HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 47 Reserved on 22.07.2019 Delivered on 13.08.2019 Case :- CRIMINAL APPEAL No. - 4623 of 2011 Appellant :- [ENTITY] Respondent :- [ENTITY] Counsel for Appellant :[ENTITY] Counsel for Respondent :-Government Advocate Connected with Case :- CRIMINAL APPEAL No. - 2941 of 2012 Appellant :- [ENTITY] And Others Respondent :- [ENTITY] Counsel for Appellant :[ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] Counsel for Respondent :-Government Advocate Hon'ble [ENTITY] (Maurya) ,J.
Hon'ble [ENTITY], J.
[Delivered by [ENTITY] (Maurya), J.]
1. Heard Sri [ENTITY] and Sri [ENTITY], for the appellants, Sri [ENTITY], A.G.A., for State of U.P.
2. [ENTITY], [ENTITY], [ENTITY] and [ENTITY] have filed aforementioned appeals from their conviction and sentence passed by Additional Session's Judge, Court No. 1, Etawah, dated 15.07.2011, in [CASE NUMBER], State vs. [ENTITY] and others and [CASE NUMBER], State vs. [ENTITY], [arising out of [CASE NUMBER], under [SECTION] read with [SECTION] of [ACT] (hereinafter referred to as the [ACT]), police station Bharthana, district Etawah, convicting them, under [SECTION] read with [SECTION] [ACT] and sentencing for imprisonment for life and fine of Rs. 10000/- each, with default stipulation.
3. On the written complaint (Ex-Ka-1) of [ENTITY] (PW-1), FIR (Ex-Ka-4) of [CASE NUMBER] was registered under [SECTION] [ACT], at P.S. Bharthana, district Etawah on 17.02.2006 at 8:15 hours, by Constable [ENTITY] (PW-5), against [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. It has been stated in the FIR that the informant was resident of village [ENTITY], P.S. Bharthana. Yesterday on 16.02.2006, the informant was irrigating water in his field. [ENTITY] son of [ENTITY], resident of [ENTITY], his brother-in-law (sala), was also with him. At that time, his brother [ENTITY] came there and saying that he was going to village [ENTITY], for doing a telephone call, went from there by his cycle. When his brother reached near the field of [ENTITY] at village [ENTITY] at about 6:30 PM, then [ENTITY], [ENTITY], [ENTITY] sons of [ENTITY] and [ENTITY] son of [ENTITY], residents of his village, who were sitting in the field of [ENTITY] and waiting for chance to attack, came out. [ENTITY] and [ENTITY] were armed with gun, [ENTITY] was armed with short gun and [ENTITY] was armed with axe. Looking to his brother, all of them came running. [ENTITY] exhorted, while abusing, that he would not be spared and kill him. [ENTITY] returned toward him while shouting. In the meantime, they fired upon his brother, which caused injury on the body of his brother. The informant, his brother-in-law [ENTITY] and one or two other persons, reached there while running. Then the accused fled away towards [ENTITY], threatening that in case, they would go to the police station, then they would look them in the way. His brother was lying dead on the spot. Due to terror of the accused, he did not come in night for information. After lodging report, legal action be taken against the accused.
4. After lodging of FIR, SHO [ENTITY] (PW-7) started investigation. He copied the check FIR, G.D. entry in case diary and recorded statements of [ENTITY], [ENTITY] and [ENTITY]. He came on the spot, took into possession the blood stained and plain earth from the spot and prepared its recovery memo (Ex-Ka-6). He made spot inspection, on the pointing out of the informant and prepared site-plan (Ex-Ka-7). He recorded statements of [ENTITY] and [ENTITY], Panches of Inquest. He recorded statements of [ENTITY], SI [ENTITY] and Constable [ENTITY] on 18.02.2006. He copied the Inquest and Postmortem reports in case diary. He searched the accused but they could not be arrested. On 09.03.2006, he took proceeding under [SECTION] and [SECTION] [ACT] to procure attendance of the accused. In the meantime, he was transferred.
