Lallu Singh And 2 Others vs State Of U.P.
2012 Latest Caselaw 2852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 

 
						Judgment Reserved on:-25.4.2012
 
						Judgment Delivered on:- 12.7.2012
 
						AFR
 

 
				
 
		
 
			DISTRICT   -  GONDA
 

 
		Criminal Appeal No. 1427 of 2006
 

 
1.Lallu Singh
 
2.Ran Bahadur
 
3.Bal Bahadur
 
All sons of Sheetla Prasad, resident of Village Dhanauli,
 
P.S. Tarabganj, District Gonda
 
							...........Appellants (In Jail)
 
				Vs.
 
		State Of U.P.		
 
							...........Respondent
 

 
Counsel For Appellants :-	Sri Nagendra Mohan , Advocate
 
Counsel for State:-		Sri V.S.Srivastava, A.G.A.-I
 

 
Hon'ble Imityaz Murtaza J.
 
Hon'ble Vishnu Chandra Gupta J.
 

 
(Delivered by  Hon'ble Vishnu Chandra Gupta, J.)
 

 
					JUDGMENT

(1) In this criminal appeal the three appellants Lallu Singh, Ran Bahadur and Bal Bahadur challenged the judgment dated 19.07.2006 wherein their conviction under sections 302 read with section 34 Indian Penal Code was recorded in Sessions Trial No. 311 of 2004 decided by Additional Sessions Judge, Court No.1, Gonda, The aforesaid trial was related with Crime No. 52 of 2004, Police Station Tarabganj, District - Gonda. All the three appellants were sentenced to life imprisonment as well as fine of Rs. 10,000 each and in default of payment of fine, to undergo Rigorous Imprisonment for a further period of 2 years

(2) The prosecution case, in short, is as under:-

The informant Satyapal Singh (PW.1) informed the police on 12-05-2004 at 11.30 P.M. that his son Manoj Kumar Singh (deceased) was coming back from Ahmadi to his village Dhanauli alongwith Sher Bahadur (CW.1) and Shiv Kumar Singh(CW.2) on the motorcycle, which was being driven by Shiv Kumar Singh,en route when all the three reached near Ramph (crossing) of Dhanauli Bandha at about 6 P.M. on 12.05.2004 appellant No. 1 Lallu Singh, appellant No. 2 Ranbahadur and appellant No. 3 Balbahadur , stopped the motorcycle with the help

of Lathi and thereafter killed his son Manoj Kumar Singh by use of country made pistol , lathi and sticks. It was alleged by the informant that his son Manoj Kumar Singh harassed the wife of accused Lallu Singh before this incident of which a case was pending in district court against the deceased. Due to this enmity the incident was occurred

(3) After leaving the dead body on the spot, informant went to police station and lodged the written report (Ext. Ka-1). The investigation was started by Dinesh Kumar Roy S.I., (PW-4) who reached on the spot and prepared inquest upon the corpse of deceased on 13th May, 2004 at 6.00 am. The post-mortem examination report (Ext.A-20) was prepared on 13.5.2004 at 4.25PM by Dr. M.N. Singh (PW.5) and found following injuries on the person of the deceased :-

Injury No. 1- Oval wound 4 cm x 3 cm x cavity (oral), deep on right side face 2cm anterior to right tragus(Sic), underlying mandible, maxilla fractured in multiple pieces, 39 small pellets recovered from wound in tongue on right side. Margins ragged, inverted and blacked.

Injury No. 2 - Multiple abraded contusion, interrupted, on right side on pinna, anterior and posterior to it 20 cm x 2 cm.

Injury No. 3 - Round wound 3 cm x 3 cm cavity deep on right nipple. Margin ragged, inverted, blackened., direction towards to left side, through and through, rapture of both lungs heart, penetrating chest wall on left side in axillary region with hematoma in muscles and bullet going in medical aspect of left upper arm in muscles with hematoma .

