Khem Chand vs State Of U.P.
2018 Latest Caselaw 2372 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on : 14.08.2018
 
Judgment Delivered on : 07.09.2018
 

 
Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 4345 of 2009
 

 
Appellant :- Khem Chand
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Gaurav Kakkar, Ajay Mishra, Anoop Trivedi, D.M.Tripathi, L.K.Pandey, Uma Nath Pandey, Yogesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate,P.C.Pathak
 
Connected with
 
Case :- CRIMINAL APPEAL No. - 4343 of 2009
 

 
Appellant :- Aman Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Gaurav Kakkar, Anjani Kumar
 
Counsel for Respondent :- Govt. Advocate,P.C.Pathak
 

 
Case :- CRIMINAL APPEAL No. - 4344 of 2009
 

 
Appellant :- Islam @ Islamuddin
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Gaurav Kakkar, Pulak Ganguly
 
Counsel for Respondent :- Govt. Advocate,P.C.Pathak
 
and
 
Case :- CRIMINAL APPEAL No. - 5512 of 2009
 

 
Appellant :- Dharmendra Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ashwini Kumar Awasthi, Manish Tiwary, Rajiv Lochan Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ram Surat Ram (Maurya),J.

Hon'ble Umesh Chandra Tripathi,J.

[Delivered by Umesh Chandra Tripathi, J.]

[1]. These four criminal appeals are born out of a common judgment and order dated 10.07.2009 passed by Additional Sessions Judge, Court No. 12, Gautam Budh Nagar in Sessions Trial No. 409 of 2005 (State v. Aman Singh and others) and Sessions Trial No. 44 of 2007 (State v. Islam @ Islamuddin), arising out of Crime No. 189 of 2004, under Sections 147, 148, 302, 307 and 120B of the Indian Penal Code (hereinafter referred to as 'IPC'), Police Station - Sector 24, District - Noida whereby the appellants - Aman Singh, Khem Chand, Dharmendra Kumar and Islam @ Islamuddin were convicted and sentenced as follows :

[i]. Rigorous imprisonment for two years each, under Section 148 of IPC;

[ii]. Rigorous imprisonment for ten years and fine of Rs. 5,000/- each, under Section 307 read with Section 149 of IPC and in case of default in payment of fine, additional imprisonment for one year has to be undergone; and

[iii]. Imprisonment for life and fine of Rs. 10,000/- each, under Section 302/149 of IPC and in case of default in payment of fine, additional imprisonment for three years has to be undergone.

[2]. All the sentences were directed to run concurrently.

[3]. By the impugned judgment and order dated 10.07.2009, accused - Bijendra was acquitted of charge framed under Sections 148, 302 read with 149 and 307 read with 149 of IPC and accused Rajendra Kumar Sharma and Kalu Ram Sharma were also acquitted of charge framed against them under Section 120B of IPC.

[4]. Succinctly, stream of events culminating into lodging of the first information report, as discernible from the perusal of record, appears to be that informant Sushil Kumar was working on the post of clerk in Gandhi Smarak Vidyalaya, Sector 22, Noida, Gautam Budh Nagar. On 08.08.2004, a parent-teacher meeting was being held in that school. After the conclusion of the said meeting, the informant, Jaswant Singh (Principal), his son Rajeev Kumar @ Sonu and Narendra Tyagi (teacher) were sitting in the office and doing some official work. Mukesh Kumar, the 'saala' (brother-in-law) of Principal Jaswant Singh had come to the school to meet him. At about 02.00 P.M., Aman Singh, Khem Chand, Bijendra, Dharmendra Kumar and two other persons of Vilage - Chauda, armed with 'tamancha' (country-made pistol) and revolver entered into the office and said to the Principal " lkys fizUlhiy rw cM+k vkWfMV djkus okyk curk gS] rw gekjs ?kksVkyks dh tkap djk;sxk ". Thereafter, they started deranging the documents kept in the almirah of the office. On objection being made by the Principal, all of the aforesaid persons, with the intention to kill him, fired on him, due to which he sustained injury and fell on the ground. When Rajeev Kumar @ Sonu tried to save his father, they fired on him too, due to which he sustained injury and fell on the ground. On alarm being raised, the accused made their escape good. Due to the incidence, an atmosphere of fear and terror engulfed the whole market, leading to a stampede. All the shopkeepers and street vendors closed their shops and ran away. Peace and tranquility in the vicinity of the school and public law and order was totally shattered. After some time, the police came there and took injured Rajeev Kumar @ Sonu to District Hospital, Sector 31, Noida, where he was declared dead by the doctors. Injured Jaswant Singh was admitted to Sumitra Hospital, Sector 35, Noida. It was requested that report be lodged and appropriate action be taken. The written report is on record and the same is marked as Ex.Ka.1.

[5]. Contents of written report were taken down by scribe Constable Jamshed Ali in chik first information report (FIR No. 154 of 2004) at Case Crime No. 189 of 2004 under Sections 147, 148, 149, 307 302 read with 34 of IPC at Police Station - Sector 24 Noida, Dadri, District - Ghaziabad on 08.08.2004 at 03.15 P.M. The FIR is on record and the same is marked as Ex.Ka.2A. On the basis of entry so made in the FIR, relevant entry was made in the general diary (G.D. No. 30) and a case was registered against the accused at the aforesaid case crime number under the aforesaid sections. The carbon copy of the G.D. is on record and the same is marked as Ex.Ka.3A.

