Gautam Chaturvedi vs State Of U.P.
2019 Latest Caselaw 330 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 39
 

 
Case :- JAIL APPEAL No. - 6097 of 2011 
 

 
Appellant :- Gautam Chaturvedi 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- From Jail, Arvind Kumar Singh, Kamlesh Kumar, S.N. Tiwari, Sujan Singh 
 
Counsel for Respondent :- A. G. A. 
 

 
Hon'ble B. Amit Sthalekar,J.

Hon'ble J.J. Munir,J.

(Delivered by Hon'ble J.J. Munir, J.)

1. This appeal is directed against the judgment and order of Sri R.S. Sachan, the then Additional Sessions Judge, Court no.10, Agra, dated 09.06.2011 passed in Sessions Trial no.833 of 2007, convicting the appellant of an offence punishable under Section 302 IPC, and, sentencing him to suffer rigorous imprisonment for life, besides being ordered to pay a fine of Rs.10,000/-. In the event of default, the appellant has been ordered to suffer one year's imprisonment.

2. The facts giving rise to the present appeal are that a written report scribed by one Suresh Singh dated 18.06.2007 was lodged by the informant, Vijay Gupta with the Police Station Chhatta, District Agra with allegations that his brother, Ajay Kumar Gupta was a resident of 2/123, Singi Gali, P.S. Chhatta, Agra for the 30 years past. His brother, Ajay Gupta had for his neighbour one Gautam Chaturvedi son of Sri Arjun Lal Chaturvedi, who lived in a tenanted premises of Sri Manohar Lal Dixit. Gautam Chaturvedi was an electrician. The informant's brother and Gautam Chaturvedi, sometime ante-dating the occurrence, had a quarrel over the latter's service charges towards some electrical fitting work, he had done for the informant's brother. This issue had led Gautam Chaturvedi to harbour animosity against the informant's brother.

3. The informant further reported that on 18.06.2007, he, his brother, Ajay Gupta and nephew, Amit Gupta, were talking amongst themselves, standing outside their house when the informant's brother moved to go away. He had reached the house of a neighbour one Rajendra son of Babu Lal and was infront of those premises in the afternoon hours at about 1 O' clock when the appellant, Gautam Chaturvedi alighted at the scene. Gautam appeared as if he were intoxicated, and engaged in a verbal dual with his brother, the deceased. And, then Gautam stabbed his brother, with an intention to kill, delivering a knife blow to his chest. His brother collapsed to the ground. It is alleged that the informant and his nephew saw the occurrence, whereas Gautam Chaturvedi, taking advantage of the situation, made good his escape. It is reported in the last lap of the FIR that the informant rushed his brother, Ajay Kumar Gupta to the medical aid of S.N. Medical College, where the doctors pronounced him brought dead. It is also mentioned in the FIR that the dead body was lying at the S.N. Medical College; the informant concluded the FIR with a request to register the same, and proceed in accordance with law.

4. On the basis of this written report, Case Crime No.168 of 2007, under Section 302 IPC was registered at P.S. Chhatta, District Agra, against the appellant, Gautam Chaturvedi. In this regard, an entry was made in G.D. no.30 at 10.15 on 18.06.2007 by PW-3, Head Constable Bijendra Singh. The then S.H.O., D.P. Arya, took up investigation of the case, inspected the place of occurrence, and drew up a site plan with the assistance of the informant. On the same day, the Investigating Officer collected samples of blood stained and plain earth from the spot, drawing up separate memoranda for the same. The appellant was arrested the same day, and his statement recorded. On his identification, the knife (weapon used in the crime) was recovered, and a recovery memo was drawn up by C.P. Mukhtyar Singh. He addressed a report to the Chief Medical Officer requiring him to do an autopsy, a report to the Reserve Inspector, besides drawing up police form no.13, a sketch of the corpse (photo lash), and, sent the dead body, wrapped, secured and sealed in a cloth for autopsy, entrusting it to C.P. Ramveer Singh and C.P. 603 Mukim Kumar.

5. PW-5, Dr. K.P. Garg, who conducted autopsy on 18.06.2007, found the following ante-mortem injury on the body of the deceased:

Incised wound chest cavity deep on left side chest size 3x2cm. 2Cm lat from left nipple.

The Doctor opined that 'Death is due to shock & haemorrhage as a result of A.M.I.

6. The Investigating Officer, D.P. Arya, PW-6, after completion of investigation submitted a charge sheet against the appellant, Gautam Chaturvedi on 28.06.2007 for an offence punishable under Section 304 IPC.

7. The case was committed to the sessions by the learned Chief Judicial Magistrate, Agra vide order dated 08.08.2007. After committal of the case to the Court of Session and hearing the learned counsel for the parties, a charge under Section 302 IPC was framed against the appellant, Gautam Chaturvedi on 03.10.2007. The appellant pleaded not guilty and claimed to be tried.

8. In order to prove their case, the prosecution have examined the following witnesses:

(1) PW-1, Vijay Kumar Gupta (brother of the deceased and informant of the case, a witness of fact);

(2) PW-2, Ramesh (a witness of inquest);

(3) PW-3, Head Constable Vijendra Singh (who registered the case, drew up a chik and made requisite G.D. Entry in the Station Diary. He is a formal witness);

(4) PW-4, Amit Kumar Gupta (another witness of fact and nephew of the deceased);

(5) PW-5, Dr. K.P. Garg (the doctor who conducted postmortem examination of the deceased's corpse);

(6) PW-6, Inspector D.P. Arya (Investigating Officer of the case); and,

(7) PW-7, Constable Mukhtyar Singh (a witness of recovery).

9. The prosecution have relied on the following documents:

Sr. No.

Exhibit No.

Exhibited documents with brief particulars

Ex. Ka-1

Written report lodged with the Police Station Chhatta by PW-1, Vijay Kumar Gupta, relating to the occurrence.

Ex. Ka-2

Memo of identification and recovery of the knife used in the crime.