Doctor opined the time of death about a day before and cause of death on account of hemorrhage and shock .

(4) The case was investigated in its usual manner and thereafter the appellants were charge-sheeted

(5) The case was committed to the court of Sessions in due course and the appellants were charged under section 302read with 34 I.P.C. They pleaded not guilty to the charges and claimed to be tried.

(6) During trial, in order to prove prosecution case five witnesses were produced by the prosecution, out of which, two witnesses Satyapal Singh, the informent (PW.1) and Vijay Pal Singh (PW.2) were examined as eye witnesses of the incident. The learned trial Judge, relying on these two witnesses and finding corroboration from medical evidence and also from the evidence of Court witnesses Shiv Bahadur Singh (CW.1) and Shiv Kumar Singh (CW.2) convicted and sentenced the appellants in the manner stated above, hence this appeal .

(7) Heard learned counsel for the appellants, learned A.G.A.for the State and perused the record of trial Court as well as of the Appellate Court.

SUBMISSIONS OF COUNSEL FOR APPELLANTS

(8) It has been submitted by leaned counsel for the appellants Mr. Nagendra Mohan that in this case PW.1 and PW.2 were examined as eye witness, but, they are not the eye witnesses as is apparent from the evidence of these witnesses.

(9) So far as PW.1 Satya Pal Singh is concerned, he is the father of the deceased Manoj Kumar Singh. From the perusal of First Information Report (in short 'FIR') it does not appear that he witnessed the incident. The language used by him for lodging the FIR indicates that only persons accompanied with deceased were present at the time of incident and none was present there. No witness except Shiv Kumar and Sher Bahadur were shown to be present on the spot at the time of incident. Shiv Kumar and Sher Bahadur did not support the prosecution story. They were summoned by the court as court witnesses. They did not name any of the accused appellants involved in this case and categorically stated that the persons, who committed the crime, were covering their faces with clothes, therefore, they could not be identified by them.

(10). It has further submitted that there was strong reason to doubt the presence of PW.1 Satya Pal Singh because in the FIR lodged by PW.1 Satya Pal Singh it is mentioned that accused persons used Lathi and fire arm for killing deceased Manoj Kumar Singh. When he was examined on oath during trial, he changed the version and stated that only fire arms were used for killing the deceased and excluded assault by Lathies . This statement has been changed, because, in the post mortem report, there was no injury of blunt object.

(11) It was further submitted that PW.1 himself stated that after hearing noise he ran over to the spot only then miscreants ran away from the spot, which shows that he was not present on the spot at the time of commission of crime.

(12) It was further pointed out that this witness Satyapal Singh (PW.1) was present at the time of preparation of inquest also. In inquest the opinion expressed by the Punch witnesses was that deceased died by bullet injury. This also shows that inquest was prepared when F.I.R.was not in existence. The F.I.R.in this case is anti-time and is not a genuine document and it cannot be relied upon to support the prosecution version.

(13) So far as PW.2 is concerned, PW.2 is neither named in F.I.R.nor PW.1 stated that Vijay Pal (PW.2) was present with him. It is also pointed out that in the charge-sheet he was not cited as eye witness but cited as witness of inquest. Even CW.1 and CW.2 also did not name Vijay Pal as witness of the incident. Hence, his presence on the spot at the time of commission of crime is not established from the prosecution evidence.

(14) It was further pointed out that there is clear medical conflict in between story set up in the FIR and the findings arrived at in the postmortem examination report. It was further pointed out that there is clear medical conflict in between testimony of prosecution witness and the evidence of medical witness.

(15) On these grounds, it has been submitted that prosecution failed in proving the prosecution case and the conviction recorded by the Trial Court is liable to be set aside and appeal deserves to be allowed.

SUBMISSION OF THE COUNSEL FOR STATE

(16) The learned A.G.A. vehemently argued that there is no material variation in the evidence of the prosecution witnesses. However variation in the evidence made it natural.