5. In supervision of SHO [ENTITY] (PW-7), SI [ENTITY] conducted Inquest (Ex-Ka-8) of the dead body on 17.02.2006 in between 10:00 AM to 14:00 PM. He prepared photo lash, challan lash, letters to the authorities etc. (Ex-Ka-9 to Ex-Ka-12) for postmortem and dispatched the dead body through Constables [ENTITY] and [ENTITY]. Dr. [ENTITY] (PW-3) conducted autopsy of the dead body on 17.02.2006 at 4:00 PM and prepared Postmortem Report (Ex-Ka-2), in which following ante-mortem injuries were noted:-
(i) Fire arm wound of entry 2 cm x 2 cm on the right side of head 3 cm from right ear. Margins inverted. Blackening present.
(ii) Fire arm wound of exit size 2.5 cm x 2 cm on the left side of face and head. Margins everted. Parietal, frontal and Occipital bones are fractured.
(iii) Fire arm wound of entry 2 cm x 2 cm on the right side of chest 3 cm from nipple. Margins inverted, blackening present.
(iv) Fire arm wound of entry 2 cm x 2 cm on the right side of chest, 2.5 cm from injury no. (iii). Margins inverted. Blackening present.
(v) Fire arm wound of entry 2 cm x 2 cm on the right side of chest. 4.5 cm from injury no. (iv). Margins inverted. Blackening present.
In internal examination, brain and its membranes were lacerated; 3rd and 4th rib of right side was fractured; pleura was lacerated; both lungs were lacerated; heart was empty; about 1-1/2 liter clotted blood was present on the thoracic cavity; small intestine contained digested food and gas and large intestine contained faecal and gases. According to doctor's opinion cause of death "due to shock and hemorrhage as a result of injuries mentioned above".
6. The successor SHO [ENTITY] started investigation from 15.03.2006. In spite of non-bailable warrants and the proceeding under [SECTION] and [SECTION] [ACT], the accused could not be arrested. He submitted charge sheet (Ex-Ka-13) during abscondance of the appellants on 28.06.2006.
7. In the meantime, investigation was transferred to Crime Branch, Central Investigation Department and Inspector [ENTITY] (PW-8) started investigation from 23.08.2006. He took permission from the concerned Magistrate on 25.08.2006 for further investigation. He collected the relevant papers and recorded statement of [ENTITY] and verified the site-plan. He recorded statements of the accused [ENTITY], [ENTITY] and [ENTITY] on 26.08.2006. On 15.09.2006, he recorded statements of [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], SI [ENTITY], constables [ENTITY], [ENTITY] and [ENTITY]. On 16.09.2006, he recorded statement of Dr. [ENTITY]. On 19.09.2006, he copied the affidavit of the witnesses in case diary. On 28.09.2006, he recorded statement of [ENTITY]. On 10.10.2006, he recorded statements of [ENTITY], [ENTITY], [ENTITY], [ENTITY]. On 23.11.2006, he recorded statements of [ENTITY], [ENTITY] and [ENTITY]. On 28.11.2006, he recorded statement of [ENTITY]. On 06.12.2006, he recorded statement of [ENTITY]. On 15.12.2006, he recorded statements of [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. On 18.01.2007, he sent blood stained and plain earth, the pilot and clothes of the deceased for chemical examination. After completing investigation, he submitted charge sheet against the appellants on 22.03.2007, holding that there was no error in previous investigation.
8. On committal, the cases were registered as [CASE NUMBER], State Vs. [ENTITY] and others and [CASE NUMBER], State Vs. [ENTITY]. Both the cases were consolidated and tried together. Additional Session's Judge framed charges on 04.07.2008, against [ENTITY], [ENTITY] and [ENTITY]. Additional Session's Judge framed charges on 26.08.2008, against [ENTITY]. The accused pleaded "not guilty" and claimed for trial. In order to prove the charges, the prosecution examined [ENTITY] (PW-1), the informant, [ENTITY] (PW-2), an eye witness, Dr. [ENTITY] (PW-3), to prove Postmortem Report (Ex-Ka-2), [ENTITY] (PW-4), an eye witness, Constable [ENTITY] (PW-5), to prove check FIR, [ENTITY] (PW-6), a Panch of Inquest, SI [ENTITY] (PW-7), first Investigating Officer, Inspector [ENTITY] (PW-8) third Investigating Officer and filed documentary evidence.
