# Mahak Chand & Ors (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 1045
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-01
- **Case number:** Criminal Appeal No 1122 of 1993
- **Bench:** Manoj Misra, Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahak-chand-ors-in-jail-v-state-of-u-p-44627
- **Pages:** 19

## Headnote

A. Evidence Law-Indian Evidence Act,
1872
- Testimony of an
interested
witness can form basis of conviction but
the same must be accepted with caution
only after it is carefully scrutinized - a
material witness must not ordinarily be
withheld - if withheld, in absence of
cogent explanation, adverse inference is
to be drawn, particularly, where the
prosecution evidence available is coming
through highly interested witnesses, who
are not injured - non-examination of an
injured witness by itself may not be
sufficient to discard the prosecution case
particularly when it is not shown that the
witness was alive or was in a position to
depose in court or where there is a
plausible
explanation
for
his
nonexamination or where there are more
than one injured witnesses and some or
one of them have already been examined
- No recovery of any weapon of assault
has
been
made
-
the
prosecution
evidence fails as it poses more questions
than what it seeks to answer - the benefit
of doubt must go to the accused. (Para
55,63,65,70,71)

Appeal allowed
(E-7)

Chronological list of cases cited:-
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,960 of 64,025. This is a partial read: ask again with offset=39960 for what follows._

3 All. Mahak Chand & Ors. Vs. State of U.P.
1045
object of the assembly murdered Nathu
Singh and Sobran Singh.

69. Having regard to our above
findings we do not find any merit in this
appeal and in our considered opinion the
same is liable to be dismissed.

70. Appellant Mashaley had died
and appeal with regard to him has already
been abated vide order dated 1.12.2015.
Appellant Sukkhi has also died during
pendency of the appeal and appeal was
also abated with regard to him vide order
dated 1.7.2019.

71. The appeal filed by appellants
Narvada, Jaswant and Gajraj against the
judgment and order dated 7.10.1983,
passed by Vth Additional Sessions Judge,
Hardoi, is dismissed and impugned
judgment and order passed by the trial
court is affirmed. Appellants, namely,
Narvada, Jaswant and Gajraj are on bail.
Their bail bonds are cancelled and they
are directed to surrender before the Chief
Judicial Magistrate, Hardoi within 15
days from today to serve out the sentence
as awarded by the trial court.

72. A copy of this judgment along
with lower court record be immediately
sent to the trial court for compliance and
in case the appellants do not surrender
before the court, the trial court will secure
their presence in the prison to serve out
the remaining sentence as awarded by the
trial court.
----------

(2019)11ILR A1045

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE PANKAJ BHATIA, J.

Criminal Appeal No 1122 of 1993

Mahak Chand & Ors....Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri D.S. Tiwari, Sri Jagdish Prasad
Tripathi, Urmila Tripathi, Sri S.C. Pandey,
Sri Ram Jee Saxena, Sri Raghuvansh
Chandra.

Counsel for the Opposite Party:
A.G.A.

A. Evidence Law-Indian Evidence Act,
1872
- Testimony of an
interested
witness can form basis of conviction but
the same must be accepted with caution
only after it is carefully scrutinized - a
material witness must not ordinarily be
withheld - if withheld, in absence of
cogent explanation, adverse inference is
to be drawn, particularly, where the
prosecution evidence available is coming
through highly interested witnesses, who
are not injured - non-examination of an
injured witness by itself may not be
sufficient to discard the prosecution case
particularly when it is not shown that the
witness was alive or was in a position to
depose in court or where there is a
plausible
explanation
for
his
nonexamination or where there are more
than one injured witnesses and some or
one of them have already been examined
- No recovery of any weapon of assault
has
been
made
-
the
prosecution
evidence fails as it poses more questions
than what it seeks to answer - the benefit
of doubt must go to the accused. (Para
55,63,65,70,71)

Appeal allowed
(E-7)

Chronological list of cases cited:-
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Hari Obula Reddy & ors. Vs The St. of A.P. :
(1981) 3 SCC 675

2. Pandurang Chandrakant Mhatre & ors. v.
St. of Mah. : (2009) 10 SCC 773

3. Jalpat Rai & ors. Vs St. of Har. : (2011) 14
SCC 208

4. Prabhat Vs St. of Mah. : (2013) 10 SCC 391

(Delivered by Hon'ble Manoj Misra, J.
Hon'ble Pankaj Bhatia, J.)

1. This appeal assails the judgment
and order dated 29.06.1993 passed by
Additional Sessions Judge/ Special Judge,
Meerut in S. T. No.294 of 1989 by which
the appellants, namely, Mahak Chand and
Mahkar both sons of Jai Lal; and Nand
Kishore son of Phool Singh have been
convicted under Sections 302 / 34, 307 /
34 and 449 I.P.C and punished as follows:
life imprisonment for offence punishable
under section 302/ 34 I.P.C.; three years
R.I. each for offences punishable under
Sections 307 / 34 and 449 I.P.C. All the
sentences to run concurrently.

