# Aftab (In Jail) v. State of U.P

- **Citation:** (2022) 3 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-15
- **Case number:** Criminal Appeal No. 5681 of 2016
- **Bench:** Anil Kumar Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aftab-in-jail-v-state-of-u-p-47586
- **Pages:** 8

## Headnote

Criminal Law- Code of Criminal Procedure-
Section 154- Delayed First Information
Report- From the perusal of the aforesaid,
it is clear that F.I.R. was lodged just
within five hours of the alleged incident,
this cannot be said to be delay in loding of
the F.I.R. In the facts and circumstances,
it is held that F.I.R. has been lodged with
full promptitude. Therefore, it is held that
under the circumstances of the present
case five hours delay in lodgement of the
F.I.R. would not create doubt in the
prosecution case.

Mere delay of five hours in lodging the F.I.R
shows that the same is prompt rather than
delayed.

Evidence Law - Indian Evidence Act-
1872- Sections 3 & 134- Non examination
of eye witnesses cannot be pressed into
service for discarding the prosecution case
with a stroke of pen.

Where the testimony of a witness is credible
and reliable, then there is no requirement in law
to examine further witnesses to prove the same
fact.

Contradictions,
Embellishments
and
Improvements- The testimony of the
victim
must
be
appreciated
in
the
background of the entire case and the
Courts
should
examine
the
broader
probabilities of a case and not get swayed
by minor contradictions or insignificant
discrepancies in the statement of the
victim, which are not of a fatal nature, to
throw
out
an
otherwise
reliable
prosecution
case
-There
is
no
contradiction or inconsistency between
medical and oral evidence rather medical
3 All. Aftab Vs. State of U.P.
379
evidence corroborates the oral evidence -
PW4 Dr. Naresh Kumar, Surgeon, District
Hospital, Hamirpur, has tendered evidence
that at the time of alleged incident victim
was 14 to 16 years of age, thus at the time
of alleged incident, victim was minor.

Settled law that the case of the prosecution is
discredited only where the contradictions are
major and go to the root of the matter but where
such contradictions are minor or trivial in nature,
the testimony of the witness is corroborated by
the medical and other evidence and is credible
and trustworthy, then such minor contradictions
are irrelevant. ( Para 13, 14, 15, 16)

Criminal Appeal rejected. (E-3)

Case law/ Judgements relied upon:-

## Text

378 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the appellant, which is, that,
according to the statement of PW-1
(extracted in paragraph 15 above), during
cross-examination, he escaped when he
spotted the assailants and, therefore, he
could not be a witness of the incident. In
this regard, we may observe that the
statement of a witness is to be appreciated
after reading it in its entirety and not by
reading a sentence in isolation. Notably, the
question
in
reference
to
which
the
statement
was
made
during
crossexamination is not noted; and, otherwise
also,
that
statement
is
immediately
followed by PW-1's assertion that he
witnessed all the shots fired at the
deceased. In our view, therefore, keeping in
mind that this is a broad day light murder
of which a prompt named first information
report was lodged, which is supported by
an ocular account that finds corroboration
from the medical evidence as well as other
surrounding circumstances, the prosecution
has succeeded in proving the guilt of the
appellant beyond reasonable doubt and
therefore, we do not find any merit in this
appeal.
The
appeal
is
consequently
dismissed. The accused-appellant, who is
in jail, shall serve out the sentence awarded
to him by the trial court.

33. Let a copy of this order be
certified and sent along with the record to
the
trial
court
for
information
and
compliance.
----------
(2022)03ILR A378
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2021

BEFORE

THE HON'BLE ANIL KUMAR OJHA, J.

Criminal Appeal No. 5681 of 2016
Aftab ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajesh Dwivedi

Counsel for the Respondent:
A.G.A.

Criminal Law- Code of Criminal Procedure-
Section 154- Delayed First Information
Report- From the perusal of the aforesaid,
it is clear that F.I.R. was lodged just
within five hours of the alleged incident,
this cannot be said to be delay in loding of
the F.I.R. In the facts and circumstances,
it is held that F.I.R. has been lodged with
full promptitude. Therefore, it is held that
under the circumstances of the present
case five hours delay in lodgement of the
F.I.R. would not create doubt in the
prosecution case.

Mere delay of five hours in lodging the F.I.R
shows that the same is prompt rather than
delayed.

Evidence Law - Indian Evidence Act-
1872- Sections 3 & 134- Non examination
of eye witnesses cannot be pressed into
service for discarding the prosecution case
with a stroke of pen.

