# Balister & Anr v. State of U.P. Opp. Party

- **Citation:** (2022) 10 ILRA 871
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-23
- **Case number:** Criminal Appeal No. 2534 of 2007
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balister-anr-v-state-of-u-p-opp-party-47869
- **Pages:** 14

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- From perusal of the aforesaid
framing charge order, it is apparent that
the place of occurrence is the shop of
Satendra, which is situated in village
Tanda
Vahad,
Police
Station-Bhudana
District Muzaffarnagar. All the evidence
has however been led by the prosecution
over the place of occurrence i.e. Point-A+
which is Tiraha at a distance of 40 passes
from the shop of Satendra alleged to be
place of occurrence in Charge Paper
No.10/A. It means that the incident had
not occurred at ''Point A+' as shown in
site plan as ''Exhibit-Ka/12'. Thus, in
these
circumstances,
the
place
of
occurrence
is
shifting.
This
anomaly
creates a doubt upon the prosecution
version.
872 INDIAN LAW REPORTS ALLAHABAD SERIES
Where the prosecution fails to establish the
place of occurrence and the testimony of the
witnesses is inconsistent with regard to the
place of occurrence, then the same renders the
story of the prosecution doubtful.

Indian Evidence Act, 1872- Section 3-
There is inconsistency with respect to
weapon used by the accused personsThere
is
major
discrepancy
and
inconsistency in the statements of the
witnesses which also creates doubt in
prosecution version.

It
is
settled
law
that
although
minor
inconsistencies and contradictions have to be
ignored, but where the inconsistencies and
contradictions are major in nature and go to the
root of the case of prosecution, then the same
have to be taken into consideration by the
Court.

Indian Evidence Act, 1872- Section 114
(g)- Inspite of the fact that Devendra is
the witness and his information is the
basis of disclosure about the manner in
which the fight erupted on the spot
leading to the murder of deceased yet
Devendra is not adduced in evidence.

Where the prosecution withholds the evidence
of a material witness whose testimony may be
unfavourable for the case of the prosecution,
then the court may draw an adverse inference
against the prosecution.

Indian Evidence Act, 1872- Section 3 - It
is clear that the source of light at the time
of occurrence is not explained. In the
absence of any source of light, it would be
difficult for witnesses to recognise the
accused persons at the time of occurrence.

Where the occurrence is of night hours, then
source of light would be a relevant factor for
identification of the accused.

Indian Evidence Act, 1872- Section 3 -
P.W.-1
and
P.W.-2
are
interested
witnesses as P.W.-1 and P.W.-2 are
brother
and
cousin
brother
of
the
deceased respectively and as such their
statements were liable to have been
minutely examined when there is no
independent witness.

Settled law that testimony of interested and
related witnesses has to be considered with
abundant caution by the court. (Para 21, 27,
28,29, 30, 32, 39)

Criminal Appeal allowed. (E-3)

Judgements/Case Law relied upon:-

## Text

_Characters 0–39,902 of 47,797. This is a partial read: ask again with offset=39902 for what follows._

10 All. Balister & Anr. Vs. State of U.P.
871
circumstances clearly indicate that the
appellant committed murder of his wife
Lad Kunwar, causing severe injuries on
her body. The incident was witnessed by
the eye-witnesses namely PW-3 Masalti
and PW-4 Ramesh. The motive of the
incident is also proved by the prosecution
with the evidence of PW-1 Roop Singh,
PW-2 Laxman Singh, PW-3 Masalti, PW-4
Ramesh, and PW-5 Bhagwan Das. The
recovery of incriminating articles in the
presence of PW-6 Khushali and the
recovery memo prepared by PW-7 Krishna
Dutt as exhibited as EX Ka 2 also indicate
the circumstances leading to the murder of
Lad Kunwar by the appellant. The
presence
of
the
appellant
on
the
intervening night at around 1 AM near the
well where later dead body was found,
also indicates the conduct of the appellant
to try to cause disappearance of the
evidence. Further, the appellant failed to
discharge his burden as cast upon him
under section 106 of the Evidence Act,
1872. All this evidence indicates that
appellant Manni Lal is the author of the
crime and he committed the murder of his
wife Lad Kunwar. The prosecution has
succeeded to bring home the charges
against
the
appellant
under
section
302/201 IPC beyond reasonable doubt.
The trial court has rightly convicted and
sentenced
the
appellant
Manni
Lal.
Therefore, the impugned judgment and
order of the trial court do not require any
interference
and
are
liable
to
be
confirmed.

41. The criminal appeal is accordingly
dismissed.

42. In this case, the Appellant is on
bail, his personal bond and surety bonds are
cancelled. He be taken into custody
forthwith and be sent to jail to serve out the
remaining part of his sentence.

43. Let the certified copy of this order
be transmitted to the trial court for ensuring
compliance.
----------
(2022) 10 ILRA 871
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 2534 of 2007

Balister & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Shyam JI Gaur, Sri A.K. Dubey, Sri A.R.
Dubey, Sri G.P. Dishit, Sri Noor Mohammad, Sri
Sheshadri Trivedi(A.C.)

Counsel for the Respondents:
Govt. Adv.

