# Kala @ Ankit v. State of U.P

- **Citation:** (2022) 9 ILRA 1683
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-26
- **Case number:** Criminal Appeal No. 7306 of 2010
- **Bench:** Manoj Misra, Syed Afatb Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kala-ankit-v-state-of-u-p-49062
- **Pages:** 11

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973-Section
374(2)
-
Indian
Penal
Code,
1860-Sections
302/34Challenge
to-Conviction-
the
ocular
testimony of sole eye witness (P.W. 2)
is
not
reliable
and
trustworthy-No
reliance can also be placed on the
evidence of recovery of knife-So there is
no reliable and cogent evidence on
record to hold the accused guilty-The
trial court has failed to appreciate the
evidence in proper manner-The trial
court has erred in placing reliance on
the testimony of the sole eye witness
(P.W.2) who is related as well as a
chance witness and whose presence at
the spot appeared doubtful-The learned
trial court has also failed to take into
consideration the defence evidence and
also ignored the fact that the evidence
of recovery of knife is not supported
with any forensic report confirming that
the recovered knife has been used in the
offence.
Therefore,
The
finding
of
conviction and sentence as recorded by
the learned trial court is not sustainable
in the eye of law and is liable to be setaside.(Para 1 to 25)
1684 INDIAN LAW REPORTS ALLAHABAD SERIES
B. It is well settled principle of law that
the testimony of a witness can not be
discarded solely on the ground that he is
an interested witness or a chance witness.
What is required is to make a close
scrutiny of the probability and reason for a
chance witness being present on the spot.
The court must also be cautious in
appreciating and accepting the evidence
of an interested witness. The evidence of a
related and a chance witness requires
cautious
and
close
scrutiny
to
test
whether it is reliable.(Para 17)

The appeal is allowed. (E-6)

## Text

9 All. Kala @ Ankit Vs. State of U.P.
1683
of the heinous crime of rape on innocent
helpless girls of tender years, married
women and respond by imposition of
proper sentence. Public abhorrence of the
crime needs reflection through imposition
of appropriate sentence by the Court. There
are
no
extenuating
or
mitigating
circumstances available on the record
which may justify imposition of any
sentence
less
than
the
prescribed
minimum..... To show mercy in the case of
such a heinous crime would be a travesty of
justice and the plea for leniency is wholly
misplaced."

Therefore, the sentence of life
imprisonment and a fine of Rs.50,000/-
imposed on each accused by the learned
Trial Court can not be said to be excessive
or penal.

Thus, the appeals fail and are
liable to be dismissed accordingly.

All
the
aforesaid
Criminal
Appeals Nos. 4875 of 2014 - Ishrar Ahmad
Alias Mintu Vs. State of U.P., Criminal
Appeal No. 4713 of 2014 - Anoop Yadav vs.
State of U.P. and Criminal Appeal No.
1844 of 2015 - Pintu Yadav Vs. State of
U.P. are hereby dismissed. The conviction
order and sentence awarded by the learned
Trial Court, is hereby affirmed.

A certified copy of this order be
sent for compliance to the learned Trial
Court, as well as, to the concerned Jail
Superintendent.

Registry to return the Lower
Court Record alongwith the copy of this
order.
----------
(2022) 9 ILRA 1683
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFATB HUSAIN RIZVI, J.

Criminal Appeal No. 7306 of 2010

Kala @ Ankit ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Saurabh Gour, Sri A.B.L. Gour, Sri
Briendra Singh Khokher, Sri Brij Raj Singh,
Sri Kailash Prakash Pathak, Si Amit Kumar
Mishra

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Criminal Procedure
Code,1973-Section
374(2)
-
Indian
Penal
Code,
1860-Sections
302/34Challenge
to-Conviction-
the
ocular
testimony of sole eye witness (P.W. 2)
is
not
reliable
and
trustworthy-No
reliance can also be placed on the
evidence of recovery of knife-So there is
no reliable and cogent evidence on
record to hold the accused guilty-The
trial court has failed to appreciate the
evidence in proper manner-The trial
court has erred in placing reliance on
the testimony of the sole eye witness
(P.W.2) who is related as well as a
chance witness and whose presence at
the spot appeared doubtful-The learned
trial court has also failed to take into
consideration the defence evidence and
also ignored the fact that the evidence
of recovery of knife is not supported
with any forensic report confirming that
the recovered knife has been used in the
offence.
Therefore,
The
finding
of
conviction and sentence as recorded by
the learned trial court is not sustainable
in the eye of law and is liable to be setaside.(Para 1 to 25)
1684 INDIAN LAW REPORTS ALLAHABAD SERIES
B. It is well settled principle of law that
the testimony of a witness can not be
discarded solely on the ground that he is
an interested witness or a chance witness.
What is required is to make a close
scrutiny of the probability and reason for a
chance witness being present on the spot.
The court must also be cautious in
appreciating and accepting the evidence
of an interested witness. The evidence of a
related and a chance witness requires
cautious
and
close
scrutiny
to
test
whether it is reliable.(Para 17)

The appeal is allowed. (E-6)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Mr. Amit Kumar Mishra,
learned counsel for the appellant, Sri
H.M.B. Sinha, learned A.G.A. for the State
and perused the record.

