Baday @ Mustaq vs State Of U.P. on 14 September, 2016

[Cites 6, Cited by 1]

Allahabad High Court

Baday @ Mustaq vs State Of U.P. on 14 September, 2016

[Delivered by Hon. Arvind Kumar Mishra-I, J. ] Accused-appellant Baday @ Mustaq son of Gajruddin resident of Purana Mohanpur Police Station Cantt. District Bareilly, has preferred this appeal against the judgment and order of conviction dated 20.03.2006 passed by the Additional Sessions Judge, Court No. 13, Bareilly, in Sessions Trial No.150 of 2002, arising out of case crime nos. 183 of 2001 and 183-A of 2001 under sections 302 I.P.C. and Section 4/25 Arms Act, Police Station Cantt. District Bareilly, whereby the accused appellant has been sentenced to life imprisonment coupled with fine Rs. 10,000/- and fine stipulates six months' additional simple imprisonment under section 302 I.P.C., and one year rigorous imprisonment under section 4/25 Arms Act. Sentences to run concurrently.

Heard Sri D.S. Mishra, Advocate assisted by Sri Chandrakesh Mishra, learned counsel for the appellant, Sri A.N. Mulla and Kumari Meena, learned A.G.A. for the State and also perused the record.

The prosecution story as emanates from the record is based on first information report lodged by first informant Bholey Shanker son of Umray, resident of village Purana Mohanpur Police Station Cantt. District Bareilly, on 30.6.2001 at 11.10 A.M. at Police Station Cantt, District Bareilly at crime no. 183 of 2001 under section 302 I.P.C. with the allegation that the first informant's son Shanker Kashyap aged about 17 years was a confectioner. He had some quarrel with children of one Gajruddin of the same village on 30.06.2001 in the morning wherein the matter was reconciled. Informant's son Shanker Kashyap prior to incident had sustained some burn injury on his hand on account sprinkling of hot Ghee and first informant was taking him to doctor (Jagdish Saran) in the village for bandage/dressing. As soon as he reached in front of hospital of Dr. Jagdish Saran, he saw Badey son of Gajruddin, resident of Mohanpur, possessing Lathi in his hand, standing over there. When they reached near him, he suddenly gave lathi blow on the head of informant's son (deceased Shanker Kashyap) due to which he fell down then Badey @ Mustaq (accused) whipped out a knife and gave several knife blows to his son. In the meanwhile Hulashi Ram son of Khemraj and informant's brother Nand Ram arrived on the spot. They tried to save Shanker and also tried to catch Badey son of Gajruddin, but the accused fled away from the scene. When occurrence took place, Sujata daughter of Nanhey Lal was also standing over there. This incident occurred around 9:30 A.M. Informant took his son to district hospital in a Jeep where he expired. His body was kept in district Hospital, therefore, request was made for lodging the report and action be taken. This written report is Ext. Ka. 1.

Entries of contents of written report were taken down in Check FIR at police Station Cantt. on 30.6.2001 at 11.10 A.M. at crime no. 183 of 2001 under Section 302 I.P.C. Check FIR is Ext. Ka. 17. On the basis of entries so made in Check FIR, the case was registered at concerned G.D. Entry No. 22 at 11.10 A.M. on 30.6.2001 which is Ext. Ka-18. Thereafter, Investigating Officer Arvind Pal Singh PW-8 took over investigation on 30.06.2001 and made arrangement through S.I. R.N. Singh to prepare the inquest report of deceased Shanker Kashyap on 30.6.2001 itself. Inquest commenced at 12.00 noon and completed at 1.00 P.M. Investigating Officer concurred with the opinion of inquest witnesses that the dead body be sent for post mortem examination in order to ascertain real cause of death. Thereafter, relevant papers were prepared and body of deceased was sent to mortuary Bareilly for conduction of post mortem examination. Post mortem examination was conducted by Dr. Ram Niwas PW- 4 on 30.6.2001 at 3.45 A.M. wherein following ante mortem injuries were noted by the doctor:

1. Incised wound 2.5 x 1 cm x muscle deep over the left chin 0.2 cm below the left angle of mouth. Margins clear cut.

2. Incised wound 1 cm x 5 cm x muscle deep under the skin 1 cm away from injury no. 1

3. Incised wound 1 cm x 5 cm x muscle deep over right side neck 8 cm below right ear, sharp margins.

4. Incised wound 1.5 x 1 cm over left side of chest cavity deep 7 cm above left nipple at 12 O' clock position

5. Incised wound 1.5 cm x 1cm x muscle deep left side of chest 6 cm above left nipple at 10 O' clock position.

6. Incised wound 2 cm x 1 cm x cavity deep right side of chest 10 cm below right nipple at 6 O'clock position.

7. Incised wound 2 cm x 1 cm x muscle deep over ring finger of right hand.

8. Multiple small incised wound in one area 5 x 2 cm over the chest cavity deep left side of chest 6 cm below left nipple at 4 O ' clock position.

