Babu Ram vs State Of U.P.
2018 Latest Caselaw 1173 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 4 
 

 
Case :- JAIL APPEAL No. - 5646 of 2015 
 

 
Appellant :- Babu Ram 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- From Jail,Rahul Mishra A.C. 
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble Bala Krishna Narayana,J. 

Hon'ble Mahboob Ali,J.

(Delivered by Hon'ble Bala Krishna Narayana, J.)

1. Heard Sri Rahul Misra, Amicus Curiae, learned counsel for the appellant, Sri. A.N. Mulla and Sri J.K. Upadhaya, learned A.G.A. for the State.

2. By way of instant jail appeal, challenge has been made to the validity and legality of the judgement and order dated 15.9.2014 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Moradabad in S.T. No. 1074 of 2012 (State Versus Babu Ram), arising out of Case Crime No. 298 of 2012, under Sections 452, 302, 307, 504 and 506 IPC and S.T. No. 1075 of 2012 (State Versus Babu Ram), arising out of Case Crime No. 322 of 2012, under Section 4/25 Arms Act by which the appellant-Babu Ram has been convicted and sentenced to imprisonment for life and a fine of Rs. 5000/- and in case of default of payment of fine, 3 years additional rigorous imprisonment under Section 302 IPC, 7 years rigorous imprisonment together with fine and in case of default of payment of fine 1 year rigorous imprisonment under Section 307 IPC and 1 year rigorous imprisonment and a fine of Rs. 500/- and in case of default of payment of fine 3 months additional rigorous imprisonment under Section 506 IPC. All the sentences were directed to run concurrently.

3. Course of events leading to filing of this appeal as discernible from the record appear to be that informant P. W. 1 Satish Chandra lodged a written report Ext. Ka1 at P.S. Chandausi, District Bheemnagar at 15:35 hours on 15.7.2012 regarding the murder of his wife Smt. Nanhi Devi and causing injuries to him by the appellant-Babu Ram on 15.7.2012 at about 14:45 hours in front of his house in Village Pathra within the territorial jurisdiction of P. S. Chandauli, District Bheemnagar.

4. The aforesaid report was noted in the chek FIR Ext. Ka4 as Case Crime No. 298 of 2012, under Sections 302, 452, 324, 504 and 506 IPC on 15.7.2012 at 15:35 hours. The case was registered against the appellant-Babu Ram at S.No. 40 in the concerned G.D. on the same day at the aforesaid case crime and in the aforesaid sections of Indian Penal Code, copy whereof is on record as Ext. Ka5.

5. The investigation of the case was entrusted to P. W. 8 S.H.O. Rajvir Singh who reached the place of occurrence at about 6:15 P.M. and after inspecting the place of occurrence prepared the site plan Ext. Ka16. He also held the inquest and prepared the inquest report of the deceased along with the other related papers namely photo nash Ext. Ka10, letter addressed to R.I. Ext. Ka11, letter addressed to C.M.O. Ext. Ka12, police form no. 13 Ext. Ka13 and specimen seal Ext. Ka14. He also collected plain and bloodstained earth from the place of occurrence and prepared its recovery memo Ext. Ka15. He thereafter, dispatched the dead body of Smt. Nanhi Devi to the District Hospital for conducting postmortem. The postmortem on the dead body of Smt. Nanhi Devi was conducted by P. W. 3 Dr. R.K. Sharma on 16.7.2012 who also prepared the postmortem report of the deceased which is on record as. Ext. Ka2 and noted following ante mortem injuries on the dead body of Smt. Nanhi Devi :

(i) Straight abrasion 3.0 cm x ½ cm on left side of forehead, just above the left eyebrow.

(ii) Punctured wound 4.0 cm x 2.0 cm on left side of chest, 6.00 cm below from clavicle bone. On internal examination, fourth rib was found to be fractured and lungs was ruptured. Around 1 liter blood was present in chest cavity.

(iii) Incised wound 11 cm x 7 cm x muscle deep, in front of joint of right elbow.