(17) It was further pointed out that PW.1 categorically stated that he was about 10 paces away from the place of occurrence and witnessed the entire incident. In this case F.I.R. is very cryptic. Non-mention of the name of any witness, who witnessed the incident along-with other named witnesses by itself is not the ground to discard the evidence of such a witnesses. If the witnesses were found to be present on spot at the time of commission of crime and their testimony is trustworthy and reliable ,the evidence of such witnesses could not be rejected for the simple reason that his name does not find place in FIR .

(18) It was further submitted that even CW.1 and CW.2 fully supported the prosecution story except disclose of name for the present appellants. These witnesses categorically stated that Satya Pal Singh came on the spot when crime was committed by three miscreants. The story of covering the faces by the miscreants is an improvement . It is further submitted that the place of occurrence, the time of occurrence, manner of occurrence and the number of persons involved in the crime have been fully corroborated by these court witnesses . Identity of the accused-appellants, even if, not established from the evidence of CW.1 and CW.2. the same may be established by evidence of Satya Pal, who was present on the spot as per statement of CW.1 and CW.2. Therefore, the presence of the PW.1 on the spot cannot be doubted.

(19) It is further submitted that there is no conflict between the ocular testimony and the medical evidence. Mere showing probability of multiple abrasions on fall from motorcycle does not mean that this injury may not be caused by lathi. C.W.1 and 2 categorically stated that Lathis were used by miscreants. Mere denial of use of lathi by P.W.1 by it self is not sufficient to discard the testimony of P.W.1.

(20) P.W.1 categorically stated that Vijay Pal was also present on the spot. Therefore, the presence of PW.2 Vijay Pal cannot be denied. It might be possible that Vijay Pal could not be able to see the complete incident and even if he may have come at the fag end of the incident he could see at least the accused appellants at the place of occurrence. It is also been submitted that CW.1 and CW.2 were won over by accused persons. Therefore, they purposely and willfully did not name the accused persons and protecting them. This also shows that apprehension of prosecution that C.W.-1 and 2 will not support the prosecution was well founded. There is no doubt that C.W.1 and 2 introduced the false story of covering faces by clothes at the behest of the accused. It is further pointed out that it is not case of dacoity, but it is a clear case of committing murder. If the accused are afraid of being identified they normally should chose the time and place where no person could identify them and not the broad daylight and when the deceased was with two other person. It is also established from the evidence of CW.1 and CW.2 that when incident was occurred there was sufficient day light. The accused persons are well known to the complainant and his brother. The identity of accused-appellants on the basis of evidence of P.W.1 and P.W.2 can be established, even if, the court witnesses on this score are not supporting the prosecution version. The appeal consequently deserve to be dismissed.

(21) On the basis of submissions of the parties following are the points to be considered in this appeal:-

A- Whether the FIR is anti dated and anti Timed ?

B- Whether PW-1 Sataypal Sigh and PW-2 Vijay Pal are fully reliable witnesses?

C- What would be the value of evidence of Court witnesses ? Whether prosecution can take advantage of their evidence?

FINDINGS

POINT-A

(22) FIR is the foundation of criminal prosecution. It become more significant when it contain the name of offenders and the manner of incident of a cognizable offence with name of eyewitnesses. This document is the basis for putting the police into motion. The promptness in lodging FIR gives strength to prosecution and delay creates doubt about genuineness of the prosecution case , if not properly explained. But if FIR proven to be anti timed or anti dated it not only cast serious doubts about genuineness of prosecution case but amounts to fabrication. It is nothing but fraud upon court which is sufficient to vitiates the prosecution and demolish the whole prosecution case as held in Marudanal Auguste Vs. State of Rajasthan (1980) SCC(Cr.) 985 and Datar Singh Vs. State of Punjab (1975) SCC (Cr) 530.