2. This criminal appeal has been filed
against the judgment and order dated
28.10.2010 passed by Additional Sessions
Judge, (F.T. Court No. 1) Bagpat in
Sessions Trial No. 166 of 2007 (State of
U.P. Vs. Kala @ Ankit), Case Crime No.
16 of 2007, under section 302/34 IPC, P.S.
Baraut, District Bagpat. By the impugned
judgment and order the learned trial court
has convicted the appellant for offence
under section 302/34 IPC and sentenced
him to imprisonment for life and a fine of
Rs. 20,000/- and in default of payment of
fine imprisonment of six months.

NARRATION OF FACTS

3. The complainant Madan Singh
gave an application dated 12.1.2007 at P.S.
Baraut alleging therein that he is resident of
village Luhara, P.S. Chhaprauli, District
Bagpat and runs a medical store at his
village. His son Badal aged about 18 years
was studying in Priya Bharati School
Baraut in class 12. He also used to sit at the
medical store in morning and evening. On
2.1.2007 at about 7:00 P.M. his son was in
the shop. Manish came to purchase some
medicine. When his son asked for payment
he refused to pay but his son took the price
of the medicine. Manish left extending
death threat. After this Manish once
committed marpit for which he made a
complaint to the family of Manish. On
12.1.2007, his son, Badal had come to
Baraut to attend his college. At about 12:30
noon Manish and his friend Kala caught his
son near C field Nehru Road and Kala
inflicted knife blows on his head, neck and
other parts of the body with intention to
cause death. His son fell down on the spot.
Deepak and Kripal who were with his son
saw the incident and tried to catch them
but, wielding the knife, the accused ran
away towards the C-field. Kripal, Deepak
and other boys Ankit, Puneet and Mohit
took Badal to Akshaya Nursing Home but
he died on the way. The complainant was at
his medical store. Kripal Singh came there
and informed him about the incident. The
dead body of his son is kept in the nursing
home.

4. A chik report no. 14 of 2007, under
section 302 IPC, was registered against
Manish and Kala at P.S. Baraut at 14:00
hours. S.I. Rajvir Singh (P.W. 5) was
entrusted with the investigation of the case.
He recorded the statement of complainant,
thereafter went to Akshaya Nursing Home
and conducted the inquest proceeding on
the dead body, prepared the related papers
and
sent
the
body
for
postmortem
examination. Thereafter, he recorded the
statements of other witnesses and went to
the place of occurrence and at the
indication of Deepak and Kripal inspected
the place of occurrence and prepared the
9 All. Kala @ Ankit Vs. State of U.P.
1685
site plan, collected blood stained and plain
concrete of the road and prepared its
memo. A register of the deceased was also
recovered from the place of occurrence.
The Investigating Officer took it into his
possession and prepared its memo. From
the (pant) jeans of the deceased one
currency note of Rs. 20/-, two currency
notes of Rs. 10/- and one currency note of
Rs. 5/-, one match box and one ball pen
was
also
recovered
during
inquest
proceeding. The I.O. prepared its memo.
He also prepared the site plan of Akshaya
Nursing Home where the dead body of the
deceased was kept. On 14.1.2007 on the
information of the informer accused Kala
was arrested. On interrogation he confessed
his crime and also disclosed that he can get
the weapon used in the crime recovered.
Memo of interrogation was prepared by the
I.O. Thereafter, the police party along with
the accused came at the C field from where
at the pointing out of the accused Kala one
knife was recovered from the bushes at
8:00 hours. The I.O. sealed the knife and
prepared its memo. Further investigation of
the case was entrusted to S.I. Nathi Ram
Panwar (P.W. 6). He took up the
investigation on 26.01.2007. Recorded the
statements of other witnesses and the
accused Manish. Prepared the site plan of
the place of recovery of knife and after
completion of the investigation submitted
charge-sheet against accused Kala and
Manish.