9. Multiple incised wound in the area of 17x 16 cm over the left arm and fore arm and elbow.

10. Incised wound 1 cm x 0.5 cm x muscle deep in left arm 5 cm above wrist joint.

11. Incised wound 4 cm x 1 cm over thumb of the left hand.

12. Multiple incised wound 5 x 1 cm over left side of the angle of left scapula.

In the opinion of doctor, duration between time of death and post mortem examination was noted about ½ day and cause of death was described due to shock and haemorrhage as a result of ante mortem injuries. Dr. Ram Niwas PW-4 has proved post mortem examination report as Ext. Ka-3.

Thereafter, various steps were taken by the Investigating Officer for recording the statement of the prosecution witnesses. He prepared site plan of the incident and also arrested the accused on 02.07.2001 and recovered knife from him and made recovery memo of the same which is Ext Ka-6. The Investigating Officer also prepared memo of blood stained and simple soil from spot which Ext. Ka-14. The Investigating Officer sent certain clothes and the blood stained soil and the recovered knife etc. for chemical examination to Chemical Laboratory at Agra and report was obtained on 07.08.2001 which is Ext. Ka-16. The site plan of place of recovery and arrest was also prepared by the Investigating Officer which is Ext. Ka-4. Site plan of the main occurrence under section 302 I.P.C. is Ext. Ka- 13 and Investigating Officer also prepared site plan Ext. Ka. 14-A. After completing the investigation, the Investigating Officer submitted charge sheet Ext. Ka-2.

It is also gathered from record that in this case, accused Baday @ Mustaq was arrested by Inspector Arvind Pal Singh, Investigating Officer PW-8 on 02.07.2001 around 2:35 p.m. and the knife allegedly used in the commission of offence was also recovered from his pointing out and a report regarding the same was lodged at case crime no. 183-A of 2001 under section 4/25 Arms Act on 02.07.2001 at 17.25 hours against the appellant at Police Station Cantt., District Bareilly. This check FIR is Ext. Ka-20. Recovery memo as discussed above has already been proved as Ext. Ka-6. The site map of place of recovery as discussed above was also made by Arvind Pal Singh PW-8 which is Ext. Ka. 14-A. Relevant G.D. entries whereby case under section 4/25 Arms Act against appellant was registered is Ext. Ka. 21 and has been proved by Arvind Pal Singh PW-8.

It is also reflected from record that investigation of this case pertaining to Arms Act was carried out by Suresh Pal Singh PW-6. He recorded statement of the first informant, Arvind Pal Singh, S.H.O., S.I. Jagdish Kumar and also recorded statement of other witnesses and prepared site plan of the occurrence which is Ext. Ka-4. Thereafter he submitted charge sheet dated 04.07.2001 under section 4/25 Arms Act against accused which Ext. Ka-5.

Thereafter, the case was committed to the court of Sessions where both the aforesaid Case Crime Nos. 183 of 2001 and 183-A of 2001 were tried together in the aforesaid Sessions Trial No. 150 of 2002. The accused appellant was heard on point of charge and he was charged under section 302 I.P.C. and section 4/25 Arms Act. Charges were read over and explained to the accused who denied the charges and claimed to be tried.

In order to prove its case, the prosecution produced in all 8 witnesses. Brief description of whom is herein under:

Bholey Shanker PW-1 is first informant and eye witness. Hulasi Ram PW-2 is witness of fact and he claims to be an eye witness. S.I. Raj Pal Singh PW-3 is subsequent Investigating Officer of the case pertaining to case crime no. 183 of 2001 and he has stated that previous Investigating Officer was Arvind Pal Singh. He completed rest of the investigation and filed charge sheet Ext. Ka. 2. Dr. Ram Niwas PW-4 has conducted the post mortem examination on the cadaver of the deceased and has proved the same as Ext. Ka. 3. Anoop PW-5 is witness of fact. Suresh Pal Singh PW-6 is Investigating Officer of the case regarding the case registered at case crime no. 183-A of 2001 under the Arms Act and he has detailed his investigation. He has also filed charge sheet under relevant section of Arms Act as Ext. Ka-5. S.I. Raghu Nath Singh PW-7 is witness to fact of recovery of knife from the accused-appellant and he has also held inquest of deceased Shanker Kashyap on 30.6.2001 and also prepared relevant papers for sending dead body of Shanker Kashyap for post mortem examination. Arvind Pal Singh PW-8 is the previous Investigating Officer of this case under section 302 I.P.C. and he has detailed various steps he took during the course of investigation. He has also prepared recovery memo of knife at the pointing out of the accused-appellant on 02.07.2001 and has proved recovery memo as Ext. Ka-6. Besides, he has also proved relevant check FIR and entries made in the concerned G.D. whereby offence under section 302 I.P.C. was registered at police station Cantt. on 30.6.2001 as Ext. Ka-17 and Ext. Ka-18, respectively. He has also proved check FIR and relevant G.D. Entries as Ext. Ka-20 and Ka-21 pertaining to case crime no. 183-A of 2001 under section 4/25 Arms. Act.