[6]. Thereafter, the investigation of the case ensued and it was entrusted to Station Officer Sector 24, Noida Veer Vikram Singh, the Investigating Officer (in short 'I.O.') of the case. He first of all noted copy of chik FIR and G.D. in the case diary. Thereafter, he went to District Hospital, Sector 31, Noida where he recorded the statement of informant Sushil Kumar Tyagi. Under his instructions, Sub-Inspector Ambika Prasad Bhardwaj selected inquest witnesses and held inquest on the body of deceased Rajeev Kumar @ Sonu at District Hospital, Nithari. The inquest report ('panchayatnama') is on record and the same is marked as Ex.Ka.8. In the process, relevant papers viz. photo nash (Ex.Ka.9), letter to R.I. (Ex.Ka.10), Police Form No. 13 (Ex.Ka.11) letter to C.M.O. (Ex.Ka.12), memo of sample seal (Ex.Ka.13) were prepared. Thereafter, he send the dead body of the deceased to the hospital for post-mortem examination in the custody of Constables Vinod and Amit Kumar. On the same day, S.I. Veer Vikram Singh went to Sumitra Hospital to record the statement of Principal injured Jaswant Singh, but could not do so as the injured was not in a position to give statement. Thereafter, he inspected the place of occurrence and prepared its site plan, which is on record and marked as Ex.Ka.27. Thereafter, he collected sample of pieces of simple and blood-stained floor and prepared recovery memo of the same, which is on record and marked as Ex.Ka.17 and Ex.Ka.16. He also collected 'joota' 'chappal' and sandal (footwear) of the public, which were left away in the stampede. The recovery memo of said footwear is on record and the same is marked as Ex.Ka.18.

[7]. On 08.08.2005, injured Jaswant Singh was brought to Sumitra Hospital, Noida, Gautam Budh Nagar at 02.15 P.M. by Constable Madan Murari, wherein Dr. Abid Hussain noted the following injuries on his person :

1. Entry wound over right mostoid.

2. Entry wound over right side chest.

3. Entry/exit wound over left ear just posterior to external auditory meatus broken pieces of bone Parting are bleeding.

4. Left side facial palsy.

5. Fracture on right thumb.

[8]. Medico legal case (M.L.C.) form was prepared by Dr. Abid Hussain, which is on record and marked as Ex.Ka.26.

[9]. As the condition of injured Jaswant Singh was critical, he was referred to higher centre for further management. He was brought to Indraprastha Apollo Hospital, Delhi by informant Sushil Kumar Tyagi. During the process of admission of injured M.L.C. papers were prepared by Dr. Pranav Kumar viz. Emergency Card (Ex.Ka.20) and In-patient history and physical record (Ex.Ka.21).

[10]. Injured Jaswant Singh was medically examined at Indraprastha Apollo Hospital on 08.08.2004 at 04.28 P.M. by Dr. Pranav Kumar, who noted the following injuries on his person :

1. Gunshot entry wound on left ear 05. mm. in size.

2. Gunshot entry wound on right occipital region - 0.5 mm. in size - No active bleed.

3. Gunshot entry wound on right renal area - 0.5 mm. in size.

4. Entry and exit wound on right thumb - No active bleed - Distal pulses - Fractured distal phalanx of right thumb.

[11]. Progress sheet in this regard was prepared by Dr. Pranav Kumar, which is on record and marked as Ex.Ka.22.

[12]. On 18.08.2004, injured Jaswant Singh was discharged from the hospital against medical advice, in reference to which, paper was prepared, which is on record and marked as Ex.Ka.23.

[13]. On 09.08.2004 at about 02.00 P.M., dead body of deceased Rajeev Kumar Tyagi was brought to District Hospital, Ghaziabad by Constables - CP 697 Vinod Kumar and CP 785 Amit Kumar, Police Station - Sector 24, Noida for autopsy. Post-mortem examination on the cadaver of the deceased was conducted by Dr. Ram Narayan, the then Senior Medical Officer, District Hospital, Ghaziabad, who noted the following ante-mortem injuries on the cadaver of the deceased :

Gun shot wound of entry-

1. 11 cm. x 10 cm. skull deep lacerated wound on left side of occipital region 3 cm. from left ear, partial burned gun power particles present deep into muscular & subcutaneous tissue, brain matter bulging out. Slight blackening particle also present on brain matter. No tattooing or blackening present on scalp skin.

2. 3 mm. rounded in shape wound with inverted margin with tattooing in surrounding 2 cm. area of skin on back 5 cm. from left scapula and 3 cm. from mid line & 20 cm. from neck fold. No blackening present.

Gun shot wound of exit -

1. A cruciform lacerated wound 5 cm. x 7 cm. on right side of scalp skull 11 cm. from right ear. Margins everted.

Bullet recovered from back at 4th rib. Level thickly fractured and Bullet recovered in mid line posterior to vertebral column 2 cm. downward from neck fold.

[14]. In the opinion of doctor, cause of death of deceased was coma as a result of brain injury caused due to firearm.

[15]. The post-mortem report of deceased Rajeev Kumar Tyagi @ Sonu is on record and the same is marked as Ex.Ka.7.

[16]. The recovered bullet was send to Vidhi Vigyan Prayogshala (Forensic Science Laboratory), Agra for chemical examination. As per report dated 09.12.2015 of the Forensic Science Laboratory, Agra the bullet was not fired by 32-bore pistol alleged to have been recovered from the possession of accused-appellant Aman Singh. In this report, due to non-availability of specification in the bullet, no definite opinion was given as to whether the recovered bullet was fired from the revolver alleged to have been recovered from the possession of accused-appellant Khem Chand.

[17]. On 10.08.2004, accused Khem Chand was arrested from Morna Petrol Pump and from his possession, one licensed revolver and four live cartridges were recovered. Recovery memo was prepared, which is on record and the same is marked as Ex.Ka.14.

[18]. On 13.08.2004, accused Aman Singh was arrested from Metro Crossroad and one licensed pistol 32-bore and five live cartridges were recovered from his possession. Recovery memo of the same was prepared, which is on record and marked as Ex.Ka.15. On 14.08.2004, statement of Mukesh Kumar Tyagi, eye-witness of the occurrence was recorded. On 17.08.2004, accused Dharmendra was arrested from Village Chauda besides Shiv Mandir and his statement was recorded. On 02.09.2004, accused Bijendra was arrested. On 23.09.2004, statement of Principal injured Jaswant Singh Tyagi was recorded in the case diary. On 29.09.2004, statement of witness Narendra Kumar was recorded.

[19]. During the investigation, name of accused - Islam @ Islamuddin in committing the crime and that of accused - Kalu Ram and Rajendra Sharma in hatching a conspiracy to commit the crime came into light. Pursuant thereto, accused Kalu Ram was arrested on 23.10.2004. On 05.10.2004, the pistol, revolver and cartridges were send to Vidhi Vigyan Prayogshala, Agra, report whereof is on record and the same is marked as Ex.Ka.28 and Ex.Ka.29.