Where the testimony of a witness is credible
and reliable, then there is no requirement in law
to examine further witnesses to prove the same
fact.

Contradictions,
Embellishments
and
Improvements- The testimony of the
victim
must
be
appreciated
in
the
background of the entire case and the
Courts
should
examine
the
broader
probabilities of a case and not get swayed
by minor contradictions or insignificant
discrepancies in the statement of the
victim, which are not of a fatal nature, to
throw
out
an
otherwise
reliable
prosecution
case
-There
is
no
contradiction or inconsistency between
medical and oral evidence rather medical
3 All. Aftab Vs. State of U.P.
379
evidence corroborates the oral evidence -
PW4 Dr. Naresh Kumar, Surgeon, District
Hospital, Hamirpur, has tendered evidence
that at the time of alleged incident victim
was 14 to 16 years of age, thus at the time
of alleged incident, victim was minor.

Settled law that the case of the prosecution is
discredited only where the contradictions are
major and go to the root of the matter but where
such contradictions are minor or trivial in nature,
the testimony of the witness is corroborated by
the medical and other evidence and is credible
and trustworthy, then such minor contradictions
are irrelevant. ( Para 13, 14, 15, 16)

Criminal Appeal rejected. (E-3)

Case law/ Judgements relied upon:-

1. Mukesh & anr. Vs St. of NCT of Del. & ors.
AIR 2017 SC 2161

2. Hukum Singh Vs St. of Raj., 2000 (41) ACC
662 (SC)

3. St. of H.P. Vs Gian Chand, 2001(2) JIC 305 (SC)

4. Komal Vs St. of U.P., (2002) 7 SCC 82

5. Babu Ram Vs St. of U.P. 2002(2) JIC 649 (SC)

6. Ram Narain Singh Vs St. of U.P., 2003(46)
ACC 953(All-D.B.).

7. The St. of Punj. Vs Gurmit Singh & Ors, 1996
JIC 611 (SC)

8. St. of H.P Vs Gian Chand (2001) 2 JIC 305 (SC)

9. Raja & ors Vs St. of Kar. (2016) 10 SCC 506

10. Shivasharanappa Vs St. of Kar., (2013) 5
SCC 705

(Delivered by Hon'ble Anil Kumar Ojha, J. )

Heard
learned
counsel
for
the
appellant, learned A.G.A. for the State and
perused the records.

2. Feeling aggrieved and dissatisfied
with the judgment and order dated
06.10.2016 passed by Additional Sessions
Judge/Court No. 1, Hamirpur in Special
Sessions Trial No. 98 of 2013 (State v.
Aftab), arising out of Case Crime No. 819
of 2013, under Section 376(2)(I)(J) I.P.C.
and Section 6 of P.O.C.S.O. Act, P.S.
Kotwali Hamirpur, District Harmirpur
whereby the learned Additional Sessions
Judge/Court No. 1, Hamirpur has convicted
and sentenced the appellant under Section
376(2)(I)(J) I.P.C. to undergo rigorous
imprisonment for a period of 14 years with
fine of Rs. 20,000/-, in default of payment
of fine, one year additional rigorous
imprisonment,
under
Section
6
of
P.O.C.S.O. Act, rigorous imprisonment for
a period of 12 years with fine of Rs.
10,000/-, in default of payment of fine, six
months rigorous imprisonment.

All the sentences have been
ordered to run concurrently.

3. Tersely put, the case of the
prosecution is that the complainant Ahmad
Khan lodged an F.I.R. at P.S. Kotwali
Hamirpur, District Hamirpur on 08.04.2013
at 22:15 hours, stating therein that on
08.04.2013
at
about
05:30PM,
complainant's daughter victim aged about 9
years was playing in the locality. At the
same time, the appellant who is resident of
the same locality took the victim to his
house and committed rape upon her. Owing
to rape, blood was continuouly oozing out
from the private part of the victim.

4. On the written report submited by
complainant, a case was registered against
the appellant at P.S. Kotwali Hamirpur,
District Hamirpur in Case Crime No. 819
of 2013, under Section 376(2)(I)(J) I.P.C.
380 INDIAN LAW REPORTS ALLAHABAD SERIES
and Section 6 of P.O.C.S.O. Act, P.S.
Kotwali Hamirpur, District Harmirpur.