Thereafter the evidence for prosecution was closed and statement of accused was recorded under section 313 Cr.P.C. wherein he has denied his involvement in this case and claimed false implication on account of enmity and he has also stated that at the time of occurrence, he was at the residence of his sister.

The defence has led testimony of one Smt. Purnima Sharma DW-1. She was Principal of Shyam Bihari Memorial Junior High School. She has stated fact about the date of birth of the accused-appellant as 28.05.1986 as noted in scholar register. Thereafter the evidence for the parties was closed and the matter was posted for hearing of argument.

The learned Trial Court after hearing both the parties on merit and considering the evidence on record and appraisal of facts, recorded aforesaid finding of conviction vide judgment and order dated 20.03.2016.

Consequently this appeal.

It has been vehemently urged on behalf of the accused-appellant that the conviction recorded under section 302 I.P.C. and 4/25 Arms Act by the trial court vide judgment and order dated 20.3.2006 and awarding sentence of life imprisonment and one year rigorous imprisonment coupled with fine is absolutely erroneous illegal and is based on misreading of evidence, whereas, the fact is that the incident has neither been witnessed by any person nor has it been reasonably proved by testimony of the prosecution witnesses.

The very nature of ante mortem injuries found on the dead body of deceased Shanker Kashyap describe the injuries of varying dimensions particularly, measurements of injuries on the face speak loud about use of different weapons rather than use of only one weapon i.e. knife. How is it possible that the father who was accompanying his son aged 17 years, when intercepted by the accused-appellant around 9:30 a.m. in the month of June, brutally assaulted with knife his son shall remain passive and mute spectator to the incident. Admittedly, the appellant was alone and was stated to have been possessing Lathi. He gave Lathi blow first to the deceased Shanker Kashyap and when he fell down, he was severely assaulted by the knife which knife blows were not one or two but were discovered to be 12 in number as reflected from post mortem examination report Ext. Ka-3.

The fact is that on account of some unfounded enmity, the appellant has been roped in, in this case, whereas, the fact is that the deceased Shanker Kashyap was found to be involved in eve-teasing and was killed by some unknown persons. His body was thrown behind the school. When the first informant came to know about these facts, he out of imagination in collusion with the police gave live picture to an unfounded incident and claimed himself to be an eye witness which is falsified by the attendant circumstances of the case. The first informant, father of the deceased neither sustained any mark of injury on his person nor did he actively try to save his son so brutally assaulted before him, this conduct on his part is most unnatural and unbecoming of a natural eyewitness.

The doctor has suggested that such type of death may have occurred between 8 to 20 hours from the time of post mortem examination. The death could have been caused from from 3:00 p.m. on 29.6.2001 to 3:00 a.m. on 30.6.2001. The doctor has also suggested that deceased might have taken food 5 to 6 hours before his death and thus, under circumstances, is a pointer to reality that the death of Shanker Kashyap took place sometime in the darkness of night. The place of incident is neither proved by the first informant nor by the Investigating Officer.

The testimony of the witnesses of fact is contradictory in material particulars and presence of Hulasi Ram PW-2 on the spot is managed by the prosecution. In the testimony of PW- 1 itself, it emerges out that Hulasi Ram PW-2 arrived on the spot after 10-15 minutes of the incident. Hulasi Ram saw first informant carrying dead body of Shanker Kashyap in Rikshaw upto Naktiya police out post from where a jeep was arranged for conveying the dead body. This fact per se, shows that the dead body was taken from the open land where it was lying and this particular fact has been deliberately concealed by PW-1. and the Investigating Officer Arvind Pal Singh PW-8 is found to have been supporting the first informant all the time on such concealment of vital fact (regarding place of incident).

The recovery of knife is absolutely false. Nothing incriminating was recovered from possession of accused. The investigating Officer of crime (183A/2001) pertaining to recovery of knife has himself proved that he was not shown the place of recovery/occurrence by the first informant from where recovery of knife was effected on 2.7.2001 at the pointing out of the appellant. The Investigating Officer also did not see the knife which was recovered at the pointing out of the appellant, therefore, conviction under section 4/25 of Arms Act is based on imagination and misreading of fact and evidence.

Learned AGA while replying to aforesaid arguments, has submitted that the case of the prosecution has been proved consistently. Each and every particulars of incident, motive for committing the crime, fair investigation by the police have also been established. Injuries caused on the deceased have been very much proved by the testimony of PW-1 Bholey Shanker. He is an eye witness of the incident. Hulasi Ram PW-2 also witnessed the incident and merely because the first informant did not receive any injury and did not intervene when the assault was being caused to his son wound not nullify his presence on the spot.