2. The prosecution case as narrated in
the first information report (for short FIR),
which has been lodged by Charat Singh
(P.W.1) at P.S. Kithore, District Meerut as
Case Crime No. 227 of 1987 on 25.09.1987,
at 3:30 AM, is that Mahak Chand (appellant
no.1) is a dacoit. He threatens villagers
therefore nobody complains against him.
The informant's family however had been
opposing him. As a result, Mahak Chand had
been inimical towards the informant. In the
night of 30/31.07.1987 an attempt on the life
of informant's brother Bharat Singh was
made by Mahak Chand in association with
Nand Kishore (appellant no.3) and Ashok of
which information was given at the police
station. Ashok and Nand Kishore had
obtained bail but Mahak Chand was
absconding. On 15.09.1987, Mahak Chand
and his brother Kallia (who expired before
the trial) threatened the informant that if he
does not enter into a compromise in that case
his entire family would be eliminated. Thus,
pressure was being continuously exerted on
informant's family to file affidavit in their
favour.
After
narrating
the
above
background, it was alleged that in the night
of 24.09.1987, while the informant (P.W.1)
and Mathura (P.W.2) along with others were
present at the house of Ram Chandra (cousin
of the informant), to look after Ram
Chandra, who was seriously ill, at about 11
pm, they heard cries of ladies coming from
informant's house. Upon hearing those cries,
informant and P.W.2 rushed towards the
house. As they reached the gate of the house,
in the light of a torch, they saw accused
Mahak Chand (appellant no.1); Kallia;
Mahkar (appellant no.2); and Nand Kishore
(appellant no.3) coming out from the gate.
Mahak Chand and Kallia had Bhala and
Mahkar and Nand Kishore had Ballam in
their hand. They all ran away towards the
west in the Gali. When PW1 and PW2 went
upstairs on to the second floor, they found
Kailaso (informant's wife) lying dead on one
cot and Sarmoz (Kailaso's sister's daughter -
niece) lying injured and unconscious on
another cot laid just next to the cot of the
deceased. Harpati (wife of Bharat Singh -
Bhabhi of P.W.1) and P.W.1's niece (Km.
Babita - P.W.3) came and told P.W.1 and
P.W.2 that Kallia; Mahak Chand; Mahkar;
and Nand Kishore have killed informant's
wife (Kailaso - the deceased) and caused
injury to Sarmoz (deceased's niece) with
Ballam and Bhala.

3. After the FIR was lodged, the
Investigation Officer (for short I.O.),
namely, Satyabir Singh Chauhan -P.W.8,
proceeded
to
the
spot,
recovered
bloodstained and plain scrapes of the floor
3 All. Mahak Chand & Ors. Vs. State of U.P.
1047
beneath the two cots as well as the
bloodstained covers etc., and prepared a fard
(Ex Ka-9). Inquest report (Ex Ka 8) was also
prepared,
which
revealed
that
inquest
proceedings started at about 7 am and
concluded by 9 am on 25.09.1987. In the
column relating to clothes found on the body
of the deceased, it was recorded that the body
was having just a lower undergarment on it. A
Chithi
Majrubi
(letter
for
medical
examination/ treatment of the injured)
addressed to the In-charge Primary Health
Centre, Machare, Meerut was prepared for
Sarmoz. She was however referred to P.L.
Sharma Hospital, Meerut. At P.L. Sharma
Hospital, Meerut, at about 7.15 AM, on
25.09.1989, she was examined by Dr. S.C.
Nigam (P.W.6), who prepared her injury
report (Ex. Ka-5). A punctured wound 2.8 cm
x 0.8 cm x depth not probed on right side
abdomen, 8 cm above the umbilicus, at about
11 o'clock position, margin clean cut and
everted, with Omentum protruding out from
the wound, was found. Injury was kept under
observation and X-ray was advised. The
injury
report
observes
that
detailed
examination could not be done due to serious
condition of the patient. Duration of the injury
was found fresh, caused by sharp, hard and
pointed object.

4. The autopsy of the deceased was
conducted by Dr. G.C. Gaur (P.W.5) on
25.09.1987, at about 4:30 pm. The
autopsy
report
(Ex.Ka-4)
discloses
following ante-mortem injuries:

"(i) Incised wound measuring 4
cm x 1.5 cm x bone deep with underlying
5th vertebrae cut on right side of neck, 3
cm below the angle of right mandible
placed horizontally;

(ii) Incised wound measuring 8
cm x 1 cm x skin deep on upper surface of
right shoulder;

(iii) Incised wound measuring
2.5 cm x 1 cm x chest cavity deep on left
side of chest, 10 cm below the left axilla."