[20]. Thereafter, the investigation of the case was transferred to S.I. Satpal Singh, who submitted charge-sheet against accused - Aman Singh, Khem Chand, Bijendra, Dharmendra Kumar, Rajendra Kumar Sharma and Kalu Ram. Thereafter, the charge-sheets were send to court of Chief Judicial Magistrate, Gautam Budh Nagar for consideration. The charge-sheets are on record and have been marked as Ex.Ka.24, Ex.Ka.25 and Ex.Ka.30. After that, the investigation of the case was taken over by S.I. S.K. Sharma, who on 28.11.2006, recorded the statement of witness Mukesh Tyagi and on 02.12.2006, submitted charge-sheet against accused Islam @ Islamuddin.

[21]. Pursuant thereto, the learned Magistrate took cognizance against the accused. After complying with the provisions contained in Section 207 of the Code of Criminal Procedure (in short 'Code'), he found case against the accused to be prima facie appropriate for committing it to the Sessions Court.

[22]. Consequent thereupon, committal proceedings took place and the case was committed to the Court of Sessions, where it was registered as Sessions Trial No. - 409 of 2005 (State v. Aman Singh and others) and Sessions Trial No. - 44 of 2007 (State v. Islam @ Islamuddin) with S.T No. 409 of 2005 as the leading case. From there, it was made over for trial and disposal to the court of Additional Sessions Judge, Court No. 12, Gautam Budh Nagar. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charges against the accused - Aman Singh, Khem Chand, Bijendra, Dharmendra Kumar and Islam @ Islamuddin under Sections 148, 302 read with 149 of IPC and Section 307 read with 149 of IPC and against accused - Kalu and Rajendra under Section 120B of IPC. Charges were read over and explained to the accused, who abjured the charges and opted for trial.

[23]. The prosecution, in order to prove the guilt of the accused and substantiate charge against them, examined as many as sixteen prosecution witnesses, out of whom, Sushil Kumar Tyagi (P.W.1), Mukesh Kumar (P.W.2) and Narendra Kumar (P.W.3) were examined as witnesses of fact, whereas Constable 97 Jamshed Ali (P.W.4), S.I. Balesh Kumar Sharma (P.W.5), Dr. Ram Narayana (P.W.6), S.I. Ambika Prasad Bhardwaj (P.W.7), S.I. Pooran Singh (P.W.8), Pappu Yadav (P.W.9), H.C.P. 68 Mahaveer Prasad Sharma (P.W.10), Dr. Pranav Kumar (P.W.11), S.I. Satyapal Singh (P.W.12), Dr. Virendra Kumar Gupta (P.W.13), S.I. Veer Vikram Singh (P.W.14), S.I. S.K. Sharma (P.W.15) and S.I. Pritam Singh (P.W.16) were examined as formal witnesses.

[24]. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and the statements of the accused was recorded under Section 313 of the Code, wherein they claimed to have been falsely implicated in the present case on account of enmity.

[25]. In turn, the defence examined Mohd. Jama (D.W.1) as defence witness.

[26]. Constable Madan Murari (C.W.1) was examined as court witness.

[27]. The learned trial Judge after considering the case on its merit, passed the impugned judgment and order.

[28]. Feeling aggrieved by the order of learned trial Judge, the appellants have preferred the instant criminal appeals.

[29]. Heard Sri Kamal Krishna, learned Senior Counsel assisted by Sri Anil Kumar Rana, learned counsel appearing for appellant Aman Singh, Sri Rajeev Lochan Shukla, learned counsel for appellant Dharmendra Kumar, Sri Rajarshi Gupta, learned counsel for appellant Khem Chand and Sri Pulak Ganguli, learned counsel for appellant Islam @ Islamuddin as well as Sri Nafees Ahmad and Sri Anil Kumar Kushwaha, learned Additional Government Advocate for the State of U.P. and Sri P.C. Pathak, learned counsel for the complainant.

[30]. Learned counsel for the appellants contended that first information report is ante-timed. It had not been lodged on 08.08.2004 at 03.15 P.M., but was lodged later on, showing the date and time of lodging as mentioned above. The occurrence had not taken place at Gandhi Smarak Vidyalaya, Sector 22, Noida, Gautam Budh Nagar, as alleged by the prosecution. Presence of witnesses of fact P.W.1 Sushil Kumar Tyagi, P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar is doubtful and they are not reliable witnesses. There are major contradictions in their statements. The learned trial court without considering all the facts and circumstances of the case and without appreciating the material brought on record, has passed the impugned order of conviction, which is not sustainable and liable to set aside and as such, the appeals deserve to be allowed.

[31]. Per contra, learned A.G.A. and learned counsel for the complainant contended that there is no illegality or perversity in the well-merited and well-reasoned order of conviction passed by the court below.

[32]. In this case, it would be appropriate to consider the conduct of the I.O. - P.W.14 Sub-Inspector Veer Vikram Singh. On the day of the occurrence, he interrogated only P.W.1 informant Sushil Kumar Tyagi. The condition of injured Jaswant Singh was critical, but he was conscious. Even so, the I.O. did not interrogate him on the same day at Sumitra Hospital, Noida. He admitted in his cross-examination that when he reached at Sumitra Hospital, injured Jaswant Singh was speaking, but he was not in a position to make any statement. At least, the I.O. should have asked from injured Jaswant Singh the name of the miscreants who fired on him and his son Rajeev Kumar Tyagi @ Sonu. Injured Jaswant Singh was admitted to Indraprastha Apollo Hospital, New Delhi. As his condition was critical, it was the duty of the I.O. to get recorded his statement by the magistrate so that his statement may be used as dying declaration in case of his death due to the injuries sustained by him, but it is unfortunate that the I.O. has not even recorded the statement of the injured Jaswant Singh under Section 161 of the Code before the injured submitted an affidavit to the Chief Judicial Magistrate. On 14.09.2004, injured Jaswant Singh and witnesses - P.W.1 Sushil Kumar Tyagi, P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar had filed affidavit before the Chief Judicial Magistrate concerned, stating the fact of occurrence. Before submitting these affidavits, the I.O. Veer Vikram Singh has recorded the statement of P.W.2 Mukesh Kumar on 14.08.2004, in which it is mentioned that :