The absence of Lathi blow on the head of the deceased both in the inquest report as well as in post mortem examination report will not nullify the ocular testimony of PW-1 that Lathi blow was not given. In more or less similar matter, where Lathi blow was not found, where blow was stated to have been given the Hon. Apex Court in the matter of Sadhu Saran Singh Vs. State of U.P. and others 2016(2) JIC 172 has held that non mention of such blow would not prejudice the prosecution case if ocular testimony of the occurrence is found to be cogent and consistent.

After considering the aforesaid submissions and after perusing the record, the core consideration that engages our attention for deciding this appeal, relates to fact; whether the prosecution has been able to bring home charges under section 302 IPC and 4/25 Arms Act against the accused-appellant and has proved charges beyond reasonable doubt and the first informant, and Hulasi Ram happen to be eye witness of the occurrence and whether the conviction and sentence so recorded is justified?

We may start with the allegations made in the first information report wherein very motive assigned for committing the crime has been stated to be some altercation between children of Gajruddin and children of first informant. It is stated that first informant scolded his son Shanker Kashyap and got the matter reconciled. This episode took place in the morning on 30.6.2001.

It further contains detail regarding fact that the informant's son Shanker Kashyap sustained some burn injury on his right hand prior to the incident, therefore, first informant was taking him for dressing to village doctor Jagdish Saran. As soon as he reached in front of Jagdish Saran's hospital, he saw the appellant standing over there possessing Lathi in his hand. He suddenly abused and gave Lathi blow on the head of Shanker Kashyap due to which, he fell down and the accused-appellant whipped out knife and gave several knife blows to the deceased Shanker Kashyap (when only he fell down). In the meanwhile Hulasi Ram and his brother Nand Ram arrived on the spot. They tried to catch the accused appellant but he escaped from the scene. Sujata daughter of Nanhey Lal also witnessed the incident. It was around 9.30 A.M. and in the concluding part of the first information report, it has been stated that the first informant took his son Shanker Kashyap to the hospital in a jeep where he expired. The dead body has been kept in the hospital. Report be lodged and appropriate action be taken.

Therefore, it is obvious that no previous motive for committing the crime has been given in the first information report. However, the motive for committing crime arose the very same day on 30.6.2001 and thereafter a brief description of the incident has been made in the first information report. In such factual background of incident, we have to scrutinize carefully testimony of eyewitnesses qua facts and circumstances of the case and particularly on the point regarding the presence of both the eyewitnesses PW-1 and PW-2, on the spot.

But before we proceed with the scrutiny of eye account testimony of witnesses, it would be convenient to take note of ante mortem injuries as appearing in the post mortem report Ext. Ka-3.

We notice that as many as 12 ante mortem injuries were found on the body of the deceased as has been mentioned in the preceding paragraphs of our judgment. We may observe that few ante mortem injuries i.e. injuries no. 2, 3 and 10 are of measurement of incised wound 1 cm x 5 cm x muscle deep under the skin 1 cm away from injury no. 1. Incised wound 1 cm x 5 cm x muscle deep over right side neck 8 cm below the right ear, sharp margins and incised wound 1 cm x 0.5 cm x muscle deep in the left arm 5 cm above wrist joint.

Similarly, other injuries no. 1 incised wound 2.5 x 1 cm x muscle deep over the left chin 0.2 cm below the left angle of mouth. Margins clear cut, then injuries no. 4 and 5 are Incised wound 1.5 x 1 cm over the left side of the chest cavity deep 7 cm above left nipple at 12 O' clock position and incised wound 1.5 cm x 1cm x muscle deep left side of chest 6 cm above left nipple at 10 O' clock position, respectively. Injuries no. 6 and 7 are Incised wounds 2 cm x 1 cm x cavity deep right side of the chest 10 cm below right nipple at 6 O'clock position and incised wound 2 cm x 1 cm x muscle deep over ring finger of the right hand, respectively.

These injuries are very specific for our consideration because of varying dimensions mentioned in the post mortem examination report, Ext. Ka-3. We will discuss its impact and effect at subsequent relevant stage of our judgment.

We may now move to the meritorial aspect of this case which is centred to the point of occurrence, manner of causing occurrence and presence of eye witnesses on the spot as claimed by the prosecution. In this process, we may examine the prosecution witnesses of fact and particularly, first informant Bholey Shanker, PW-1, who happens to be father of deceased Shanker Kashyap. He claims himself to be an eyewitness of the occurrence and he has lodged written report and has claimed to have seen the entire incident.

Before divulging any opinion on point of occurrence, it would be convenient to take motive part of incident to the effect as to what prompted the accused to commit the crime. We gather from the first information report that on the fateful day i.e. 30.6.2001, some altercation took place between children of first informant and Gajruddin which was pacified by interference of first informant Bholey Shanker who reprimanded his son Shanker Kashyap not to indulge in such act. Thereafter, it is claimed that the appellant Baday alias Mustaq was not satisfied with all this, therefore, he assaulted Shanker Kashyap son of first informant with Lathi and knife blows due to which Shanker Kashyap died.

