcycle carrying milk or was he returning after having left milk at Jaidaspur. The witnesses clearly contradict each other on this aspect.
38. Investigating Officer has acknowledged the fact that PW-2 in his statement under Section 161 Cr.P.C. had not disclosed that milk cans were left at the house of Rajendra and that they were returning without milk. This version of the Investigating Officer is specifically recorded and is extracted hereinafter:-
"इस राम निवास गवाह ने अपने कथन धारा-161 में यह ब्यान नहीं दिया था कि वह दूध के डिब्बे राजेन्द्र के यहां रखकर बिना दूध लिए वापस आ रहे थे।"
39. In his statement under Section 161 Cr.P.C., PW-2 had clearly informed that he was returning from Jaidaspur on the motorcycle carrying milk. The statement of PW-2 made to the I.O. on the aspect of returning to Jaidaspur, on motorcycle, carrying milk has been specifically acknowledged by the Investigating Officer in his statement which reads as under:
"कल दि० 3.4.09 को मैं तथा महेश, जैदासपुर से अपनी मोटर साइकिल पर दूध लेकर पपसरा आ रहे थे।"
40. The Investigating Officer has also contradicted the version of PW-2 that he had left the milk at the house of Rajendra, or that such fact was disclosed by him to the Investigating Officer. The Investigating Officer has clarified this fact in his testimony, which is extracted hereinafter:-
"यह कहना गलत है कि राम निवास गवाह ने ग्राम पपसरा के राजेन्द्र को मेरे सामने पेश किया हो और उस राजेन्द्र ने मुझसे यह माना हो कि दूध उसके यहां रखा है।"
41. It is in the above context that the appellants' counsel argues that the specific prosecution case in the FIR about deceased coming on a motorcycle carrying milk is not corroborated by the evidence on record. The fact that no motorcycle or milk can was found has been emphasized to show inconsistency in the testimony of prosecution witness.
42. Our attention has also been invited to the statement of Investigating Officer, in the cross-examination, wherein he has acknowledged that Ramniwas (PW-2) in his testimony under Section 161 Cr.P.C. had not disclosed that the milk cans were kept at Jaidaspur, at the house of Rajendra and that Rajendra had also not disclosed him about keeping of milk can at his house. The statement of Investigating Officer in this regard is also extracted:-
"गवाह राम निवास ने 161 के बयान में यह नहीं बताया कि वह दूध के डिब्बे ग्राम जयपाल पुर के राजेन्द्र के घर रखकर आ रहे थे।
मैंने राजेन्द्र का बयान लिया था उसने अपने यहां दूध का रखना नहीं बताया था।"
43. The above circumstances have to be kept in mind when we proceed to evaluate the evidence in its entirety.
44. The next limb of appellants' contention is with regard to the place of occurrence. PW-1 has specifically asserted that the dead body of his son was found in the agricultural field of Amar Singh resident of Pavsara. The field is north of rough road at a distance of 100 steps from Jaidaspur. Pavsara was on east. The Investigating Officer (PW-7) has stated that site plan was prepared after inspecting the place of occurrence. He also claims that bloodstained and plain earth was also collected from the place of occurrence. Two empty cartridges were also recovered from the same place. He has proved the recovery memo in that regard, which are marked as Exhibits Ka-2 and Ka-3. In the cross-examination he has clearly stated that dead body was found in the field of Amar Singh and he has shown it as point 'B' in the site plan. He has also stated that inquest was conducted on his instructions and his presence in the same field where dead body was found. This statement of Investigating Officer is reproduced hereinafter:-
"पंचायतनामा मेरे निर्देश पर दरोगा जी ने मेरे सामने उसी खेत में भरा था जिसमें लाश मिली थी। लाश का पंचायतनामा अमर सिंह के खेत में ग्राम पपसरा में भरा गया था। घटना स्थल ग्राम पपसरा के हद में आता है। ऐसा नहीं है कि लाश का पंचायतनामा ग्राम पपसरा के किसी व्यक्ति अथवा प्रधान के घर में भरा गया हो।"
45. As against the aforesaid version with regard to place of occurrence in the testimony of PW-1 and PW-7 the sole eye-witness of incident, namely PW-2, has come out with an entirely different version. As per PW-2, the dead body of Mahesh was brought to the house of Atar Singh at about 8.00-8.30 pm and was kept there the entire night. The statement of PW-2 in that regard is reproduced hereinafter:-
"लाश हमारे गांव में अतरसिंह के घर पर रही थी। अतर सिंह व प्रधान का घर करीब करीब एक ही है।
अतर सिंह के यहां मेरे भाई महेश की लाश आठ-साढे आठ बजे पहुंच गयी थी और रात भर वहीं रही थी।"
46. The above version of PW-2 contradicts the prosecution case with regard to the place where the body was kept in the night, inasmuch as, PW-1 and the police witnesses state that the dead body was lying in the wheat field of Amar Singh and inquest was also conducted there but PW-2 states that dead body was brought to the house of Atar Singh, which is next to the house of Village Pradhan and was kept there throughout the night.