Ex. Ka-3

Memo of recovery of blood stained and plain earth

Ex. Ka-4/ 5

Opinions of Panchas of inquest dated 18.06.2007

Ex. Ka-5A

Chik FIR dated 18.06.2007

Ex. Ka-6

Carbon copy of the G.D. Entry no.30 relating to Case Crime no.168 of 2007, under Section 302 IPC, dated 18.06.07.

Ex. Ka-6A

Post-mortem report of the deceased dated 18.06.2007

Ex. Ka-7

Site plan of the place of occurrence, dated 18.06.2007

Ex. Ka-8

Site plan of the place from where the weapon used in the crime was recovered, dated 21.06.2007

Ex. Ka-9

Charge sheet submitted by I.O. D.P. Arya, dated 28.06.2007

Ex. Ka-10

Inquest report drawn up by I.O. D.P. Arya, dated 18.06.2007

Ex. Ka-11

Police form no.13, dated 18.06.2007

Ex. Ka-12

Sketch of the corpse (Photo Lash), dated 18.06.2007

Ex. Ka-13

Report dated 18.06.20017 sent to C.M.O., S.N. Hospital, Agra requisitioning autopsy

Ex. Ka-14

Carbon copy of GD Report no.44, dated 18.06.2007, Time 20.30 regarding arrest of appellant Gautam Chaturvedi

Ex. Ka-15

Carbon copy of GD Report no.46, dated 18.06.2007 Time 20.50, entry in GD with regard to confessional statement of appellant Gautam Chaturvedi

Ex. Ka-16

Carbon copy of GD Report no.52, dated 18.06.2007 Time 22.30 entry regarding recovery of knife (Chaku) used in the crime.

10. The appellant, Gautam Chaturvedi, in his statement under Section 313 Cr.P.C. has denied the incriminating circumstances appearing in evidence against him, but did not enter any defence and stated that he has been falsely implicated.

11. The learned Trial Judge vide his judgment and order dated 09.06.2011 proceeded to convict the appellant, sentencing him as hereinbefore detailed. Aggrieved the present appeal has been filed.

12. Heard Sri Arvind Kumar Singh, learned Amicus Curiae for the appellant and the learned A.G.A. appearing on behalf of the State.

13. The prosecution have sought to prove the fact in issue that on 18.06.2007 at 1'O clock in the day hours, the appellant stabbed Ajay Gupta to death, opposite house no.2/123, Singi Gali, within the local limits of Police Station Chhatta, District Agra, by examining two witnesses of fact. They are: Vijay Kumar Gupta, PW-1 and Amit Kumar Gupta, PW-4. They have been cited as eye-witnesses to the occurrence. In addition, there is the evidence of recovery of the weapon of offence, a blood stained knife, said to be recovered by the police, at the pointing out of the appellant, under a mattress in his house.

14. The prosecution have depended the most on the evidence of PW-1, Vijay Kumar Gupta, brother of the deceased. He is the first informant of the case. In his examination-in-chief, he has supported the prosecution case. The other witness of fact, Amit Kumar Gupta, PW-4, also an eye-witness, has not stood by the prosecution. He has been declared hostile, and cross-examined, both by the prosecution as well as the defence. In order to do a better marshalling of facts and evidence, it would be appropriate to analyze the same with reference to relevant facts; largely those on which learned counsel for the parties have addressed us.

Place and manner of occurrence

15. There is not much quarrel about the date and time of the incident. It is June, the 18th, 2007 at 1 p.m. The place of occurrence claimed by the prosecution is in front of House no.2/123, Singhi Gali (house of the first informant), P.S. Chhatta, District Agra. The evidence about the manner of occurrence would be adverted to a little later. The earliest account about the place of occurrence is to be found in the FIR. It is mentioned in the FIR that the informant along with his brother, Ajay Gupta (the deceased), and his nephew Amit Gupta were all talking amongst themselves standing in front of the informant's house. As the informant's brother, parted company and had moved away, reaching in front of the house of a neighbour, Rajendra son of Babu Lal Gupta, bearing premises no.2/32, the appellant arrived there, and assaulted him, after a brief exchange of unpleasant words.

16. By contrast, in his dock evidence, the first informant deposing as PW-1, has said that the two brothers, that is to say, the witness PW-1 and the deceased had sat together in their ancestral house, bearing premises no.2/123, and had a conversation. Both of them came down to the Gali still talking amongst themselves, when their nephew Amit Gupta arrived. The deceased's mobile phone was kept in the house, which he was proceeding back to fetch. He had just reached their house (house no.2/123), when the appellant arrived, and shorn of details not relevant here, assaulted him with a knife.

17. The evidence on the point, apart from a reference to the site plan, can be best appreciated by referring to it, including the FIR (relevant part of both) as expressed in Hindi vernacular. The relevant part of the FIR says:

मैं एवं मेरा भाई अजय गुप्ता तथा भतीजा अमित गुप्ता एस/ओ अशोक कुमार गुप्ता आर/ओ 2/109 सिंगी गली थाना छत्ता आगरा आपस में बाते कर रहे थे हम सभी अपने घर के सामने खड़े थे, तभी मेरा भाई वहां से चलने लगा तथा पड़ोसी राजेन्द्र पुत्र बाबू लाल गुप्ता आर/ओ 2/32 सिंगी गली के सामने पहुंचा तभी दोपहर लगभग 1 बजे गौतम चतुर्वेदी वहां आया और नशे जैसी हालत में मेरे भाई कहा सुनी करने लगा और जान से मारने की नीयत से मेरे भाई के सीने चाकू मार दिया।

18. In contrast to this account about the place of occurrence, PW-1, in his testimony (examination-in-chief) in the witness box has said thus:

घटना वाले दिन मैं साढ़े बारह बजे दिन में अपने भाई के यहां सिंगी गली मकान नं0 2/123 पर पहुंचा वहां बैठकर घर पर हमलोग बात कर रहे थे। फिर बात करते करते हम लोग गली में नीचे आ गये। जब बात कर रहे थे तभी मेरा भतीजा अमित गुप्ता वहां आ गया मेरे भाई का मोबाइल ऊपर घर पर रखा हुआ था। वह मोबाइल लेने घर जा रहा था। नीचे घर तक ही पहुंचा था इतनी देर में गौतम चतुर्वेदी वहां आ गये। वहां पर मेरे भाई व गौतम चतुर्वेदी के बीच थोड़ी सी बातचीत हुई गौतम चतुर्वेदी (Electrician) इलेक्ट्रीशियन का काम करते थे। बात करते करते ही गौतम चतुर्वेदी ने मेरे भाई अजय कुमार गुप्ता के चाकू मार दिया।