9. All the incriminatory materials and facts were put to the accused, under [SECTION] [ACT]. They denied the evidence and materials and claimed false implication, due to enmity. They did not adduce any evidence, in defence.
10. Additional Session's Judge, after hearing the parties, by the impugned judgment held that delay in lodging FIR has been explained properly. Litigation in respect of land was going on between the parties and such the motive is proved. From the statements of [ENTITY], [ENTITY] and [ENTITY] (PWs-1, 2 and 3), the charges against the appellants have been proved. On these findings, he convicted the appellants and sentenced as mentioned above. Hence, these appeals have been filed.
11. In order to prove the charges, the prosecution has examined [ENTITY], [ENTITY] and [ENTITY] (PWs-1, 2 and 3) as the eye witnesses of the incident. [ENTITY] (PW-1) has stated that he and his brother-in-law [ENTITY] were irrigating his field, on the date of incident. At that time, his brother [ENTITY] came there and told that he was going to village [ENTITY], for doing a telephone call. It was about 5:45 PM, [ENTITY] went towards [ENTITY]. As soon as, he reached near the field of [ENTITY] then [ENTITY], [ENTITY], [ENTITY] and [ENTITY] met him. All the aforesaid accused are present in the Court. [ENTITY] and [ENTITY] were armed with the gun, [ENTITY] was armed with a short gun and [ENTITY] was armed with axe. They opened fire upon his brother. Due to gunshot injuries, his brother died on the spot at about 5:45 to 6:00 PM. Hearing the sound, he, his brother-in-law [ENTITY] and the villagers [ENTITY] and [ENTITY] and others, reached the spot and saw the incident. The accused threatened that in case, they would go to lodge FIR, then they would kill them. On his dictation [ENTITY] scribed the complaint, which he gave to the police station on which FIR has been registered. Investigating Officer has recorded his statements and on his pointing out, inspected the spot.
In cross-examination, he has stated that the village [ENTITY] was situated in south at a distance of about half kilometer from his village [ENTITY] and the field where he was irrigating water was at a distance 100 meter from his village in west. [ENTITY], his brother-in-law had come to his house, one day prior to the incident. [ENTITY] was unmarried. He was married and had six daughters. His father [ENTITY] was murdered about ten years prior to this incident, in which [ENTITY] and his sons were accused. He and his brother-in-law had come to the field for irrigation about 4:00 PM and went to the place of incident at 6:00 to 6:30 PM. In the night, he went to his house but he could not state the time of his going. The village of his in-laws i.e. [ENTITY] was at a distance of 12-13 kilometer from his village. The villagers might have informed [ENTITY], his other brother-in-law, about the murder. The police came near the dead body on next day in morning at about 8:30 AM and after sealing the dead body, took away it at about 9:00 AM. Dead body of [ENTITY] and his cycle remained on the spot, for whole night. [ENTITY] son of [ENTITY] came on the spot after about 2 minutes of his reaching. In the FIR, he had given time 6:30 PM, on the basis of guess as at that time red lights of sun was coming. It is incorrect to say that on that day sun set was at 5:15 PM or at 6:30 PM there was darkness. He did not point out the field, in which he was irrigating, to Investigating Officer. Total five fires were done. He saw the assailants from a distance of 5-6 paces, while running. He took his brother in his lap, after reaching the spot and blood was applied in his clothes. He showed his blood stained clothes to Investigating Officer but it were not recovered. It is incorrect to say that he was not present on the spot. It is incorrect to say that the incident had occurred in night, he came to know about it in morning and due to previous enmity, he had falsely implicated the accused. He admitted that his grand father [ENTITY] had executed a sale deed in respect of land in favour of sons of [ENTITY] but stated that his father had filed a suit for cancellation of sale deed, due to which he was murdered. The witness [ENTITY] was resident of village Bakhar, PS Chaubia and nephew of [ENTITY] of his village. At the time of scribing of the written complaint, he had knowledge that [ENTITY] and [ENTITY] had also come on the spot but he had not mentioned their names in the FIR as the people had said that two witnesses were sufficient. He