"..... veu flag o [kse pUnz rFkk 2 vKkr O;fDr dk;kZy; ds nksuksa njokt+ksa dks doj djrs gq, dk;kZy; esa ?kql vk;sA vanj vkrs gh veu flag] [kse pUnz o nks vKkr us eq>s] lq'khy dqekj o ujsanz dks reapk fn[kkdj dk;kZy; ls ckgj fudky fn;k FkkA nksuksa njoktks ds ckgj /kesZUnz o fctsUnz flag vlykg fy, [kM+s FksA gekjs ckgj fudyrs gh veu flag o [kse pUnz us vyekjh ls fjdkWMZ VVksyuk 'kq: dj fn;k FkkA..."

This statement, which is contrary to the version of F.I.R., is mentioned only to show that witnesses of fact have not seen the accused who fired on injured Jaswant Singh and injured Rajeev Kumar Tyagi @ Sonu, to save the accused Dharmendra and Bijendra from criminal liability and to create doubt on prosecution version. P.W.2 Mukesh Kumar specifically denied that he had made such statement to the I.O. during investigation. In the F.I.R., it is expressly mentioned that all the accused entered into the office of the principal and fired on him and his son Rajeev Kumar Tyagi @ Sonu. In such circumstances, there was no reason for Mukesh Kumar to make such a statement to the I.O. After that on 14.09.2004, affidavit of witness have been submitted before the Chief Judicial Magistrate concerned. After submitting the affidavit, I.O. P.W.14 S.I. Veer Vikram Singh had recorded the statement of injured Jaswant Singh on 23.09.2004 and statement of P.W.3 Narendra Singh on 29.09.2004. In heinous crime like murder, the recording of statement of prime witness(es) by the I.O. after such a lapse of time shows the mala fide intention on the part of the I.O. From these facts, only this inference can be drawn that the I.O. was favouring the accused in order to save them from criminal liability.

[33]. This inference is further strengthened by the fact that in the last of month of October, 2004 by order of Senior Superintendent of Police, Ghaziabad, investigation of the case was transferred to Sub-Inspector Satyapal Singh, Station Officer, Police Station - Vijay Nagar, District - Ghaziabad. In injury report of injured Jaswant Singh prepared at Sumitra Hospital, Noida, it is mentioned that injured Jaswant Singh was brought to the hospital by Head Constable C.W.1 Madan Murari Lal at 02.15 P.M. on 08.08.2004. In the record of District Hospital, Gautam Budh Nagar (Ex.Kha.1) it was mentioned that deceased Rajeev Tyagi was brought dead to the hospital on 08.08.2004 at 02.45 P.M. by Head Constable Madan Murari. C.W.1 Head Constable Madan Murari stated before court that on information of some unknown person, he went to Gandhi Smarak Vidyalaya, Sector 22, Noida, Gautam Budh Nagar and saw police van 'Chetak-4' inside which injured Jaswant Tyagi was present. He immediately sat in the van, went to Sumitra Hospital and got the injured admitted in Sumitra Hospital. Injured Rajeev Tyagi was also brought there by the police, but his condition was critical and the doctor of Sumitra Hospital denied to admit and asked to take him to District Hospital, Noida. He took Rajeev Tyagi to District Hospital by police vehicle 'Chetak 4', where he was declared 'brought dead' by the doctor. After that, he was called at the Police Station, Sector 24, Noida, whereafter he went to the spot with Station Officer P.W.14 S.I. Veer Vikram Singh. In his cross-examination by the counsel for the accused, C.W.1 Madan Murari had stated that only police personnel were present with injured Jaswant Singh and deceased Rajeev Kumar Tyagi @ Sonu till he remained in the hospital. This statement was made by C.W.1 Constable Madan Murari to show that P.W.1 Sushil Kumar, P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar are not the witnesses of fact as they were not present with the injured and the deceased in the hospital.

[34]. Head Constable Madan Murari was not posted at Police Station, Sector 24, Noida where first information report was lodged. He was posted at sub police station (police chowki) 12-22. Even so, on the information of some unknown person, he immediately reached on the spot. In the police vehicle 'Chetak 4' in which injured Jaswant Singh was present, other police personnel were present with the in-charge of vehicle. They may have taken the injured Jaswant Singh to Sumitra Hospital. There was no reason for Head Constable Madan Murari to go on police vehicle to Sumitra Hospital and again from Sumitra Hospital to go with injured Rajeev Kumar Tyagi @ Sonu on another police vehicle. He could not disclose the vehicle by which Rajeev @ Sonu was taken to the hospital. He even could not disclose the police personnel in-charge of the vehicle 'Chetak 4' by which he went to Sumitra Hospital with injured Jaswant Singh. Moreover, the police personnel present in vehicle were competent enough to take the injured to the hospital.

[35]. In Sumitra Hospital, Noida and District Hospital, Noida name, father's name and full particulars of injured Jaswant Singh and deceased Rajeev @ Sonu were mentioned. It was not possible for Head Constable Madan Murari or other police personnel, who were unknown to injured Jaswant Singh and deceased Rajeev @ Sonu to narrate their name and other particulars to the hospital authorities. This shows that some known person and relative of injured Jaswant Singh and deceased Rajeev Kumar @ Sonu was present when they were brought to the hospital.

[36]. Here it must also be noted that no public servant can disclose each and every event of an incidence which came into his notice in discharge of his public duty, and that too, after 4-5 years of the occurrence. Head Constable Madan Murari was called to the police station. After that, he went to the spot with the I.O. Head Constable Madan Murari was not posted at Police Station - Sector 24, Noida. Was he such an important person that he was immediately called to the police station from the hospital to accompany I.O. Veer Vikram Singh? From these facts, it appears that Head Constable Madan Murari was also in collusion with I.O. Veer Vikram Singh to save the accused from their criminal liability. Accordingly, it is required to enquire about the role and conduct of the I.O. P.W.14 S.I. Veer Vikram Singh and C.W.1 Head Constable Madan Murari.