Again, further down in his cross-examination, PW-1 has said:

जब अजय मुझसे बात करके मोबाइल लेने जा रहा था तब गौतम अजय के घर के नीचे आया था। गौतम व अजय मे क्या बात हुई थी मैं दूर होने के कारण सुन नही सका था। बाते बीच की आवाज में हो रही थी न चीखकर हो रही थी और न धीरे धीरे हो रही थी। अजय और गौतम के मध्य 25-30 सेकेण्ड बात हुई थी। मैने यह साक्ष्य दी है कि मेरे भाई का मोबाइल ऊपर रह गया था यह बात मैने एफ0आई0आर0 में नही लिखाई। यह बात मैने दरोगा जी को अपने ब्यानो में बताई कि नही मुझे ध्यान नहीं पढ़कर सुनाया गया तो उसमे यह बात नहीं लिखी है। यह बयान भी मैने मुख्य परीक्षा में पहली बार न्यायालय में दिया है।

(Emphasis by Court)

Still again, in his cross-examination held on 05.06.2009, he has deposed thus:

मैंने मुख्य परीक्षा में यह साक्ष्य दी है कि मेरे भाई का मोबाइल घर पर रह गया था यह बात मैने न तो एफ0आई0आर0 में लिखाई न दरोगा जी को बताई मैने यह भी साक्ष्य दी है कि वह मोबाइल लेने घर जा रहा था यह बात भी न तो मैने एफ0आई0आर0 में लिखाई और न दरोगा जी को बताई यह बात प्रथम बार मैंने न्यायालय से बताई है। मैने एफ0आई0आर0 में अजय को अपने पास ले जाने का कोई बयान अंकित नहीं किया है। बल्कि एफ0आई0आर0 में यह लिखाया है कि वह राजेन्द्र गुप्ता के मकान के सामने पहुंचा था।

19. A perusal of the evidence of PW-1, clearly indicates that this witness and the deceased, had completed their day's agenda of whatever they wanted to talk about sitting inside their ancestral house, bearing premises no.2/123, and the two had come down to the Gali below, with the deceased preparing to leave. At that point of time according to the dock evidence, the deceased who appears to have left his cellphone behind, upstairs at home, went back down the lane from the point the two brothers had reached, in order to fetch his cellphone. He had reached the entrance to the house (no.2/123), where the appellant arrived. There was some conversation between the two, which the witness heard from the place he was standing, and shortly thereafter, the appellant stabbed his brother, the deceased. According to this account, the place of occurrence would be right in front of the ancestral house of the deceased and the appellant, bearing no.2/123, Singhi Gali. This account about the place of occurrence, is affirmed by this witness in his cross-examination most explicitly where he says that "when Ajay (the deceased) after talking to me (PW-1) was going to fetch his mobile, Gautam (the appellant) had arrived at the ground floor (entrance) of Ajay's house (no.2/123)" (translated into English from Hindi vernacular).

20. A perusal of the FIR on the other hand, clearly shows that the informant, PW-1 has said that he, his brother, Ajay and his nephew, Amit, were all standing in the lane outside their house (no.2/123) talking amongst themselves when Ajay, the deceased, in order to head out to the destination he had to go to, moved away, and had travelled some distance reaching a point on the road in front of the house of Rajendra (bearing no.2/32, Singhi Gali), where the appellant arrived. The two had a sharp exchange of words, followed by the fatal assault by the appellant. The FIR was registered on 18.06.2007, and learned Amicus Curiae has invited the attention of the Court to the site plan drawn up promptly by the Investigating Officer on 18.06.2007, where the place of occurrence shown is denoted by the letter 'D', that is located in front of the house of Rajendra, bearing no. 2/32. The said place is not located in front of the deceased's house bearing no.2/123. It is after a left turn to the southern side proceeding from the deceased's/ PW-1's ancestral house, last mentioned. The two locations, the one mentioned by PW-1 in the FIR, and that in his dock evidence may be a short distance away, or with some substantial distance between them, but the two are so decidedly different, that one could not be interchangeably referred for the same location, even by a man of less than average mental faculty.

21. This discrepant version about the place of occurrence, in the submission of the learned A.G.A. is not at all relevant, inasmuch as, the location pegged at house no.2/32, in front of that house belonging to Rajendra has figured in the FIR alone, which is not substantive evidence. It is further urged that this discrepancy in the place of occurrence mentioned in the FIR and the dock evidence of PW-1, has not at all been put to this witness in his cross-examination. It is submitted that the witness has not been confronted about it with his version in the FIR. No doubt, the FIR is not a substantive piece of evidence, but its importance as the earliest account of the occurrence, cannot be trifled. An FIR account has salutary importance as to the time and place of occurrence, particularly so, in a case where there is an irreconcilable difference on those relevant facts between the FIR or even statements made to the police under Section 161 Cr.P.C., and the dock evidence of the witness. The provisions of Section 9 of the Indian Evidence Act, makes the FIR relevant about the place of occurrence.

22. No doubt, the FIR not being a substantive evidence, the informant has to be confronted with its contents while he testifies in the witness box, ideally with precision regarding the place of occurrence given out by him in the FIR being different from his dock evidence. Nevertheless, it would be good confrontation with his previous statement as to the place of occurrence mentioned by him in the FIR, where the relevant part of the FIR version is put to him, or he is confronted with it as he deposes.