told to Investigating Officer that [ENTITY] and [ENTITY] had also come on the spot. If it is not recorded in his statements then he cannot give any reason. It is incorrect to say that by the time of lodging FIR, he was not certain as to whom, he had to make witness. His brother was going to make telephone call to his mother. His brother was having 15-20 rupees at that time, which was picked out by his sister as such the police did not make any recovery of it. The cycle of his brother was lying on the spot at the time of spot inspection by the police. It was also taken into custody by the police. If it was not shown in site-plan then he cannot give any reason of it. He pointed out the field, in which, he was irrigating at the time of incident and from where he reached the spot while running. If it was not shown in the site-plan, then he cannot give its reason. It is incorrect to say that story of irrigating field was false and due to this reason, it neither pointed out it to Investigating Officer nor shown in site-plan. Field of [ENTITY] situated in west of the road of [ENTITY] to Bansiyapur. Road to his village goes in east of this field. He cannot say that [ENTITY] was owner of the field situated in west of of the field of [ENTITY]. Field of [ENTITY] situated in south of this vacant field. In south of this field, field of [ENTITY] situated and not of [ENTITY]. [ENTITY] was resident of [ENTITY]. In south of it, field of Itwari was situated thereafter, his field was situated and not of [ENTITY]. It is incorrect to say that in south of the field of Itwari, field of [ENTITY], in its south, field of [ENTITY], thereafter in its south field of [ENTITY] and [ENTITY] and thereafter his field situated, in its south. [ENTITY] had four sons, namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. [ENTITY] had a licence of revolver. [ENTITY] had a licence of SBBL gun. [ENTITY] had a licence of SBBL gun and the accused [ENTITY] had a licence of SBBL gun. After the incident, 50-60 persons of the village and 10-15 persons of nearby villages had come there. At the time of incident, [ENTITY] and [ENTITY] had tractors. [ENTITY] and [ENTITY] had motorcycles. He was willing that FIR be lodged and action against the accused be taken immediately but due to night hour he could not go to the police station. He told [ENTITY] to go to the police station but his tractor was not available at that time, which was sent to in-laws house of his sister. He did not ask any one to give information to the police from PCO of [ENTITY]. The son of [ENTITY] was a witness in this case. His name came in light during investigation by CID. He asked other persons also to go to the police station, apart from [ENTITY] but no one had become ready due to terror. He had cordial relation with most of the villagers. As and when required [ENTITY] and his family member used to help him. He did not ask [ENTITY] for his tractor. Area of the field, where incident had occurred was about 2 to 2/12 bigha. Thereafter one usar land of 5 bigha situated and thereafter two usar land of 2 to 2/12 bighas were situated. The distance between the field where he was irrigating and the place of occurrence was about 25 paces and not about 700-800 meter. His field situated on the way of [ENTITY] from his village. It is correct to say that if a person goes to [ENTITY] from his field then he would not required to go in the field of [ENTITY].
12. [ENTITY] (PW-2) has stated that he had gone to the house of [ENTITY], his brother-in-law, on 15.02.2006. He and his brother-in-law [ENTITY] were irrigating his field. At that time, [ENTITY], brother of [ENTITY] came there on cycle and told that he was going to village [ENTITY], for doing a telephone call. Saying this, [ENTITY] went towards [ENTITY] on cycle. As soon as, he reached near the field of [ENTITY] the accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] besieged him. [ENTITY] and [ENTITY] were armed with the gun, [ENTITY] was armed with a short gun and [ENTITY] was armed with axe. [ENTITY] exhorted to kill him. On which, the accused [ENTITY], [ENTITY] and [ENTITY] opened fire from their gun upon him, which caused injury to him. Due to gunshot injuries, his brother died on the spot. He, his brother-in-law [ENTITY], [ENTITY] son of [ENTITY] and [ENTITY] saw the incident and shouted for help. The accused fled away towards west while abusing and threatening that in case, they would go to lodge FIR, then they would kill them. [ENTITY] lodged FIR, on the next date of the incident.