5. Investigation was entrusted to R. K.
Mishra, S.H.O. of Kotwali Hamirpur who
recorded statement of victim through lady
constable Radha, got done the medical
examination of the victim, visited the place
of occurrence and prepared the site plan,
got recorded the statement of victim under
Section 164 Cr.P.C., took the blood stained
nekar of the victim and prepared Ex. ka-8,
took possession of underwear of the vcitim
and prepared fard Ex. ka-2 and after
completion of investigation, submitted
charge sheet against the appellant under
Section 376(2)(I)(J) I.P.C. and Section 6 of
P.O.C.S.O. Act.

6. The then Additional Sessions
Judge,
Court
No.
1,
Hamirpur
on
24.08.2013, framed the charges against the
appellant under Section 376(2)(I)(J) of
I.P.C. and Section 6 of P.O.C.S.O. Act.
Appellant denied the charges and claimed
trial.

7. To prove the charges against the
appellant, prosecution produced PW1 Ahmad
Khan, who lodged the F.I.R., has supported
the prosecution case and proved the chick FIR
Ex. Ka-1. PW2 is the victim, she has
supported the prosecution version. PW3 Dr.
Asha Sachan, Medical Officer has proved Ex.
Ka-2 & Medical report Ex. Ka-3. PW4 Dr.
Naresh Kumar, Radiologist has proved the Ex.
Ka-4 and has opined that age of victim at the
time of alleged incident was about 14 to 16
years. PW5 CP Anurag Tripathi has proved
the chick F.I.R. Ex. Ka-5 and carbon copy of
the GD Ex. Ka-6. PW6 R. K. Mishra, is the
I.O. of the case and he has proved the site plan
Ex. Ka-7, blood stained nekar Ex. Ka-8, arrest
memo Ex. Ka-9, recovery memo Ex. Ka-10
and supplementary charge sheet Ex. Ka-11.

8. After completion of evidence,
statement of appellant under Section 313
Cr.P.C. was recorded. Appellant denied the
evidence and stated that the police in
collusion with the complainant has lodged
false case on account of enmity. Further
stated that complainant Ahmad Khan used
to take money from his sister-in-law
Reshma (Bhabi) to deposit in Sahara Bank
and when the money was not returned,
complainant threatened to lodge F.I.R.

9. After hearing the learned counsel
for the prosecution and defence, learned
Additional Sessions Judge, Court No. 1,
Hamirpur convicted and sentenced the
appellant as aforesaid.

10. Aggrieved by the aforesaid
judgment and order appellant has preferred
this appeal before this Court.

11. Submission of the learned counsel
for the appellant is that there is unexplained
delay of five hours in lodgement of the
F.I.R. Star witnesses Ameen and Raj
Kumar have not been produced for
evidence. Appellant has been falsely
implicated. Appellant is entitled to benefit
of doubt and deserves acquittal. Appeal
should be allowed and appellant should be
acquitted.

12. Per contra, learned A.G.A. for
the State vehemently opposed the above
submission and contended that the victim
has supported the prosecution story. The
evidence of victim is supported by
medical evidence. On the basis of five
hours delay in lodging the F.I.R.,
prosecution case cannot be thrown out.
Proseuction has established its case
beyond reasonable doubt against the
appellant. Appeal has no legs to stand and
deserves dismissal.
3 All. Aftab Vs. State of U.P.
381

13. First submission of learned
counsel for the appellant is that there is
unexplained delay in lodgment of the F.I.R.
Perusal of the Ex. Ka-5 Chick F.I.R.
reveals that alleged incident took place on
08.04.2013 at about 05:30PM in the
evening. F.I.R. was lodged on the same day
at about 22:15 hours nearly four hours forty
five minutes after the occurrence. Place of
occurrence is five hundred meters south
from the Police Station Kotwali Hamirpur
where the F.I.R. was lodged. From the
perusal of the aforesaid, it is clear that
F.I.R. was lodged just within five hours of
the alleged incident, this cannot be said to
be delay in loding of the F.I.R. In the facts
and circumstances, it is held that F.I.R. has
been
lodged
with
full
promptitude.
Therefore, it is held that under the
circumstances of the present case five
hours delay in lodgement of the F.I.R.
would not create doubt in the prosecution
case. Thus, the submission of the learned
counsel for the appellant that lodgement of
F.I.R. is delayed, is rejected.

14. Second submission of learned
counsel for the appellant is that star
witnesses Ameen and Raj Kumar have not
been produced, hence, prosecution case
becomes doubtful. I do not agree with the
above submission of learned counsel for
the appellant.