23. In the present case, not just the FIR but the statement of the informant, PW-1, in the relevant part of it, that relates to the place of occurrence and locates it differently, were adequately brought to his notice during his cross-examination, with no explanation to reconcile the differential account forthcoming. To pinpoint the varying account, that was brought to the notice of this witness during his cross-examination, we would refer to that part of his cross-examination, extracted hereinabove where it is said, that the witness had said in his evidence that his brother (the deceased) had left his mobile behind at home upstairs, and that he did not mention this fact in the FIR. He further said that he could not recollect whether he had disclosed the said facts to the police in his statement made to them (statement under Section 161 Cr.P.C.). It is recorded in this part of his cross-examination that the relevant statement made to the police, was read over to the witness, but it bears a remark there that the said fact (about the deceased going back home to fetch his phone left behind) is not mentioned there. It is further said by this witness in this part of his cross-examination, that this fact too (about the deceased going back home to fetch his phone left behind), he had disclosed for a first before the Court in his examination-in-chief. This part of the cross-examination, extracted verbatim hereinabove (in Hindi vernacular) bears emphasis from us.

24. Thus, in our opinion, it can be safely said that the FIR that carries an account of the occurrence which fixes the place of occurrence different from that mentioned in the dock evidence of PW-1, has been sufficiently brought to his notice, and also acknowledged by him, so as to entitle us to rest our conclusion about the place of occurrence based on the differential account in the FIR and the testimony of the witness in Court. We find from the account of the occurrence in the FIR and that in the testimony of PW-1, that the place of occurrence is distinct and different. According to the FIR, it would be in front of Rajendra's house, bearing house no.2/32, whereas according to the testimony in Court, it would be at the entrance of the deceased's house, also the ancestral home of the witness and the deceased, bearing house no.2/123. The two may not be far away, but from all evidence on record, there is no way to conclude that the two places of occurrence, may be one and the same, or an interchangeable description about the same place.

25. This conclusion of ours is also fortified by a perusal of the site plan, Ex. Ka-6. The place of occurrence denoted by letter 'D' which is indicated at the turn of the road towards south in front of the house of Rajendra (premises no.2/32) corresponds to the FIR account, but in no way with the place of occurrence mentioned in the testimony of PW-1 in the witness box, that fixes it at the entrance of the deceased's house, bearing premises no.2/123. The place denoted by letter 'D' in the site plan in no way answers the description of the place of occurrence mentioned in the testimony of PW-1. It must be remarked here that the place of occurrence is inextricably a part of the manner of occurrence, which is generically different in the FIR and testimony of this witness in Court. This aspect would be dilated upon, shortly. But for a fact, this Court finds that the place of occurrence are different as mentioned in the FIR, and the dock evidence of PW-1, the first informant.

26. Now, whether a discrepant location of the place of occurrence as mentioned in the FIR, or the statement under Section 161 Cr.P.C. on one hand, and that in the testimony of the informant at the trial can lead to the inference that the prosecution have not been able to establish the place of occurrence, requires some examination of the law. An inference about non-establishment of the place of occurrence by the prosecution was drawn by the Supreme Court in Syed Ibrahim vs. State of Andhra Pradesh1 though on the foot a varying account of a far higher degree. The place was differently described at far away locations in the case before their Lordships, that was differently mentioned in the examination-in-chief, in his cross-examination (giving two different locations there) and in the FIR, where a fourth location was given. Nevertheless, their Lordships took into consideration the varying description of the place of occurrence in the FIR also, though with a remark that the FIR is not substantive evidence but can be used to test the veracity of the witness. In that case, the witness had accepted that what was said in the FIR was correct. In the present case, as analyzed in some detail hereinabove, the witness was confronted with the FIR about the fact that he did not say in the FIR that his brother had left back his mobile at home that he went to fetch back, to which he said that he had not mentioned the said fact in the FIR. He also acknowledged that he had not mentioned this fact in his statement to the police after looking into that statement. This varying account, as noticed above, has brought about a material change in the place of occurrence, may be a short distance away, but a definite change about it in the dock evidence of PW-1. We have also examined the site plan duly proved by the Investigating Officer, PW-6, Ex. Ka-7, where the place of occurrence corresponds to what is said in the FIR, but in no way consistent with the evidence in the witness box. Read together with the fact that PW-1 has not at all been able to explain this inconsistency in his cross-examination, we are of opinion that the prosecution have not established the place of occurrence. Failure to establish the place of occurrence, vitiates the prosecution case.

27. Dovetailed with the question of prosecution establishing the place of occurrence, almost on the same evidence is the fact of manner of occurrence. We may not repeat ourselves with a wholesome reference to the FIR version about the occurrence and the evidence of PW1, the first informant, in the witness box, but a reference to all that evidence and the account about the manner of occurrence in the FIR, shows that the two versions are essentially different and irreconcilable. The FIR says essentially that the deceased was stabbed when PW-1, their nephew, PW-4, Amit Gupta and the deceased were talking amongst themselves standing in the lane outside their house, and the deceased parted company to leave for some place, he had to go to. He had reached a point in front of the house of Rajendra, bearing premises no.2/32, where the appellant arrived in an inebriated condition. After a sharp exchange of words between the appellant and the deceased, the appellant stabbed him in the witnesses' presence.

28. By contrast in his dock evidence, PW-1 says that he and the deceased were talking amongst themselves sitting back at their home, 2/123, Singhi Gali. The two came out of their house and walked down the lane, still talking when PW-4, their nephew, Amit Gupta arrived. There is no mention in the dock evidence of this witness that the deceased intended to go somewhere, and for the purpose parted company with PW-1 and PW-4. It is also not said he was walking away alone, and stabbed in front of the house of Rajendra, as the earliest account of the occurrence in the FIR goes. Rather, it is said that he had left his mobile back home, and went to fetch it. The appellant arrived at the entrance to the deceased's home, premises no.2/123, where after some exchange of words, the appellant stabbed the deceased. This account of the occurrence in the evidence of PW-1, is so incompatible with the FIR version, of which this witness is the author, that the two cannot stand together in our considered opinion.

29. We, therefore, hold that the prosecution have not been able to firmly establish the place and the manner of occurrence.