Criminal Law- Indian Evidence Act, 1872-
Section 3- From perusal of the aforesaid
framing charge order, it is apparent that
the place of occurrence is the shop of
Satendra, which is situated in village
Tanda
Vahad,
Police
Station-Bhudana
District Muzaffarnagar. All the evidence
has however been led by the prosecution
over the place of occurrence i.e. Point-A+
which is Tiraha at a distance of 40 passes
from the shop of Satendra alleged to be
place of occurrence in Charge Paper
No.10/A. It means that the incident had
not occurred at ''Point A+' as shown in
site plan as ''Exhibit-Ka/12'. Thus, in
these
circumstances,
the
place
of
occurrence
is
shifting.
This
anomaly
creates a doubt upon the prosecution
version.
872 INDIAN LAW REPORTS ALLAHABAD SERIES
Where the prosecution fails to establish the
place of occurrence and the testimony of the
witnesses is inconsistent with regard to the
place of occurrence, then the same renders the
story of the prosecution doubtful.

Indian Evidence Act, 1872- Section 3-
There is inconsistency with respect to
weapon used by the accused personsThere
is
major
discrepancy
and
inconsistency in the statements of the
witnesses which also creates doubt in
prosecution version.

It
is
settled
law
that
although
minor
inconsistencies and contradictions have to be
ignored, but where the inconsistencies and
contradictions are major in nature and go to the
root of the case of prosecution, then the same
have to be taken into consideration by the
Court.

Indian Evidence Act, 1872- Section 114
(g)- Inspite of the fact that Devendra is
the witness and his information is the
basis of disclosure about the manner in
which the fight erupted on the spot
leading to the murder of deceased yet
Devendra is not adduced in evidence.

Where the prosecution withholds the evidence
of a material witness whose testimony may be
unfavourable for the case of the prosecution,
then the court may draw an adverse inference
against the prosecution.

Indian Evidence Act, 1872- Section 3 - It
is clear that the source of light at the time
of occurrence is not explained. In the
absence of any source of light, it would be
difficult for witnesses to recognise the
accused persons at the time of occurrence.

Where the occurrence is of night hours, then
source of light would be a relevant factor for
identification of the accused.

Indian Evidence Act, 1872- Section 3 -
P.W.-1
and
P.W.-2
are
interested
witnesses as P.W.-1 and P.W.-2 are
brother
and
cousin
brother
of
the
deceased respectively and as such their
statements were liable to have been
minutely examined when there is no
independent witness.

Settled law that testimony of interested and
related witnesses has to be considered with
abundant caution by the court. (Para 21, 27,
28,29, 30, 32, 39)

Criminal Appeal allowed. (E-3)

Judgements/Case Law relied upon:-

1. Matlab Ali Vs St. of U.P. (Crimininal Appeal
No. 175 of 1971, dec. on 09/08/1971)

2. Syed Ibrahim Vs St. of A.P., (2006) 10 SCC
601

3. St. of U.P. Vs Mangal Singh & Ors., (2009) 12
SCC 306

4. Asraf Biswas Vs. St. of W.B., 2016 SCC OnLine
Cal 4342

5. Jumma Vs St. of U.P., MANU/UP/1104/1992,
Pr.-19

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This appeal has been preferred by
accused-appellants, namely, Balister and Smt.
Kamla against the judgment and order dated
21st March, 2007 passed by the Additional
Sessions Judge, Court No.6, Muzaffarnagar
in Sessions Trial No. 830 of 2006 (State of
U.P. Vs. Balister and Another), under
Sections 302/34 I.P.C. arising out of Crime
No. 838 of 2005, Police Station-Budhana,
District-Muzaffarnagar, whereby both the
accused-appellants have been convicted and
sentenced to undergo life imprisonment under
Section 302/34 I.P.C. with fine of Rs. 7,000/-
each, in default thereof, they have to further
undergo one year additional imprisonment.

2. We have heard Mr. Sheshadri
Trivedi, learned Amicus Curiae appearing
for the accused-appellant no.1 and Kumari
10 All. Balister & Anr. Vs. State of U.P.
873
Meena, learned A.G.A. for the State.
Appellant no.2 has died and her appeal has
already abated by this Court vide order
dated 8th September, 2022. We have also
perused the entire materials available on
record.