5. As per the report the estimated
time of death was about one day before.
The age of the deceased was estimated 40
years. According to the doctor, death was
due to shock and haemorrhage as a result
of the ante-mortem injuries noticed.

6. On 02.10.1987, the second I.O.,
namely, Rangnath Pandey (P.W.7), who
took over investigation on 30.09.1987
from PW8, disclosed recovery of lantern
and torch and prepared its Fard.

7. P.W.7 completed the investigation
and submitted charge-sheet (Ext. Ka-8)
against all the four accused, namely,
Mahak Chand, Kallia and Mahkar, sons
of Jai Lal; and Nand Kishore son of Phool
Singh. The charge-sheet enlisted as many
as 21 witnesses including Charat Singh
(P.W.1); Mathura (P.W.2); Smt. Harpati
(not examined) and Km. Babita (P.W.3)
but the name of Km. Sarmoz (the person
injured in the incident) was conspicuous
by its absence.

8. After taking cognizance on the
charge-sheet, the case was committed to
the court of sessions. Before the charges
could be framed, Kallia expired and the
case against him therefore abated.

9. Charge of offences punishable
under sections 302/ 34; 307/ 34; 449 IPC
was
framed
against
the
accusedappellants. They pleaded not guilty and
demanded for trial.

10. The prosecution examined nine
witnesses,
namely,
Charat
Singh
(informant - P.W.1); Mathura (P.W.2);
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
Babita (P.W.3); Chandrabir Singh (P.W.4);
Dr. G.C. Gaur (P.W.5); Dr. S.C. Nigam
(P.W.6);
Rangnath
Pandey
(P.W.7);
Satyabir Singh Chauhan (P.W.8); and
Shaukat Ali (P.W.9). Their testimony in
brief is as follows:

P.W.1
-
Charat
Singh
reiterated what was stated in the FIR. He
proved the written report i.e. the FIR (Ex
Ka 1) and stated that it was scribed by
Brahmpal under his instructions. He
stated that at the time of the incident, he
was at the house of distant relative Ram
Chandra, who was on death- bed. Ram
Chandra's house was just about 25-30
paces away from his house. When he
heard cries of ladies coming from his
house, he and P.W.2 rushed towards the
house and saw Mahak Chand and Kallia
with Bhala, and Nand Kishore and
Mahkar with Ballam, coming out and
running away towards the west in the
Gali. He stated that he rushed upstairs to
find out that on the roof of the second
floor his wife was lying dead and his
wife's sister's daughter Km. Sarmoz lying
unconscious in an injured condition and,
from the third floor, his brother's wife
Smt. Harpati (not examined) and his
brother's
daughter
(Babita-P.W.3)
shouting. After informant's arrival they
came down to the second floor and
informed the informant and P.W.2 that
Mahak Chand; Kallia; Mahkar and Nand
Kishore have killed them. Soon thereafter,
on a tractor, he went to the Police Station
Kithore, with Sarmoz, to lodge the FIR
and secure medical attention for the
injured.

11. In his cross-examination, he
stated that he was in the armed forces. He
retired in 1983. He has a factory in Noida
where polythene bags are manufactured.
His son manages the factory. He also
visits Noida. His son's children had gone
to their maternal grand parents home. He
has 30 bighas of agricultural land in the
village
which
is
managed
through
servants though sometimes he manages it
himself. He stated that at the time of
incident there was no servant in the house
though he had a servant by the name of
Manoj, aged 25-30 years, who is a
resident of Bihar. He admitted that his
servant used to stay in his house but his
family resided in the village. However, on
the date of the incident he was looking
after the tube well and was not present in
the house. With regard to Km. Sarmoz, he
stated that she is yet to get married. At the
time of the incident she must have been
15-16 years old. He stated that from the
police station, Sarmoz was taken to the
hospital. On the next day, he met Sarmoz
in the hospital but she could not speak as
she was unconscious and was being taken
for surgical procedure. He stated that his
brother (Bharat Singh) had a licensed
gun. At the time of the incident, Bharat
Singh was at Noida with his son. He
stated that his father Mehar Singh had
contested election against Mahak Chand's
brother Jai Pal. Thereafter, his brother
Bharat Singh contested election against
Mahak Chand and lost. He stated that his
cousin Ram Chandra died on 25.09.1987,
at about 6 pm. Ram Chandra had multiple
civil litigation with Nand Kishore. He
stated that prior to this incident Bharat
Singh was shot at by the accused. The
shot had hit him on or about the knee.