(iv) Five punctured wounds in the area of 22 cm x 10 cm on chest and on right side of abdomen. Minor wound 2 cm x ½ cm x muscle deep and major wound 5 cm x 2 cm x abdomen cavity deep. On internal examination, liver was found to be punctured at three places. Around 1 liter blood was present in abdomen cavity.

(v) Incised wound 2 cm x 01 cm x muscle deep outwards on left hand.

(vi) Incised wound 4 cm x ½ cm x muscle deep on left arm.

(vii) 03 incised wounds in the area of 23 cm x 13 cm outwards of left thigh. Minor wound 2.5 cm x 1.5 cm x muscle deep and major wound 6 cm x 2.5 cm x muscle deep.

Fourth leftward rib of chest was fractured and third rib of rightward was fractured. Left lungs was punctured. Weight of heart was 180 gram and was empty. 100 ml. semi-digested food was present in stomach. Mucous was normal.

P. W. 3 Dr. R.K. Sharma was of the opinion that the deceased had died about 18 hours before conducting the postmortem due to shock and haemorrhage as a result of ante-mortem injuries.

6. After the appellant was arrested and on his pointing out the crime weapon (knife) allegedly used by the appellant in committing the murder of the deceased and causing injuries to the informant was recovered on 1.8.2012, consequently Case Crime No. 298 of 2012, under Section 4/25 Arms Act was also registered against him. The investigation of Case Crime No. 298 of 2012 was taken over by P. W. 7, S.I. Rajvir Singh after the first Investigating Officer Rajvir Singh was transferred to District Sambhal.

7. After completion of investigation, charge-sheet Ext. Ka8 was submitted by the Investigating Officer against the appellant under Sections 302, 307, 452, 504 and 506 IPC in Case Crime No. 298 of 2012 and under Section 4/25 Arms Act in Case Crime No. 322 of 2012. Both the cases were committed to the Court of Sessions Judge, Moradabad for the trial of the accused by committal order dated 9.10.2012 passed by CJM, Moradabad where the same were registered as S.T. No. 1074 of 2012 and S.T. No. 1075 of 2012 and made over for trial from there to the Court of Special Judge (E.C. Act)/Additional Sessions Judge, Moradabad vide order dated 11.1.2013 passed by Additional Sessions Judge, Moradabad.

8. On the basis of the material collected during the investigation and after hearing the prosecution as well the accused on the point of charge, learned Trial Judge framed charge under Sections 452, 302, 307, 504 and 506 IPC in Sessions Trial No. 1074 of 2012 and under Section 4/25 Arms Act in Sessions Trial No. 1075 of 2012. The appellant pleaded not guilty and claimed trial. Thereafter, the prosecution was asked to lead evidence for proving the charges framed against the appellant in both the sessions trial.

9. The prosecution, in order to prove its case, against the appellant examined as many as 9 witnesses of whom P. W. 1 Satish Chandra, P. W. 2 Netrapal and P. W. 4 Ramesh were examined as witnesses of fact while P. W. 3 Dr. R.K. Sharma who had conducted the postmortem on the dead body of Smt. Nanhi Devi, P. W. 5 Dr. Mohd. Aslam who had examined the injuries of informant Satish Chandra, P. W. 6 Constable Ram Kumar who had prepared the chek FIR and G.D. Entry, P. W. 7 S. I., Rajvir Singh, second Investigating Officer of the case, P. W. 8 S.H.O., Rajvir Singh, first Investigating Officer of the case, P. W. 9 S. I., Megh Singh, witness of recovery of crime weapon and P. W. 10, Head Constable Omkar Sharma who had prepared the chek FIR and the corresponding G.D. entry were produced as formal witnesses during the trial.

10. The prosecution also adduced documentary evidence in the leading sessions trial no. 1075 of 2012 comprising of written report Ext. Ka1, postmortem report of deceased Ext. Ka2, injury report of informant P. W. 1 Satish Chandra Ext. Ka3, chek FIR Ext. Ka4, copy of G.D. Ext. Ka5, site plan Ext. Ka7, charge-sheet under Sections 452, 302, 307, 504 and 506 IPC Ext. Ka8, inquest report of the deceased Smt. Nanhi Devi Ext. Ka9, photo nash Ext. Ka10, letter addressed to R.I. Ext. Ka11, letter addressed to C.M.O. Ext. Ka12, police form no. 13 Ext. Ka13, specimen seal Ext. Ka14, recovery memo of bloodstained and simple earth Ext. Ka15 and site plan of the place of occurrence Ext. Ka16.