5. The Chief Judicial Magistrate, Bagpat
committed the case to the Court of Session.
Co-accused Manish was declared juvenile and
his case was forwarded to Juvenile Justice
Board, Meerut. The trial court framed charge
under section 302/34 IPC against appellantaccused Kala. The accused denied the charge
and claimed for trial. In oral evidence the
prosecution examined seven witnesses while
in documentary evidence twenty papers Ext.
Ka. 1 to Ka. 20 were produced. The
incriminating
circumstances
against
the
accused were put to him under section 313
Cr.P.C. The accused denied the whole
prosecution case. He has also stated that the
witnesses have deposed against him due to
enmity and a false case has been lodged. In
defence, one witness Mohit Tomar (D.W. 1)
was examined. The learned trial court after
hearing the arguments, by the impugned
judgment and order held the appellant-accused
guilty for the offence under section 302/34
IPC and sentenced him as above.

AUTOPSY REPORT

6. According to autopsy report
(Ext.Ka.2) the postmortem of the deceased
was conducted on 13.1.2007 at 12:00 noon.

External Examination:

The age of the deceased was about
18 years. Body was average built. Rigormortis was all over the body. Abdomen
distended, decomposition started. Eyes were
closed. Following ante mortem injuries were
on the body.

1. Incised wound of size 10.0 x 3.0
cm x bone deep on mid of top of head.

2. Incised wound of size 4.0 x 05
cm x bone deep on left side back of head 4.0
cm turn to left ear.

3. Incised wound of size 5.0 x 2.0
cm x bone deep on left side head just behind
left ear pinna.

4. Incised wound of size 2.0 x 0.5
cm x bone deep on left side head 2.0 cm
from injury no. 2.
1686 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Incised wound of size 2.5 x
0.75 x through & through on left ear lobule
& pinna.

6. Incised wound of size 3.5 x 1.5
cm x cavity deep on left side back of neck.
On dissection left clavicle bone cut, left
major blood vessels also cut & Apex of left
lung also cut.

7. Incised wound of size 11.0 x
4.0 cm x bone deep on left mid scapular
area.

8. Incised wound of size 2.0 x 1.0
cm x muscle deep on back, 2.0 cm below &
lateral to (6-7) cervical spine.

9. Multiple incised wounds of
size smallest (2.0 x 1.0 cm x muscle) &
largest 8.0 x 3.0 cm x muscle deep (4 in
number) on outer and front part of left arm
upto elbow joint in the area 21.0 x 12.0 cm.

10. Multiple incised wound in the
area 13.0 x 7.0 cm (7 in number) on inner
& back of right hand & wrist (Largest size
4.0 x 1.5 cm & smallest 1.0 x 0.5 cm x
muscle deep).

Internal Examination:

First rib and left clavicle were
fractured. Left pleura and left lung were
cut. About 800 c.c. free and clotted blood
in thoracic cavity was present. Stomach
was empty.

Cause of death was shock and
haemorrhage due to ante mortem injuries
and death could have occurred about one
day before the postmortem. The aforesaid
autopsy report has been proved by Dr.
Krishna Kumar (P.W. 3) as Ext. Ka.2. The
witness has admitted the suggestion of the
prosecution that injuries of the deceased
may be caused on 12.1.2007 at 12:30 p.m.

PROSECUTION EVIDENCE

7. Madan Singh (P.W. 1) is the
informant. In his examination-in-chief the
witness has stated that his son Badal aged
about 18 years was a student of class 12 of
Priya Bharati School Baraut. He also used
to sit at the shop of complainant in the
morning and evening. On 2.1.2007 at about
7:00 p.m. his son was sitting at the shop.
Manish came there to purchase some
articles. His son after giving articles asked
for payment. Manish refused to make
payment but his son took the payment. On
this Manish threatened him with death and
went back from there. Thereafter, Manish
once committed marpit with his son. He
(the witness) made a complaint of this to
the family of Manish. The witness has
stated that the incident is of 12.1.2007 at
12:30 p.m. His son had gone to school at
Baraut. Manish and Kala caught his son
near C field of Jain College Nehru Road.
Manish caught hold his son and Kala
inflicted knife blows on his son's head,
neck and other parts of the body. His son
fell down. The incident was witnessed by
Deepak, Kripal and Dharmendra and they
tried to catch the accused. The accused
wielding knife escaped towards C field.
Kripal, Deepak, Ankit, Puneet and Mohit
took his son to Akshaya Nursing Home,
Baraut but he died on the way. Deepak,
Kripal and Dharmendra informed him at
Vardhman medical store, Baraut, then he
came at the nursing home and found that
his son was dead. The witness has further
stated that he lodged the report of the
incident scribed by his brother Manoj
Saroha. The witness has proved it as
Ext.Ka.1. The witness has further stated
9 All. Kala @ Ankit Vs. State of U.P.
1687
that his village and village of the accused
Kala are adjacent, hence, he knows Kala
very well. Manish and Kala are friends.