Now, we may switch over to the description of the occurrence as emerging from the testimony of prosecution witnesses of fact. Perusal of testimony of Bholey Shanker PW-1 reflects that his son Shanker Kashyap had sustained some burn injuries on his hand and he was being taken to doctor Jagdish Saran at village Mohanpur. When first informant reached near hospital of Jagdish Saran, he saw Baday alias Mustaq standing over there possessing Lathi in his hand. As soon as they reached near the accused, he gave Lathi blow on the head of Shanker Kashyap due to which informant's son fell down on the ground, whereupon, the accused whipped out his knife and gave knife blows to his son. This incident took place around 9.30 A.M. on 30.06.2001.

On alarm being raised by the first informant, Hulasi Ram and Nand Ram arrived on the spot and they saw the incident. They tried to save the deceased Shanker Kashyap and the accused Baday @ Mustaq fled away towards western side by waving Lathi and knife. In the examination in chief on page 18 of the paper book, it has been stated that the first informant took his son to the district hospital Bareilly in a jeep, and on way they met with one constable at the police out post who also boarded in the jeep and accompanied them to the hospital. In the hospital, the doctor declared Shanker Kashyap dead.

The first informant got scribed his written report from one Lal Bahadur Saxena of his village thereafter, the same was read over and explained to him. He appended his thumb impression on the report and went to the police station, gave the report to Diwanji, whereupon, the case was registered. He has been cross examined at length on several different aspects of this case including the incident. He has also stated that this main road from village Mohanpur is heavily used by public from 7.00 a.m. onwards.

At this stage, we may take into consideration site plan of the incident which is Ext. Ka. 13. As per this site plain, hospital of Dr. Jagdish Saran has been shown to the western side of road and place 'A' in front of this hospital is the place which is marked as spot where the accused caused knife blow to the deceased and place 'B' is shown to be spot where the first informant was standing and watching incident. Place 'C' is the place from where Hulasi Ram and Nand Ram saw the incident and place 'D' is the place from where Sujata witnessed the incident.

Obviously, Sujata and Nand Ram has not been produced as prosecution witnesses and only Hulasi Ram, has been examined as PW-2. We come across the testimony of PW-1 at page 25. In his cross examination at page 25 of the paper book, after alarm was raised, his brother-in-law, (Hulasi Ram) and brother (Nand Ram) arrived on the spot after 11 to 15 minutes. This by itself is sufficient for construing absence of Hulasi Ram at the actual time of occurrence on the spot. Therefore, the claim of Hulasi Ram that he also witnessed the incident is very much disclaimed by the testimony of first informant itself.

Now, only eye witness remains to be examined is Bholey Shanker PW-1. Obviously, inquest report of deceased Shanker Kashyap and his post mortem report do not certify the fact regarding causing of any Lathi blow on head of deceased which by itself is leading to the conclusion that in fact no Lathi blow was given to Shanker Kashyap. We may consider the happening in its practical shape by reviving the incident/happening as described by the prosecution.

We have before us, testimony of PW-1 that in the morning there was little altercation between children of first informant and Gajruddin and the matter was settled by the first informant Bholey Shanker himself but the elder son of Gajruddin (present accused) was not satisfied with that and he had some grudge against the first informant. On 30.6.2001 around 9.30 A.M., the first informant was accompanying his son Shanker Kashyap (deceased) to the hospital of Dr. Jagdish Saran of his village for dressing of his hand as some burn was caused on his right hand because of engagement of the deceased at some confectionery shop since he was a confectioner.

Indisputably, the age of the deceased Shanker Kashyap was 17 years. As soon as the first informant and his son reached near Dr. Jagdish Saran Hospital, the accused was standing over there possessing Lathi in his hand. He gave Lathi blow on the head of Shanker Kashyap, who fell down and thereafter the accused gave several knife blows to the deceased. First informant watched his son in the meanwhile.

Fact is that the accused was alone and son of first informant was seriously assaulted by knife blow not once or twice on one part of the body, but on various parts of his body twelve times by causing knife blows thus causing twelve injuries specific, thus, the point engages our consideration on possibility of a man remaining passive throughout the entire incident (i.e. act of assault) and watching his son being assaulted with knife brutally and mercilessly by another person. If there is no compelling reason for not extending immediate help to the victim by his own natural father, then obviously, the father, whose son is being assaulted so brutally before him, will never resist temptation and will be infuriated at such ghastly assault and will immediately intervene and will try to protect and rescue his child from such murderous assault.

We are surprised that not a single act of interference or rescuing his son was done by the father of the deceased Shanker Kashyap which may suggest active interference of first informant while the crime was being committed in his presence. He was admittedly accompanying his son and he had every opportunity at least to react to the situation, but most expected reaction on the part of first informant was altogether missing, which particular aspect is fair enough to give rise to suspicion regarding actual presence of the first informant on the spot. Thus, presence of informant on the spot when the incident occurred becomes doubtful. Had he been present on the spot, there would have been explanation for his remaining passive and mute spectator to such atrocious assault being caused to his son. Therefore, the natural behaviour of first informant itself speaks loud about his absence on the spot at the time of occurrence. His behaviour in not reacting to the assault and doing nothing to save his son, raises doubt on his presence on the spot. No explanation was given by the prosecution.