Presence of eye-witnesses at the time and place of occurrence

30. Sri Arvind Kumar Singh, learned Amicus Curiae has vehemently urged that the two witnesses of fact, Vijay Gupta, PW-1 and Amit Kumar Gupta, PW-4, did not witness the occurrence. Both of them reached the place of occurrence after the event. They have named the appellant as the offender on the basis of hearsay. By the time these witnesses reached the place of occurrence, the deceased had been stabbed by the offender. He was lying in a pool of blood. Irrespective of the fact whether he was conscious or not, there is no case, much less evidence about the deceased revealing his assailant's name to these witnesses who are his blood relatives, in those moments when life was ebbing out. He was declared brought dead by Doctors at the Hospital, where he was rushed to from the scene of occurrence.

31. The learned Amicus Curiae has been at pains to take us through all evidence that has bearing on the fact of presence of the two eye witnesses, at the time and place of occurrence. He has reinvited our attention to that part of the contents of the FIR that we have extracted in the earlier part of this judgment, and where it is said in clear words that the appellant arrived in front of the house of a neighbour Rajendra, where the deceased had reached leaving home for some destination. The appellant appeared to be inebriated. He had a sharp exchange of words with the deceased and stabbed him in the presence of PW-1 and PW-4. It is pointed out that in his examination-in-chief PW-1 has remained unmoved about his stand that the appellant stabbed the deceased in the presence of PW-1 and PW-4. This part of the testimony of PW-1 in the witness box has also been quoted verbatim by us, in the earlier part of this judgment. Learned Amicus Curiae, however, submits that in the cross-examination this witness has clearly acknowledged facts that go to show that he reached the place of occurrence, after the crime. There is then a clear admission according to the learned Amicus Curiae by this witness that he reached there after the occurrence, on receiving information about it.

32. In this connection, we have gone through the relevant parts of rather lengthy cross-examination of PW-1. We consider it expedient to quote verbatim (in Hindi vernacular) the most relevant portions of this witness's cross-examination:

सिंगी गली मकान में मेरा भी हिस्सा था। मैं अपना घर छोड़कर मारुती स्टेट इसलिये चला गया क्योंकि मेरा व्यापार मारुति स्टेट में था और गली का माहौल भी खराब था। यह कहना गलत है कि मैं वेलन पयवारी से एक लड़की को भगाकर ले गया हूँ। बल्कि उससे मैने उसके परिवारी जनो की सहमति से शादी की थी। मेरे ससुर का नाम रामबाबू शर्मा जो मैनागेट पयवारी मे रहते है। मकान नं0 मुझे नही मालूम है। मेरे साले का नाम कमल शर्मा है। उस समय मेरे पास मोबाइल नही था जब मैने शादी की थी इसलिये अपने दोस्तो को नम्बर देने का प्रश्न नही उठता है। यह मोबाइल मेरे पास पिछले आठ नौ महीने से है। इससे पहले मेरे पास मोबाइल फोन था। स्वयं कहा कि पिछला मोबाइल नम्बर अभी चालू है। और यह घर पर रहता है। गवाह से उनके दोनो मोबाइल का नम्बर पूछा गया उसने नम्बर बताने से इन्कार किया। आज खुद कहा कि मोबाइल घर पर रहता है। यदि कोई फोन आयेगा तो मैं उसको अटेण्ड नहीं कर पाऊँगा। यह कहना गलत है कि मैं घटनास्थल पर नही था। यह कहना गलत है कि मेरे मोहल्ले वालों ने मेरे मोबाइल पर फोन किया हो और मैं घटनास्थल पर दो घंटे बाद अपने भतीजे के साथ पहुंचा हूँ और यह कहना भी गलत है कि इसीलिये मैं मोबाइल नम्बर नहीं बता रहा कि उसकी काल डिटेल प्राप्त की जा सके। यह कहना गलत है कि मैं घटनास्थल पर अपनी उपस्थिति गलत बता रहा हूँ।

Again, in the next lap of his cross-examination continuing on the same day, he has testified thus:

तहरीर मे मैने सात साल से मारुति स्टेट मे रहने के बावजूद वहां का पता नहीं लिखाया क्योंकि मैने चार मकान बदले थे और स्थाई पता नहीं था। सबसे पहले मैं रमेश चन्द जैन 18 बसला बुडो स्टेट में लगभग एक साल रहा था। उसके बाद विनय नगर मारुति स्टेट में चाहर साहब के मकान में रहा जिनका नाम मुझे नहीं मालूम। तीसरा मकान 58 श्याम नगर मारुति स्टेट आशुतोष शर्मा के मकान मे लगभग एक साल रहा चौथा मकान 8 मारुति स्टेट फेस-2 में चार साल रहा जो हरीओम तिवारी का था। यह कहना गलत है कि मैं जिन मकानों में रहा वह मेरे बनाये हुये हो और उसे मैने बेचा हो। आई0ओ0 ने उपरोक्त बाते उन्होने पूछा नही था इसलिये नहीं बताया था। मैने अपनी ओर से दरोगा जी को नहीं बताया था यह कहना गलत है कि मेरे द्वारा उपरोक्त सभी बाते इसलिये न बताये गये हो क्योंकि मैं अपने उपस्थिति सिंगी गली में दिखाना चाहता हूँ। यह कहना गलत है कि मैने ये बाते अपनी एफ0आई0आर0 में भी इसीलिये नहीं लिखाये चूँकि मैं घटनास्थल पर उपस्थित दिखाना चाहता हूँ। स्वयं कहा कि मैने स्थाई पता लिखाया था।

33. On an adjourned day of cross-examination, that is to say, on 21.11.2008, the witness has said:

यह बात सही है कि मैने अजय के घर साढ़े बारह बजे पहुंचने वाली बात पहली बार कोर्ट में बताई थी इसलिये ही यह बात न तो एफ0आई0आर0 में लिखी और न ही विवेचक को बताई थी।

34. On a further day of resumed cross-examination held on 25.07.2009, the witness deposed:

मेरी प्रथम सूचना रिपोर्ट सुरेश सिंह पुत्र राजेन्द्र सिंह ने लिखी थी। सुरेश सिंह को मैं पहले से जानता हूँ यह मेरे पड़ोस मे रहता है। घटना वाले दिन सुरेश सिंह शुरू से मेरे साथ था वह मेरे साथ घर से ही आया था। मुझे ध्यान नहीं कि सबसे पहले सूचना मुझे किसने दी थी। सिंगी गली में मैं कभी कभी जाता हूँ। मेरा सारा कारोबार बोदला क्षेत्र में है वही मैं रहता हूँ वहां से सिंगी गली 10-12 किमी0 दूर है घटनास्थल पर बस्ती का कौन कौन आदमी मौजूद था मुझे नहीं पता। जब मैं घटनास्थल पर पहुंचा तो अजय मृत नहीं था घायल था। मेरे व उसके बीच कोई बातचीत नहीं हुई थी।