8. Deepak Kumar (P.W. 2) is the eye
witness. In his examination-in-chief the
witness has stated that the incident is of
12.1.2007 at 12:30 P.M. He along with
Kripal and Badal were going on Nehru
Road and reached near C-field of Jain
College. At that time, accused Kala and
Manish came there. Manish caught hold
Badal and Kala inflicted knife blows on the
neck and head etc. with intention to kill
Badal causing serious injuries to Badal.
Kala continued stabbing Badal till he fell
down. Badal fell down on the ground. They
tried to catch Kala and Manish and to save
Badal but Kala wielded knife towards them
and escaped towards C-field. Ankit, Puneet
and Mohit also came on the spot. They took
Badal to Akshaya Nursing Home on a
richshaw. Badal died due to the injuries.
Witness has further stated that in the year
2006 when he was studying at Baraut, he
used to go to the house of her aunt (Bua) at
village Sherpur Luhara, because of this he
knows the accused persons. They used to
come by bus with him and they also use to
meet at Baraut. He, Kripal and Dharmendra
informed Madan Singh, the father of Badal,
at his Vardhman Medical Store. On
receiving information, Madan Singh came
to nursing home and thereafter went to the
police station to lodge the FIR.

9. Constable Sahab Singh, P.W. 4 is
the chik and G.D. writer. The witness has
stated that on 12.1.2007 on the written
information of Madan Singh he prepared
chik no. 14 and registered case crime no.
16/07, under section 302 IPC and made
G.D. entry of it at serial no. 30 at 14:00
hours. The witness has proved chik FIR
and copy of G.D. as Ext.Ka-3 and Ext.Ka4. The witness has further stated that on
14.1.2007 on the basis of recovery memo
he prepared chik no. 16 case crime no.
18/07, under section 4/25 Arms Act and
made the G.D. entry of it at serial no. 36 at
21:15 hours. Witness has proved the chik
and copy of the G.D. as Ext.Ka-5 and
Ext.Ka-6.

10. S.I. Rajvir Singh, P.W. 5 is the
Investigating Officer. The witness has
stated that on 12.1.2007 after registration of
the case the investigation was entrusted to
him. He recorded the statements of
complainant
and
other
witnesses.
Thereafter, he proceeded for Akshaya
Nursing Home and conducted the inquest
proceeding of deceased Badal. His body
was in the general ward of the Nursing
Home. The witness has proved inquest
report and related papers as Ext.Ka-7 to
Ext.Ka-12. The witness has further stated
that he recorded the statements of witnesses
present
at
Akshaya
Nursing
Home,
thereafter, he proceeded to the place of
occurrence and on the pointing out of
witnesses inspected it and prepared the site
plan. He also collected blood stained and
plain concrete from the road and one
register which was lying at the place of
occurrence and prepared its memo. The
witness has proved the aforesaid documents
as Ext.Ka-13 to Ext.Ka-15. The witness has
further
stated
that
during
inquest
proceeding he recovered one currency note
of Rs. 20/-, two currency note of Rs. 10/-
and one currency note of Rs. 5/- and one
match box and one ball pen from the
pocket of the deceased and prepared its
memo as Ext.Ka-16. He also prepared the
site plan (Ext.Ka-17) of Akshaya Nursing
Home where the dead body of the deceased
was lying. He recorded the statements of
witnesses of inquest proceeding. On
14.1.2007 he arrested accused Kala @
1688 INDIAN LAW REPORTS ALLAHABAD SERIES
Ankit near Puliya of Malakpur drain and
interrogated him. The accused confessed
his crime and disclosed that the knife used
in the murder has been concealed by him in
the bushes of C-field. On the aforesaid
disclosure
statement
he
along
with
witnesses Dayanand Malik and Pramod
Kumar and accused came there and at the
pointing out of the accused recovered one
knife from the bushes of C-field at about
8:00 P.M. He sealed it and prepared its
memo as Ext.Ka18. The witness has also
proved the recovered knife, clothes and
other articles found from the body, blood
stained and plain concrete as material
Ext.Ka1 to Ext.Ka-14. The witness has also
proved the articles recovered from the dead
body at the time of inquest proceeding and
the register taken into possession from the
place of occurrence as material Ext.Ka.17
to Ext.Ka-23.