In Mukesh and another v. State
of NCT of Delhi and others AIR 2017 SC
2161, Hon'ble Apex Court has held that the
if a witness examined in the court is
otherwise found reliable and trustworthy,
the fact sought to be proved by the witness
need not be further proved through other
witnesses though there may be other
witnesses available who could have been
examined but were not examined. Nonexamination of material witnesses is not a
mathematical formula for discarding the
weight of the testimony available on record
however
natural,
trustworthy
and
convincing it may be. It is settled law that
non-examination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution case
with a stroke of pen. Court can convict an
accused on statement of sole witness even
if he is relative of the deceased and non
examination of independent witness would
not be fatal to the case of prosecution.

Thus, law on the point is that non
examination of eye witnesses cannot be
pressed into service for discarding the
prosecution case with a stroke of pen.
Following other authorities may also be
cited on the above point.

Hukum
Singh
v.
State
of
Rajasthan, 2000 (41) ACC 662 (SC); State
of H.P. v. Gian Chand, 2001(2) JIC 305
(SC); Komal v. State of U.P., (2002) 7
SCC 82: Babu Ram v. State of U.P.
2002(2) JIC 649 (SC) and Ram Narain
Singh v. State of U.P., 2003(46) ACC
953(All-D.B.).

In view of the above settled legal
position, the contention of the learned
counsel for the appellant with regard to non
production of eye witnesses Ameen and
Raj Kumar, is rejected.

15. Next submission of the learned
counsel for the appellant is that the
appellant has been falsely implicated in the
present case.

In The State of Punjab v. Gurmit
Singh & Others, 1996 JIC 611 (SC), the
Hon'ble Apex Court has held as follows:

"OF late, crime against women in
general and rape in particular is on the
382 INDIAN LAW REPORTS ALLAHABAD SERIES
increase. It is an irony that while we are
celebrating women's rights in all spheres, we
show little or no concern for her honour. It is
a sad reflection on the attitude of indifference
of the society towards the violation of human
dignity of the victims of sex crimes. We must
remember that a rapist not only violates the
victim's privacy and personal integrity, but
inevitably causes serious psychological as
well as physical harm in the process. Rape is
not merely a physical assault - it is often
destructive of the whole personality of the
victim. A murderer destroys the physical body
of his victim, a rapist degrades the very soul
of the helpless female. The Courts, therefore,
shoulder a great responsibility while trying
an accused on charges of rape. They must
deal with such cases with utmost sensitivity.
The Courts should examine the broader
probabilities of a case and not get swayed by
minor
contradictions
or
insignificant
discrepancies in the statement of the
prosecutrix, which are not of a fatal nature,
to
throw
out
an
otherwise
reliable
prosecution
case.
If
evidence
of
the
prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of
her statement in material particulars. If for
some reason the Court finds it difficult to
place implicit reliance on her testimony, it
may look for evidence which may lend
assurance to her testimony, short of
corroboration required in the case of an
accomplice. The testimony of the prosecutrix
must be appreciated in the background of the
entire case and the trial court must be alive to
its responsibility and be sensitive while
dealing
with
cases
involving
sexual
molestations."

In State of Himachal Pradesh v.
Gian Chand (2001) 2 JIC 305 (SC), the
Hon'ble Apex Court has held as follows:

"In State of Punjab Vs. Gurmit
Singh & Ors., (1996) 2 SCC 384, one of us,
Dr. A.S. Anand, J. (as His Lordship then
was) has thus spoken for the court __ A
murderer destroys the physical body of his
victim, a rapist degrades the very soul of
the helpless female. The courts, therefore,
shoulder a great responsibility while trying
an accused on charges of rape. They must
deal with such cases with utmost sensitivity.
The courts should examine the broader
probabilities of a case and not get swayed
by minor contradictions or insignificant
discrepancies in the statement of the
prosecutrix, which are not of a fatal nature,
to
throw out
an otherwise
reliable
prosecution case. The approach adopted by
the High Court runs into the teeth of law so
stated and hence stands vitiated."

In Raja and others v. State of
Karnataka (2016) 10 SCC 506, Hon'ble
Apex Court has held as follows:

"..........It
was
exposited
that
insofar as the allegation of rape is
concerned, the evidence of the prosecutrix
must be examined as that of a injured
witness whose presence at the spot is
probable but it can never be presumed that
her statement should always without
exception, be taken as gospel truth.

