# Matadin @ Chapole & Anr. (In Jail) v. The State of U.P

- **Citation:** (2019) 2 ILRA 77
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-23
- **Case number:** Criminal Appeal No. 1388 of 1988
- **Bench:** Bala Krishna Narayana, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matadin-chapole-anr-in-jail-v-the-state-of-u-p-44744
- **Pages:** 10

## Headnote

A. Indian Penal Code, 1860 -Section
302/34 I.P.C- criminal appeal - convicted
and sentenced to imprisonment for life -
statements recorded u/s 313 Cr.P.C -
Contradictions
and
discrepancies
in
statements with regard to the manner of
assault-
Credibility
of
a
witness
-
relationship cannot be a factor to affect
the credibility of a witness - The
evidence
of
a
witness
cannot
be
discarded solely on the ground of his
relationship with the victim of the
offence- The prosecution has miserably
failed to adduce any evidence linking the
'pharsa' allegedly recovered from the
river bed with the commission of the
murder of the deceased - the prosecution
has not been able to prove its case
against the surviving appellant beyond
all reasonable doubts - entitled to
benefit of doubt.
 (Para 13, 34, 38, 39, 40, 41 & 43)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

## Text

2 All. Matadin @ Chapole & Anr. Vs The State of U.P.
77
(2019)10ILR A 77

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2019

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 1388 of 1988

Matadin @ Chapole & Anr. ...Appellants
 (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri K.D. Tripathi, Ms. Ruchita Jain, Sri R.S.
Pandey.

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

A. Indian Penal Code, 1860 -Section
302/34 I.P.C- criminal appeal - convicted
and sentenced to imprisonment for life -
statements recorded u/s 313 Cr.P.C -
Contradictions
and
discrepancies
in
statements with regard to the manner of
assault-
Credibility
of
a
witness
-
relationship cannot be a factor to affect
the credibility of a witness - The
evidence
of
a
witness
cannot
be
discarded solely on the ground of his
relationship with the victim of the
offence- The prosecution has miserably
failed to adduce any evidence linking the
'pharsa' allegedly recovered from the
river bed with the commission of the
murder of the deceased - the prosecution
has not been able to prove its case
against the surviving appellant beyond
all reasonable doubts - entitled to
benefit of doubt.
 (Para 13, 34, 38, 39, 40, 41 & 43)

Criminal Appeal allowed (E-7)

List of Cases Cited: -
1. Mano Dutt & anr. Vs St. of U.P. (2012) 77
ACC 209

2. Namdeo Vs St. of Mah. (2007) 58 ACC 414
(52) - 2007 (54) AIC 162

3. Chand Khan Vs St. of U.P. 1995 ACC 685 (SC)

4. Wama & ors. Vs St. of Mah. 2011 Crl. L.J. 4827

5. Balraje @ Trimbak Vs St. of Mah. (2010) 70
ACC 12 (SC) = 2010 (90) AIC 32

6. St. of U.P. Vs Naresh & ors. (2011) 75 ACC
215 (SC) = 2011 (106) AIC 76 (SC)
(Delivered by Hon'ble Bala Krishna.
Narayana, J.)

1. Heard Sri R. S. Pandey, assisted
by Ms. Ruchita Jain, learned counsel for
the appellants and Sri J. K. Upadhyay,
learned A.G.A. for the State.

2. This criminal appeal has been
preferred by Matadin @ Chapole (A1) and
Kripa Ram (A2) against the judgement and
order dated 31.05.1988 passed by Vth
Additional Sessions Judge, Jhansi in S.T. No.
68 of 1985, State Versus Matadin and
another, whereby both the appellants were
convicted and sentenced to imprisonment for
life u/s 302/34 I.P.C.

3. Record shows that Kripa Ram
(A2) died during the pendency of this
appeal and this appeal stood dismissed as
abated qua Kripa Ram (A2) by the order
of this Court dated 16.07.2018.

4. Thus, the challenge to the
impugned judgement and order is now
confined on behalf of Matadin @ Chapole
(A1) alone.

5. The prosecution story in short is
that deceased Lakhan was a highly
78 INDIAN LAW REPORTS ALLAHABAD SERIES
arrogant, hard core, anti-social element who
was involved in several criminal cases
including cases of burglary, dacoity etc. and
several anti-social elements of village-
Atarsua bore grudge against him. It is alleged
that on 08.03.1985 at about 1.30-2.00 p.m.,
few residents of village- Atarsua had
gathered in front of the house of Rati Ram to
celebrate Holi. Deceased Lakhan was
singing Holi (phag) songs while his son
P.W.3 Hari Om, his cousin P.W.2 Ram
Narayana and others were standing nearby
and enjoying the Holi songs. While they
were singing Holi songs, Matadin @
Chapole (A1) and Mehngu armed with
country-made pistols and Kripa Ram (A2)
armed with 'pharsa' came to the spot
suddenly and Matadin @ Chapole (A1) and
Mehngu fired with their country-made
pistols at Lakhan, causing firearm injuries on
his head, when Lakhan tried to get up, the
accused caught hold of him and Kripa Ram
(A2) dealt 'pharsa' blows to him causing
injuries on vital parts of his person. Lakhan
died on the spot instantaneously and P.W.1
informant Motilal who described himself in
the written report of the incident as
deceased's "khaandani bhai" although before
the trial court, he had not deposed that he
was "khaandani bhai" of the deceased, also
arrived on the spot upon hearing the noise
and found his brother Lakhan dead with
injuries on various parts of his body. P.W.3
Hari Om, deceased's son who was present
near the dead body apprised him with the
details of the incident and P.W.1 informant
Motilal got the written report of the incident
(Ext.Ka.1) scribed by one P.W.4 Manohar
and proceeded straight to P.S.- Gursarain,
which was at a distance of about 9 kms. from
the place of the incident along with the
written report.