11. S.I. Nathi Ram Panwar, P.W. 6 is
the second Investigating Officer. The
witness has stated that further investigation
of this case was handed over to him on
26.1.2007. He recorded the statements of
witnesses on different dates, visited the
place of occurrence from where knife was
recovered and prepared its site plan
(Ext.Ka-19). After the completion of the
investigation,
submitted
charge-sheet
against accused Kala (Ext.Ka-20).

12. S.I. Ram Kishan Rathi, P.W. 7 is
the Investigating Officer of Case Crime No.
18/07, under section 4/25 Arms Act. The
witness has stated that investigation of this
case was entrusted to him. He recorded the
statements of witnesses and accused. He also
visited the place of incident at the pointing
out of the complainant S.I. Rajvir Singh and
prepared the site plan (Ext.Ka-21) and after
the completion of the investigation submitted
charge-sheet (Ext.Ka-22).
DEFENCE EVIDENCE

13. One defence witness Mohit Tomar
(D.W.1) has also been examined. The witness
has stated that he knows Badal who was his
class-mate. The incident is of 3 and a half
years before. He along with his friends
Puneet, Malik and Ankit Tomar were
returning from Baraut after tuition. When
they reached near C-field of Jain College
seven-eight boys were assaulting Badal
holding knives in their hands. It was 2-2:30
p.m. The boys who were assaulting Badal
escaped. He and Puneet, Malik and Ankit
Tomar took Badal to Akshaya Nursing Home
in injured condition. Except them no other
person was present there. Thereafter his
friend Puneet informed the father of Badal
about the incident on the telephone. The
father of Badal arrived at the hospital at 33:30 p.m. Before the arrival of the father of
the deceased at the hospital no other relative
or family member of Badal reached the
hospital. Neither Deepak Kumar of village
Basi nor any other person of the village of the
deceased was present at the place of
occurrence or at the hospital. The witness
after looking at the accused Kala @ Ankit in
court stated that this boy was not present
with the boys who assaulted Badal.

SUBMISSION ON BEHALF OF
APPELLANT

14. Learned counsel for the appellant
contended that the sole eye witness Deepak
Kumar, P.W. 2 is a close relation of the
deceased and resident of other village, so
he is related as well as chance witness. The
complainant has not taken his name as a
person who informed him about the
incident. In the FIR the complainant has
only taken the name of Kripal as the person
who gave him information. Deepak Kumar
(P.W. 2) has not suffered any injury nor he
9 All. Kala @ Ankit Vs. State of U.P.
1689
made any effort to save Badal which makes
his presence on the spot highly doubtful. It
is also contended that this witness has
stated that knife was used to stab but the
deceased has not suffered any stab wound.
All his injuries are incised wound, so the
manner of assault as stated by this witness
does not stand corroborated with the
medical evidence. It is further contended
that the witness has also stated that Ankit,
Mohit and Puneet also reached on the spot
and they took Badal to Akshaya Nursing
Home in a rickshaw. In such a situation,
considering the number and nature of the
injuries on the body of the deceased, it was
natural that the clothes of witnesses should
have blood stains, but it was not so. It is
also contended that the presence of defence
witness Mohit Tomar (D.W. 1) has been
admitted by P.W. 2. Mohit Tomar (D.W. 1)
has denied that Deepak Kumar or any other
relative or family member of the deceased
was present at the time of occurrence or
was at the hospital. So the oral statement of
the sole eye witness is not trustworthy. The
learned trial court has committed illegality
in relying on the sole testimony of this eye
witness and on its basis held the appellant
accused guilty. Learned counsel further
contended that the recovery of knife used in
the offence as alleged by the prosecution is
also not trustworthy and reliable. No public
witness of this recovery has been produced
and in this regard there is only the
statement of I.O. S.I. Rajvir Singh, P.W. 5.
Both the Investigating Officers have also
admitted that knife was not sent for
forensic examination. There is no evidence
on record to link the alleged recovered
knife with the offence. The learned trial
court has therefore erred in placing reliance
on the evidence of recovery of knife. It is
further contended that the complainant
Madan Singh (P.W. 1) in his crossexamination has admitted that his son was
surrounded and assaulted by 4-5 boys and
at that time he was going with Mohit and
Puneet, so Madan Singh (P.W. 1) has also
admitted the presence of defence witness
Mohit Tomar (D.W.1) at the time of
occurrence. The learned trial court has not
taken into consideration the statement of
D.W. 1 Mohit Tomar. The learned trial
court has not analysed the oral testimony of
Mohit Tomar (D.W. 1) and has given no
reason to disbelieve him. Lastly it is
contended
that
the
trial
court
has
committed grave error in recording the
finding that the appellant-accused is guilty.
The finding of the trial court is illegal and
against the evidence on record.