47. Place where the dead body was kept assumes significance, inasmuch as, the prosecution case is that after the deceased was shot on the rough road his dead body was dragged to a distance of about 200 steps towards the field of Amar Singh. It is also the prosecution case that the deceased was again shot at the field of Amar Singh and it was there that he was ultimately done to death.
48. Learned counsel for the appellants has invited our attention to the postmortem report as well as the testimony of autopsy surgeon wherein no injuries are shown on the deceased as would be expected in a case of dragging of injured for nearly 200 steps. PW-2 is categorical in saying that the body was dragged to about 200 paces.
49. Autopsy surgeon (PW-4) has been specifically confronted regarding injury marks which may appear on the body, if it is dragged for even 50-60 steps. The doctor, however, has clearly stated that no abrasion, etc., was found on the body of the deceased. He has also stated that on dragging of a person for 50-60 steps abrasions are surely likely to be caused. The statement of autopsy surgeon in that regard is reproduced hereinafter:-
"यदि किसी व्यक्ति को 50-60 कदम घसीटा जाये तो उसके शरीर पर खुरसट के निशान जरूर आयेगें। मृतक के शरीर पर खुरसट के निशान नहीं थे।"
50. It is also relevant to note that bloodstained earth was not sent for chemical examination so as to ascertain that the incident had in fact taken place at the field of Amar Singh. Doubt with regard to place of occurrence, therefore, subsists in view of the contradictory version of prosecution witnesses.
51. Prosecution has supplied specific motive for the accused persons to commit the murder of deceased Mahesh. The FIR itself furnishes motive, according to which, Smt. Bataso and Smt. Chhoti, widows of informant's brother Bhikam and Sukhram, had sold their land to the wife of accused Mahesh S/o Harpal.
52. PW-1 in his cross-examination has stated that he is not aware as to when widow of his brother Sukhram namely Smt. Chhoti got her name mutated over eight bigha land in question. He has further stated that about 16 years back Smt. Chhoti had sold the land to the wife of accused Mahesh. Smt. Chhoti is also residing with accused Janki as his wife for the last 16 years. Sukhram also had a daughter, who was around six years old when Sukhram died. Sukhram's daughter was got married by accused Janki and, therefore, PW-1 is not aware about the year of her marriage. From the testimony of PW-1 and PW-2, it is apparent that the transfer of land by the two widows Smt. Bataso and Smt. Chhoti was nearly 15 years prior to the incident.