3. The prosecution story, as reflected
from the records, is as follows:

On the basis of a written report
submitted by the informant-P.W.1, namely
Jagendra Singh dated 23rd November, 2005
(which was marked as Exhibit-Ka-1), a first
information report (Exhibit-Ka-9) was lodged
on 23rd November, 2005 at 06:30 p.m. (in
evening), which was registered as Crime No.
231 of 2005 under Section 302 I.P.C., at
Police
Station-Badhana,
DistrictMuzaffarnagar against three persons, namely,
Puran, Balister and Smt. Kamla. In the said
report, it has been alleged that on 23rd
November, 2005 at 06:30 p.m., the brother of
the informant-P.W.-2, namely, Anil Kumar
went to the grocery shop of Satendra for
buying some goods, where Puran, his brother
Balister and his mother Smt. Kamla, who are
residents of same village, were already
standing there. When Anil Kumar, brother of
the informant-P.W.-1, after buying goods,
returned to his house from the said grocery
shop, then the above three persons in front of
the street of their house, started abusing and
threatening him that they will see him today.
When Anil Kumar brother of the informantP.W.2 objected not to do the same, then
Balister and Kamla grabbed Anil Kumar
from behind and Puran started hitting him by
Tabal. When Anil Kumar fell on the ground
then Balister also started hitting him with
Balkati. At the same time, the informantP.W.-1, Krishnapal Singh, Mahipal and
Sanjeev Kumar were coming from their
fields through the front road. Hearing the
sound
in
the
street,
informant-P.W.-1,
Krishnapal Singh, Mahipal and Sanjeev
Kumar reached the spot and tried to save him
as also they raised alarm. On seeing
informant-P.W.-1, Krishnapal Singh, Mahipal
and Sanjeev Kumar, all the accused persons,
namely, Puran, Balister and Smt. Kamla, ran
away after threatening them. They chased
them but did not succeed in catching them.
Thereafter, they picked up Anil Kumar from
the spot and took him to the hospital by a Car,
where he was declared dead. Thereafter they
went to the Police Station along with the dead
body of Anil Kumar. Resultantly, on the
written report of the informant-P.W.-1, Crime
No. 231 of 2005 was registered. On
registration of the said case, the inquest of the
body of the deceased, which was lying in a
Marshal jeep outside the Police Station, was
conducted by Sub-Inspector Vijay Pal Singh
(P.W.4) on 23rd November, 2005 at 2200
hours. Since injuries were found on the body
of the deceased, in the opinion of the inquest
witnesses, the cause of death of the deceased
was homicidal. The inquest report was
marked as Exhibit-Ka-3. As such, after
sealing the dead body of the deceased, the
same was sent to Mortuary for post-mortem
on 23rd November, 2022 through Constables
Yadram and Maheshpal.

4. The post-mortem of the dead body
of the deceased Anil Kumar was conducted
by Dr. U.S. Fauzdar (P.W.-3) on 24th
November, 205 at 03:30 p.m. and in his
opinion, the cause of death of deceased was
due to shock and haemorrhage as a result of
ante-mortem injuries. On post-mortem of
the dead body of the deceased, following
ante-mortem injuries were reported:

"(1). Incised wound 7 cm. x 1/2 cm x
scalp deep on the back of skull (occipital
region), 8 cm. above to hair line of back,

(2). Incised wound 8 cm. x 1 cm. x
muscle deep over left cheek;
874 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Incised wound 15 cm. x 3 cm. x
bone deep on left side of neck, underneath
tissues are sharply cut with severed of
cortical vessels, veins, partial cut of on left
side trachea, Fifth cervical body of
vertebra is partially cut;

(4) Incised wound lower 1/2 of outer
helix of left Pinna. Cut;

(5) Contused abrasion 3 cm. x 1⁄2 cm.
on top of left shoulder;

(6 Contused abrasion 1 cm. x 1/2 cm.
on deltoid prominence of left shoulder;

(7). Contused abrasion 10 cm. x 1/2
cm. on back of left upper arm;

(8) Contused abrasion 10 cm. x 1/2
cm. on back of left shoulder;

(9) Incised wound 13 cm. x 3 cm. x
muscle deep on Inner back of left forearm
lower 1/2;

(10) Incised wound 3 cm. x 1 cm. x
muscle deep on dorsum of left wrist;

(11) Incised wound 6 cm. x 2 1⁄2 cm. x
bone deep on flexor aspect of left forearm
lower third;

(12) Incised wound 10 cm. x 2 1⁄2
cm. x bone deep dorsum of left hand
with fractured of v, iv & iii metacarpal,
fractured ends are are reddish in
colour;

(13) Incised wound 1 cm. x 1/2 cm.
muscle deep on flexor aspect of left middle
finger; and

(14). Incised wound 1 cm. x 1/2 cm.
muscle deep of flexor aspect of left middle
finger."

5. It would be worth noticing that the
accused-appellant, namely, Balister @
Kallu and Smt. Kamla were also got
medically examined by Dr. Vineet Kaushik,
In-charge Medical Officer, Primary Health
Centre, Budhana, Disrict Muzaffarnagar
13th November, 2005, wherein no fresh
visible injury were seen on the bodies of
the accused-appellants.

6. After sending the body of the
deceased for post-mortem, the Investigating
Officer, namely, Jagdish Singh, the then
Station House Officer, Badhaut, District
Baghpat, P.W.-6, went to the place of
occurrence and collected blood stained
earth and plain earth, thereafter prepared
memo of recovery (Exhibit-13). He also
prepared Site Plan of the place of
occurrence. He recorded statements of
witnesses. On 12th December, 2005, the
Investigating Officer arrested the named
accused persons, namely, Ballister and Smt.
Kamla and on their pointing out, he
recovered Balkati and Tabal which were
alleged to have been used in the crime of
which the recovery memo was also
prepared (Exhibit-Ka-14). After completion
of statutory investigation in terms of
Chapter XII Cr.P.C., the Investigating
Officer submitted the charge-sheet against
the
accused
persons.
The
learned
Magistrate took cognizance of the offence
on the charge-sheet and committed the case
to the court of Sessions Judge.

7. It would also worth noticing that
the recovered weapons i.e. Tabal and
Balkati as also the clothes and article,
which were collected from the body of the
deceased, namely, pant along with belt, Tshirt, Baniyan, underwear and kardhan,
were sent for forensic examination to the
Forensic Science Laboratory, U.P. Agra.
After examining the same, the Forensic
Science Laboratory has submitted its report
dated 16th June, 2006. Though in the said
report, it has been reported that human
blood stain was found on all the objects
sent for forensic examination, but it was
preposterous.