(23) In the case in hand prosecution alleges the after commission of the crime at 6.00pm on 12.5.2004, FIR has been lodged by complainant at 11.30 pm on the same day after covering a distance of about 13 Km., the distance mentioned in FIR. It has also been alleged that the complainant after getting the report written from his nephew Jatashanker at the spot went to lodge the FIR in police station Tarabganj. Head constable Ram Shubag PW-3 stated on oath that complainant alone came to police station on foot along with written report. He further stated that after lodging the FIR on the basis of already written report and after handing over the copy of FIR before 12 O'clock in the night complainant was sent back. The investigating officer of this case S.I. Dinesh kumar Rai PW-2, stated on oath that at about 2 O'clock in the same night he had gone to spot along with complainant. It has also been stated that inquest upon the dead body of deceased was prepared by S I Baijnath Singh in the morning of 13.5.2004 at 6.00 AM. Thereafter the dead body was shown to be dispatched to District head quarter.

(24) Now we have to examine the evidence of prosecution in support of his case so far it relates to lodging of FIR. Complainant Satya Pal Singh (PW-1) is the person who lodged the FIR of this case. He in cross-examination stated that Shiv Kumar (CW-2) told him about returning of deceased from Ahamadi police station at the time of lodging of FIR . At the time of meeting with Shiv Kumar at police station it was 7.00.PM. He reached police station before reaching of Shiv Kumar. Complainant further stated that he remained in police station. At about 9.30 PM 'Darogaji' came and narrated about the incident. 'Darogaji' asked him to give in writing then his nephew Jatashanker wrote the report and the same was given to 'Darogaji.. Complainant further stated that he remained at police station till morning .

In the morning at 6.00PM' Darogaji' handed over the copy of FIR to him. He further stated that along with him Ramsuhawan, Daya Shanker and Jatashanker, went to police station on motorcycle. His brother Vijay Pal was also with him.

(25) So far the statement of complainant regarding inquest is concerned he stated that at about 11.00PM police personnel picked up and brought the dead body of Manoj to Police station. He accompanied with dead body from the place of occurrence to police station along with Ram Suhawan, Jatashanker, Daya Shanker and Vijay Pal. This witness further clarified that dead body was brought to police station after getting it sealed.

(26)In this regard what has been stated by Vijay Pal,(PW-2) the brother of complainant would be important to judge the veracity and correctness of statement of Sataya Pal Singh complainant(PW-1). In The examination in chief he(PW-2) stated that his brother went to police station but he did not go to police station. PW-2 further stated in cross-examination that his first and last meeting with 'Darogaji' was held in between 8 to 9 PM in regard to occurrence on the date of incident. He remained with 'Darogaji' for about10-15 minutes on the spot in night. When Darogaji got lifted the dead body he leaved the place and went to his house. He could not tell by which vehicle the dead body was taken away by police or who accompanied with the dead body. This witness stated that he and his brother remained on the spot for about 3 to 4 hours but later changed and stated that he remained on spot but his brother went to police station. He could not tell at what time or after staying on spot at what time and with whom went to police station. He makes it clear by further stating that after the date of incident he never met police personnel or 'Darogaji'. At 9 PM on a paper 'Darogaji' obtained his signature but neither that paper has been read over to him nor he himself read the paper. He further stated that in his knowledge 'Darogaji' or any police personnel in connection with this incident never visited his village after next day from the fateful night. This witness categorically stated that he did not go at the place of occurrence or near the dead body of his nephew Manoj on 13.5.2004 in the morning or at any time through out the day. This witness did not say that written report was prepared at the spot by Jatashanker.