[37]. On the instructions of I.O. Veer Vikram Singh, Sub-Inspector Ambika Prasad Bhardwaj had prepared inquest report and other relevant papers viz. In the process, relevant papers viz. photo nash, letter to R.I. letter to C.M.O., memo of sample seal were prepared. In the inquest report, only Sections 302 and 307 of IPC are mentioned, whereas Sections 147, 148, 149/34 of IPC are not mentioned.

[38]. In Ex.Ka.11, the time of death of Rajeev Kumar Tyagi @ Sonu and the time of lodging of the F.I.R. are mentioned as 02.30 P.M. On the basis of these wrong narration of facts, learned counsel for the appellants contended that the F.I.R. is ante-timed. These wrong narration of facts may have been noted due to the negligence of Sub-Inspector Ambika Prasad Bhardwaj. On these documents, crime number and offence under Sections 302 and 307 of IPC are mentioned. The head constable who scribed the first information report and the I.O. Veer Vikram Singh who was present at that time, have stated that first information report was lodged on 08.08.2014 at 03.15 P.M. As per statement of P.W.1 Sushil Kumar Tyagi, the police station is half a kilometer away from Sumitra Hospital.

[39]. Injured Jaswant Singh was brought to Sumitra Hospital, Gautam Budh Nagar at 02.15 P.M. by P.W.1 informant Sushil Kumar Tyagi. He stated that he was interrogated by the I.O. in the hospital. From this fact, it is proved beyond any doubt that P.W.1 Sushil Kumar Tyagi had gone with injured Jaswant Singh to Sumitra Hospital at 02.15 P.M. and from Sumitra Hospital, he went to the police station and lodged an F.I.R. at 03.15 P.M. After that, the I.O. Veer Vikram Singh reached at Sumitra Hospital, where he interrogated Sushil Kumar Tyagi and recorded his statement under Section 161 of the Code. After that Sushil Kumar Tyagi took the injured Jaswant Singh to Indraprastha Apollo Hospital, New Delhi and admitted him there on the same day at 04.28 P.M. Accordingly, it cannot be said that the F.I.R. is ante-timed i.e. lodged later on showing the date and time of lodging as 08.08.2004 at 03.15 P.M.

[40]. P.W.1 Sushil Kumar Tyagi admitted this fact that the places where injured Jaswant Singh and Rajeev Kumar Tyagi @ Sonu fell, blood was found. But I.O. P.W.14 S.I. Veer Vikram Singh has stated that he picked blood-stained pieces of floor from a particular spot and not from both the places where both the injured fell. Although I.O. Veer Vikram Singh has made this statement on the basis of memory, it was not possible for him being a public witness to state this fact correctly on the basis of memory. In recovery memo, it is not mentioned that he took blood-stained pieces of floor only from one spot. I.O. Veer Vikram Singh further admitted that he had not seen any mark of fire on the wall of the room. No empty cartridge bullets were recovered from the spot. Only on this basis, it cannot be said that murder had been committed somewhere else and not in the principal's office of Gandhi Smarak Vidyalaya, Noida. There are five wounds of entry on the person of injured Jaswant Singh and deceased Rajeev Kumar Tyagi @ Sonu. It appears that the accused had fired from a close range and five bullets hit the injured and the deceased. In such a situation, it is possible that all the fire caused by the accused have hit the injured and the deceased.

[41]. C.W.1 Constable Madan Murari reached on the spot. According to him, he took the injured to the hospital. The I.O. recovered blood-stained pieces of floor from the room and collected 'joota' 'chappal' and sandal of the public from the spot. From all these facts, it is proved beyond all reasonable doubt that injury has been caused to injured Jaswant Singh and deceased Rajeev Kumar @ Sonu in the principal's office of Gandhi Smarak Vidyalaya.

[42]. P.W.1 informant Sushil Kumar Tyagi has admitted in his cross-examination that accused-appellant Dharmendra had suspended him on 04.10.2000. He also suspended Principal Jaswant Singh Tyagi. Accused Dharmendra has admitted in his statement under Section 313 of the Code that being a manager of the school, he had suspended informant Sushil Kumar Tyagi, witness Narendra Kumar and Principal Jaswant Singh and due to enmity, these witnesses are deposing against him. Accused Bijendra also admitted in his statement under Section 313 of the Code that he was also a manager of the school and he suspended the injured and the witnesses mentioned above. P.W.1 Sushil Kumar Tyagi has admitted this fact that Principal Jaswant Singh Tyagi had got constructed six shops in the south street adjoining to the school's office in year 2001. Later on, those shops were demolished by the Development Authority on the complaint of the villagers. Accused-appellant Aman Singh stated in his statement under Section 313 of the Code that he was husband of the then Village Pradhan and on his complaint, the shops constructed by Principal Jaswant Singh were demolished. Accused-appellant Khem Chand has admitted in his statement under Section 313 of the Code that he lived with accused-appellant Aman Singh and he also objected to the construction of shops by Jaswant Singh in the school campus.

[43]. Learned counsel for the appellants contended that accused Dharmendra, Bijendra Singh, Aman Singh and Khem Chand have no motive to commit the offence, rather the informant and injured have motive to make false allegation against them. It is admitted fact that there was rivalry between the Principal Jaswant Singh, informant Sushil Kumar Tyagi and witness Narendra Kumar from one side and management of the school from the other side and this rivalry was continuing. In the occurrence, Rajeev Kumar Tyagi @ Sonu, son of Jaswant Singh died and Jaswant Singh was seriously injured. In such circumstances, it cannot be said that relative of deceased and such seriously injured person would make false allegation against the accused. Needless to say, if offence is proved, the prosecution version cannot be doubted on the ground that it has failed to proved the motive of the accused to commit the offence. In Om Prakash @ Raja v. State of Uttaranchal reported in (2003) 1 SCC 648 Hon'ble Apex Court held as under :

11. As regards the motive for the crime, the High Court on an analysis of the evidence found that it could either be a frustrated attempt to commit robbery or it could be for taking revenge against the master and his family. It is in evidence of PW-1 that the decision to dispense with his services was conveyed to the accused on the previous day because the accused incurred the displeasure of the family on account of his misbehaviour viz., suspected theft and his killing or harming the pet birds. That apart, as stated by the accused in his statement under Section 313 Cr.P.C., he was asked to quit the job for having illicit intimacy with the sister of the co-accused and he was scolded on that account. The accused would have been aggrieved for one or all of these reasons. We are not concerned with the sufficiency or otherwise of the motive which would have prompted the appellant to commit the crime. The correctness of conviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime. ......