11. The documentary evidence filed by the prosecution in Sessions Trial No. 1075 of 2012 comprised of recovery memo of crime weapon Ext. Ka15, site plan of the place of recovery of crime weapon (knife) Ext. Ka16, charge-sheet under Section 4/25 Arms Act Ext. Ka8, chek FIR Ext. Ka4, copy of G.D. Ext. Ka5. P. W. 7 S.I. Rajvir Singh had produced the crime weapon (knife) along with the cloth in which it was wrapped and sealed, before the court during the trial which were marked as Ext. 1 and Ext. 2.

12. The appellant in his statement recorded during the trial under Section 313 Cr.P.C. denied the prosecution case as false and incorrect. He denied having committed any murder. As regards the recovery of knife on his pointing out, he stated that it was recovered from a drain and not from the jungle on the alleged pointing out of the appellant as alleged by the prosecution. The appellant did not examine any witness in defence.

13. Learned Trial Judge after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellant under Section 302, 307 and 506 IPC and 4/25 Arms Act and awarded aforesaid sentences to him. However, the Trial Judge acquitted the appellant of the charge under Section 452 and 504 IPC by extending benefit of doubt to him.

14. Hence this appeal.

15. Sri Rahul Misra, Amicus Curiae, appearing for the appellant has submitted that the motive for the appellant to commit the offence as spelt out in the FIR that a quarrel had taken place between the appellant and the informant and his wife Smt. Nanhi Devi over a fight which had ensued between the children of the informant and the accused earlier on the same day which culminated into stabbing of the informant and his wife by the appellant. However, since the informant has in his evidence tendered before the trial court denied the aforesaid incident, the motive in this case stands erased. The FIR in this case is ante timed and the place of occurrence has not been proved. The FIR written on the dictation of P. W. 1 Satish Chandra never saw the light of the day. It is not established from the evidence of P. W. 2 Netrapal and P. W. 4 Ramesh that they had witnessed the incident. Moreover, they being interested witnesses, their evidence is wholly unreliable and not trustworthy. The correct facts are that the wife of the informant Smt. Nanhi was living with the appellant and his wife and on account of the aforesaid fact he had become inimical towards him and it was on account of the aforesaid enmity that he had falsely implicated him in the present case. In the absence of any public witness, the alleged recovery of the crime weapon on 1.8.2012 on the pointing out of the appellant as alleged by the prosecution is wholly fabricated especially in view of the deposition made by the witnesses of fact produced by the prosecution during the trial that the appellant after committing the murder had thrown away the knife in the drain and the knife was recovered by the police from the place of incident itself.

16. He lastly submitted that the prosecution having miserably failed to prove the charge framed against the appellant by any cogent and reliable evidence, neither the recorded conviction of the appellant nor the sentences awarded to him can be sustained and are liable to be set aside.

17. Per contra Sri. A. N. Mulla and Sri J.K. Upadhaya, learned A. G. A. appearing for the State submitted that the prosecution case stands fully proved from the evidence of three witnesses of fact produced by the prosecution during the trial including that of P. W. 1 Satish Chandra (informant) who had received injuries in the same incident and whose presence at the place of occurrence cannot be doubted even for a moment. It is also proved from the evidence of P. W. 7 S.I. Rajvir Singh and P. W. 9 S.I. Megh Singh that the crime weapon (knife) was recovered on the pointing out of the appellant pursuant to the disclosure statement made by him before the police after his arrest. The postmortem report of the deceased and the injury report of the injured have been duly proved by P. W. 3 Dr. R.K. Sharma and P. W. 5 Dr. Mohd. Aslam. The medical evidence on record fully corroborates the ocular version. This appeal lacks merit and is liable to be dismissed.