Now, we may also discuss about the incident as to how it happened its manner and style of happening as alleged. Prosecution asserts that the incident has been consistently proved by the testimony of PW-1 Bholey Shankar which inspires confidence and circumstances fully establish the incident and the theory of assault caused by the accused. But the argument does not hold for the reason that very perusal of post mortem examination report Ext. Ka-3 reveals that as many as 12 specific assaults were caused on the body of the deceased and these assaults are of varying description and dimensions and their respective measurements itself speak the reality that the entire process of assault must have taken its own time and it cannot be said that during entire span of such assaults, no time was left for the father (PW-1) of the deceased to rush to the rescue of his son. How and why, he remained passive spectator to the occurrence is beyond our apprehension and no worthy explanation and no express or implied circumstance demonstrate that intriguing action.

We have also discussed above several injuries of varying dimensions. Ante mortem injuries no. 2, 3 and 10 are virtually of same measurement. Similarly injuries no. 4 and 5 have been described to be of different measurement as 1.5 cm x 1 cm each and then injuries no. 6 and 7 measuring 2 cm x 1 cm x cavity deep and 2 cm x 1 cm x muscle deep on chest and right hand respectively. Injury no.1 incised wound of measurement 2.5 cm x 1 cm x muscle deep on face and injury no. 8 reflects dimension in shape 3 cm x 2 cm over chest cavity deep on the left side of chest and then injury no. 9 in form of small incised wounds extending in area 17 cm x 16 and similarly, we notice injuries no. 11 and 12 as incised wounds of varying dimensions say 4 cm x 1 cm and 5 cm x 1 cm on left hand thump and back of scapular region, respectively.

Contention has been raised in relation to above varying dimensions of injuries that all the aforesaid injuries cannot be result of use of one weapon i.e. one knife. In this context, argument on the face, holds good because of varying dimensions of injuries. Had there been only one knife which was used for causing such injuries then, at least it would have given more or less identical cuts resembling similarity with each other.

This contention gets support from testimony of Dr. Ram Niwas PW-4 who conducted post mortem examination on the body of the deceased Shanker Kashyap. In his testimony as appearing in cross examination on page 42 of the paper book, on being queried by the defence on the point of varying dimensions of injuries, he replied that these injuries might have been caused by use of 2 or three weapons, therefore, argument that the varying dimension of various incised wounds cannot be caused by use of one knife carries force and under circumstances of the case, we cannot ignore varying dimensions of injuries numbering 12 in all. Not only this, in so far as time of death is concerned, this doctor witness in his cross examination on page 41 has also testified that possible time of death may commence from 3.00 P.M. in the evening of 29.6.2001 to 3.00 A.M. in the morning of 30.6.2001. It means that the claim of the first informant that knife blow was given at 9.30 A.M. becomes suspicious and doubtful.

It is true that in the examination in chief, this witness (PW-4) on page 40 of the paper book, has stated that these injuries could have been caused at 9.30 A.M. on 30.6.2001 by use of knife and he has also stated at some places that these injuries could have been caused only when someone caught the deceased in standing position and then knife blows were caused.

Obviously, the varying description of time of death as emerging from the cross examination of doctor (PW-4) can be treated to be in additional to his testimony in examination in chief pertaining to the time of death and it cannot be read in isolation, but in line with attendant facts, testimony and circumstances of this case and that factual aspects when properly weighed tilts testimonial probability more in favour of suggestion made by defence than the time of occurrence told by PW-1. A reasonable query arose at this stage, as to how things can take shape in such a manner? Then we may have recourse to testimony of prosecution witnesses itself.

First informant Bholey Shanker PW-1 has stated on page 25 in cross examination that he had informed Darogaji that 50 to 100 people had gathered on the spot where his son was lying (dead). It means that when he saw his son Shanker Kashyap (deceased), 50-100 people had thronged on the spot. This witness on same (page 25 of the paper book), has also stated that Hulasi Ram and his brother Nand Ram arrived on the spot after 10-15 minutes after he raised alarm. Hulasi Ram in his testimony in his examination in chief, has claimed himself to be an eyewitness and has stated that he saw the incident himself. He has stated that they tried to take in grip Baday @ Mustaq, then he said that in case they proceed any further, they will also be treated in the same way, but this piece of testimony cannot be taken to be correct in the face of testimony of PW-1 regarding arrival of these witnesses on the spot after 10-15 minutes of the incident.

Again on page 33 of the paper-book, this witness (PW-2) has stated that the dead body was taken in a rickshaw upto Naktiya and from there, it was conveyed in a Jeep, but there is no such whisper like carrying the dead body in any rickshaw, either in the first information report or in the ocular testimony of Bholey Shanker PW-1. Theory of carrying away dead body of the deceased in Rickshaw, is totally unknown to the first informant and that part of the story has been concealed. It smells of something fishy and beacons of embellishment.