SUBMISSION ON BEHALF OF STATE

15. Per contra; learned A.G.A.
contended that complainant Madan Singh
(P.W. 1) from his statement has proved the
motive of the incident. Deepak Kumar
(P.W. 2) is an eye witness. Although he is
related with the deceased and also resident
of other village but he has explained the
circumstances of his presence on the spot.
He has stated that on the day of incident he
came to take his Bua (mother of the
deceased) from village Luhara. He reached
Baraut by train at 12:00 noon. He contacted
the deceased on telephone. The deceased
reached the railway station from where
both were going towards C-field when the
incident occurred. It is further contended
that the witness has stated that the deceased
was assaulted with knife by appellantaccused. The medical evidence fully
corroborates the ocular version. According
to postmortem report the deceased has
suffered several incised wounds on his
body resulting in his death. There is no
discrepancy in respect of time of incident.
Place of occurrence is also established. The
testimony of the sole eye witness Deepak
1690 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar (P.W. 2) is consistent. There is no
major discrepancy in it. There was no
reason to disbelieve him. The learned trial
court has rightly placed reliance on his
statement. It is further contended that blood
stained knife used in the offence has been
recovered on the pointing out of the
appellant-accused. The aforesaid recovery
has been proved by S.I. Rajvir Singh (P.W.
5) It is mere lapse on the part of the I.O.
that he has not sent it for forensic
examination but the recovery is established
and it further supports the ocular version.
Learned A.G.A. further contended that the
testimony of an eye witness can not be
discarded solely on the ground that he is
interested or chance witness. If his
testimony
is
otherwise
reliable
and
trustworthy
and
there
is
no
major
discrepancy in it, it can be safely relied on
and conviction can be based on it. So there
is no illegality in the finding of the trial
court that the appellant-accused is guilty of
offence of murder.

ANALYSIS OF EVIDENCE

16. Out of two public witnesses
produced by the prosecution, Madan Singh
(P.W. 1), the complainant, is not an eye
witness. He has admitted in his crossexamination that he got the information at
his shop/medical store and on receiving the
information he arrived at Akshaya Nursing
Home where the dead body of his son was
kept. He was informed about the incident
by Kripal and Deepak. He has not
witnessed the incident.

17. The prosecution has relied on the
sole eye witness account rendered by
Deepak
Kumar
(P.W.
2)..
In
his
examination-in-chief P.W. 2 has said that
on 12.1.2007, at about 12:30 p.m., he,
Kripal and Badal were going on Nehru
Road and when they reached near C-field
of Jain College, the accused Kala and
Manish came there. Manish caught hold
Badal and Kala @ Ankit inflicted knife
blows on Badal causing him serious
injuries and he fell down. The witness has
also stated that Ankit, Puneet and Mohit
also came on the spot and they all took
Badal to Akshaya Nursing Home on a
rickshaw. Admittedly this witness is a close
relative of the deceased being the cousin
(son of maternal uncle) of the deceased
Badal. This witness is also a chance
witness. He is a resident of village Bassi,
P.S. Khekara while the incident has
occurred at Baraut town. It is well settled
principle of law that the testimony of a
witness can not be discarded solely on the
ground that he is an interested witness or a
chance witness. What is required is to make
a close scrutiny of the probability and
reason for a chance witness being present
on the spot. The court must also be cautious
in appreciating and accepting the evidence
of an interested witness. The evidence of a
related and a chance witness requires
cautious and close scrutiny to test whether
it is reliable. Regarding his presence, P.W.
2 has said that on the day of the incident he
had come to take his Bua from village
Lohara. He reached Baraut by train at
12:00 O'clock. He was alone. Badal met
him at the station and they went to Nehru
Road from the station. The fact that on the
day of incident witness Deepak Kumar had
come to Baraut by train to take his Bua, has
been disclosed for the first time in the
court. In the statement recorded by the I.O.
under section 161 Cr.P.C., there is no such
statement. From the statement of Deepak
Kumar (P.W. 2) it is also not clear that
under what circumstances he along with
Badal were going to Nehru Road near Cfield. In the FIR, the name of Deepak (P.W.
2) has not been taken by Madan Singh
9 All. Kala @ Ankit Vs. State of U.P.
1691
(P.W. 1) as a person who has come to his
shop to give information of the incident. He
has taken only the name of Kripal. P.W. 1
was confronted with this information.