18. We have heard the learned counsel for the parties at great length and perused the entire lower court record.

19. The FIR of this case discloses that on 15.7.2012 an altercation took place between the children of the informant and the appellant-Babu Ram at about 2:45 P.M. while the informant and his wife Smt. Nanhi Devi were present inside their house and his mother Smt. Shiv Dai was sitting on the doorsteps. Appellant-Babu Ram residing in Village Pathra at the time of occurrence came with a knife in his hand and started abusing the wife of informant. When the informant asked him not to abuse his wife, appellant-Babu Ram started inflicting knife blows on his wife and when the informant tried to rescue her, he stabbed him also. On hearing the noise, informant's mother Smt. Shiv Dai and his brother P. W. 2 Netrapal and P. W. 4 Ramesh Chandra son of Natthu Lal resident of the same village rushed to the place of occurrence and rescued them whereupon the appellant-Babu Ram fled away from the place of occurrence extending life threats to the informant. The informant then took his wife to the hospital with the help of his family members. However, she succumbed to the injuries sustained by her in the occurrence, on way to the hospital. Leaving the dead body of his wife in the hospital, the informant went to the police station to lodge the FIR of the occurrence.

20. Record further shows that the FIR of the incident which had taken place on 15.7.2012 at about 2:45 P.M. was lodged by the informant P. W. 1 Satish Chandra at P. S. Chandausi at 3:35 P.M.

21. Inviting our attention to the facts deposed by P. W. 1 Satish Chandra and P. W. 2 Netrapal in their cross examination, learned counsel for the appellant has submitted that the FIR in this case is ante timed.

22. Upon perusal of the cross-examination of P.W.1 Satish Chandra and P. W. 2 Netrapal, it transpires that P.W.1 Satish Chandra has in his cross-examination deposed that he had gone to lodge the FIR at about 3 P.M. half an hour after the incident. His report was lodged at about 4 P.M. Then he said that he did not have a watch. The report was lodged at about 5 P.M. He further stated that he had gone to the police station straightaway and reached there at about 8 P.M., it took him about half an hour in lodging the FIR. Similarly, P.W.2 in his cross-examination deposed that he had gone to lodge the FIR of the occurrence with his brother at 5:30 P.M.

23. It is noteworthy that the evidence of P. W. 1 and P. W. 2 was recorded almost 1 year after the occurrence. Undisputedly both the witnesses P. W. 1 and P. W. 2 are almost uneducated and merely because of some contradictions in their statements with regard to the time at which the FIR of the incident was registered vis-a-vis the time of the registration of FIR mentioned in the chek FIR and the G.D. entry it cannot be held that the FIR in this case is ante timed. The fact that the FIR was registered at the time mentioned in the chek FIR stands fully proved from the fact that the inquest on the dead body of Smt. Nanhi was conducted on 15.7.2012 at 15:35 hours. The inquest report of the deceased-Smt. Nanhi Devi Ext. Ka9 clearly mentions the case crime number which indicates that the FIR had come into existence before the inquest proceedings started. Moreover, the informant Satish Chandra P. W. 1 who had received injuries in the same incident was medically examined on 15.7.2012 at 4:05 P.M. pursuant to the chitthi-majrubi which was issued by the concerned police station and which has been brought on record as Ext. Ka3. Moreover, no suggestion was given by the defence counsel to P. W. 6 who had prepared the chek FIR and registered the case in the G.D. that the FIR was not registered at the time mentioned in the chek FIR and the G.D. entry.

24. Thus, in view of the above, we hold that the FIR in this case is not ante timed.

25. It has also been argued by the learned counsel for the appellant that the original written report, as deposed by P. W. 1 (informant) Satish Chandra on page 15 of the paper book in his examination-in-chief which was scribed by one Ranveer on his dictation and signed by him was not lodged at Police Station Chandausi but another report which was written by a police personnel at the behest of the S.O. after due deliberation and consultation with the informant was signed by him and it was on the basis of this report which was marked as Ext. Ka1, the case was registered.