53. PW-2 in his testimony has clearly admitted that litigation in respect of the land was continuing for the last 12-13 years. He has also admitted that civil and revenue cases in respect of such land were instituted by him. Testimony of PW-2 in that regard is relevant and is reproduced hereinafter:-
"मेरा जमीन का मुकदमा महेश से चल रहा था जो अब भी चल रहा है। उसने एक तरफ से हम तीनों भाई मैं महेश मृतक सुनील तथा चौथा काली चरन हैं तथा दुसरी तरफ से मुलजिम महेश पुत्र हरपाल है। यह वही मुकदमा है जिसके संबंध में मेरे बाबा त्रिलोकी ने हम चारों भाईयों के नाम वसीयत की थी।
यह मुकदमा लगभग 12-13 साल से चल रहा है। यह मुकदमा मैंने दायर किया था। तहसील से हारने पर मैं इस मुकदमें कमिश्नरी गया था यहां मुकदमा चल रहा है। गुन्नौर तहसील में दीवानी का मुकदमा इसी जमीन के बारे में चल रहा है। वह मुकदमा भी मैंने दायर किया था। उस जमीन के मुकदमें में महेश हमारे खिलाफ पार्टी है और कोई मुल्जिम पार्टी नहीं है।"
54. Since the prosecution has supplied specific motive for the offence i.e. the dispute with regard to 16 bigha land transferred to the wife of accused Mahesh by Smt. Bataso and Smt. Chhoti, therefore, this motive has to be analysed in the facts of the case. It is the prosecution case that the deceased was returning on the motorcycle alongwith PW-2 Ramniwas. Ramniwas has clearly stated that the accused Mahesh fired on deceased Mahesh at the rough road. Apart from accused Mahesh, three other accused namely Janki, Jamuna and Mordhwaj, were also armed with tamancha. In case the motive was to avenge the enmity of landed property, there would be no reason for all the armed accused persons to spare PW-2 or allow him to flee from the place of occurrence. The motive supplied by the prosecution furnishes greater incentive for the accused persons to eliminate PW-2 as he was the person who had instituted cases against the accused persons. The fact that PW-2 was spared and was not harmed by the armed accused also remains unexplained.
55. The records also reveal that PW-2 after fleeing from rough road where the first incident took place rushed to Jaidaspur and returned alongwith Veerpal Singh and Giriraj Singh. Veerpal Singh and Giriraj Singh are not produced in evidence. PW-2 states that he saw the second incident in the field of Amar Singh from a distance of about 150 steps. No source of light is shown to exist at the place of occurrence. This aspect is also not explained by the prosecution.
56. Prosecution has furnished only two witnesses of fact in the present case. They are PW-1 and PW-2. So far as PW-1 is concerned, he does not appear to be an eye-witness, inasmuch as, he has clearly stated in the FIR that he came to the place of occurrence on receiving information. In his oral testimony PW-1 has only claimed that he heard gunshots from a distance but he did not suspect any foul play at that time. He later received a phone call about murder of his son. This phone call was received by some neighbour. However, it has not been clarified as to how and from whom PW-2 received information regarding the incident. It is, therefore, apparent that PW-1 is not an eye-witness and only on receiving information of the incident that he came to the place of occurrence. Testimony of PW-1, therefore, cannot be given weight of an eye-witness. PW-2 is the only eye-witness of the incident.
57. In order to evaluate the testimony of PW-2 this Court is required to consider as to in which category such witness is to be placed. Supreme Court in Javed Shaukat Ali Qureshi Vs. The State of Gujarat, 2023 INSC 829 has referred to and relied upon the celebrated judgment of the Supreme Court in Vadivelu Thevar and another Vs. State of Madras (supra) and observed as under:-
"11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
58. Being the brother of the deceased, PW-2 is an interested witness. Law is settled that testimony of such interested witness can be relied upon but the court as a rule of prudence is required to view such testimony with care and circumspection. We have carefully evaluated the testimony of PW-2 on the above touchstone in the context of the evidence appearing on record in the facts of the present case.