12. In his cross examination, he
stated that his brother's house, that is
Bharat Singh's house, is separate from his
own and both the houses had separate
staircase up to the second floor. The roofs
however were joint. In informant's house
3 All. Mahak Chand & Ors. Vs. State of U.P.
1049
there are two floors whereas the third floor is
open with grill. In between his house and
Bharat Singh's house there is a partition wall,
which is of full height to the extent of one-half
the length of the house and of one-half height
in the remaining portion. He stated that at
Bharat Singh's house, informant's father, Bharat
Singh's wife and two daughters were there on
the date of the incident whereas Bharat Singh's
sons had gone to Noida.

13. In his cross-examination, P.W.1
disclosed that the third floor of his
brother's house has no staircase. To have
access to it one has to use a ladder from
the roof of informant's house. He stated
that when he had reached the second floor
of his house, there was no one next to the
deceased or Sarmoz but soon after his
arrival PW3 and her mother (informant's
Bhabhi) had come down. He stated that
the main gate of the house is at a distance
of about 4 or 5 paces from the staircase
and is located in the middle of the two
houses. It has an iron gate which was not
locked by him. He stated that in the
verandah, on the ground floor of Bharat
Singh's house, on the date of the incident,
his father was sleeping.

14. In his cross-examination, he also
stated that Nand Kishore had lodged a
case against him, his brother and two
others, which was pending. He denied the
suggestion that the crime was the doing of
some one within his own house and that
he has falsely implicated the accusedappellants on account of enmity.

15. P.W.2 - Mathura reiterated the
prosecution case as narrated by P.W.1. He
admitted that he comes from the same
'Khandan' (ancestry) as of Charat Singh-
P.W.1.

16. In his cross-examination, he
stated that he and the informant were the
first to reach the spot and after they had
reached, Harpati and Babita (PW3)
arrived from the third floor and told them
that it was the doing of the accusedappellants. He stated that after he, P.W.1,
Harpati and Babita (P.W.3) had arrived,
several other persons also arrived. He
stated that Sarmoz was unconscious and
that he has not spoken to her about the
incident till date. He admitted that he
knew about Manoj, the servant of P.W.1,
but, at that time, Manoj was at the tube
well. He stated that he did not see Manoj
at the police station also. In his crossexamination, he admitted that Sarmoz had
gained consciousness after two days; and
that he had not spoken to her even after
she gained consciousness as he did not
consider it necessary to inquire from her.
He denied the suggestion that on the date
of the incident, the informant was at
Noida and, after getting information, had
rushed
back.
He
also
denied
the
suggestion that he is lying because he
comes from the same ancestry.

17. P.W.3 - Babita -In her statement
in chief stated that in the night of the
incident, at about 11:30 pm, while she
was sleeping on the the third floor of her
house with her mother Harpati, she heard
shrieks of her Chachi (Aunt - Smt.
Kailaso - the deceased) and her Bhanji
(neice - Sarmoz, the person injured)
coming from the second floor of their
house. Upon hearing the shrieks, she
woke up and saw Mahak Chand with
Bhala; Nand Kishore with Ballam;
Mahkar with Ballam; and Kallia with
Bhala assaulting her Aunt (Chachi) and
Sarmoz with the weapons. She stated that
the night was dark but a lighted lantern
was hanging from the rack placed towards
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
the head side of the bed of the deceased.
She could recognize the accused in that
light. Upon witnessing the incident she
raised an alarm upon which the accused
ran away. Soon, thereafter, his uncle
Charat Singh (P.W.1) and Mathura
(P.W.2) arrived. On their arrival, she
descended from the third floor to the
second floor and told them about the
incident.

18. A suggestion was given to her
that talks regarding marriage of Sarmoz
(the person injured) with Rakam Singh
son of Maglesh were on but her auntdeceased was not agreeable to the
relationship. She refuted that suggestion
but admitted that Rakam Singh had come
to the village 2-3 days later. She also
stated that she saw him in the village 2-3
months before. She, however, admitted
that Sarmoz had come to the village about
four days before the incident and had
never come earlier. She also admitted that
in the house of her uncle (P.W.1), his
servant (Manoj) used to stay. Manoj used
to look after her uncle's agricultural
operations as well as the tube-well. She
stated that her father and brother used to
stay at Noida; that her father and uncle
(P.W.1) had factory at Noida. But PW1
had been in the village since 5-10 days
before the incident. She stated that two
months after the incident, Manoj left his
job and went away. She admitted that
fodder for the animals of her house was
brought by servants.

19. In her cross-examination, she
stated that in the night of the incident, she
slept at 11 pm. Like every day, she used
to sleep on the third floor of her house. In
the night of the incident, she had taken
the bedding and a quilt to the third floor.
She had a separate cot for herself whereas
her mother slept on a separate cot laid just
next to her cot.