The witness has assigned the role
of grasping Badal to co-accused Manish and
role of inflicting the knife blows to the
appellant-accused Kala @ Ankit. If the
statement of Deepak (P.W. 2) that Manish
caught hold Badal and Kala @ Ankit inflicted
knife blows on his body is to be believed then
in such a situation there is no possibility of
injuries on the back side of the deceased but
in the autopsy report injury nos. 6, 7 and 8 are
on the back side of the body. Injury no. 6 is
on the back of neck, injury no. 7 is on
scapular area while injury no. 8 is on the
back. It also appears from the autopsy report
that deceased has resisted and tried to save
himself from both his hands. He has received
injuries on his hands. According to Dr.
Krishna Kumar (P.W. 3), there was incised
fracture in the bone of the left palm and
major blood vessels were cut. Injury no. 9
and 10 which are multiple incised wounds, 4
in numbers and 7 in numbers respectively are
also on both the hands. The nature of injuries
as mentioned in the autopsy report reflects
that the deceased was surrounded and then
assaulted with knife. The size of the injuries
also differs. The largest is 11 x 4 cm while
the smallest is 2 x 0.5 cm. The number and
nature of injuries and its size reflects that
after surrounding the deceased more than one
person have inflicted the knife blows from
different directions. The manner of assault as
described by Deepak Kumar (P.W. 2) is not
in consonance with the autopsy report. So his
oral statement does not stand corroborated by
the medical evidence.

18. In the FIR Deepak and Kripal are
named as eye witnesses. Madan Singh (P.W.
1) has also added the name of Dharmendra
as an eye witness in his statement. All the
three Deepak, Kripal and Dharmendra are
close relations of the complainant. Kripal is
the
real
uncle
of
complainant
and
Dharmendra is son of Kripal while Deepak
is nephew of the wife of the complainant. So
according to prosecution version at the time
of incident three close relations of Badal
were also present while accused were only
two in number. There is no satisfactory
explanation that how the accused two in
number over powered Badal. It is also not
established from the evidence that they
made any serious efforts to save Badal.
Further in the aforesaid context if the
testimony of Deepak (P.W. 2) is to
scrutinized then according to his statement
the co-accused Manish was catching hold
Badal and actually one of the accused the
appellant was involved in inflicting knife
blows. In such a situation absence of an
effort on the part of the three companions of
Badal raises serious doubts as regards their
presence on the spot.

Deepak (P.W. 2) is a resident of
village Bassi, P.S. Khekara while Kripal
and Dharmendra are residents of village
Luhara, P.S. Chhaprauli. The incident has
occurred at Baraut town. According to
prosecution, the deceased was a student of
class 12 at Priya Bharati School, Baraut
and on the date of occurrence he had gone
to attend his school. So the presence of
witnesses at the place of occurrence is
unnatural being resident of distant places.
The reason for presence of Kripal and
Dharmendra at the place of occurrence is
unexplained. All the aforesaid facts and
circumstances clearly establishes that the
name of close relations as eye witnesses in
the FIR is a result of deliberation and it is
an after thought. There is no good reason
for their presence on the spot at the time of
occurrence.
1692 INDIAN LAW REPORTS ALLAHABAD SERIES

19. There are other serious infirmities
in the oral testimony of sole eye witness
Deepak
Kumar
(P.W.
2).
In
his
examination-in-chief the witness has stated
that on 12.1.2007 at 12:30 p.m. he, (the
witness) Kripal and Badal were going on
Nehru Road and when they reached near Cfield of Jain College the incident occurred.
While in his cross-examination the witness
has said that he alone reached Baraut by
train and Badal met him at the station and
they went to Nehru Road from the station.
Further in the cross-examination the
witness has stated that when they were
going then Kripal was coming towards
them. This statement is also contradictory
to his statement made during examinationin-chief that he, Kripal and Badal were
going to Nehru Road when this incident
occurred.

20. The presence of defence witness
Mohit Tomer (D.W. 1) has been admitted
by the complainant Madan Singh (P.W. 1)
as well as Deepak (P.W. 2) and the defence
witness Mohit Tomer (D.W. 1) has
completely denied the prosecution case. He
has also denied that Deepak or any other
relative or family member of the deceased
was present at the time of occurrence or at
the hospital. The witness has also stated
that Badal was taken to Akshaya Nursing
Home by him, Ankit and Puneet.

From
the
statements
of
prosecution witnesses also it is established
that the deceased was taken on a rickshaw
to Akshaya Nursing Home. To establish the
presence of the witness Deepak (P.W. 2) at
the time of incident the document of
admission of the deceased Badal in
Akshaya Nursing Home was very relevant
but the I.O. has not collected it and this
material documentary evidence appears to
be intentionally concealed.