In cross-examination, he has stated that his village [ENTITY] was at a distance of 13-14 kilometer from the village [ENTITY]. His statements was not recorded by Investigating Officer on the day, on which FIR was lodged. It is incorrect to say that on the date of incident, he was not present at village [ENTITY]. He informed Investigating Officer that he had gone to [ENTITY] on 15.02.2006. If in his statements it was noted as 16.02.2006, then he cannot give any reason. He informed Investigating Officer that he was irrigating field along with his brother-in-law. If this was not mentioned in his statements then he could not give any reason. Bamba (water channel) situated at a distance of about half kilometer from the usar field of [ENTITY]. He never saw the accused prior to the incident. He went on the spot, hearing the sound of fires and when he reached the spot, he found that [ENTITY] was lying dead. [ENTITY] also went with him. [ENTITY] son of [ENTITY] and [ENTITY] reached the spot after one-two minutes of their reaching. Apart from these two persons, he did not see any other person. He informed Investigating Officer that [ENTITY] and [ENTITY] also reached on the spot. If this was not recorded in his statements then he could not give any reason. He did not go to lodge FIR on the date of incident. [ENTITY] was called from telephone in morning on 16.02.2006. After reaching [ENTITY], the police came on the spot. In the night of 15/16.02.2006, he stayed at village [ENTITY]. On 16.02.2006 at about 8:00 AM, he went to village Dandi to inform his other sister and returned to village [ENTITY] at 4:00 PM on 17.02.2006. They neither lifted the deceased in lap and flattened with him. The field of [ENTITY] was not visible from the field of [ENTITY]. 8 to 10 minutes may be taken in reaching the field of [ENTITY] from the field of [ENTITY]. It may take 4 to 5 minutes in reaching while running. [ENTITY] was an amorous man. He always used to bear gold chain, gold ring, wrist watch and keep in his pocket about Rs. 4000/- to 5000/- He was also having a Nokia mobile phone. When he heard the sound of fire, it was darkness. In darkness of night, sound of fire created terror in his mind. He took one-two minutes in understanding that the sound was coming from what place. He was also under terror that in dark night, fire may hit him. Darkness of so dense that nothing was visible at a distance of 15-20 paces. They took 10-12 minutes in going to the field of [ENTITY] from the field of [ENTITY]. When he reached the spot, no body was there. When [ENTITY] had come at the field, he was bearing while shirt, white pant, green sweeter, back shoes and shocks.
When this witness was again produced in witness box on 03.12.2009, then he disowned his previous statements and stated that whatsoever was stated by him was stated on the saying of the others. At this stage, this witness was declared as the hostile.
13. [ENTITY] (PW-4) stated that [ENTITY] was his in-laws village, where he was living after the marriage as his father-in-law was physically disable and brother-in-law was mentally disturbed. On 16.02.2006 at about 6:00 PM, he was coming from the village [ENTITY] to [ENTITY], along with [ENTITY]. When they reached near the field of [ENTITY], they saw that [ENTITY] and [ENTITY] were armed with gun, [ENTITY] was armed with short gun and [ENTITY] was armed with axe. [ENTITY] exhorted them to kill [ENTITY]. All of them opened fire upon [ENTITY] with an intention to kill him from their respective weapons. [ENTITY] fell down after receiving firearm injuries and died. When he shouted then other persons also came there. On his shouting, [ENTITY] and [ENTITY] also came. On his shouting, the accused threatened him that in case, he would shout or tell the incident to any one, then, they would kill him also. Giving threats, the accused fled away towards [ENTITY]. He had given his affidavits (Ex-Ka-3) one at Kanpur, one at Etawah and other in this Court, in respect of the incident. His statement was also recorded at Kanpur.