(27)It is important to mention here that SI Baijnath, who prepared the inquest and the constables who took the dead body to District head quarter for post portem were not examined from the side of prosecution despite the fact that the time of dispatch of dead body has not been mentioned in Challan dead body (Ext.- Ka--11) allegedly prepared at the spot. The production of above-mentioned were also necessary in the light of statement of prosecution witnesses, that dead body of Manoj was taken away and removed from the spot in the night and not in the morning as stated in police papers. Investigating Officer did not state that inquest has been prepared in his presence. In these circumstances non- production of S.I. Brijnath or any constable who took the dead body to district head quarter cast serious doubts about the very important part of prosecution case which relates to dispatch of dead body from the spot and about time of lodging the FIR.

(28)The statement of complainant (PW-1) which is inconsistent , self contradictory and contradictory with police papers and other witnesses of prosecution makes the FIR of this case not only doubt full but also proves that it has been anti timed with oblique motive. The prosecution has failed to establish that this FIR has been lodged at 11.30 PM in Police station Tarabganj on 12.5.2004 in the light of total statement of PW-1,specially that part of statement in which he stated that at about 11.00PM police personnel picked up and brought the dead body (sealed) of Manoj to Police station. He accompanied with dead body from the place of occurrence to police station along with Ram Suhawan, Jatashanker, Daya Shanker and Vijay Pal. It further proves that police with the help of complainant fabricated the prosecution case.

POINT -B

(29)The presence of Complainant Sataya Pal Singh(PW-1) and his brother Vijay Pal (PW-2) have been seriously challenged by the defence by saying that they did not witness the incident and the accused persons were falsely implicated in this case. There presence has been challenged on several ground.

(30)We will takeup Vijay Pal (PW-2) first. H is name has not been mentioned in FIR as an eye witness. Moreover he has not been cited as eye witness in the charge sheet.. Investigating officer Dinesh Kumar Rai (PW-4) categorically stated that Vijay Pal in his statement did not mention that he has witnessed the incident. He is only the witness of inquest.

(31)Apart from aforementioned circumstances If we go through the statement of PW-2 as a whole we find that he could not be an eye witness for the following reasons.

(32)He categorically stated that he could not see blood on the spot where dead body was lying. He did not see the accused assaulting to deceased with lathi.He could not see whether dead body was lying by back or by front. He did not see motorcycle there. He also did not see Sher Bahadur and Shiv Kumar running from there. He did not see whether Manoj was driving the motorcycle or sitting behind or in middle. He further stated that he did not see by which motorcycle deceased Manoj came and where that motorcycle gone. He stated that when he saw dead body for the first time motorcycle was there but when 'Darogaji'came motorcycle had already been removed. Who removed the motorcycle he is not knowing but he stated that he remained with dead body throughout till 'Darogaji' came on spot.

(33)P.W.-2 introduced a new story of occurrence and stated that he saw accused persons came on motorcycle and also leaving the place after incident on motorcycle. He saw that his nephew Manoj coming ahead on motorcycle and accused persons were coming from behind of his nephew on motorcycle. Accused persons fired on moving motorcycle from their motorcycle in motion . Deceased Manoj fell down from 'Bandaha'. Accused persons ran away with their motorcycle.

(34)PW-2 further stated that he does not know who gave information of this incident in the village. Persons came to know on hue and cry then all persons rushed to spot. When we reached there we found that dead body is lying there. There was no light. The dead body was lying near the house of Ram Dayal. He could not remember any body from his house or from the house of Ramdayal bring light nor he could remember whether police arranged light or not .

(35)PW-2 further stated that he remained on spot for about 10-15 minutes after reaching 'Darogaji'. He took his signature on a paper and there after police took away the dead body in the night and he came back to his house.

(36)PW-2 not only gave non committal replies but gave his evidence on imaginations. He changed the whole scenario .Admittedly this witness has not been cited by the prosecution as an eye witness in police report but complainant projected him as eye witness but prosecution could not fit in frame. He therefor is not a trustworthy and reliable witness and falls in the category of "wholly unreliable witness'

(37)So far as PW-1 Sataya Pal is concerned is only the key witness of prosecution in the absence of Sher Singh and Shiv Kumar, who were examined later on as court witnesses. He is the main architect of the prosecution case but in view of findings arrived at point -A he shall be termed as fabricator of this case. His statement does not find support from police papers so far as his statement relates to lodging of FIR and dispatch of dead body.