20. In her cross-examination, she
admitted that there is no staircase to gain
access to the third floor of her house. The
height difference between the third floor
and second floor of her house is just 2 - 3
feet. She stated that the roof of her house
and the deceased's house is joint. On that
day, she had used a wooden ladder to go
to the third floor. On a daily basis, she
used to go to the third floor in the same
manner. She stated that in the night of the
incident, when she heard the noise, she
peeped down to discover that the accused
were assaulting the deceased and the
injured. According to her the cot of the
deceased and the injured were at a short
distance of about two paces from her
place though at a lower height on the
second floor roof. When she woke up, she
saw accused persons inflicting injuries on
the deceased and the injured. Firstly, she
stated that the accused persons' face was
towards the deceased and the injured and
their back was towards her but, later, she
corrected herself and stated that their face
was towards her. She stated that the cots
of the deceased and injured were laid
towards west from her position. The
accused persons were seen towards north
of the cots. Behind the cots there was a
room and adjoining that room there was
staircase which could be seen from the
place from where she saw the incident,
though the main gate could not be seen
from that place. She stated that Charat
Singh (P.W.1) and Mathura (P.W.2) had
arrived soon after the accused had left.

21. In her cross-examination, she
stated that the I.O. had recorded her
statement in the morning itself, at about 5
am, at her house; and her mother's
3 All. Mahak Chand & Ors. Vs. State of U.P.
1051
statement
was
also
recorded
there.
Thereafter, the I.O. had again visited the
village five days later and recorded her as
well as her mother's statement.

22. She stated that at the time of the
incident, the deceased - Kailaso was just
wearing a Nikkar (lower undergarment)
and apart from that there was no cloth on
her body. Sarmoz was wearing a Salwar
suit.

23. She denied the suggestion that
on the night of the incident, she was
sleeping inside her room and that she had
not seen the incident. She also denied the
suggestion that the accused have not
committed any offence and that she is
lying.

24. P.W.4 - Chandravir Singh
proved the G.D. entry of the first
information report and the chik FIR. In
his cross-examination, he stated that the
Inspector had left the police station to go
to the spot at about 3:30 am. He also
proved that Chitthi Majrubi was issued to
the constable for examination of the
injured at PHC, Machara.

25. P.W.5 - Dr. G.C. Gaur proved
the autopsy report. He stated that all the
three injuries were by sharp edged
weapon; autopsy was conducted on
25.09.1987 at about 4.30 pm; and that the
death could have occurred about a day
before though it is possible that the
injuries could have been caused in the
night of 24/25.09.1987.

26. In his cross-examination, he
stated that the injuries could have been
caused by a knife as well as Ballam if the
top had sharp edges. But the injuries
could not have been from a Bhala. He
stated that there could be variation of six
hours on either side in the estimated
duration of death.

27. P.W.6 - Dr. S.C. Nigam stated
that he examined Sarmoz for her injuries
on 25.09.1987 at 7:15 hours. He stated
that Sarmoz was aged about 15 years and
was brought by constable. He proved the
injury report. He stated that it is possible
that the injury caused to her was by a
pointed weapon. He stated that it is
possible that the injuries could have been
caused to her on or about midnight
between 23.00-24.00 hours. He stated that
the injury was grievous in nature.

28. In his cross-examination, he
stated that he was not shown any report of
the Primary Health Centre, Machara. He
could not tell whether the injured was
provided any medical aid at the Primary
Health Centre. He stated that he cannot
say whether any information was given
for recording of the dying declaration of
the injured. He stated that he has not
mentioned in his report whether the
injured was conscious. He also stated that
he has not mentioned about the pulse rate
and the blood pressure of the injured. He
admitted the possibility of the injury
being on account of falling over pointed
object but stated that if that was the case
then injuries would have been there on
other parts of the body also.

29. P.W.7 - Rangnath Pandey
stated that he took over charge of police
station Kithore on 29.09.1987 and prior to
his posting, the investigation of the case
was conducted by Satyabir Singh (P.W.8).
He stated that on 30.09.1987, he took
over the investigation of the case. On
02.10.1987, he recorded statement of
Mathura; Smt. Harpati; Km. Babita;
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
Mahkar Singh, etc. He stated that he had
taken the torch from Mathura and
prepared a Fard (Memo) in front of
Jaikaran and Tikaram. Witness Charat
Singh had also provided torch and lantern
to him of which Fard (Memo) was
prepared. He stated that on 06.10.1987, he
recorded statement of Sarmoz and, on the
same day, he also recorded the statement
of her mother (Prakasho) and brother
(Rajesh). He stated that on 08.11.1987, he
had completed the investigation and
prepared charge-sheet (Ex. Ka-8).