59. PW-2 has admitted that he works as a labour in Delhi and also lives in the village. His further statement in the cross-examination is that at the time of incident he was working on contract for demolition of houses at Delhi. He was sitting on the motorcycle with the deceased but was left unharmed by the four armed accused despite the fact that main enmity was with him as it was PW-2 who had instituted legal proceedings against the accused Mahesh. The version of PW-2 about body of the deceased having been brought to the house of Atar Singh at 800-8.30 pm in the evening and it being kept there throughout the night is also inconsistent with the version of all other accused. The fact that PW-2 was sitting as a pillion rider but he sustained no injury in spite of the fact that deceased sustained four gunshots is also intriguing. Various other contradictions in the prosecution case have also been highlighted above. It is in the above backdrop that this Court has to decide as to whether prosecution case inspires confidence of the Court, or not.
60. Before we come to a conclusion on the contentious issues posed before us, we would like to refer to the defence version with regard to the plea of alibi. In this regard the defence has placed four witnesses, namely Javed Akhtar, Senior Section Engineer, Northern Railway, Bareilly; Ajay Kumar Rastogi, M.C.M. (A.C. Bareilly Junction); Deepak Varshney, Retired S.S.E.T.L./A.C.C., Bareilly as well as Prahalad Narayan Bhatnagar, P.A., Northern Railway, Bareilly. These railway officials are Senior Officers, who have categorically proved the certificate issued by Senior Section Engineer (Exhibit Kha-1), as per which, accused Mahesh had left Bareilly by Train No. 4311 as Attendant in AC Coach at 6.10 am on 31.3.2009. He was certified to be on duty till 9.00 pm on 3.4.2009. DW-2 Ajay Kumar Rastogi had also gone in the same train and has certified that accused Mahesh was present throughout as his Attendant in the train and had not left in between for any other place. These witnesses have categorically testified to the presence of accused Mahesh in Train No. 4311/4312 at the time when the incident occurred. The trial court, however, has disbelieved the defence plea of alibi only on the ground that log book was not produced by the defence witnesses.
61. We are not impressed by the reasoning adopted by the trial court, inasmuch as, log book is an official record and as per the witnesses such records are weeded out after a period of five years. The defence witnesses were produced in the year 2017; whereas log books were in respect of the travel made by the employee in the year 2009. Not much exception can be taken to non-production of log book in the facts and circumstances of the present case. Moreover, in the event trial court was doubtful with regard to defence plea of alibi it could very well have summoned those records from the concerned office so as to verify the correctness or otherwise of the defence case.
62. We may refer to a judgment of this Court in Emperor Vs. Janki Prasad and another, decided on 3rd November, 1920 reported in (1921) ILR 43 All 283, wherein the duty of criminal court to go to the bottom of a case has been emphasised. Justice Tudball has observed as under:-
"4. It it difficult to understand what conception the learned Sessions Judge has of his duty as a Sessions Judge trying a criminal case. It is the duty of every Criminal Court to got to the bottom of a case and to bring all relevant evidence upon the record and to see that justice is done. The latter portion of the Judge's judgment shows clearly that his conception of his duty as a Judge is utterly incorrect and somewhat puerile. It is the "attitude that might possibly be taken up by a Civil Court trying a civil suit where it is the duty of the parties to place their case as they think best before the court. But in a criminal case it is the duty of the court to get to the very bottom of it and to see that every scrap of relevant evidence is brought before it. The learned Sessions Judge has fallen far short of his duty in the present case."
63. When we examine the evidence led by the prosecution as well as defence case in its entirety, we do not find it safe to rely upon the prosecution witnesses and other evidence to convict and sentence the accused persons in this case. The reason for coming to such a conclusion is that the contradictions in the prosecution case are many which have not been satisfactorily explained. The argument that prosecution altered its case from time to time, depending upon the evidence available on record, appears to have substance.
64. The initial prosecution case that the deceased alongwith PW-2 were returning on a motorcycle carrying milk from another village was apparently questioned on the ground that there were no signs of any milk found at the place of occurrence nor there existed any milk can or milk buckets, etc. Faced with this anomaly the prosecution witnesses changed their version and introduced a new story that the milk collected was kept at the house of Rajendra at Village Jaidaspur. This subsequent version is a clear improvement from the initial prosecution case and the witnesses have not been consistent on this count. The prosecution case that the deceased was travelling on a motorcycle has also not been proved, inasmuch as, no motorcycle has been recovered or produced during trial. Its detail has also not been furnished. The witnesses clearly contradict each other on this aspect of the matter. The contradictions have been considered in our previous discussions.