8. On 21st November, 2006, the
learned Trial Court framed charges against
the accused persons for offences punishable
10 All. Balister & Anr. Vs. State of U.P.
875
under Sections 302 I.P.C. read with Section
34

9. In order to prove its case, the
prosecution
relied
upon
documentary
evidence, which were duly proved and
consequently marked as Exhibits. The same
are catalogued herein below:-

"i). First information report was marked
as Exhibit Ka -9 ;

ii). The written report of informant/P.W.-
1 Jagendra Singh Jaat, was marked as Exhibit
Ka-1;

iii). Recovery memo of blood stained
and plain earth collected from the place of
occurrence was marked as Exhibit Ka-13;

iv). Recovery memo of blood stained
Tabal and Balkati was marked as Exhibit Ka14;

v). The post-mortem report of the
deceased Anil Kumar was marked as Exhibit
Ka-2;

vi).
Report
of
Forensic
Science
Laboratory, U.P. Agra was marked as Exhibit
Ka-7; and

vii). Site plan with index was marked as
Exhibit Ka-15."

10. The prosecution also examined total
nine witnesses in the following manner:-

"i). The Informant, namely, Jagendra
Singh, brother of the deceased has been
adduced as P.W.-1;

ii). Sanjeev Kumar, who is alleged to be
an independent witness, has been adduced as
P.W.-2;

iii) Dr. U.S. Fauzdar, District Hospital,
Muzaffarnagar, who conducted the postmortem of the body of the deceased Anil
Kumar has been adduced as P.W.-3;

iv) Sub-Inspector Vijaypal Singh, who
prepared the inquest report of dead body of
the deceased, has been adduced as P.W.-4;

v). Constable-378 Shashi Kawar Rana,
who prepared the Chik first information
report (Exhibit-ka-9) on the basis of written
report of the informant Jagendra Singh has
been adduced as P.W.-5; and

vi). Sub-Inspector Jagdish Singh, the
then Station House Officer, Police StationBudhana, who conducted the investigation
of the alleged crime.

11. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused-appellants Balister and
Smt. Kamla for recording their statements
under
section
313
Cr.PC.
In
their
statements recorded U/s 313 Cr.P.C. on
19th January, 2007, the accused appellants
denied their involvement in the crime.
Accused appellants Balister and Smt.
Kamla specifically stated before the trial
court that they have been falsely implicated
in this case. The defence has also adduced
Yogendra Singh resident of the same
village, as D.W.-1.

12. It would also be worth noticing
that the trial court under Section 311
Cr.P.C. has summoned Balesh Kumar, the
then teacher of Dayanand Bal Vidyalaya,
Junior High Court, Budhana, Police-Station
Budhana, District-Muzzafarnagar and has
also recorded his statement as Court
Witness.

13. While passing the impugned judgment
of conviction, the trial court after relying
upon the documentary as well as oral
evidence adduced by the prosecution, has
recorded its finding that it has been proved
that the prosecution has mentioned the
immediate reason for the murder of Anil by
the accused from the very beginning and
has also proved by the evidence. The
informant-P.W.-1 took the injured Anil,
who was breathing a little, immediately to
876 INDIAN LAW REPORTS ALLAHABAD SERIES
the Primary Health Center where he was
declared dead and immediately thereafter
he was taken from there to the Police
Station, where on the written report of the
informant, the first information report has
been lodged. The first information is
prompt in which date, time and place of
incident;
the
immediate
reason
for
commissioning of the offence; the details of
the
weapons
used
by
the
accusedappellants; the name of the witnesses; the
brief details of the incident have been
mentioned and there is no possibility of any
false facts being mentioned in the first
information report. The entire prosecution
version has been proved by the eyewitnesses, namely, P.W.-1 and P.W.-2.
Though both eye-witnesses are brothers of
the deceased yet their presence on the spot
is proven and despite the fact that they have
faced a long cross-examination but they
stand in the test of truth. There is no
possibility of false implication of the
accused in the alleged offence by the
prosecution even if they do not have any
prior enmity with the accused without any
reason. Despite the fact that they are real
brother of the deceased. It is also not likely
that they will falsely implicate an innocent
person except the real accused. The
medical evidence has also supported the
statements of the eye witnesses and the
prosecution version. The investigation in
the matter has been done promptly
following due procedure known to law.
There is no defect in the investigation done
in the matter so that the benefit of the same
could accrue to the defense party. After
recording such finding, the trial court has
come to the conclusion under the impugned
judgment of conviction that the prosecution
has been able to fully prove that both the
accused, in furtherance of their common
intention, committed the murder of Anil
Kumar in front of their street. As such, the
trial court has found the offence under
Section 302 read with 34 I.P.C. to have
been committed by the accused persons
Balistar and Smt. Kamla. Consequently, the
trial court has awarded sentence of life
imprisonment along with a fine of Rs.
7,000/- each.

14. Aggrieved by the aforesaid
judgment and the order of conviction and
sentence, the present jail appeal has been
filed on the ground that conviction is
against the weight of evidence on record
and against the law and the sentence
awarded to the accused-appellants is too
severe.

15.