In cross-examination, he stated that his family members were living at village Bakhar, PS Chaubia. Investigating Officer has recorded his statements after about 8 months of the incident, for the first time. If in his statements, recorded by Investigating Officer, his address of village [ENTITY] PS Bharthana was not mentioned then he could not give any reason. At the village [ENTITY], his mother's father's house situated. [ENTITY] was his maternal grand father. [ENTITY] had four sons, namely [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. [ENTITY] was murdered after 5-6 months of recording his statements by Investigating Officer. His marriage was solemnized in the year 2003, since then he was living at village [ENTITY]. If Investigating Officer, in his statements, has not recorded as to which of the accused was armed with what weapon, then he could not give any reason. If this fact that at that time he was going from village [ENTITY] to [ENTITY] was not recorded in his statements by Investigating Officer or in his previous affidavits then he could not give any reason for that. [ENTITY] is at a distance of about half kilometer from village [ENTITY] in its south. [ENTITY] was at a distance of one kilometer from the village [ENTITY] in its north. The road of [ENTITY] was a pitched road from which a link road goes towards [ENTITY], which is in east at a distance of about half kilometer. This link road of [ENTITY] goes towards [ENTITY]. He was not with [ENTITY]. He could not say that when [ENTITY] came from his field. He could not say as to who had come along with [ENTITY]. He went to [ENTITY] from [ENTITY] at about 11:00 AM for purchasing fertilizer from the shop of [ENTITY]. At about 1:00 or 2:00 PM, [ENTITY] had informed him that fertilizer was not available. Thereafter, he returned to his house. Till recording of his statements by Investigating Officer of CB, CID, after eight months of the incident, he had not disclosed any one about the incident. He had no knowledge that in the murder of [ENTITY], father of [ENTITY], [ENTITY], his maternal grand father was an accused. On the date of incident, he had seen [ENTITY] from a distance of 20 paces. When he saw [ENTITY], he was not on cycle. Cycle was lying there. He did not remember the position of [ENTITY] after his falling down. He did not remember as to whether he was bearing shoes or slipper or not. He had informed Investigating Officer that on his shouting, [ENTITY] and his relation [ENTITY] had come on the spot. If this was not noted in his statements, then he cannot give any reason of it.
14. We have considered the arguments of the counsel for the parties and examined the record. The prosecution has not given any motive for the appellants to commit murder of [ENTITY]. On the other hand, the appellants suggested [ENTITY] PW-1) that his grand father [ENTITY] had executed a sale deed in respect of land in favour of sons of [ENTITY] and his father [ENTITY] had filed a suit for cancellation of sale deed, which was pending, due to which they were falsely implicated. [ENTITY] (PW-1) admitted that [ENTITY] had two sons [ENTITY] and [ENTITY]; [ENTITY] and [ENTITY] were sons of [ENTITY]; [ENTITY] filed a suit for cancellation of sale deed executed by [ENTITY], in favour of the sons of [ENTITY], which was still pending. [ENTITY] was murdered ten years back, in which [ENTITY] of the village was an accused. Thus by committing murder of [ENTITY], the appellants will not derive benefit on the other hand due to litigation between the parties, false implication on suspicion was possible.
15. Supreme Court in [PRECEDENT], has held that proof of motive satisfies the judicial mind about the likelihood of the authorship but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamenable to easy proof that Courts have to go without clear evidence thereon if other clinching evidence exists. In the case on hand the enmity with [ENTITY] being active and admitted, the pique against [ENTITY], his loyal dependent, is understandable. In [PRECEDENT], has held that in each and every case, it was not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of the prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial court. In Abdul Waheed v. State of U.P., (2016) 1 SCC 5[SECTION], has held that proof of motive of the accused towards the deceased heightens the possibility of the crime. Proof of motive adds weight and value to the evidence of the eyewitnesses.