35. The cross-examination of this witness on 25.07.2009 shows that he has acknowledged the presence of one Suresh Singh, a neighbour of his at his current place of residence, who was with him through out the day of occurrence. He is also acknowledged to be the scribe of the FIR. It is mentioned in this part of the witness's cross-examination that he did not remember who gave him information first. The information obviously bears reference to the occurrence, that had already happened. He has further said that he would go to Singhi Gali, sometimes. He has also said that his business is located in Bodla, which is a locality at a distance of 10 - 12 kilometres from Singhi Gali, the place of occurrence. He has also said that he lives at Bodla, as well. In a most eloquent admission of his absence at the time of occurrence, he said that when he reached the place of occurrence, Ajay (the deceased) was not dead, but injured. He has added that there was no communication between the two. The last part of the cross-examination noticed above, leaves us in no manner of doubt that there was no communication between the deceased and this witness, where the deceased might have disclosed the identity of the assailant.

36. The testimony of PW-1 in his cross-examination dated 25.07.2009 quoted supra would lead us straight away to conclude that all that this witness has said about being an eye witness to the crime is utter falsehood. It further leads us to the conclusion that PW-1 and his nephew, PW-4, also the nephew of the deceased, arrived at the place of occurrence upon being informed of the incident by those who saw it, neighbours, bystanders or others. PW-4, Amit Kumar Gupta in his evidence claims to have reached the place of occurrence earlier than PW-1. We have also carefully perused the impugned judgment of conviction passed by the learned Sessions Judge. Since the learned Trial Judge has unhesitatingly accepted the evidence of PW-1 about everything it says, discarded the exculpatory part of the evidence of PW-4, but approved the inculpatory part as corroborative vindication of what PW-1 has said, while holding PW-4 a discredited witness, we have been constrained to look into the matter further.

37. Before we proceed any further to dwell upon the learned Trial Judge's view about the evidence of PW-1 and PW-4, and his conclusions based on it, we make it bold to say here that the learned Sessions Judge in accepting the testimony of PW-1 has glossed over without the slightest reference, the concluding part of the cross-examination of PW-1, recorded on 25.07.2009 about which we have said earlier in this judgment that PW-1, by his admission, reached the place of occurrence post event and is not an eye witness at all. We are sure that if that part of the cross-examination of PW-1 were looked into by the learned Trial Judge, his conclusions would have been very different.

38. The learned Trial Judge after accepting the evidence of PW-1 has drawn support from certain parts of the evidence of PW-4, where certain relevant facts have been mentioned and wherefrom inculpatory inferences have been drawn. These relevant facts in the evidence of PW-4, who is a nephew to the deceased, are to the effect that he has acknowledged his presence at the place of occurrence, the fact that when he reached the place of occurrence, there was a large crowd assembled, the victim was lying in a pool of blood, and those in the assembled crowd were saying that Gautam Chaturvedi had stabbed him and escaped. He also said in his evidence that he had heard that there was some animosity between deceased and the appellant over some issue of money arising from a dispute relating to some electrical fitting work. The learned Trial Judge has readily accepted this part of the evidence of PW-4, possibly with the aid of Section 154(2) of the Indian Evidence Act. He has placed reliance upon the decision of the Supreme Court in Paramjeet Singh alias Pamma vs. State of Uttarakhand2, where their Lordships held:

"16. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (Vide State of Rajasthan v. Bhawani [(2003) 7 SCC 291 : 2003 SCC (Cri) 1628] .)

17. This Court while deciding the issue in Radha Mohan Singh v. State of U.P.[(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661] observed as under: (SCC p. 457, para 7)

"7. ... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof."

18. In Mahesh v. State of Maharashtra [(2008) 13 SCC 271 : (2009) 3 SCC (Cri) 543] this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49)

"49. ... If PW 1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW 1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution."

19. In Rajendra v. State of U.P. [(2009) 13 SCC 480 : (2010) 1 SCC (Cri) 1072] this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa v. State of Karnataka [(2010) 6 SCC 533 : (2010) 3 SCC (Cri) 184] observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.

20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."

39. Here, the salutary principles about the value to be attached to the evidence of a hostile witness laid down by their Lordships in Paramjeet Singh alias Pamma (supra) have been misapplied by the learned Trial Judge for more than one reason. The application of the principles under reference are available in a case where the prosecution case is in some grey area of doubt, and what is said by a hostile witness in support of the prosecution case - some relevant fact in its support - may be made use of by the Court to dispel that doubt. However, the inculpatory part of a hostile witness's evidence cannot be used to convict a person against whom on the other evidence available, no case is established. May be the Trial Court has drawn upon this evidence, because the learned Judge in the Court below has accepted the evidence of PW-1 to be good about the fact in issue that he saw on the specified day and time, the appellant stab his brother to death. Since we have held the said fact not proved from the evidence of PW-1, the conclusions drawn by way of corroboration from that part of the evidence of PW-4, which the learned Trial Judge has found inculpatory, would be quite out of place and erroneous.