[44]. All these points have been discussed by the trial court in detail with reasoning.

[45]. On 12.05.2006, P.W.1 Sushil Kumar Tyagi was examined and cross-examined by counsel for the accused Khem Chand and Aman Singh. The case was adjourned for another day. On 14.06.2006, cross-examination by counsel for the accused Khem Chand, Aman Singh and Dharmendra Kumar was completed and for the rest of the accused, the case was adjourned.

[46]. On 01.12.2006, the cross-examination of Sushil Kumar was continued and he turned hostile. Before 01.12.2006, P.W.1 Sushil Kumar was examined on each and every point of the facts and circumstances of the case. Before he turned hostile, on 21.07.2006, injured and prime witness of this case Jaswant Singh and his body guard were murdered when they were going to the school. From these facts, it appears that after the murder of Jaswant Singh and his body guard on 21.07.2006, due to fear, P.W.1 Sushil Kumar Tyagi turned hostile on 01.12.2006 and prime witness injured Jaswant Kumar could not be examined.

[47]. As injured Jaswant Singh was murdered, so he could not be examined. Later on P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar were examined. Accused Bijendra was manager of the school in the year 2002 and also at the time of the occurrence. P.W.1 Sushil Kumar Tyagi was suspended in the year 2000 by manger accused-appellant Dharmendra Kumar.

[48]. P.W.3 Narendra Kumar was the employee (Assistant Teacher) of Gandhi Smarak Vidyalaya. He admitted this fact that he was prevented by the manager from going to the school from 28.09.2002 till July 2004 and in between, he was transferred to Ghaziabad. He again took charge in the school in July 2004. At that time, Jaswant Singh was the principal of the school. P.W.2 Mukesh Kumar was also relative of injured Jaswant Singh, accordingly, relative of Narendra Kumar. As such, he was also bent upon to secure the interest of P.W.3 Narendra Kumar. Accused Bijendra was in commanding position and it appears that P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar have not supported the prosecution version against accused Bijendra to save Narendra Kumar from harassment of the management.

[49]. In Sat Paul v. Delhi Administration reported in (1976) 1 SCC 727, Hon'ble Apex Court held as under :

52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.

[50]. A similar view was expressed by Hon'ble Apex Court in Bhagwan Singh v. The State of Haryana reported in (1976) 1 SCC 389, in which Honb'le Apex Court observed that merely on the ground of witness turning hostile, his evidence cannot be completely discarded. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.

[51]. In this case, P.W.1 Sushil Kumar Tyagi turned hostile after the death of injured Jaswant Singh and made a statement in his cross-examination that the miscreants who committed the offence had masked their faces. This statement is totally false. As observed above, P.W.1 Sushil Kumar Tyagi, before turning hostile, was cross-examined by counsel for the accused on each and every fact of the case and then he had fully supported the prosecution version. In this regard, he had filed an affidavit before the C.J.M. concerned, supporting the prosecution version. Examination of P.W.1 Sushil Kumar Tyagi commenced on 12.05.2006 and concluded on 06.04.2007. If the examination of P.W.1 Sushil Kumar Tyagi had been completed expeditiously, then the situation of his turning hostile might have not arisen and injured Jaswant Singh might have also been examined as then he would not have been murdered.

[52]. If a witness turns hostile in his cross-examination and the court finds that the prior testimony of that witness is creditworthy and his later testimony being false, the court may pass the order of conviction, relying upon his prior testimony.

[53]. P.W.1 informant Sushil Kumar Tyagi took the injured Jaswant Singh to Sumitra Hospital and P.W.2 Mukesh Kumar took the deceased Rajeev Kumar @ Sonu to District Hospital, Noida. P.W.1 Sushil Kumar admitted in his cross-examination that P.W.2 Mukesh Kumar had met him in Sumitra Hospital, after about half hour of the occurrence. However, P.W.2 Mukesh Kumar admitted in his cross-examination that Sushil Kumar and injured Jaswant Singh had met him in Sumitra Hospital, Noida. P.W.1 Sushil Kumar had stated that he had gone to make a telephonic call with Mukesh, but P.W.2 Mukesh Kumar had stated that Sushil Kumar was not with him when he went to make the call. P.W.1 Sushil Kumar has stated before the court that Rajeev Kumar @ Sonu regularly used to leave his father to school and take him back by scooter. This is an improvement and he has not stated this fact to the I.O. P.W.1 Sushil Kumar has stated that firstly he went to the hospital with injured Jaswant Singh. P.W.3 Narendra Kumar had stated that firstly, deceased Rajeev Kumar @ Sonu was taken to hospital. Here, it must be noted that Narendra Kumar had not taken Rajeev Kumar @ Sonu to the hospital, but he was taken to the hospital by Mukesh Kumar. On the basis of these minor contradictions, the whole prosecution version cannot be discarded.

[54]. In Gangadhar Behera and others v. State of Orissa reported in (2002) 8 SCC 381, Hon'ble Apex Court held that :

Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.

[55]. P.W.1 Sushil Kumar is a distant relative of injured Jaswant Singh. P.W.3 Narendra Kumar is cousin of injured Jaswant Singh. P.W.2 Mukesh Kumar is the brother-in-law ('saala') of injured Jaswant Singh. Learned counsel for the appellants contended that no independent witness has supported the prosecution version. Only on the basis of statement of relative witnesses, the accused-appellants cannot be convicted. In Gangadhar Behera's case (supra), Hon'ble Apex Court held as follows :

.....Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:

"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."

Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p, 209-210 para 14):

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

[56]. In Sardul Singh v. State of Haryana reported in (2002) 8 SCC 372, Hon'ble Apex Court held as under :

There cannot be a prosecution case with a cast-iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt. This Court in Ugar Ahir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] has observed, as to what should be the approach of a court in such circumstances, as follows:

"6. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.

[57]. P.W.1 Sushil Kumar Tyagi turned hostile against the prosecution in favour of accused after the murder of Jaswant Singh, while P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar also turned hostile against the prosecution in favour of accused Bijendra, although they are related to Jaswant Singh and his son Rajeev Kumar Tyagi @ Sonu. Cause of their hostility has already been discussed above.

[58]. Our social system is changing at a rapid pace. In the present social scenario, people refrain from going to police stations and courts due to fear of insult and harassment. Generally, people avoid to become a witness of an incident for the simple reason that deposing against the a culprit involved in a crime would endanger their life. In the present social setup, it is least possible that a third person deposes against the culprit. Hon'ble Apex Court in Sadhu Saran Singh v. State of Uttar Pradesh and Others reported in (2016) 4 SCC 357 held as follows :

29. .....In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

[59]. Learned counsel for the appellants, relying upon the judgment of Hon'ble Apex Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat reported in AIR 1964 SC 1563, contended that no opportunity was provided to the accused to cross-examine P.W.1 Sushil Kumar Tyagi, after cross-examination by the prosecution. In the aforesaid case law, Hon'ble Apex Court held that :

...The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief.

[60]. In the present case, as observed above, before 01.12.2006, witness P.W.1 Sushil Kumar was cross-examined on each and every fact of the case. On 01.12.2006, he turned hostile and stated that some miscreants who had masked their faces, had committed the offence. After that, he was cross-examined by the prosecution. In the cross-examination, no new facts came in his statement. Accordingly, the interest of the accused was not adversely affected due to further non cross-examination of P.W.1 Sushil Kumar by the appellants. Learned counsel for the appellants could not show a single fact enumerated in the cross-examination of P.W.1 Sushil Kumar by prosecution on which cross-examination by appellants was necessary. Moreover, at the time of examination of witness Sushil Kumar, counsel for the accused may have raised this question and asked the trial court to permit him to put question to witnesses. At the stage of appeal, learned counsel cannot raise question that accused had not got the opportunity to cross-examine P.W.1 Sushil Kumar after he turned hostile and cross-examined by prosecution.

[61]. Learned counsel for the appellants relying on the judgment of Hon'ble Apex Court in Ranvir Yadav v. State of Bihar reported in (2009) 6 SCC 595 and Shivaji Sahabrao Bobade and Another v. State of Maharashtra reported in (1973) 2 SCC 793 contended that injured Jaswant Singh was murdered on 21.07.2006. This question has not been put to them under Section 313 of the Code.

[62]. In Ranvir Yadav's case (supra), Honb'le Apex Court observed that the accused must be questioned separately about each material substance which is intended to be used against him.

[63]. In Shivaji Sahabrao Bobade's case (supra), Hon'ble Apex Court held as follows :

It is trite law, nevertheless fundamental that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction.

[64]. Accordingly, if any material circumstance appears in evidence against the accused, such circumstance should be put to the accused under Section 313 of the Code so as to enable him to explain it. It is not necessary to put all the facts and circumstances which came in the cross-examination of a witness to the accused under Section 313 of the Code.

[65]. Murder of Jaswant Singh and his body guard on 21.07.2006 is not evidence or circumstance against the accused. By not putting this fact to the accused under Section 313 of the Code, the interest of the accused does not, in any way, gets affected.

[66]. Relying on copy of Paper No. 156क submitted by accused Rajendra Kumar before the trial court, learned counsel for the appellants contended that parents-teacher meeting was not held on 08.08.2004 as alleged by the prosecution, but was held on 25.07.2008. Accordingly, presence of P.W.1 Sushil Kumar (clerk) Tyagi and P.W.3 Narendra Kumar (assistant teacher) of Gandhi Smarak Vidyalaya is doubtful. We do not agree with the submissions made by learned counsel for the appellants. The attendance register of the teachers of the school is not submitted before the court by the person who was the custodian of the register. This document (attendance register) is not proved, as such, is not admissible in evidence. Only because fact of parents-teacher meeting held on 08.08.2004 was not mentioned in the attendance register, it cannot be said that parents-teacher meeting had not taken place on that date. Even if it is presumed that parents-teacher meeting had not taken place on 08.08.2008, the presence of P.W.1 Sushil Kumar Tyagi (clerk) and P.W.3 Narendra Kumar (assistant teacher) in the office of the principal cannot be doubted. Principal injured Jaswant Singh was present in his office on 08.08.2004. As such, presence of P.W.1 Sushil Kumar Tyagi and P.W.3 Narendra Kumar (staff of the school) is very much natural.

[67]. Relying on the judgment of Hon'ble Apex Court in Shahid Khan v. State of Rajasthan reported in (2016) 4 SCC 96 and Harbeer Singh v. Sheeshpal and others reported in (2016) 16 SCC 418, learned counsel for the appellants contended that the presence of P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar on the spot is doubtful as their statements were recorded with an inordinate delay. In Shahid Khan's case (supra), Hon'ble Apex Court observed that:

..... It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses to the occurrence. .....

[68]. In Harbeer Singh's case (supra), Hon'ble Apex Court held that as under :

16. As regards the incident of murder of the deceased, the prosecution has produced six eyewitnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 CrPC. In the present case, the date of occurrence was 21-12-1993 but the statements of PW 1 and PW 5 were recorded after two days of incident i.e. on 23-12-1993. The evidence of PW 6 was recorded on 26-12-1993 while the evidence of PW 11 was recorded after 10 days of incident i.e. on 31-12-1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the court. [See Ganeshlal v. State of Maharashtra [Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106 : 1993 SCC (Cri) 435] ; Mohd. Khalid v. State of W.B. [Mohd. Khalid v. State of W.B., (2002) 7 SCC 334 : 2002 SCC (Cri) 1734] ;Prithvi v. Mam Raj [Prithvi v. Mam Raj, (2004) 13 SCC 279 : 2005 SCC (Cri) 198] andManu Sharma v. State (NCT of Delhi) [Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385].]