16. Supreme Court in [PRECEDENT], has held that the fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross-examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of the witness is fit to be rejected. However, in [ENTITY] v. State of Punjab, (2015) 3 SCC 220, has held that the delay in cross-examination has resulted in his prevarication from the examination-in-chief. But, a significant one, his examination-in-chief and the re-examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination he has stated that he had not gone with [ENTITY] to the Vigilance Department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re-examination. In [PRECEDENT], has held that the above statements in the evidence of PW 2 were more than sufficient to support the case of the prosecution in having made the recoveries from the premises of the appellant, inasmuch as PW 2 was not only an independent witness but he was also a very close friend of the appellant but yet he came forward with a very fair statement about the contraband materials found in the premises of the appellant which were recovered in his presence and his statement was also truly recorded, which he signed after going through the same and understanding its correctness. However, when he was cross-examined on behalf of the appellant, he made a contradictory version and thereby virtually withdrawing whatever categorical admission he made in the earlier part of his testimony. Having noted the manner in which PW 2 deposed before the Court and the subsequent expressions contained in the document having been admitted to have been made by him without any hesitation including the correctness of those contents, the documents as well as his attestation on the parcels which contain the samples, the contraband which were duly admitted by him, the contrary statements contained in the latter part of his evidence are all liable to be rejected as containing no truth in it. In fact, when the contents of the documents have been accepted to be true after ascertaining them before the Court, the said part of his evidence alone should carry weight and the latter part of his statement which is made by simply adopting the suggestions put to him at the instance of the appellant will be of no consequence.
In aforementioned cases, Apex Court laid down that cross-examination of a witness is an acid test to examine his credibility. If the cross-examination was deferred for a long time and in such cross-examination, the witness disowned his earlier statements, then it has to be ignored and finding can be based upon earlier part of the statements.
In view of law laid down by Supreme Court, statements of [ENTITY] (PW-2) cannot be ignored, in spite of the fact that he was declared hostile by the prosecution, after a period of more than nine months of his previous statement, in his deferred cross-examination .
17. The prosecution case is that [ENTITY] (the deceased) came to the field, where [ENTITY] (PW-1) and [ENTITY] (PW-2) were irrigating the field, on 16.02.2006, for informing that he was going to village [ENTITY], for doing a telephone call. Thereafter, he went on his cycle towards [ENTITY]. When the deceased reached near the field of [ENTITY] at village [ENTITY] at about 6:30 PM, then [ENTITY] and [ENTITY], armed with gun, [ENTITY], armed with short gun and [ENTITY], armed with axe, who were sitting in the field of [ENTITY] and waiting for chance to attack, came out and on exhortation of [ENTITY], they fired upon the deceased, which caused injury to him and he died on the spot. [ENTITY] and [ENTITY] reached the spot while running, hearing the shouts and sound of firing. Then the accused fled away towards [ENTITY], threatening that in case, they would go to the police station, then they would look them in the way.
18. In the FIR, which was first version of [ENTITY] time of the incident was given as 6:30 PM. [ENTITY] (PW-1), in his statements, has changed this time and stated that it was about 5:45 PM. [ENTITY] (PW-2), in his cross-examination, has stated that when he heard the sound of fire, it had become dark. In darkness of night, sound of fire created terror in his mind. He took one-two minutes in understanding that the sound was coming from what place. He was also under terror that in dark night, fire may hit him. Darkness of so dense that nothing was visible at a distance of 15-20 paces. They took 10-12 minutes in reaching to the field of [ENTITY] from the field of [ENTITY]. When he reached the spot, no body was there.
From the statements of [ENTITY] (PW-2) it is proved that occurrence took place in dark night. By the time [ENTITY] and [ENTITY] reached at the place of incident, the accused had already fled away. Thus [ENTITY] and [ENTITY] (PW-1 and 2) had no occasion to see the accused, in darkness of night, where there was no source of light.
19. [ENTITY] (PW-4), in his cross-examination, has stated that [ENTITY] (his in-laws residence) was at a distance of about half kilometer from village [ENTITY] in its south. [ENTITY] was at a distance of one kilometer from the village [ENTITY] in its north. The road of [ENTITY] was a pitch road from which a link road goes towards [ENTITY], which is in east at a distance of about half kilometer. This link road of [ENTITY] further goes up to [ENTITY]. He could not say that when [ENTITY] came to the place of occurrence from his field. He could not say as to who had come along with [ENTITY]. He went to [ENTITY] from [ENTITY] at about 11:00 AM for purchasing fertilizer from the shop of [ENTITY]. At about 1:00 or 2:00 PM, [ENTITY] informed him that fertilizer was not available. Then, he returned to his house.