26. English translation of relevant extract of the cross-examination of P. W. 1 (informant) Satish Chandra, is being reproduced herein below :

"I got my complaint scribed by a police personnel who scribed it at police station, I did not know his name before scribing the report, I had consulted with S.O. Sahab thereafter, S.O. Sahab had got my FIR written by a police personnel at which my signature was obtained and which was given to me."

27. Similarly P. W. 2 Netrapal has also on page 20 of the paper book in his cross-examination deposed that he and his brother had gone to the police station to lodge the FIR at about 5:30 P.M. We had met SHO at the police station and narrated to him the entire incident after holding consultation with the SHO, they had lodged the report. The complaint was scribed in the police station.

28. Thus, in view of the above, the possibility of the first written report of the incident having been suppressed and another first information report prepared on the advice of and after consultation with the concerned SHO cannot be ruled out. P. W. 1 (informant) Satish Chandra in his examination-in-chief had categorically deposed that his complaint was scribed by one Ranveer on his dictation and thereafter, he had lodged the same at Police Station Chandausi but from the facts stated by him and P. W. 2 Netrapal in their cross-examinations referred to hereinabove, it transpires that the report of the occurrence which was originally scribed by one Ranveer on the dictation of the informant Satish Chandra never saw the light of the day.

29. So far as the credibility of the FIR in this case is concerned, we find upon perusal of the evidence of P. W. 1 Satish Chandra and P. W. 2 Netrapal that the same stands totally shattered. The FIR in this case is proved to have been scribed by a police personnel whom the informant had met at the police station and before scribing the FIR the informant had consulted SHO of the concerned police station, thereafter, the FIR was written by a police man on behalf of informant on the instructions of the S.H.O. In view of the above, the possibility of the prosecution as spelt out in the FIR being false, fabricated and concocted cannot be ruled out.

30. The issue which next arises for our consideration is that whether the evidence of P. W. 1 (informant) Satish Chandra, P. W. 2 Netrapal and P. W. 4 Ramesh Chandra who were examined as eye-witnesses of the incident is reliable and trustworthy or not. P. W. 1 (informant) Satish Chandra in his examination-in-chief has fully supported the prosecution case. Similarly, P. W. 2 Netrapal and P. W. 4 Ramesh Chandra have also in their respective examinations-in-chief corroborated the evidence of P. W. 1 (informant) Satish Chandra on all material points relating to the time, place and manner of attack and the identity of the perpetrators of crime.

31. However, P. W. 1 Satish Chandra and P. W. 2 Netrapal both fumbled during their cross-examination. Although P. W. 1 Satish Chandra in his examination-in-chief had deposed that the FIR of the incident was scribed by one Ranveer on his dictation and after he had read over the FIR to him he had signed the same and given it at the Police Station Chandausi. However, as noted hereinabove, P. W. 1 Satish Chandra in his cross-examination deposed that before the FIR of the incident was scribed, he had consulted the SHO, the FIR of the incident was thereafter, written on the instructions of the SHO by a police personnel with whom he had met at the police station and whose name he did not know.

32. Similarly, P. W. 2 Netrapal also in his cross-examination on page 20 of the paper book stated on oath that he had left for the police station along with his brother to lodge the FIR of the incident at about 5:30 P.M., they had met the SHO at the police station and narrated the entire incident to him and the report was thereafter, written in the police station after they had consulted the SHO. Although, in the FIR as well as in the statements of all the three witnesses of fact it has been stated that on the date of incident, an altercation had taken place between the children of the appellant and the informant on account of which later in the day while informant and his wife Smt. Nanhi Devi were present in their house and Smt. Shiv Dai mother of the informant was sitting on the door steps of his house, the appellant came armed with a knife to the house of the informant and started abusing his wife and when she objected he stabbed her with his knife and when the informant tried to save her he dealt a blow with his knife to him also. However, on page 17 of the paper book, P. W. 1 Satish Chandra came out with an entirely different version of the occurrence by deposing that he had never quarrelled with the appellant. Appellant-Babu Ram had come to his house from the western side and had stopped at the turning. His wife had then gone out of her house. Neither any quarrel had taken place between the appellant-Babu Ram and informant's wife Smt. Nanhi Devi nor any altercation had taken place between them. Ramesh, Murari and Rubi were not present at the place of incident and they had arrived at the crime scene after 15-20 minutes. The incident had taken place outside his house, near the house of P. W. 2 Netrapal and not inside his house. His wife had received 9 wounds. He had seen the knife which had a copper handle. The blade of the knife was about one foot long and it was sharp edged on one side. The appellant before fleeing from the place of occurrence had left the knife behind which he had handed over to the police.