Questioning
the
impugned
judgment and order of conviction, learned
Amicus Curiae appearing for the appellant
no.1 Balister submits that:

(i) the alleged incident took place on
23.11.2005 when the brother of informant
Anil Kumar S/o of Dhara Singh R/o Tanda
P/s Bhudhana, Muzaffarnagar had gone to
purchase few items from the shop of
Satendra at about 6:30 p.m. When the
deceased was returning to his house after
purchasing
the
said
items,
he
was
surrounded by Puran, his brother Balister
and mother of Balister, namely, Smt.
Kamla,
who
threatened
and
abused
informant's younger brother Anil. In the
meantime, Balister and Kamla grabbed
Anil and Puran attacked him with Tabal.
Consequently, Anil fell down on the
ground. Balister also attacked him with
Balkati. This incident was seen by Kishan
Pal Singh, Mahi Pal and Sanjeev Kumar,
who were returning from their fields. When
they heard screams of Anil Kumar, they
tried to rescue him. Thereafter, Puran,
Balister and his mother Kamla Devi ran
away from the place of occurrence. The
10 All. Balister & Anr. Vs. State of U.P.
877
injured Anil was brought to the hospital
where he was declared dead. After that, the
informant (P.W.-1) along with other took
him in a Jeep to the Police Station, where
on the written report of the informant the
first information report has been lodged.
Henceforth, it is evident that the alleged
incident took place on 23.11.2005 at 6:30
p.m. Whereas, the first information report
has been lodged by the informant P.W. 1 on
23.11.2005 at 20:50 p.m. The distance
between the place of occurrence and the
P.S. concerned is about 7 kms;

(ii) in support of prosecution story,
prosecution has adduced two eyewitnesses
P.W.-1 Jogendra Singh and P.W.-2 Sanjeev
Kumar. These two are the star witnesses of
the prosecution. However, there are major
contradictions in their statements and that
is why, in the first information report, it is
stated that Puran attacked Anil with Tabbal
and Balister attacked him with Balkati. The
same has been stated in chief-examination
by Jogendra Singh P.W.-1, whereas P.W.-1
Jogendra Singh has stated in his statement
under 161 Cr.P.C. that Puran as well as
Balister had attacked the deceased Anil
with Tabbal. Hence, there is contradiction
with regard to the weapons, which are
alleged to have been used by both the
accused Puran and Balister for assaulting
the deceased Anil;

(iii) it is stated in the first information
report that the accused-appellants Balister
and Kamla grabbed deceased Anil at the
time
of
occurrence,
whereas
P.W.-1
Jogendra Singh in his cross-examination
admitted that accused-appellant Kamla
caught hold of the left-hand of deceased
Anil and did not grab him along with
accused Balister, whereas in the first
information report it has been alleged that
she had grabbed him along with accused
Balister. P.W.-2 Sanjeev Kumar stated in
his
examination-in-chief
that
Balister
caught hold of left-hand of Anil and
accused Kamla caught hold right-hand of
Anil. As such, there is inconsistency in the
statements of the star witnesses P.W. 1 and
P.W.- 2;

(iv) there was no source of light at the
place of occurrence. Although P.W.-2
Sanjeev Kumar has stated that there were
two gas lanterns, which were lighting. It
has also been stated that P.W.- 2 Sanjeev
Kumar had seen the occurrence in the light
of these two lanterns. Whereas, P.W.-1
Jogendra
Singh
has
stated
in
his
examination-in-chief that there was no
electric light at the place of occurrence. He
has further stated that there was no light of
lanterns at the place of occurrence because
there were no gas lanterns, which were
lightning at the time of occurrence;

(v) in the month of November at about
6:30 p.m. in evening, according to Indian
climate, it becomes dark. Prosecution
witness P.W.-1 Jogendra Singh has stated in
his cross-examination that at the time of
occurrence there was dense darkness.
Therefore, it is apparently clear that in the
absence of source of light, it was
impossible for witnesses to recognize the
accused persons. Sanjeev Kumar P.W.-2
has stated in his cross-examination that the
Investigating Officer had recorded his
statement under Section 161 Cr.P.C. after a
month from the date of incident. Thus,
there
is
a
possibility
of
development/improvement
in
the
statements of the witnesses;

(vi) P.W.- 2 Sanjeev Kumar has stated
that, "I heard the incident at tiraha from the
main road". While in the order of framing
of charge passed by the trial judge on
21.11.2006, it has been mentioned that the
incident occurred at the shop of Satendra,
which is situated at village-Tanda Vahad
Police
Statiton
Bhudhana,
District
Muzaffarnagar. From the perusal of the site
878 INDIAN LAW REPORTS ALLAHABAD SERIES
plan which is marked as Exhibit Ka-12,
which
have
been
prepared
by
the
Investigating Officer, tiraha is shown as
''Point A+' and shop of Satendra is situated
in the east side of this very tiraha which is
40 passes (Kadam) away from ''Tiraha
Point A+', meaning thereby that the place
of occurrence has shifted. As such, due to
shifting of place of occurrence, the
prosecution story is wholly unreliable;