(38)The statement of this witness is also contradictory with the contents of FIR so far it relates to manner of occurrence. There is a complete go by of use of lathi and Sticks by the accused persons at the time of commission of offence. There is also contradiction in this regard with Statement recorded u/s161 Cr.P.C. It is a willful omission on the part of this witness to fit in the prosecution story in accordance with postmortem report. From the perusal of postmortem report coupled with statement of Doctor M.N.Singh (PW-5) it is clear that there is no injury on the person of deceased caused by lathi or sticks. This gives reason to make a willful omission in this regard to PW-1 which falls within the the meaning of contradiction and is an improvement by this witness on a very material issue. This also creates doubt about the presence of witness on the spot. This doubt further strengthen by so called recovery of blood stained lathis on the pointing out of accused persons on the basis of joint statement.

(39)This witness claimed his presence along with his brother Vijay Pal (PW-2) and stated that he along with his brother Vijay pal going to contact labor in village Lanin Purva on the occasion of marriage of his daughter. His brother Vijay pal was with him because of threats extended by the accused persons. We found that Vijay pal was not on the spot at the time of incident and he reached on the spot after commission of crime. This gives reason to disbelieve presence of this witness also on the spot.

(40)Apart from it, there are certain other facts and circumstances which would establish that this witness was also not present on the spot.

(41)PW1. Stated that he was weeping after lying on his bleeding son but his clothes were not stained with blood. This witness is the father of Manoj and if he was hardly 10 paces away and tried to save by shouting why the accused spared him.

(42)According to PW-1 occurrence took place in the mid of crossing shown by letter 'A' in the site plan, but the dead body was found in eastern side of Bandha as is evident from inquest prepared by police. According to PW-2 dead body was lying near the house of Ramdayal. The place where dead body was lying and the place from where this witness witnessed the incident has not been shown in site plan as has been admitted by Investigating officer PW-4.

(43)Where the motorcycle has gone is a mystery in this case. It is a specific case of the prosecution that after leaving motorcycle on the spot both Sear Bahadur and Shiv Kumar flew but motorcycle was not found on spot to police. Why any investigation has not been conducted in this regard also create a serious doubt in regard to genuineness of prosecution case. PW-1 also did not explain where the motorcycle has gone after incident.

(44)If this fact taken into consideration in the light of other prosecution witnesses who were examined as court witnesses the mystery becomes more deepened in view of statement of Court witnesses. According to prosecution case as narrated by P.W-1 Shiv Kumar was driving the motorcycle but Shiv Kumar (C.W.-2) in his deposition on oath in court said that Sher Singh was driving the Motorcycle. Sher Singh also stated on oath that he was driving the motorcycle and was also the owner of the same. He deposed that his motorcycle was taken away by the miscreants as disclosed by the villagers and he got it back after five days from police station and not from court. If it is true then it is a clear case of suppression and concealment of material fact. Even if miscreants were not previously known that recovery must have been made either from any person or from any place the disclosure of which would certainly helpful in identifying the unknown miscreants. And if accused were known and motorcycle was recovered from the possession or on pointing out of the accused it would be a very strong piece of evidence. The non action of investigating agency and non disclosure of these facts would sufficient to shake the genesis of the prosecution case.