33. Thus, from the facts stated by P. W. 1 in his cross-examination, the presence of P. W. 2 Ramesh Chandra at the time and place of occurrence is totally ruled out and his evidence is liable to be excluded from consideration. Moreover, from the facts deposed by P. W. 4 Ramesh Chandra in his cross-examination on page 25 of the paper book itself it is established that he had arrived at the crime scene after the incident. Even P. W. 2 Netrapal appears to have reached the place of incident after the attack had taken place. In this connection, it would be relevant to refer to the facts stated by him on page 20 of the paper book in his examination-in-chief wherein he deposed that when he heard the noise, his sister-in-law had already received injury, although she was still breathing. On page 25 of the paper book in his cross-examination he further stated that he and P. W. 1 Satish Chandra had reached the place of occurrence on hearing the noise from the side of the road and it was incorrect to say that he was present at the place of incident at the time of occurrence.

34. Learned A.G.A. has per contra argued that notwithstanding the minor inconsistencies and contradictions in the testimony of P. W. 1 (informant) Satish Chandra, his presence at the place of occurrence at the time when the appellant had stabbed the deceased Smt. Nanhi Devi with knife cannot be doubted even for a moment, keeping in view the fact that P. W. 1. Satish Chandra had also received injuries at the hands of the appellant in the same incident.

35. Record shows that the injuries of P. W. 1 Satish Chandra were examined by P. W. 5 Dr. Mohd. Aslam on 15.9.2012 at 4:05 P.M. in Civil Hospital Chandausi, Bheemnagar who had also proved his injury report during the trial as Ext. Ka3. The injury report of P. W. 1 Satish Chandra indicates that following injuries were found on his person :

(i) Incised wound 7.00 cm x 2.00 cm on lower portion of left hand, edges of which were sharp and bone deep. Blood was oozing and its x-ray advised.

(ii) Red straight mark of abrasion 6.00 cm long in middle of left hand.

(iii) Punctured wound 1.00 cm x 0.5 cm on left elbow, edges of which were sharp; depth could not be measured. Blood was oozing which was kept under observation and x-ray advised for left elbow.

(iv) Incised wound 2.00 cm x 5.00 cm, 22 cm above from left knee on left thigh (sharp edged and muscle deep, red in colour) which was kept under observation and x-ray advised for left thigh.

(v) Red abrasion wound 0.5 cm x 0.5 cm downwards on left chest, 9.00 cm downwards and outwards from left nipple.

(vi) Red abrasion wound 0.5 cm x 0.5 cm, 3 cm below on stomach at left side and was outwards. Abrasion wound 0.5 cm x 0.5 cm on posterior of chest leftwards at lower portion.

36. Upon reading the evidence of P. W. 5 Mohd. Aslam, we find that since P. W. 1 Satish Chandra had not got his injuries X-rayed, he was not in a position to state whether the injuries sustained by him were simple or grievous in nature and it was on account of the aforesaid omission that supplementary report of P. W. 1 Satish Chandra could not prepared. He has further deposed that it was possible that the injuries received by him could be caused on 15.7.2012 at about 2:45 P.M.

37. The next question which arises for our consideration in this appeal is that whether P. W. 1 Satish Chandra notwithstanding the fact that he was present at the place of occurrence has given correct and cogent description of the incident or not. There are several contradictions in his testimony vis-a-vis the facts stated by him in the FIR and his examination-in-chief and those in his cross-examination to which we have already referred to hereinabove which in our opinion go to the core of the prosecution case rendering the same to be unreliable. From his evidence, it also appears that the FIR of the incident which was written by one Ranveer on the dictation of P. W. 1 Satish Chandra was not lodged at the police station.