(vii) it has been stated in the first
information report as well as in the crossexamination of P.W.-1 Jogendra Singh that
at the time of incident Mahipal, Sanjeev
and Kishan Pal were present, but the
prosecution has not examined Mahipal and
Kishan Pal except Sanjeev Kumar as P.W.-
2. P.W.- 1 Jogendra Singh has stated in
cross-examination that when he arrived at
the place of occurrence, his brother was
lying injured. Blood of his brother was
spilled on the ground. Whereas, in the first
information report, it has been stated that
the accused Puran and Balister attacked
Anil with Tabbal and Balkati. The same has
been stated by P.W.- 2 Sanjeev Kumar in
his examination-in-chief. It is therefore,
clear that there are major contradictions in
the statements of P.W.-1 and P.W.-2 as well
as in the first information report;

(viii) P.W.-3 Doctor U.S. Faujdar who
conducted the post-mortem of the deceased
Anil, has stated in his cross-examination
that there was no injury on the waist of the
body of deceased Anil. At the time of postmortem, P.W.-3 had found as many as 14
ante-mortem injuries on the left part of the
body of the deceased, but none of the
injuries are shown on the waist of the dead
body of the deceased. Therefore, the entire
prosecution story is doubtful;

(ix) Jagendra P.W. 1 and Sanjeev P.W.
2 have not seen the incident because when
they arrived at the spot, the incident had
already occurred, meaning thereby that
after the occurrence of the incident,
witnesses reached the spot. On the basis of
which it can be said that before arrival of
the witnesses including P.W.-1 and P.W.2 at
the spot, the accused persons ran away,
meaning thereby that they have not seen the
incident by their own eyes. Therefore, the
prosecution story is wholly improbable as
also the same has not been supported by the
evidence and that is why, the accused
appellants are not guilty of the offence
under Section 302 read with 34 I.P.C.

On the cumulative strength of the
aforesaid, learned Amicus Curiae appearing
for the appellant no.1 submits that the
impugned
judgment
and
order
of
conviction cannot be legally sustained and
is liable to be quashed.

16. On the other-hand, Kumari Meena,
learned A.G.A. for the State, supports the
prosecution version by submitting that the
statements of P.W.-1 Jagendra and P.W. 2Sanjeev are credible in the facts and
circumstances of the case and since they are
eyewitnesses and have clearly disclosed
about the commissioning of the offence of
murder, therefore, the trial court has not
committed any error in holding conviction
of the accused appellants under Section 302
read with 34 I.P.C. On the cumulative
strength of the aforesaid submissions,
learned A.G.A. submits that as this is a case
of direct evidence, the impugned judgment
and order of conviction does not suffer from
any illegality and infirmity so as to warrant
any interference by this Court. As such the
present appeal filed by the accused-appellant
who committed heinous crime by murdering
deceased Anil Kumar, is liable to be
dismissed.

17.

We
have
considered
the
submissions made by the learned counsels
10 All. Balister & Anr. Vs. State of U.P.
879
for the parties and have gone through the
records of the present appeal especially, the
judgment and the order of conviction and
evidence adduced before the trial court.

18. The only question which is
required to be addressed and determined in
this appeal is whether the conclusion of
guilt arrived at by the trial court and the
sentence awarded is legal and sustainable
under law and suffers from no infirmity and
perversity.

19. The facts, as have been noticed
above, would clearly go to show that the
incident of this case has occurred on
23.11.2005 at 6:30 p.m. in the evening. The
first information report qua the incident has
been lodged on 23.11.2005 at 20:50 p.m.
According
to
prosecution,
the
first
information report is well within time and
prompt. As per the first information report,
the incident took place on the relevant date
as on 23.11.2005 at 6:30 p.m. when Anil
Kumar had gone to purchase a few items
from the shop of Satendra. When the
deceased Anil was returning to his house
after purchasing the said items, he was
surrounded by Puran, his brother Balister
and his mother Kamla, who threatened and
abused the informant's younger brother
Anil. In the meantime, Balister and Kamla
grabbed Anil and Puran attacked Anil with
Tabal. Resultantly, Anil fell down on the
ground. Balister also attacked Anil with
Balkati. In the first information report, it
has been stated that the incident occurred in
the street which is situated in front of the
house of the accused persons. The house of
accused persons shown by the Investigating
Officer is situated in the east side from the
shop of Satendra, whereas, as per the site
plan, the place of occurrence has been
shown by the Investigating Officer on
tiraha at ''Point A+'. This place of
occurrence is situated west side from the
shop of Satendra which is 40 passes
(Kadam) away from the shop of Satendra.
On 21st November, 2006, the trial court has
framed charge against the accused person
namely, Balister and Kamla, the said order
has been numbered as 10/A and a copy of
which is brought on record at page-12 of
the paper book.

20. For examining veracity or
genuineness or otherwise of the fact as to
what is the actual place of occurrence, it
would be worthwhile to reproduce, the
order of trial court framing charge against
the accused-appellants, which is quoted
hereinafter:

"eS] v'kksd dqekj ikBd] vij l= U;k;k/kh'k]
dksVZ uEcj 6] eqtQ~Qjuxj vki 1- ckfyLVj ,oa 2-
Jherh deyk dks fuEu vkjksi ls vkjksfir djrk gWw:
;g fd fnukad 23-11-2005 dks le; djhc 6-30 cts
'kke LFkku lrsUnz dh nqdku xkao Vk.Mk cgn Fkkuk
cq<+kuk ftyk eqtQ~Qjuxj esa vkius lkekU; vk'k; ls
bl vk'k;] Kku o ifjfLFkfr esa oknh txsUnz flag ds
HkkbZ vfuy dh dksgyh Hkj yh rFkk vkids ,d vU;
lg vfHk;qDr iwju us rcy o iydVh ls rFkk vkius
Hkh iydVh ls vfuy dks migfr;kW dkfjr dj mldh
gR;k dkfjr dhA bl izdkj vkius /kkjk 302 lifBr
/kkjk 34 Hk0n0la0 ds vUrZxr n.Muh; vijk/k dkfjr
fd;k tks bl U;k;ky; ds izlaKku esa gSA

eS ,rn~ }kjk funsZ'k nsrk gwW fd mDr vkjksi gsrq
vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;sA"