30. In his cross-examination, he
stated that the previous Investigation
Officer Satyabir Singh had filled Parchas
in the case diary up to page no. 88.
However, the Parchas entered by him in
the case diary starts from page no. 92. He
stated that probably pages 89 to 91 were
filled in respect of some other case but he
is not aware of that. He stated that during
investigation he had heard that statement
of Km. Sarmoz was recorded by the
doctor as a dying declaration. He
admitted that he had recorded the
statement of Km. Sarmoz and had also
incorporated the statement given by her to
the doctor in the case diary . However, he
had not recorded the statement of that
doctor. He admitted that he had not put
the accused for identification by Sarmoz
because he had ample evidence and
therefore he did not consider it necessary.
He stated that he had recorded the
statement of Mathura, Smt. Harpati and
Km. Babita in the village itself. He had
seen the house of Mathura. He does not
remember as to how far it is from the
place of occurrence. He stated that he did
not consider it necessary to make any
alteration in the site plan prepared by the
first I.O. even though in the site plan
prepared by the first I.O., the place from
where Mathura saw the assailants was not
shown. He stated that he had recorded the
statement of Sarmoz at the police station
and had entered her age as 15 years and,
at that time, her mother and brother were
there.

31. P.W.8 - Satyabir Singh stated
that since April 1987 to 27th September
1987, he was the Prabhari Nirikshak at
P.S. Kithore. He stated that the FIR was
registered at 3:30 hours on 25.09.1987 in
his presence. The Chik FIR was entered
by the Head Moharir where after he
recorded the statement of the informant
(Charat Singh - P.W.1) and visited the
spot. He proved the inquest report;
recovery of blood-stained and plain floor
scrapes along with bed pieces, covers etc.
He proved that the body was sealed and
thereafter handed over to the constable for
autopsy.
He
stated
that
inquest
proceedings were got over by 9 am where
after he examined the site and prepared
site plan (Ex. Ka 14). He also prepared
the site plan for the lower floor, which
was marked Ex. Ka-15.

32. In his cross-examination, he
stated that within 10-15 minutes of the
registration of the first information report,
he had left for investigation. He stated
that when he had recorded the statement
of Charat Singh (PW1), at that time, no
other witness was present though he had
searched for the witness but they were not
found and Mathura was not there at that
time. He stated that the informant stayed
with him in the village till 12 noon and
thereafter he had left for the hospital. He
stated that he had searched for Babita but
she was not found in the house. He stated
that he had not inquired about Harpati.
Thereafter, he left in search of the
accused. He stated that he had prepared
3 All. Mahak Chand & Ors. Vs. State of U.P.
1053
the site plan, as per the directions of
Harpati. He stated that after getting the
site plan prepared, he could not find
Harpati as he had gone in search of the
accused. He admitted that in the site plan,
he had not shown the place from where
the informant had seen the accused. He
stated that the distance between the house
of Ram Chandra and the place from
where the witnesses had seen the accused
must be about 65 paces. Though the
distance of the place from where the
witnesses saw the accused must have
been 3-4 paces. He stated that Sarmoz
was in a serious condition and therefore
she was sent to the hospital from the
police station. He stated that he neither
recorded the statement of Sarmoz nor he
went to the hospital. He stated that as far
as he remembers he had sent a report for
recording of her dying declaration. He
denied the suggestion that the case was
not registered in his presence and he did
not visit the spot and did paper work
while sitting at the table. He also denied
the suggestion that he got the accused
falsely implicated.

33. P.W.9 - Shaukat Ali. He stated
that he had taken the body for autopsy
and that he did not let anybody touch the
body in between.

34. In his cross-examination, he
stated that the body was taken in an
ambassador car of which number was
DEB 1202. He does not remember whose
car it was. He stated that the injured was
not with him.

35.

The
entire
incriminating
evidence was put to the accused at the
time of recording their statement under
Section 313 Cr.P.C.

36. The accused (Mahak Chand)
challenged
the
correctness
of
the
prosecution evidence and claimed that
informant's brother Bharat Singh had
contested Pradhan election against him
and had lost just before the incident and,
therefore, out of enmity, he has been
falsely implicated. The accused (Mahkar)
denied the prosecution evidence and
claimed that he is a lawyer and that to
prevent him from doing pairvi in the court
cases and to get his arms license canceled,
he has been falsely implicated along with
other
accused.
The
accused
(Nand
Kishore) also challenged the correctness
of the prosecution evidence and claimed
that the informant - Charat Singh, who is
brother of Bharat Singh, had disturbed his
'barja' and that a civil litigation is pending
as a result of which there is enmity and
therefore he has been falsely implicated.