17. However, Ganesh Bhavan Patel v. State of Maharashtra [Ganesh Bhavan Patel v. State of Maharashtra, (1978) 4 SCC 371 : 1979 SCC (Cri) 1] , is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 CrPC, although those witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. (See also Balakrushna Swain v. State of Orissa [Balakrushna Swain v. State of Orissa, (1971) 3 SCC 192 : 1971 SCC (Cri) 313] ; Maruti Rama Naik v. State of Maharashtra [Maruti Rama Naik v. State of Maharashtra, (2003) 10 SCC 670 : 2004 SCC (Cri) 958] and Jagjit Singh v.State of Punjab [Jagjit Singh v. State of Punjab, (2005) 3 SCC 689 : 2005 SCC (Cri) 893].) Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case.

[69]. Accordingly, whether delay would cast any doubt on the prosecution version will depend upon the facts and circumstances of each case. It does not necessarily discredit the testimony of the eye-witnesses.

[70]. In the present case, it is mentioned in the F.I.R. that P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar were present on the spot and I.O. Veer Vikram Singh was favourable to the accused. Accordingly, their statements under Sections 161 of the Code were not recorded promptly.

[71]. Learned counsel for the appellants further contended that the I.O. has not procured the audit report from the school for investigation, which was material to prove the motive of the accused for committing the offence. Audit report was not very much material, even so, the I.O. ought to have taken it into his possession. This shows that the I.O. was negligent in performing his duty. But the whole prosecution version cannot be discarded merely due to the negligence of the I.O.

[72]. In State of U.P. v. Hari Mohan Singh and others reported in (2000) 8 SCC 598, Hon'ble Apex Court held as under :

.....However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. .....

[73]. In this case, not only the investigation is defective, but also the I.O. Veer Vikram Singh has favoured the accused. Accordingly, it cannot be made a ground for acquittal of the accused. Occurrence has taken place in broad daylight. F.I.R. has been lodged promptly. P.W.1 Sushil Kumar Tyagi, P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar have proved that accused-appellants Khem Chand, Aman Singh and Dharmendra Kumar with three other accused having 'tamancha' (country-made pistol) entered into the office of Principal Jaswant Singh and fired on the principal and his son Rajeev Kumar Tyagi @ Sonu, due to which they sustained injury. Rajeev Kumar @ Sonu succumbed to his injuries. Their statement is corroborated by medical evidence and first information report.

[74]. P.W.1 Sushil Kumar had not stated before court that accused-appellant Islam @ Islamuddin was also involved in commission of the crime. P.W.2 Mukesh Kumar has admitted in his cross-examination before the court on 26.04.2007 that accused-appellant Islam @ Islamuddin was not known to him before the previous date of hearing of the case. He only came to know about Islam @ Islamuddin on the previous day of hearing. P.W.3 Narendra Kumar has admitted in his cross-examination that he has narrated the name of Islam in his affidavit submitted before the C.J.M. for the first time. No one has narrated to him the name of Islam @ Islamuddin. He came to know the name of Islam @ Islamuddin while conversing with a person, but he could not state the name of the person who told him name of Islam @ Islamuddin. He further stated that sometimes he was called as Islam and sometimes as Iqbal. From the statement of both these two witnesses, it is evident that accused-appellant Islam @ Islamuddin was not known to them.

[75]. P.W.15 S.I. S.K. Sharma had submitted charge-sheet against accused Islam @ Islamuddin. From the perusal of statement of S.I. S.K. Sharma, it appears that accused-appellant Islam @ Islamuddin has been made accused in the present case on the basis of statement of witness Mukesh Kumar Tyagi before the I.O. on 28.11.2006. Statement of Mukesh Kumar Tyagi under Section 161 of the Code was previously recorded on 14.08.2004 in which name of accused-appellant Islam @ Islamuddin was not mentioned. In such circumstances, it would not be appropriate to convict the accused-appellant Islam @ Islamuddin on the basis of statement of P.W.2 Mukesh Kumar and P.W.3 Narendra Kumar for the first time before the court. As such, accused-appellant Islam @ Islamuddin deserves to be given benefit of doubt.

[76]. Resultantly,

[i]. Criminal Appeal Nos. 4345 of 2009 (Khem Chand v. State of U.P.), 4343 of 2009 (Aman Singh v. State of U.P.) and 5512 of 2009 (Dharmendra Kumar v. State of U.P.) fail and the same stand dismissed. Conviction and sentence of appellants - Khem Chand, Aman Singh and Dharmendra Kumar passed by Additional Sessions Judge, Court No. 12, Gautam Budh Nagar are hereby upheld.

[ii]. Criminal Appeal No. 4344 of 2009 (Islam @ Islamuddin v. State of U.P.) succeeds and the same stands allowed. Conviction and sentence of appellant - Islam @ Islamuddin passed by Additional Sessions Judge, Court No. 12, Gautam Budh Nagar are hereby set aside and he is acquitted.

[77]. Appellants - Khem Chand, Aman Singh and Dharmendra Kumar are in jail. They shall remain in custody to serve out the remaining part of their respective sentences awarded to them.

[78]. Appellant - Islam @ Islamuddin is also in jail. He shall be set free forthwith, if not detained in any other case.

[79]. Let a copy of this order be send to Director General of Police, Uttar Pradesh for his information and to get conducted an enquiry about the role and conduct of the then S.I. Veer Vikram Singh and Constable Madan Muari and to proceed against them as per enquiry report expeditiously, preferably within six months. The D.G.P., Uttar Pradesh is directed to apprise this Court of the action taken by him in this regard.

[80]. Certify a copy of this order to the trial court for the purposes of intimation and necessary compliance. The lower court's record is directed to be remitted back to the court concerned.

Order Date :- 7.9.2018

I. Batabyal

[U.C. Tripathi, J.] [R.S.R. (Maurya), J.]

********************