The essence of this verdict which
has stood the test of time proclaims that
though generally the testimony of a victim
of rape or non- consensual physical assault
ought to be accepted as true and
unblemished, it would still be subject to
judicial scrutiny lest a casual, routine and
automatic acceptance thereof results in
unwarranted conviction of the person
charged."
3 All. Aftab Vs. State of U.P.
383

In Shivasharanappa v. State of
Karnataka, (2013) 5 SCC 705, Hon'ble
Apex Court has held that the corroboration
of testimony of child witness is not
required if credible. Relevant portion of the
of the aforesaid judgment is quoted
hereinbelow:

"15. In Dattu Ramrao Sakhare
and others v. State of Maharashtra, while
dealing with the reliability of witness who
was ten years old, this Court opined that
a child witness, if found competent to
depose to the facts and reliable, such
evidence
could
form
the
basis
of
conviction. The evidence of a child
witness and the credibility thereof would
depend upon the circumstances of each
case. The only precaution which the court
should bear in mind while assessing the
evidence of a child witness is that the
witness must be a reliable one and
his/her demeanour must be like any other
competent witness and there is no
likelihood of being tutored. Thereafter,
the Court proceeded to lay down that
there is no rule or practice that in every
case the evidence of such a witness
should
be
corroborated
before
a
conviction can be allowed to stand but, as
a rule of prudence, the court always finds
it desirable to seek the corroboration to
such evidence from other dependable
evidence on record.

16. In Panchhi and others v. State
of U.P., it has been held thus: -

oration before it is relied on. It is
more a rule of practical wisdom than of
law (vide Prakash v. State of M.P. Baby
Kandayanathil v. State of Kerala, Raja
Ram Yadav v. State of Bihar and Dattu
Ramrao Sakhare v. State of Maharashtra
(supra)."

A
similar
view
has
been
expressed in State of U.P. v. Ashok Dixit
and another.

17. Thus, it is well settled in law
that the court can rely upon the testimony
of a child witness and it can form the basis
of conviction if the same is credible,
truthful and is corroborated by other
evidence brought on record. Needless to
say, the corroboration is not a must to
record a conviction, but as a rule of
prudence, the court thinks it desirable to
see the corroboration from other reliable
evidence placed on record. The principles
that apply for placing reliance on the
solitary statement of witness, namely, that
the statement is true and correct and is of
quality and cannot be discarded solely on
the ground of lack of corroboration,
applies to a child witness who is competent
and whose version is reliable."

Settled law on the point is that the
testimony of the victim must be appreciated
in the background of the entire case and the
Courts
should
examine
the
broader
probabilities of a case and not get swayed
by minor contradictions or insignificant
discrepancies in the statement of the victim,
which are not of a fatal nature, to throw out
an otherwise reliable prosecution case. In
view of above settled legal position, the
evidence of PW2 victim is being evaluated.

PW2 victim has supported the
prosecution version in her examination-inchief. Relevant portion of her examination
is quoted hereinbelow:

"मैं आइसक्रीम लेने जा रही थी तो
रास्ते में आफताब णमला था। उसने कहा था णक
आइसक्रीम वाला मेरे घर के पास है। तब मैं
आइसक्रीम लेने उसके घर के पास गई थी। जब
384 INDIAN LAW REPORTS ALLAHABAD SERIES
मैं उसके घर के पास पहुंची तो वह मेरा मुहुं दबा
कर मुझे जानवरोुं वाले कमरे में, जो उसके घर
के पास ही है, ले गया था. वहाुं उसने मेरे सारे
कपडे उतार णदये थे और मेरे साथ गन्दा काम
णकया था।"

Learned counsel for defence,
extensively cross-examined this witness
but could not shake the credibility of this
witness. Relevant portion of her crossexamination is quoted hereinbelow:

"मेरे गुप्ाुंग में चोट आफताब के
गुंदा काम करने के कारि आई थी। गुंदा काम
करने से मेरा मतलब है णक आफताब ने अपनी
पेशाब की नली मेरी पेशाब की जगह डाली
थी।"

From the careful scrutiny of the
victim PW2 who is a minor girl, it is
held that her statement is probable and
credible.

In
view
of
the
above,
contention
of
false
implication
by
learned counsel for the applicant is
rejected.

16. PW3 Dr. Asha Sachan, Medical
Officer,
Sadar,
Mahila
Hospital,
Hamirpur,
conducted
the
medical
examination of the victim and has stated
that there was no mark of injury on the
outer side of the private part of the
victim. Hymen was fresh torn at several
places and blood was oozing out from
the private part of the victim. Relevant
portion of her cross-examination is
quoted hereinbelow:

"प्रश्न- क्या णदनाुंक 08.04.2013 को
समय करीब 5:30 P.M. पर णकसी वयस्क
पुरुष द्वारा अवयस्क लडकी के गुप्ाुंग में
जबरदस्ती सम्भोग करने पर उक्त चोट आना
सम्भव है ?