(45)A very important fact came into light from the prosecution case that the house of complainant is situated about 1/2 KM. from place of occurrence. As per statement of PW-2 he after getting information reached spot along with all others and found there that dead body was lying there. PW4, the I.O.stated that PW-1was in his house at a distance of 200 mts. and came on spot after getting the information and hearing hue and cry. PW-1 in his deposition in court stated that he was at Bandha at the time of incident . When he saw then he and his brother Vijay Pal ran towards place of occurrence after making noice , thereafter, accused flew from there. When PW-1 confronted with his previous statement in regard to presence at place of occurrence he disown his statement given to I.O. U/s 161 Cr.P.C. PW-4,the I.O. has not shown his place in the site plan from where he claimed himself to see the occurrence. From perusal of contents of FIR it appears that neither he or any other person was shown at the spot except Sear Singh(CW-1) and Shiv Kumar (CW-2).

(46)If this all is taken into consideration there remains no doubt that PW-1 Satya Pal Singh was not present on the spot and reached there on getting information at his house after incident is over. As such PW-1 is also not a trustworthy and reliable witness. His evidence does not find corroboration from medical evidence or other witnesses of prosecution. He willfully concealed material facts. His evidence is also not in consonance with police papers and other documentary evidence on record. As such this witness in wholly unreliable witness.

(47)Thus the evidence of PW-1 Satya Pal Singh and PW-2 Vijay Pal would not be sufficient to sustain the finding of conviction recorded by trial court.

POINT- C

(48) The Apex Court in Govindraju @ Govinda Vs. State (2012) 4 SCC 722 in Para 24 and 25 held

"24. It is settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examin a large number of witnesses if prosecutiob can bring home the guilt of accused even with a limited number of witnesses. In Lallu Manjhi Vs. State of Jharkhand (2003) 2 SCC 401 this court has classified the oral testimony of witnesses into three categories:

(a). Wholly reliable

(b). Wholly unreliable, and

(c). neither wholly reliable nor wholly unreliable.

In the third category of witnesses, the court has to be cautious and see if the statement of such witness is corroborated ,either by the other witness or by other documentary or expert evidence.

24. Equally well settled is proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of sole witness to be cogent,reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of sole eyewitness, than such evidence has be be wholly reliable and trustworthy . Presence of such witness at occurrence should not be doubtful. If the evidence of sole witness is in conflict with other witnesses, it may not safe to make such statement as a foundation of the conviction of the accused. These are few principles which the court has stated consistently and with certainty. "

(49) Some other references in this regard may also be noticed by us

1.Joseph Vs. State of Kerala-(2003)1 SCC 465

2.Tika Ram Vs. State of M.P.-(2007) 15 SCC 760

Jhapsa Kabari Vs. State of Bihar-(2001) 10 SCC 94

(50) In Bhajju @ Karan Singh Vs. State of M.P (2012) 4 SCC 327 the Supreme Court has discussed about the use of evidence of hostile witnesses. It was held in para 37 at page 341 that-

"37. The view that the evidence of witness who has been called and cross- examined by the party with leave of the court, cannot be belived or disbelived in part and has to be excluded altogather, is not the correct exposition of law. The Courts may rely upon so much of testimony which supports the case of prosecution and is corroborated by other evidence. It is also now settled canon of criminal jurisprudence that the part which has been allowed to be cross examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the following cases:

 
	(a).	Koli Lakhmanbhai Chanabhai Vs. State of Gujrat (1999) 8 SCC 624
 
	(b).	Prithi Vs. State of Haryana (2010) 8 SCC 536
 
	(c).	Manu Sharma Vs. State(NCT of Delhi) (2010) 6 SCC 1
 
            (d).      Ramkrushna Vs. State of Maharastra (2007) 13 SCC 525
 

 

(51) In this case CW-1 Sear Singh and CW-2 Shiv Kumar were cited the only witnesses of prosecution cited in FIR who were coming on the motorcycle along with deceased Manoj. However they were not examined from the side of prosecution as prosecution suspecting that they will not support the prosecution. Thereafter prosecution rest its case on the testimony of two witnesses , one of them is complainant and other is his brother. After close of defence evidence the court feels to un earth the truth summoned both the eye witnesses shown in FIR and charge sheet and they were examined by Court as witness.