38. The settled legal proposition is that a conviction can be based upon the evidence of a solitary witness without seeking any corroboration, in case he is found to be wholly reliable witness, in case he is not wholly reliable, the rule of prudence demands that the court shall look for corroboration.

39. It has been argued by the learned counsel for the appellant that in view of the contradictions and discrepancies in the evidence of P. W. 1 Satish Chandra, he cannot be categorized as a wholly reliable witness. He in his cross-examination has not only totally changed the prosecution story but has also altered the place of occurrence mentioned in the FIR.

40. As regards the place of occurrence, the specific case of the prosecution as spelt out in the FIR and as indicated by the Investigating Officer in the site plan of the incident Ext. Ka16 is inside the house of the informant P. W. 1 Satish Chandra. P. W. 1 Satish Chandra however in his cross-examination deposed that the incident had taken place outside his house which is in direct contrast to what he had stated in his examination-in-chief. Similarly P. W. 2 Netrapal also changed the place of occurrence by stating in his cross-examination that the incident had taken place in front of the house of P. W. 2 Netrapal which is in the west of the house of appellant-Babu Ram. In the site plan, the place of incident has been shown by letter 'X', the place from where the eye-witness of the incident Shiv Dai, mother of P. W. 1 Satish Chandra was sitting is shown by letter 'A'. The point 'X' is inside the house of the informant. Thus, in view of the irreconcilable contradictions in the testimonies of P. W. 1 Satish Chandra and P. W. 4 Ramesh Chandra with regard to the place where the incident had taken place, we are constrained to hold that the prosecution has not been able to establish the place of incident by leading any reliable evidence.

41. Another circumstance on which the prosecution has relied heavily for establishing the guilt of the appellant is the alleged recovery of the knife which was used by the appellant in committing the murder of Smt. Nanhi Devi and inflicting the knife injures on the informant Satish Chandra P. W. 1 on the pointing out of the appellant pursuant to the disclosure statement made by him after being arrested.

42. However, in view of the categorical deposition made by P. W. 1 Satish Chandra and P. W. 2 Netrapal on pages 17 and 20 of their cross-examination that the appellant after stabbing the deceased in her stomach with a knife had run away abandoning the knife at the place of occurrence which was picked up by P. W. 1 Satish Chandra and handed over to the police personnel on their arrival at the place of occurrence and which was sealed by them in a packet on the date of incident itself and on which thumb impression of P. W. 1 Satish Chandra were obtained, the entire prosecution case that crime weapon was recovered on the pointing out of the appellant-Babu Ram from an open place pursuant to the disclosure statement made by him before the police after his arrest stands totally falsified and fabricated.

43. Thus, upon a holistic view of the facts of the case and a careful appraisal and scrutiny of the evidence on record, we do not find that the prosecution has been able to prove its case against the appellant beyond all reasonable doubts. The credibility of the FIR in this case is under a heavy cloud and in view of the above, the possibility of the prosecution case as narrated in the FIR being concocted and fabricated at the behest of the police personnel cannot be ruled out. Moreover, the prosecution has not been able to establish the place of occurrence. P. W. 1 Satish Chandra cannot be categorized as a wholly reliable witness in view of the glaring contradictions and discrepancies in his evidence with regard to the motive for the appellant to commit the offence, the place of occurrence and manner of attack.

44. In view of the foregoing discussion, neither the recorded conviction of the appellant nor the sentence awarded to him can be sustained and are liable to be set aside.

45. The appeal succeeds and is accordingly allowed.

46. The impugned judgment and order dated 15.9.2014 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Moradabad in S.T. No. 1074 of 2012 (State Versus Babu Ram) is hereby set aside. The appellant is acquitted of all the charges framed against him. He is in jail. He shall be released forthwith unless he is wanted in some other criminal case subject to his complying with the provisions of Section 437-A Cr.P.C.

Order Date:- 31.5.2018

SA