65. The prosecution has also not been able to specify the place of occurrence as there are no signs of dragging/contusions on the body of the deceased despite the specific case of prosecution that injured was dragged for 200 paces before being killed in the field of Amar Singh. There is also an issue with regard to the place where body was kept in the night in view of the serious contradictions emerging on record in light of the statement of PW-2 that the dead body was brought to the house of Atar Singh; whereas all other witnesses state that the body was left in the agricultural field of Amar Singh.
66. We have otherwise found the prosecution version that PW-2 was spared unharmed by the accused persons despite the fact that main enmity was with him not to be convincing. We also find the prosecution version about dragging of the deceased to a different place at a distance of 200 steps not to be supported by the medical evidence which shows no abrasions notwithstanding the statement of the autopsy surgeon that such abrasions would be inevitable if the body is dragged for so long. The fact that PW-2 otherwise was working at Delhi and his presence is not reflected in the inquest, etc., are also factors that create a doubt in the prosecution case. The defence version about plea of alibi also could not have been brushed aside as has been done by the court. Upon cumulative assessment of the evidence on record and in the absence of reliable corroboration, we do not find the testimony of PW-2 to be safe and reliable.
67. We are thus of the considered view that it would not be safe to convict the accused appellants on the basis of evidence brought on record, in this case, when we disbelieve the only eye-witness PW-2. The accused appellants are thus entitled to be acquitted of the charges levelled against them.
68. The defence evidence otherwise proves that accused Mahesh was on duty and was relieved at 9.00 pm on the date of incident i.e. 3.4.2009 by when the incident had already occurred i.e. 7.30 pm on 3.4.2009. Law is well settled that defence evidence is entitled to equal weight, as is the prosecution evidence, and cogent reasons have to be assigned to discard such evidence. The only reason assigned by the court below to discard the defence evidence is that log books in respect of travel details were not produced. The evidence on record is to the effect that after 5 years the log books are weeded out. If the Court of Session had any doubt about the defence plea of alibi, it could have called for necessary clarifications from the department. It was not open for the Court to have brushed aside the testimony of four senior railway officers, who have not only issued a certificate that accused Mahesh was on duty at the time of incident, but have specifically asserted that Mahesh had actually gone as an attendant with the train and performed his duties. His presence, elsewhere is thus certified. The rejection of defence evidence regarding plea of alibi, therefore, cannot be approved. We find substance in the argument of Sri Kamal Krishna, Senior Advocate, that it was a case of blind murder and on account of enmity the accused appellants have been falsely implicated. The suggestion that deceased was a young man who had illicit relations with ladies of Village Jaidaspur and was done to death by persons of Village Jaidaspur furnishes an alternative hypothesis for the murder.
69. We have thoroughly examined the judgment of conviction and sentence passed by the Court of Session and find that the court of session has not evaluated the evidence in correct perspective and numerous contradictions, improvements and embellishments in the testimony of witnesses have been completely ignored/overlooked. The circumstances creating grave doubt on the prosecution case have also been overlooked. We are, therefore, not persuaded to endorse the findings and conclusions drawn by the court of session about the guilt of accused appellants on the basis of evidence placed on record.
70. In that view of the matter, these appeals succeed and are allowed. The judgment of conviction and sentence dated 11.10.2019, passed by the Sessions Judge, Budaun is set aside. The accused appellants Janki S/o Satyaram, Jamuna S/o Jagjeet, Mordhwaj S/o Satyaram and Mahesh S/o Harpal shall be released from jail, forthwith, unless they are wanted in any other case, subject to compliance of Section 437-A Cr.P.C.
Order Date :- 20.09.2024
Ranjeet Sahu
(Prashant Kumar,J.) (Ashwani Kumar Mishra,J.)