Not only this, this witness has also stated on page 34 that he had informed Darogaji that father of the deceased had conveyed dead body of deceased in a rickshaw upto Naktiya. At this stage, he has been suggested by the defence that dead body of Shanker Kashyap was not taken from a place lying 100 meters away to the northern side of his house in Rickshaw upto Naktiya. The suggestion has been denied by this witness and he has categorically stated that it is incorrect to say so. Meaning thereby that dead body of Shankar Kashyap was found somewhere at a place 100 meters away from house of Hulasi Ram PW-2.

He has been further suggested that the first informant and Hulasi Ram received information that dead body of Shanker Kashyap is lying away in north side to the house of this witness whereupon they went there and they falsely implicated the accused. Witness (PW-2) has denied such a suggestion.

Thus, it is obvious that place of occurrence becomes doubtful. At this stage we notice that the Investigating Officer Arvind Pal Singh PW-8 has stated on page 69 of the paper book in his cross examination that Bholey Shankar did not tell him that his house is lying half kilometer away from hospital of Dr. Jagdish Saran. Therefore, it is obvious that the place of occurrence cannot be ascertained with certainty as all the prosecution witnesses are blowing hot and cold on this aspect of the case.

Both PW-1 and PW-2 are residents of Purana Mohanpur police station Cantt. District Bareilly. Now, above testimony stands corroborated by the testimony of Anoop PW-5 who happens to be witness of fact that on the fateful day in the morning he went to take milk from dairy of Gajruddin father of the accused at 7.30 a.m. when he heard Gajruddin saying to Baday @ Mustaq (accused) that Shanker Kashyap has an evil eye on his daughter and he has blocked his drainage, therefore, eliminate him today i.e. on the day of occurrence. But in his cross examination, he has stated that prior to four years, his wife eloped with Ilias, resident of Thiriya. Now it is obviously a pointer that he was inimical towards Mohamdans of the area because his wife had eloped with one Muslim of the area. On page 47, it has been specifically testified in the last but one paragraph of his testimony that it is correct to say that the dead body of Shanker Kashyap was found behind the school and he cannot tell about time.

Upon careful perusal of site plan Ext. Ka 13-the place of occurrence, we notice school of Shyam Behari shown in the northern side of site plan. If dead body was lying behind the school, then it is obvious that the place of occurrence is changed. Time and again the prosecution witnesses of fact have been confronted with specific suggestion that in fact Shanker Kashyap was killed by some unknown person in the darkness of night and after death of Shanker Kashyap, fact of his death came to the knowledge of first informant then he deliberated upon the matter and falsely implicated the accused on account of enmity.

This suggestion carries force in view of the above discussion on the point of role of first informant on the spot when the incident occurred and he remained passive. He has tried to insert Hulasi Ram as eye witness which attempt was exposed by himself in his cross examination when he says that Hulasi Ram arrived on the spot 10-15 minutes after alarm was raised. PW-1 has himself stated on page 24 that his son was lying 100 meters away to the northern side of his house. The fact that the dead body was conveyed through rickshaw, at last up to Naktiya Police outpost, has been testified by Hulasi Ram PW-2 which is quite consistent with theory that the dead body was lying somewhere else than the place shown and marked by letter 'A' in the site plan-in front of hospital of Dr. Jagdish Saran. How can PW-1 testify in such manner that the dead body was lying 100 meters away in the northern side of his house. PW-1 has not received not a single injury while his son was so severely assaulted by one accused only. Testimony of doctor witness PW-4 that death of deceased could have occurred from 3.00 P.M. on 29.6.2011 upto 3.00 A.M. in the morning of 30.6.2001 causes dent in the actual time of death and thus creates lots of doubt on the timings of occurrence. On page 41 of the paper book, doctor witness has stated in his cross examination that death of deceased might have been caused 8 to 20 hours prior to conduction of post mortem examination. Manner of injuries being caused can be caused in standing posture if one has caught the deceased in that position-is also worth consideration. And at cost of repetition we may add that it is highly doubtful that all the ante-mortem injuries were caused by use of one knife.

Now, we may scrutinize the testimony of the Investigating Officer in so far as fact of use of rickshaw for conveying dead body of Shanker Kashyap from the place where the dead body was in fact taken upto the place Naktiya from where the dead body was placed in Jeep and taken to the hospital. On page 69 of the paper-book, Investigating Officer Arvind Pal Singh PW-8 in his cross examination has stated that during the course of investigation, he did not come across any such fact regarding conveyance of the dead body by rickshaw and he cannot say any thing on point that first informant found his son 100 meters north to his house.