(52) Technically these witnesses can not be termed as 'hostile witness' because they have not been examined by the prosecution and prosecution has not asked for cross-examination in the light of previous statement. It is true that these witnesses were not examined as prosecution witnesses but court provided the opportunity of cross examination to prosecution and defence both. These witnesses did not support the prosecution on this score that accused charge sheeted committed the murder of Manoj. However they supported the prosecution story on other material points which include place and time of occurrence and the manner suggested by prosecution. These witnesses also involved three persons in commission of crime but different from those who were charge sheeted by police. In these circumstances the evidence of these two court witnesses could not be sufficient to record the finding of conviction of accused-appellants. At the most their evidence could be used for the purpose of corroboration by the prosecution or by defence.

(53) As we have found that both prosecution witnesses were not present on the spot at the time of commission of crime so their evidence cannot be used to record the finding of conviction of the accused-appellants.

(54) Though the evidence of these two court witness in itself is not convincing and believable because of some material contradictions. CW-1Sear Singh stated on oath that all the three miscreants assaulted them with lathis. They also assaulted on his both hands. After reaching at some distance he heard the sound of firing. He did not see turn behind to see and reached his house. He left the motorcycle and ran away. Shiv Kumar is running ahead of him. On the contrary CW-2 Shiv Kumar stated on oath that two miscreants assaulted him on his right hand and he got injury and fell down. Firing started. Then they ran away. All the three assaulted Manoj by lathi and bullet. It shows that as per Sear Singh when he and Shiv Kumar left the place of occurrence thereafter firing started, but as per Shiv Kumar when firing started and assailants assaulted with lathi and fired upon deceased than he ran away along with Sear Singh.

(55) So far statement of arrival of Satya Pal Singh on the place of occurrence is concerned , the statements of both CW's is also contradictory. According to Sear Singh when he was running than he saw that Satya Pal Singh was coming from Dhanoli side towards Ramp crossing. He clarified that Satya Pal Singh met him towards east from Rump crossing at a distance of 30 to 35 paces before hearing the sound of firing and Shiv Kumar was running ahead to me. However CW-2 stated on oath that Satya Pal Singh reached at the spot when miscreants were assaulting Manoj with Lathi and Fire.

(56) Admittedly none of the court witnesses medically examined for their injuries sustained during course of incident. It is not the case of prosecution that these witnesses received injuries.

(57) This all depict that these witnesses were not telling truth and their evidence is not consistent on material points.

(58) The prosecution in the aforesaid circumstance cannot take any advantage of the evidence of these witnesses to establish conclusively and with all certainty the presence of PW-1 and PW-2 on the spot at the time of incident. Therefore the entire evidence available on record of this case including the evidence of these two court witnesses, CW-1 Sear Singh ,CW-2 Shiv Kumar and the two prosecution witness PW-1 Satya Pal Singh, PW-2 Vijay Pal Singh would not be sufficient to sustain the finding recorded by trial court of conviction of the appellants.

CONCLUSION

(59) On the basis of discussion made on the aforesaid points, the only conclusion which may be arrived that prosecution has failed to establish the guilt of accused appellants beyond all reasonable doubts and the findings arrived at by the trial Court and recording conviction thereon could not sustain and are liable to be set-a-side. Consequently this Criminal appeal having criminal appeal No.1427/2006 is allowed.

(60) The appellant Lallu Singh, Ran Bahadur and Bal Bahadur are hereby acquitted from the charges leveled against them under sections 302 read with section 34 of Indian Penal Code. All the appellants are in Jail, if they are not wanted in any other case, they shall be released forthwith and their bonds are discharged. All the appellants are set on liberty.

(61) The Registry of this Court shall send the copy of this Judgment to the learned Sessions Judge and Chief Judicial Magistrate, Hardoi for immediate compliance and to ensure the release of the appellants from Jail if they are not wanted in any other case.

Dated : 12.7.2012

S. Kumar.