37. The trial court, after considering
the evidence led by the prosecution, held
the
appellants
guilty
for
offences
punishable under Sections 302/34, 307/34
and section 449 I.P.C. The trial court took
the view that the prosecution case was
duly proved by the eye-witness account of
Babita (PW3) and by the testimony of
two witnesses of circumstance, namely,
Charat Singh (PW1) and Mathura (PW2).
Further, the testimony of Babita (PW3)
was
corroborated
by
the
medical
evidence. In respect of non-examination
of the injured (Km. Sarmoz), the trial
court took the view that it is quite
possible that Km. Sarmoz, being new to
the village, may not have been able to
recognize the accused and therefore the
prosecution may not have considered it
necessary to examine her. Hence, no
adverse inference is to be drawn on nonexamination of Km. Sarmoz.
1054 INDIAN LAW REPORTS ALLAHABAD SERIES

38. We have heard Sri S.C. Pandey for
the appellant no.1 (Mahak Chand); Sri
Jagdish Prasad Tripathi for appellant nos. 2
and 3 (Mahkar and Nand Kishore); and Sri
Deepak Mishra, learned A.G.A., for the State.

39. Learned counsel for the appellants
contended that admittedly the three accused,
namely, Mahak Chand, Mahkar; and Kallia
are real brothers; that informant's father
(Mehar Singh) had contested election of
Gram Pradhan against Mahak Chand's brother
Jai Pal; that election was won by Jai Pal; that,
thereafter, an election petition was filed,
which was decided in favour of informant's
father, namely, Mehar Singh; that in the
subsequent election, which was just before the
incident, Mahak Chand won election of Gram
Pradhan against informant's brother Bharat
Singh; that, according to the prosecution, the
brother of the informant was shot at by the
accused in connection with which another
case of attempt to murder was lodged in
which Mahak Chand, amongst others, was an
accused; that, in that case, Nand Kishore had
obtained
bail
but,
according
to
the
prosecution, Mahak Chand was absconding;
that it has come on record that Nand Kishore
was having litigation with the family of the
informant and that Mathura (P.W.2) had the
same ancestry as the informant; and that eyewitness Babita (P.W.3) is daughter of Bharat
Singh, the brother of the informant. Thus, it is
clear that all the three eye-witnesses, namely,
P.W.1; P.W.2; and P.W.3 were not only
inimical but highly interested in seeking
conviction of the accused. Hence, their
testimony ought to be considered with great
caution and tested on the touchstone of
probabilities.

40. It has been contended by the
learned counsel for the appellants that
admittedly the murder took place on the
roof top of informant's house. The house
of Bharat Singh, brother of informant,
was separate though adjacent to the house
of the informant. The deceased and the
injured were sleeping on the roof of the
second floor of their house in the open.
The eye-witness Babita had allegedly
seen the incident from the third floor of
her house, namely, Bharat Singh's house.
The third floor of her house was barely 23 feet higher than the second floor.
Therefore it can not have rooms, etc. In
fact, it cannot be called a third floor as it
was
a
mere
platform.
This
gets
corroborated by the evidence that it had
no staircase for access. Hence, to show
that PW3 could witness the incident, the
prosecution has set up an artificial and
false story that like everyday Babita
(PW3) used to carry her cot and bedding
including quilt, etc to the third floor of
her house by using a wooden staircase
from the adjoining roof of deceased's
house. It has been submitted that in the
site plan, no cot is shown on the third
floor of Bharat Singh's house from where
Babita allegedly saw the incident. Even
no ladder was shown and its existence has
not been noticed during investigation. It
has been contended that it is highly
unnatural that a person would sleep on a
roof which has no staircase for access,
more so when the weather conditions are
not so hot as would be clear from the
statement of PW3 that she had carried a
quilt (Rajai). Hence, the presence of
Babita at the time of the incident at the
place from where she allegedly saw the
incident is highly doubtful. Consequently,
her testimony is not reliable.

41. It has also been contended that
from the testimony of Babita as well as
the inquest report it is established that the
deceased
was
just
in
her
lower
undergarment, which means that she was
3 All. Mahak Chand & Ors. Vs. State of U.P.
1055
naked from top. According to the
prosecution case, there was a lantern lit
towards the head-side of the cot of the
deceased and in the light of that lantern,
though the night was dark, the witness
saw the incident. It has been submitted
that it is highly improbable that any
person who is sleeping nude would have a
lantern placed on her head-side to let
herself be a spectacle for others. This
circumstance lends credence to the
probability that P.W.3 was not at the top
of the third floor and in a position to
witness the incident.