At this stage, he (PW-8) has been queried by suggesting on page 70 of paper book that he has deliberately changed the place of occurrence and has shown the same to be located at a place half kilometer away from the house of first informant. He has denied this suggestion. Again suggestion has confronted Investigating Officer that it was solely on this count that he did not record statement of residents of nearby/surrounding area of the place of occurrence, but he again dened. He has also admitted that recovery memo of simple and blood stained clay roll (Ext. Ka-14) was taken from the spot but no specific mention of any identifiable particular spot has been made. This fact by itself raises serious doubt on the place of occurrence.

Obviously, at this stage we have occasion to discuss point of recovery of knife, as accused claimed to have been made on 2nd July 2001 by Arvind Pal Singh-Investigating Officer-after arrest of the accused-appellant.

First of all, it is worth consideration that the place of recovery is an open place and it can be easily planted by another person and this fact is admitted to Arvind Pal Singh-Investigating Officer PW-8-on page 71 (of paper book) of his testimony. The Investigating Officer of case crime no. 183A of 2001 is PW- 6 Suresh Pal Singh. He has stated that he inspected the place of recovery and prepared site plan Ext. Ka-4. His cross examination on page 49 of paper book is quite interesting because he has categorically stated that he did not see the recovered knife during investigation of this case. He was not shown the place of occurrence by PW-8 Arvind Pal Singh-the informant of case pertaining to Case Crime No.183A of 2001. This specific testimony obviously shows that the recovery of knife in fact is fake and wholly unreliable. Place of recovery itself is doubtful. Therefore, the prosecution could not establish the fact that all ante mortem injuries (12 in numbers), could have been caused by use of this recovered knife alone.

In such scenario, we have every opportunity to record our satisfaction that Bholdey Shanker PW-1 though claiming to be eyewitness of the occurrence was neither present on the spot nor did he witness the incident because of his inexplicable inaction on the spot and remaining passive during assault on his deceased son Shanker Kashyap, is highly unnatural and unbecoming of a father who was around 35 years of age. It is obvious that the accused was alone while he committed the crime. Thus the overall reaction/conduct of PW-1 as an eye witness on the spot is most unnatural, therefore, his presence on the spot becomes doubtful.

In so far as aforesaid citation of Sadhu Saran Singh Vs. State of U.P. and others 2016(2) JIC 172 is concerned, we may observe that we have carefully perused this judgment and upon perusal, we find that both on the factual as well as legal count, this case in hand is distinguishable from the case of Sadhu Saran Singh (supra), for the reason that prosecution testimony and circumstances of the case (in hand) are apparently pointing to non-presence of PW-1 on the spot at the relevant time of occurrence and in so far as the place of occurrence is concerned, the same has not been satisfactorily proved by the prosecution. Therefore, the State shall not get any advantage of aforesaid citation of Hon'ble Apex Court.

Consequently, the version of PW-1 regarding the incident and the manner of causing assault upon the deceased Shanker Kashyap by the accused is wholly unreliable. It appears that he arrived on the spot only after he received information of death of his son and dead body of his son was spotted 100 meters away to the north side of his house. The investigating Officer has also not investigated fairly certain on vital facts of incident. The testimony of prosecution witnesses on the whole does not inspire confidence.

It is obvious that Hulasi Ram PW-2 was not an eye witness but being relative of PW-1 was tried to be produced as an eyewitness which bid is discovered to be false and stands exposed in the cross examination of PW-1 himself. The whole prosecution story is improbable that accused committed murder of his son at 9.30 A.M. on 30.6.2001. We have every reason to discredit the claim of prosecution that the murder was committed by the accused and genuine doubt is created in the prosecution story and charges framed against the accused cannot be said to have been proved beyond doubt.

The learned trial court could not appreciate substantive facts and testimony of this case in right perspective and consider things from narrow angle without properly scrutinizing the same on its entirety but only on its face value, whereas, proper scrutiny of fact vis a vis testimony on record would have brought truth on the surface. It is very easy to consider and examine testimony recorded in examination in chief, whereas, the Court has to cautiously contemplate on testimony as emerging from cross examination and then to scrutinize the same on merit for arriving at just conclusion.

Thus, the finding of conviction recorded by the trial court is on the face erroneous and perverse and the same cannot be sustained in the eye of law, as such the prosecution has not been able to prove its charges beyond reasonable doubt. Therefore, judgment and order of conviction dated 20.03.2006 passed by the Additional Sessions Judge, Court No. 13, Bareilly, in Sessions Trial No.150 of 2002, arising out of case crime nos. 183 of 2001 and 183-A of 2001 under sections 302 I.P.C. and Section 4/25 Arms Act, Police Station Cantt. District Bareilly, is hereby set aside. Accordingly, the instant appeal is allowed.

In this case, the accused-appellant is in jail since 2001. He is acquitted of aforesaid charges under aforesaid sections of I.P.C. and Arms Act, respectively. He be released forthwith if not wanted in connection with any other case after ensuring compliance of Section 437A Cr.P.C.

Let a copy of this judgment/order be certified to the court concerned for necessary informant and follow up action.

Dt. 14.09.2016 Iss

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