21. From perusal of the aforesaid
framing charge order, it is apparent that the
the place of occurrence is the shop of
Satendra, which is situated in village Tanda
Vahad, Police Station-Bhudana District
Muzaffarnagar. All the
evidence has
however been led by the prosecution over
the place of occurrence i.e. Point-A+ which
is Tiraha at a distance of 40 passes from the
shop of Satendra alleged to be place of
occurrence in Charge Paper No.10/A. In the
circumstances as elaborated herein-above,
880 INDIAN LAW REPORTS ALLAHABAD SERIES
the place of occurrence is shifting. The
same has been alleged by P.W.-1 Jogendra
Singh in his examination-in-chief that when
Anil Kumar deceased had gone to purchase
some items from the shop of Satendra,
Puran, Balister and Kamla were already
there and after surrounding Anil, all the
accused persons threatened and attacked
him. From the perusal of this version of
P.W. 1, the incident occurred in the street,
which is situated between the shop of
Satendra and house of the accused persons.
As per Jogendra Singh P.W.-1, the incident
did not occur at ''Place A+' as shown by
Investigating Officer, in site plan as
''Exhibit-Ka/12'. Moreover, P.W.-1 Jagendra
Singh
has
admitted
in
his
crossexamination that, "tiraha is situated 10-15
passes (Kadam) away from the place of
occurrence." On the contrary, in site plan,
the Investigating Officer has indicated the
place of occurrence at ''Point A+'. P.W.-2
Sanjeev Kumar has stated in his crossexamination that shouting was heard by
him at tiraha which is on the street. It
means that the incident had not occurred at
''Point A+' as shown in site plan as
''Exhibit-Ka/12'.
Thus,
in
these
circumstances, the place of occurrence is
shifting. This anomaly creates a doubt upon
the prosecution version.

22. In Matlab Ali v. State of U.P.
(Crimininal Appeal No. 175 of 1971,
decided on 9th August, 1971), this Court
has observed that, "shifting of place of
occurrence is a serious matter and must
necessarily cast a grave doubt as to the
correctness of prosecution version. If
place of occurrence is different, there
could
be
no
question
of
alleged
eyewitnesses seeing anything."

23. It is pertinent to note that in
Syed Ibrahim v. State of A.P., reported in
(2006) 10 SCC 601, the Hon'ble apex
court has observed that, "when the place
of
occurrence
itself
has
not
been
established it would not be proper to
accept the prosecution version".

24. In State of U.P. v. Mangal Singh
and Ors., reported in (2009) 12 SCC 306,
the Hon'ble apex court has observed that,
"whereon a reading of evidence it is clear
that occurrence as claimed is changed, it
was noticed that the witnesses were
shifting their versions almost at every
stage. This itself was sufficient to doubt
the veracity of the prosecution version".

25. Again, in Asraf Biswas v. State
of W.B., reported in 2016 SCC OnLine
Cal 4342, the Hon'ble Apex Court made
reference to the case of Syed Ibrahim v.
State of A.P., reported in (2006) 10 SCC
601, wherein it has been stated that, "it
would not be proper to accept the
prosecution case when the place of
occurrence itself has not established. The
place of occurrence was not proved
beyond all reasonable doubts in the
instant case and as a result, we have no
hesitation to arrive at a conclusion that
there was infirmity in decision making
process of the learned Trial Judge. Once
it is held that the place of occurrence has
not
been
established
beyond
all
reasonable
doubts,
then
the
other
circumstances are hardly sufficient to
establish the guilt of the accused".

26. In Jumma Vs. State of U.P.
reported in MANU/UP/1104/1992, Pr.-19;
a Division Bench of this Court has
observed that, "shifting of place of
occurrence is a serious matter and must
necessarily cast a grave doubt as to the
correctness of prosecution version. If place
of occurrence is different, there could be no
10 All. Balister & Anr. Vs. State of U.P.
881
question of alleged eyewitnesses seeing
anything."

27. As per the first information report,
at the time of occurrence, accused Balister
and Kamla had grabbed Anil, whereas the
accused Puran attacked Anil with Tabbal
and thereafter the accused Balister attacked
him with Balkati. On the other hand, P.W.-2
Sanjeev
Kumar
has
stated
in
his
examination-in-chief that Balister caught
hold of left hand of Anil and Kamla caught
hold of right hand of Anil. Puran was
attacking Anil with Tabbal and when Anil
fell down on ground, Balister attacked him
with Balkati. On the contrary, P.W.-1
Jogendra Singh in his statement recorded
under Section 161 Cr.P.C. has stated that
the accused Puran as well as accused
Balister both attacked Anil with Tabbal.
Therefore, there is inconsistency with
respect to weapon used by the accused
persons.