40. This apart, the learned Trial Judge's view of the evidence of PW4 has gone on the wrong trail, because he has failed to take into account that evidence of PW-1 where he has acknowledged in his cross-examination that he got information of the occurrence from someone that he does not remember, and that thereafter, when he reached the place of occurrence, he found the deceased in an injured state. This we have held does not prove him an eye witness to the occurrence. In case the Trial Judge had considered this part of the evidence of PW-1, it would fit in perfectly with the testimony of PW-4, who has said in an account that inspires confidence that he reached the place of occurrence after the event, upon learning about it at his place of business that is located close by in Singhi Gali. He immediately rushed to the place of occurrence and found a multitude of people gathered. He found the victim soaked in blood. He further said that the people gathered there were saying that the deceased had been stabbed by Gautam Chaturvedi, and that he had escaped. This witness has said further in his cross-examination that he and others present, called up PW-1 over his phone to call him over. Thus, the logical inference would be that PW-1 reached the place of occurrence post event. And, that is what PW-1 has acknowledged in the last part of this cross-examination dated 25.07.2009. Looking to these facts, it seems that notwithstanding acceptance of the prosecution's prayer to treat PW-4 as hostile and permit his cross-examination, his evidence is found to be fair, truthful and objective. In fact, it corroborates PW-1 in what he ultimately accepts to be a fact that he reached the place of occurrence after the crime. The Trial Court has, therefore, gone wrong in the assessment of evidence of both these witnesses.

41. It must be remarked here that the Trial Court's view vitiated by an error of perspective, for all reasons indicated hereinbefore, has rather uncharitably condemned PW-4 as an unreliable witness and taken a dim view of his evidence. In the opinion of this Court, this witness notwithstanding his declaration as a hostile witness, appears to be the narrator of a truthful account. It would be well to remember that it is not the law that the evidence of a hostile witness, to the extent it supports the prosecution, can alone be acted upon after corroboration. It can be equally done for the defence, in case what is said by the hostile witness, is found to be truthful on good corroboration by other evidence. In this regard the law has been succinctly laid down in Ramesh Harijan v. State of U.P.3, where their Lordships have held thus:

24. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360 : 1996 SCC (Cri) 1278 : AIR 1996 SC 2766] (SCC p. 363, para 7) this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543 : 2003 SCC (Cri) 112], Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109]; Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661 : AIR 2006 SC 951], Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188 : AIR 2008 SC 320] and Subbu Singh v. State [(2009) 6 SCC 462 : (2009) 2 SCC (Cri) 1106] .

"83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."

[See also C. Muniappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402 : AIR 2010 SC 3718] (SCC p. 596, para 83) and Himanshu v. State (NCT of Delhi)[(2011) 2 SCC 36 : (2011) 1 SCC (Cri) 593].]"

42. In this case, there is some further evidence of conduct of PW-1, that lends corroboration to his testimony at the end of his cross-examination to the effect that he reached the place of occurrence post event, and contrary to his earlier stand. This is to be found in his refusal to disclose his mobile number in Court during his cross-examination dated 26.08.2008, apparently out of anxiety or fear that his stand that he had reached the place of occurrence before the incident, would be belied on a check of the call detail record. He was aware that he received a call while he was located away from the place of occurrence post incident, a fact he was firmly denying. The CDR would have shown his location at the relevant time, besides the time and phone numbers from which he received phone calls after the incident. He had, therefore, much to hide about a check on his call detail record. It is for the said reason, that he almost obdurately refused to disclose his mobile number in Court, during trial. The relevant part of the cross-examination recorded by the Court reads thus (in Hindi vernacular):

यह मोबाइल मेरे पास पिछले आठ नौ महीने से है। इससे पहले मेरे पास मोबाइल फोन था। स्वयं कहा कि पिछला मोबाइल नम्बर अभी चालू है। और यह घर पर रहता है। गवाह से उनके दोनो मोबाइल का नम्बर पूछा गया उसने नम्बर बताने से इन्कार किया। आज खुद कहा कि मोबाइल घर पर रहता है। यदि कोई फोन आयेगा तो मैं उसको अटेण्ड नहीं कर पाऊँगा। यह कहना गलत है कि मैं घटनास्थल पर नही था। यह कहना गलत है कि मेरे मोहल्ले वालों ने मेरे मोबाइल पर फोन किया हो और मैं घटनास्थल पर दो घंटे बाद अपने भतीजे के साथ पहुंचा हूँ।

43. Thus, there is no manner of doubt to our mind that PW-1 is not at all an eye witness, and that both witnesses of fact, PW-1 and PW-4 reached the place of occurrence, shortly after the incident, and also, after the offender had escaped.

Recovery of the weapon of offence, if proved

44. It is the prosecution case that after arrest of the appellant, he made a confession to the police on 18.06.2007 embodying a disclosure statement, where he confessed to the crime of stabbing Ajay Kumar Gupta, the deceased and made a disclosure of the fact that he had hidden away the weapon of offence in his room, tucking it away under a mattress there after wrapping it in a green-coloured polythene. This confession-cum-disclosure statement carried in a carbon copy of GD Entry no.46 dated 18.06.2007 has been proved by PW-7, Mukhtyar Singh, a police constable then posted at P.S. Chhatta, District Agra. He was also part of the police team, who are said to have recovered the weapon at the appellant's pointing.

45. Learned Amicus Curiae submits that the recovery is absolutely fake, and one that has been foisted by the police in order to lend crutches to a case, by circumstantial evidence that the prosecution have otherwise brought as one based on direct evidence. Sri Arvind Kumar Singh, the learned Amicus Curiae elaborating on his submissions to demonstrate that the recovery is fake and foisted, says that the evidence of PW-6, the Investigating Officer and PW-7, a Constable who accompanied the police team that went to recover the weapon, is almost artificially matched in perfect terms to the disclosure statement. He has, in particular, laid much emphasis on the fact that the recovery memo and in the evidence about it appearing in the dock, so far as PW-6 and PW-7 are concerned, both PW-1 and PW-4 are shown to be witnesses of recovery in whose presence, the weapon of offence is said to be recovered by the police at the appellant's pointing out.

46. The learned Amicus Curiae submits further that PW-1 and PW-4 have been introduced as witnesses of recovery in order to lend some credence to an absolutely fake recovery by the police, which otherwise has never been effected. But for PW-1 and PW-4, the recovery is shown to be in the presence of the police alone, with no public witness associated. He submits that PW-1 and PW-4, the latter in unequivocal terms and former substantially have dispelled the fact of witnessing the recovery; this repudiation of recovery in their presence by PW-1 and PW-4, clearly renders the recovery unreliable.