42. It has been submitted that if
P.W.3 had not witnessed the incident, then
the testimony of PW1 and PW2 falls to
the ground as they have responded to her
cries. Hence, the prosecution evidence is
highly unreliable and not worthy of
acceptance.

43. In addition to above, it has been
urged that the injuries sustained by the
deceased appear to be knife injuries and
not from a Ballam as, ordinarily, a Ballam
has a pointed top and, therefore, when it
enters the body it would leave sign of a
punctured wound with laceration and not
incised wound as appears to be the case.
Hence the medical evidence also does not
corroborate the ocular evidence of Babita.
Otherwise also, two persons are stated to
have carried Bhala whereas only a
solitary Bhala injury has been found and
that too on the body of the injured Sarmoz
though, as per the testimony of PW3, all
four accused were seen inflicting injuries
without specifying as to who caused
which injury and to whom. Hence, the
possibility of over implication is also
there and in absence of clear and cogent
evidence which may allow the court to
sift the grain from the chaff, all the
accused are entitled to the benefit of
doubt.

44. It has next been urged that there is no
explanation for non-examination of Km.
Sarmoz (injured) as a witness even though it
has come in the statement of the Investigation
Officer that he had recorded the statement of
Sarmoz during the course of investigation after
she had gained consciousness. Moreover, the
prosecution has not been able to demonstrate
that she was not available or was won over.
The injured witness would have been the best
witness in the facts of the case and withholding
her evidence gives rise to an adverse inference
against the prosecution case and makes a
serious dent to its credibility.

45. It has also been urged that there
has been no recovery of any weapon of
assault. Further, no effort has been made
to recover the weapon of assault which
suggests that the police had made no
effort to find out the truth. Hence, there is
no link evidence to corroborate the
testimony of highly interested witnesses.

46. It has also been pointed out that
there is no cogent reason for the
appellants to kill informant's wife and
injure informant's wife's niece inasmuch
as if they had any score to settle it was
with Bharat Singh and his family. Hence,
why would they attack female family
members of his brother. Moreover, the
allegation that threat was extended that
the entire family would be eliminated, if
compromise was not arrived at in the
attempt to murder case, was never
reported. Hence, the motive for the crime
is weak though motive to falsely
implicate is strong.

47. Lastly, it was contended that the
crime appears to be handiwork of some
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
insider or servant of the house and to hide
public shame, the injured witness has not
been produced. It has been submitted that
the nude condition in which the body of
the deceased was found, particularly,
when the weather was not hot, as
according to witness (PW3) she had
carried a quilt to cover herself, would
lend credence to that kind of possibility
more so when the deceased, as per
autopsy report, was just aged about 40
years old. To buttress this possibility, it
was argued that admittedly PW1 was not
present in the house and there were no
other male members in the house of PW1
to keep a check on them. To add to that
possibility it has been argued that it
appears that PW1 was not even there in
the village and may have arrived on
information which possibility gets support
from use of private Ambassador vehicle
to carry the body of the deceased to the
mortuary. It has thus been argued that the
finding of guilt returned by the court
below is not sustainable and is liable to be
set aside.

48. Per contra, the learned A.G.A.
submitted that P.W.3 is a reliable witness,
who stood the test of cross-examination
and her presence in her own house, which
adjoins the house of the deceased, is
natural and therefore she cannot be
discarded as a person who had not seen
the incident. He also submitted that mere
fact that the deceased was found only in
her undergarment does not make the
prosecution case unworthy of acceptance
inasmuch as it is quite possible that the
deceased may have been in a habit of
sleeping that way by covering herself
with covers etc. It has been submitted that
here is a case where the time of death has
been proved by medical evidence; the FIR
is prompt; and the medical evidence is not
in conflict with the ocular evidence. It
was also submitted that where the ocular
evidence is consistent and reliable, motive
loses importance. It was further urged that
non-examination of the injured witness
would not prove fatal to the prosecution
case inasmuch as in the darkness of the
night Km. Sarmoz, who was hit by a
Bhala and had become unconscious, may
not have been in a position to recognize
the persons who inflicted injury upon her
more so because she was not a resident of
that village and had come there just 4-5
days before the incident and, therefore,
may not have been in a position to
recognize the accused. Hence, non
examination of Km. Sarmoz is not fatal to
the prosecution case. Learned AGA thus
prayed that the appeal be dismissed and
conviction be maintained.

49. We have considered the rival
submissions and have perused the record
carefully.

50. Before we proceed to assess the
prosecution evidence it would be apposite
for us to cull out the facts as regards
which there exist no dispute. The
admitted position is that the informant's
family and the accused family had been
political
rivals. The
father
of
the
informant had contested Gram Pradhan
election against brother of the accused
Mahak Chand, Kalia and Mahkar.