28. In the first information report as
well as in the examination-in-chief of P.W.-
1 Jogendra Singh it has been alleged that
accused Balister and Kamla had grabbed
deceased Anil at the time of occurrence, but
P.W.-1 Jogendra Singh has stated in his
cross-examination that Kamla caught hold
of the hand of Anil from left side. Whereas,
P.W.-2 Sanjeev Kumar has stated in his
examination-in-chief
that
Balister
had
caught hold of the left hand of Anil and
Kamla had caught hold of right hand of
Anil. At this point of juncture, there is
major discrepancy and inconsistency in the
statements of the witnesses which also
creates doubt in prosecution version.

29. It is also noteworthy that when
Balister caught hold of left hand of
deceased Anil and Kamla caught hold of
right hand of Anil at the time of incident as
is stated by P.W.-2 Sanjeev Kumar in his
examination-in-chief or Kamla had caught
hold of left hand of deceased Anil at the
time of occurrence, as stated by P.W. 1
Jogendra in his cross-examination, it is not
possible that the accused persons, who had
caught deceased Anil, did not receive any
injury. From the perusal of Photo-Lash
(Exhibit-Ka/4) and the Post-mortem report
(Exhibit-Ka/2), it is apparent that there
were 14 ante-mortem injuries, which are on
the left-side of the deceased. If Kamla or
Balister had caught hold of the left/right
hand of deceased Anil then, it is not
possible for them not to receive any injury
on the point of catching hold of the hands
of deceased. Therefore, there are major
contradictions,
inconsistency
and
discrepancy which again creates doubt in
the prosecution version.

30. P.W.-1 Jogendra Singh has stated
in
examination-in-chief
that
Sanjeev
Kumar, Kishan Pal and Mahi Pal arrived at
the time of occurrence but except Sanjeev
Kumar as P.W.-2, neither Kishan Pal nor
Mahi Pal have been examined in support of
prosecution story. Even Satendra and
Devendra have also not been examined in
support of prosecution story. P.W.-1 in his
statement has disclosed that the fact about
the three accused persons including the
appellant no.1 of abusing the deceased was
informed by Devendra. Devendra however
is not produced. As per the statements of
P.W.-1 and P.W.2, it was Devendra, who
told Jogendra (informant-P.W.1), Sanjeev
Kumar (P.W.-2), Kishan Pal and Mahipal
that in front of his shop, there was
altercation between the deceased Anil
Kumar and accused persons, namely,
Puran, Balister and Kamla and at that time,
the accused persons were having Tabal and
Balkati. Inspite of the fact that Devendra is
the witness and his information is the basis
882 INDIAN LAW REPORTS ALLAHABAD SERIES
of disclosure about the manner in which the
fight erupted on the spot leading to the
murder of deceased yet Devendra is not
adduced in evidence.

31. It would also be worth noticing
that as per the version of the first
information report as well as the statement
of P.W.-1 in his examination-in-chief that
on the date of incident, the deceased went
to the shop of Devendra for buying some
goods and when he was returning to his
house after buying the same, on the way in
front of their street, the accused persons,
namely,
Puran,
Balister
and
Kamla
assaulted the deceased, whereas in the cross
examination, P.W.-1 has stated as follows:

"nsosUnz us ;g ckr Hkh eq>s crk;h Fkh fd mldh
nqdku ij eqyfteku dh esjs HkkbZ vfuy ds lkFk dgu
lquu gq;h FkhA D;k dgu lquu gq;h Fkh ;g mlus
ugha crk;k FkkA nsosUnz us eq>s ;g Hkh crk;k Fkk fd
mldh nqdku ij tc eqyfteku ls esjs HkkbZ dh dgu
lquu gq;h Fkh rc eqyfteku cydVh o roy fy, gq,
Fks esjs /;ku ugha gS fd eSus njksxk th dks nsosUnz }kjk
crk;h tkus okyh ckr crk;h Fkh ;k ughaA ;g ckr
nsosUnz us crk;h Fkh rgjhj esa eSus ugha fy[khA^*

Similarly, in his cross examination,
P.W.-2 has stated as follows:

^*eSus iw.kZ o vfuy dks ns[kk FkkA os yksx dgk ls
vk;s Fks eSus ugha ns[kk FkkA eSus njksxk tks dks ;g ckr
crk;h Fkh fd ?kVuk ls igys vuhy e`rd o
eqyfteku nsosUnz dh nqdku ls vk;s FksA njksxk th us
eq>ls lkjh ckrs iwNh FkhA eksVh&2 ckrs ?kVuk ds ckjs
esa iwWNh FkhA"

Perusal of the aforesaid statements
would go to show that there is material
contradiction as to at whose shop, either
Devendra or Satendra, the deceased went to
buy the goods.

32. As per prosecution story, the
incident occurred on 23.11.2005 at 6:30
p.m. in the evening. According to Indian
climate, in the month of November, at
about 6:30 p.m. it gets dark, meaning
thereby that at the time of occurrence, there
was darkness. This fact is admitted by
P.W.-1 Jogendra Singh in his crossexamination that at the time of occurrence,
it was deep dark. P.W.-1 Jogendra has also
admitted that at the time of occurrence,
there was no supply of electricity. P.W.-2
Sanjeev Kumar in his cross examination
has also admitted that at the time of
occurrence, it was dark night.