उत्तर- जी हाुं।"

Thus, there is no contradiction
or inconsistency between medical and
oral evidence rather medical evidence
corroborates the oral evidence of PW-2
Victim.

Thus, from the evidence of victim
PW2 Victim and PW3 Dr. Asha Sachan, it
is manifest that appellant committed rape
upon the victim and blood was oozing out
after rape. Dr. Asha Sachan has further
stated in her evidence before the court that
hymen was fresh torn at several places and
blood was oozing out. Thus, oral evidence
of PW2 victim is corroborated by medical
evidence of PW3 Dr. Asha Sachan.

17. PW4 Dr. Naresh Kumar, Surgeon,
District Hospital, Hamirpur, has tendered
evidence that at the time of alleged incident
victim was 14 to 16 years of age, thus at the
time of alleged incident, victim was minor.

18. The upshot of the above
discussion is that the prosecution has
established its case beyond reasonable
doubt against the appellant Aftab.

19. From the perusal of the impugned
judgment passed by the court below, it is
evident that that appellant has been
convicted under Section 376(2)(I)(J) I.P.C.
to undergo rigorous imprisonment for a
period of 14 years with fine of Rs. 20,000/-,
in default of payment of fine, one year
additional rigorous imprisonment, under
Section 6 of P.O.C.S.O. Act, rigorous
imprisonment for a period of 12 years with
fine of Rs. 10,000/-, in default of payment
of fine, six months rigorous imprisonment.
3 All. Banwari Lal & Anr. Vs. State of U.P.
385

20. The impugned judgment and order
passed by lower court is within four corners
of law. There is no illegality in the
judgment and order dated 06.10.2016
passed by Additional Sessions Judge/Court
No. 1, Hamirpur in Special Sessions Trial
No. 98 of 2013 (State v. Aftab), arising out
of Case Crime No. 819 of 2013, under
Section 376(2)(I)(J) I.P.C. and Section 6 of
P.O.C.S.O. Act, P.S. Kotwali Hamirpur,
District Harmirpur and the same is hereby
confirmed. Appeal lacks merit and is liable
to be dismissed.

21. Accordingly, this appeal is
dismissed.

22. Copy of this judgment be certified
to the court below for compliance. Lower
court record be transmitted to the District
Court, concerned forthwith.
----------
(2022)03ILR A385
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 5769 of 2013

Banwari Lal & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Krishna Gopal

Counsel for the Respondent:
A.G.A.

Evidence Law- Indian Evidence Act, 1872-
Section 102- Burden of Proof- Section 3-
Chance Witness- The prosecution set out
twin motive for the crime but failed to
proved either of them. Two eye-witnesses
were set up. Both were chance witnesses,
one, out of the two, did not support the
prosecution
case
during
crossexamination and denied the presence of
the other at the spot and claimed it to be
elsewhere. The other eyewitness, apart
from being chance witness, discloses that
he witnessed the incident in the light of a
torch from a distance of about 45-50
paces.

Settled law that the evidence of a chance
witness does not only require a close and
cautious scrutiny by the court, but also the
Chance witness has to adequately explain his
presence at the spot in absence of which his
evidence may not be relied upon by the court.

Evidence Law - Indian Evidence Act, 1872-
Section
3-
Section
45-
Contradiction
between ocular and medical evidence- The
ocular account rendered by PW-2, if
accepted,
would
indicate
that
the
deceased was being assaulted when PW-2
arrived at the spot to give a challenge to
the accused from a distance of about 50
paces, where after, the accused dragged
the deceased and dumped him in a pit,
which had water. But no water was found
in the lungs of the deceased which is
indicative of a dead person having been
dumped there. This suggests that the
deceased was either killed at the spot
where he was noticed being assaulted or
elsewhere. Presence of pasty food in the
stomach, as per the autopsy report, in
absence of any evidence as to when the
deceased was served food, by rural
standards and habits, consumption of food
might have been early, say by 8:00 PM,
the possibility of death taking place on or
about midnight, much earlier to the
specified time, also cannot be ruled out.

Where the prosecution witnesses are chance
witnesses and their evidence is contradicted by
the medical evidence and other materials then
the said evidence cannot be held to be
trustworthy or reliable. ( Para 20, 21, 22, 23)

Criminal Appeal allowed. (E-3)