From statement of [ENTITY] (PW-4) it is clear that he might have proceeded from [ENTITY] for his village [ENTITY], after 2:00 PM; [ENTITY] was at a distance of 1.5 kilometer from [ENTITY] as such he might have reached to his village much before the incident. From his statement his presence on the spot after 6:30 PM i.e. at the time of incident was not probable. Therefore his presence was neither noted either in the FIR nor in the statements of [ENTITY] and [ENTITY] under [SECTION] [ACT] For the first time, he was introduced as an eye witness after eight months by [ENTITY] (PW-8). [ENTITY] (PW-2) has admitted that when he reached the spot, no body was there. Apex Court in [PRECEDENT], has held that the delay in recording the statements under [SECTION] [ACT] casts a serious doubt about their being eyewitnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced.
20. [ENTITY] (PW-1), in his cross-examination has falsely given the distance between his field, where he was irrigating to the place of occurrence was 15-20 paces. While he stated that area of the field, where incident had occurred was about 2 to 2/12 bigha. Thereafter one usar land of 5 bigha situated and thereafter two usar land of 2 to 2/12 bighas were situated. But he denied that the distance between the field where he was irrigating and the place of occurrence was about 700-800 meter. His field situated on the way of [ENTITY] from his village. [ENTITY] (PW-4) has stated that from the place of incident, distance of the field of [ENTITY], where he was irrigating was about 400-500 meter. [ENTITY] (PW-2) has stated that 8 to 10 minutes was taken in reaching the field of [ENTITY] from the field of [ENTITY] and when he reached there no body of there. The Investigating Officers, in site-plan, have not located the field of [ENTITY] where he was irrigating. From the distance between the place of incident and field of [ENTITY], where he was irrigating, it does not appear probable that [ENTITY] (PW-1) could have seen the accused after his reaching there.
21. The deceased was going to village [ENTITY], for doing a telephone call. on his cycle. Investigating Officer did not recover any money from the pocket of the deceased nor his cycle on the spot. Lame excuse has been given that the money was picked up by the sister of the deceased in next morning, while cycle of lying there. If cycle was lying on the spot, then there could be no reason for Investigating Officer for not preparing its recovery memo as these were material circumstances.
22. The incident has taken place on 16.02.2006 at 18:30 hours while FIR was lodged on 17.02.2006 at 8:15 hours. The distance of police station from the place of occurrence was about 16 kilometer. [ENTITY] (PW-1) admitted that after the incident, 50-60 persons of the village and 10-15 persons of nearby villages had come there. At the time of incident, [ENTITY] and [ENTITY] had tractors and [ENTITY] and [ENTITY] had motorcycles, in his village. There were various licensed gun in his village at that time. [ENTITY] (PW-2) stated that the deceased had a Nokia mobile phone. [ENTITY] (scribe of FIR and brother of [ENTITY]) was called on telephone at 6:00 AM, on next day. At least, the police could have been informed on telephone in night. There is no reliable explanation of the delay in lodging the FIR. It appears that this was a night incident and when the dead body was found then in morning, then FIR was lodged. The charges have not been proved beyond reasonable doubt.
23. In view of the aforesaid discussions, the appeals succeed and are allowed. The conviction and sentence of [ENTITY], [ENTITY], [ENTITY] and [ENTITY] passed by Additional Session's Judge, Court No. 1, Etawah, dated 15.07.2011, in [CASE NUMBER], State vs. [ENTITY] and others and [CASE NUMBER], State vs. [ENTITY], [arising out of [CASE NUMBER], under [SECTION] read with [SECTION] of [ACT] (hereinafter referred to as the [ACT]), police station Bharthana, district Etawah are set aside. The appellants acquitted from the charges and set free on their liberty. The appellants shall furnished their bonds in terms of [SECTION] [ACT] before the Magistrate concerned, within one months from their release.
Order Date :- 13.8.2019 [ENTITY]
[[ENTITY],J.] [ [ENTITY] (Maurya),J.]