21. Applying the test as prescribed for
an interested and chance witness, the
testimony of the sole eye witness Deepak
(P.W. 2) is not confidence inspiring and
trustworthy. His presence on the spot is
highly doubtful.

22. Madan Singh, complainant (P.W.
1) in his cross-examination has given the
following statement:

"िरीब बारह एि बजे मेरा लड़िा
बािल अपने साथी मोगहर् पुनीर् आगि िे साथ
नेहरू रोड पर जा रहा था। यह सही है गि वहां
मेरे लड़िे िो चार पांच लड़िों ने पिड़ गलया व
घेर गलया और उनमे से एि ने िोली भर ली
और एि ने चाि मार गिया।"

The aforesaid statement runs
contrary to the prosecution case as alleged
in the FIR and the oral testimony of sole
eye witness Deepak (P.W. 2).

23. The prosecution has also relied on
the evidence of recovery of knife. S.I.
Rajvir Singh (P.W. 5), who has made the
recovery, has stated that on 14.1.2007 he
arrested accused Kala @ Ankit and in
presence of the witnesses Dayanand Malik
and
Pramod
Kumar
interrogated
the
accused. The accused confessed his crime
and made disclosure statement. A memo of
disclosure statement was prepared and got
signed. Thereafter, the knife was recovered
at the pointing out of accused from bushes
of C-field Nehru Road at about 8:00
O'clock. Except the oral statement of S.I.
Rajvir Singh (P.W. 5), there is no other
evidence in support. No public witness of
this recovery has been produced in the
court. The knife has also not been sent for
forensic
examination.
Both
the
Investigating Officers Rajvir Singh (P.W.
5) and S.I. Nathi Ram (P.W. 6) have
9 All. Om Prakash Das Chela Vs. Vichar Das Chela & Ors.
1693
accepted this in their cross-examination.
The place of recovery is an open place
accessible to public at large without any
hindrance. Considering the aforesaid facts
no reliance can be placed on this piece of
prosecution evidence.

24. From the analysis of the
prosecution evidence it is clear that the
ocular testimony of sole eye witness
Deepak Kumar (P.W. 2) is not reliable and
trustworthy. No reliance can also be placed
on the evidence of recovery of knife. So
there is no reliable and cogent evidence on
record to hold the accused guilty. The trial
court has failed to appreciate the evidence
in proper manner. The trial court has erred
in placing reliance on the testimony of the
sole eye witness Deepak Kumar (P.W.2)
who is related as well as a chance witness
and whose presence at the spot appeared
doubtful. The learned trial court has also
failed to take into consideration the defence
evidence and also ignored the fact that the
evidence of recovery of knife is not
supported
with
any
forensic
report
confirming that the recovered knife has
been used in the offence. The learned trial
court therefore erred in holding that from
the prosecution evidence the case stands
proved and appellant accused is guilty. The
finding of conviction and sentence as
recorded by the learned trial court is not
sustainable in the eye of law and is liable to
be set-aside and the appeal is liable to be
allowed.

25. The criminal appeal is allowed.
The impugned judgment and order of
conviction dated 28.10.2010 passed by
Additional Sessions Judge, F.T.C. No. 1,
Bagpat in S.T. No. 166 of 2007, Case
Crime No. 16 of 2007, under section 302
IPC, P.S. Baraut, District Bagpat (State Vs.
Kala @ Ankit) is hereby set-aside. The
appellant Kala @ Ankit is acquitted from
the charge of offence punishable under
section 302/34 IPC. He is in jail. He shall
be released forthwith subject to compliance
of Section 437A Cr.P.C. to the satisfaction
of trial court, if not wanted in any other
case.

26. The order be communicated to all
concerned for necessary compliance.

Lower court's record along with
the copy of the judgment be transmitted to
the trial court immediately
----------
(2022) 9 ILRA 1693
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Criminal Revision No. 52 of 2021

Om Prakash Das Chela ....Revisionist
Versus
Vichar Das Chela & Ors. ...Respondents

Counsel for the Revisionist:
Sri Adya Prasad Tewari

Counsel for the Respondents:
Sri Anil Pratap Singh, Sri Kailash Pati, Singh
Yadav, Sri Prabhakar Vardhan

A. Civil Law -Code of Civil Procedure,
1908-Section 115 - Order VI Rule 17 &
Order
I
Rule
10(2)-Declaratory
suit-
plaintiff-revisionist
filed
a
suit
for
declaration declaring him the Mahant of
one Sant Kabir Math- Relief of permanent
injunction
was
also
claimed
against
defendants from not interfering into the
peaceful possession of the plaintiff over
the property of the Math and also not to
evict
the
plaintiff-An
amendment
application under Order 6 Rule 17 was