47. The learned A.G.A. has disputed the aforesaid submission to say that the recovery is in accord with the disclosure statement, and the report from the FSL which shows that human blood was found on the recovered knife. He submits that the recovery cannot be bad merely because it has been effected by the police in the absence of public witnesses. According to him, there is no rule of law or one of prudence universally applicable that recovery by the police alone, in the absence of public witnesses is unreliable. He submits that furthermore PW-1 has supported the recovery, whereas PW-4 is a hostile witness, whose evidence is liable to be ignored as unreliable.

48. We have considered the rival submissions as to whether this recovery is indeed reliable. The evidence of PW-6 and PW-7 is no doubt consistent. There is indeed no principle of law or one of prudence universally applicable that recovery by the police is to be ipso facto held tainted. But, it is equally true that in a case where two public witnesses, who are interested witnesses, one being a brother of the deceased and the first informant, and the other a nephew of the deceased, both being shown to have witnessed the recovery, deny that fact or it is otherwise not proved, the recovery would become decidedly unreliable. This is so for more than one reason. One, that the account about recovery which has to be proved truthful as a whole, atleast as to every material particular of it, would become a half truth, if not utter falsehood, once both public witnesses are not established to have witnessed it. Second, in a case like the one in hand, where the public witnesses bear the profile of one of them being the first informant and both blood relatives, it would be inherently illogical, atleast in the case of PW-1, the first informant, who has otherwise supported the prosecution in unqualified terms, to depose to facts that prove him to be a person who never witnessed the recovery; logically, he would testify to his presence at the time of recovery and witnessing it beyond all reasonable doubt.

49. Turning to the evidence of PW-1 regarding recovery, he has said in his cross-examination dated 25.07.2009:

जब पुलिस ने अभियुक्त के मकान की तलाशी ली थी तब मैं नीचे खड़ा था। मैने गौतम का मकान अंदर से नही देखा है। पुलिस ने बाद में नीचे दस्तखत करा लिए थे। भतीजा मेरे साथ नीचे नही था। यह कहना गलत है कि मेरे सामने कोई बरामदगी न हुई हो।

50. Though this witness has affirmed the fact of recovery in his presence while testifying in his examination-in-chief, but in his cross-examination he has belied that case saying that when the police searched the house of the appellant, he was standing down below, that is to say, outside the house, and has clarified the fact of not witnessing the recovery, by his words unequivocal to the effect that "I have never seen Gautam's house from the inside. The police lateron made me sign at the place where I was standing below (referring to the recovery memo)" (translated into English from Hindi vernacular).

51. There is still this further fact about the recovery that it was effected from a room, which is a tenement in the house of one Manohar Lal Dixit. This fact is mentioned in the FIR as also in the site plan relating to recovery, Ex. Ka-8, which shows the tenanted room denoted by letter 'B', where the appellant lives, and the house of Manohar Lal by letter 'A', of which the appellant's room is a part. By the letter 'C' is denoted the place where the mattress was placed, under which the weapon of offence was hidden by the appellant and recovered by the police. The prosecution have not led any evidence, much less proved the fact that the tenanted room, that is part of a house owned by his landlord, Manohar Lal, is exclusively in the appellant's possession. The prosecution would have ideally examined the landlord Manohar Lal, the appellant's landlord to prove that the appellant was in exclusive possession of his tenanted room wherefrom the weapon of offence was recovered. But, Manohar Lal has not been examined as a witness at all. In the absence of proof of the fact that the appellant was in exclusive possession of the tenanted room, excluding the possibility that someone else had access to it, either as a co-occupant or otherwise, the tenanted room being part of the house of Manohar Lal, recovery of the bloodstained knife is difficult to connect the appellant to the crime.

52. In almost facts identical to those that obtain here, the Supreme Court in Sonvir alias Somvir vs. State (NCT of Delhi)4, dealt with the issue of recovery of a bloodstained knife and shirt at the pointing out of the accused from a tenanted room, that was part of a house belonging to the accused's landlord. The landlord was not examined as a witness by the prosecution, or other evidence led to show that only the tenant had exclusive possession or access to the tenanted accommodation. In the context of the said fact, rejecting the recovery of bloodstained knife and shirt, their Lordships held thus:

"26.3.6. In the present case, the prosecution has not proved that the room from where the bloodstained knife and bloodstained shirt were allegedly recovered, was in the exclusive possession of the appellant. The prosecution case is that the said room was in the house owned by one Teja Chaudhary. The prosecution did not examine the said Teja Chaudhary to prove that the said room was rented to Sonvir alias Somvir and/or was in the exclusive custody of the appellant.

26.3.7. Therefore, the recovery of the bloodstained shirt from Sonvir alias Somvir (Appellant-Accused 2) cannot be used as an incriminating piece of evidence."

53. In these circumstances, we find and hold that the prosecution have not been able to prove the factum of recovery of the weapon of offence at the pointing out of the appellant. The further fact, therefore, that the recovered knife was found to be stained with human blood, about which much has been said, both by the appellant and the State in support of their rival stands, looses all significance.

54. For all that we have said, we are unable to subscribe to the impugned judgment and order of conviction recorded by the learned Sessions Judge. In our considered opinion, impugned judgment and order deserves to be reversed and the appellant acquitted.

55. In the result, this appeal succeeds and is allowed. The judgment and order passed by the Additional Sessions Judge, Court no.10, Agra, dated 09.06.2011 passed in Sessions Trial no.833 of 2007 convicting the appellant of an offence punishable under Section 302 IPC and sentencing him to imprisonment for life is hereby set aside. The appellant is acquitted. The appellant is in jail. He shall be set at liberty forthwith unless he is wanted in some other case subject to his complying with the mandatory requirements of Section 437-A Cr.P.C.

56. Before parting with the matter this Court places on record its profound appreciation for the valuable assistance rendered by Sri Arvind Kumar Singh, learned Amicus Curiae in this matter. The learned Amicus Curiae shall be entitled to receive in fee, a sum of Rs.15,000/- as consolidated fee.

57. Let a copy of this order be certified to concerned court through Sessions Judge, Agra within a fortnight for compliance. The court concerned shall report the compliance within a month thereafter. Let the lower court records be sent down at once to the trial court.

Order Date :- 01.03.2019

Anoop