6. On the basis of the written report
(Ext.Ka.1) given by P.W.1 informant
Motilal at P.S.- Gursarain, District-
Jhansi, Case Crime No. 12 of 1985 u/s
302 I.P.C. was registered against the
appellants and one Mehngu. Check F.I.R.
(Ext.Ka.11) and the relevant G.D. Entry
(Ext.Ka.12) were prepared by Head
Constable Jagdish Awasthi.

7. P.W.7 S.O. Subedar Singh took
over the investigation of the case and
proceeded to the place of the occurrence
immediately and reached there at 5 p.m.
After holding the inquest on the dead
body of Lakhan, he got prepared the
inquest report (Ext.Ka.4) and other related
documents whereafter he handed over the
dead body of Lakhan to Constable
Subedar Singh and Constable Shiv Gulam
Pandey along with postmortem requisition
memo (Paper no. 17-A). He seized
samples of blood-stained and plain earth
from the crime scene vide seizure memo
(Exts.Ka.5 and Ka.6). He also seized two
empty cartridges (material Ext.12) and
missed cartridge (material Ext.14) vide
recovery
memo
(Ext.Ka.5).
After
inspecting the place of occurrence, he
prepared its site plan (Ext.Ka.7).

8. Postmortem on the dead body of
Lakhan was conducted by P.W.5 Dr. B.D.
Mangal, Medical Officer, Primary Health
Centre, Mauranipur on 09.03.1985 at 2.45
p.m. He prepared and proved the
postmortem report of the deceased as
(Ext.Ka.2) and noted following antemortem injuries on the person of Lakhan
:-

(a) Firearm wound of entry 3⁄4
inch x wound of exit on the back of head.
Left side in occipital region 2'' above and
backward from left ear. Skin surrounding
the wound is black and scorched and
tattooed wound is oval in shape. Singeing
2 All. Matadin @ Chapole & Anr. Vs The State of U.P.
79
of hairs is also seen. Direction of wound
is left to right and slightly mediary.
Fracture of right occipital bone seen.

(b) Firearm wound of exit 21⁄2'' x
2'' x wound of entry on right temporal
region, just above right ear. Multiple
chips fracture or right temporal occipital
and partial bone are seen.

(c) Firearm wound of exit 1'' x
1'' x wound of entry on right occipital
region 1'' lateral to injury no. 2 fracture
of occipital bone of right side seen.
(d) Incised wound oblique 21⁄2'' x 1'' x skin
muscle with cutting of third cervical
vertibra from front to back on left side of
neck 21⁄2'' below and lateral to left ear
lobule.

(e) Incised wound horizontal 3''
x 1'' x skin muscle with cutting of Ist
cervical vertibra upto the middle on back
of the neck.

(f) Incised wound 21⁄2'' x 1⁄2'' x
bone deep on the left upper scapula
region.

(g) Incised wound superficial x
1⁄2'' x 1/8'' on back of right leg in calf
region.

(h) Incised wound 21⁄2'' x 1⁄2'' x
muscle deep on back of right leg x calf
region 2'' below from injury no. (h).
(i) Incised wound 2'' x 1⁄2'' x bone deep on
back and lateral side of left leg 3'' above
from left ankle joint.

9. According to P.W.5 Dr. B. D.
Mangal, the cause of death of Lakhan was
shock and haemorrhage as a result of
firearm injuries received by him in the
occurrence.

10. The prosecution further claims
that the accused surrendered before the
Judicial Magistrate on 12.03.1985 and the
Investigating Officer thereafter obtained
the police custody of the accused from the
said court for three days from 19.03.1985
to 21.03.1985. It is also alleged that the
accused expressed their willingness to get
the crime weapons namely country-made
pistols and 'pharsa' which they had
concealed in the bed of Betwa River near
KHIRIA GHAT and Kripa Ram (A2) got
the 'pharsa' (material Ext.9) recovered
from the bed of the river which was
seized and sealed by the Investigating
Officer vide recovery memo (Ext.Ka.8)
while no country-made pistols could be
recovered on the pointing out of the other
two accused including the appellants.

11.

After
completing
the
investigation, charge-sheet was filed by
the Investigating Officer in the Court of
Judicial Magistrate- IInd, Jhansi on
06.04.1985 against all the three accused
who vide his committal order dated
19.04.1985 committed the case for trial to
the Court of Sessions Judge, Jhansi where
Case Crime No. 12 of 1985 was registered
as S.T. No. 68 of 1985, State Versus
Matadin and another, and made over for
trial from there to the Court of Vth
Additional Sessions Judge, Jhansi who on
the basis of the evidence on record,
framed charge against all the three
accused u/s 302/34 I.P.C. in furtherance
of their common intention. The accused
abjured the charges framed against them
and claimed trial.

12. The prosecution in order to
prove the charge framed against the
accused examined as many as seven
witnesses of whom P.W.1 informant
Motilal, P.W.2 Ram Narayan, P.W.3 Hari
Om and P.W.4 Manohar were produced
as witnesses of fact while P.W.5 Dr. B.D.
Mangal, P.W.6 Raj Bahadur Singh and
P.W.7 Subedar Singh were examined as
formal witnesses.
80 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The accused-appellants in their
statements recorded u/s 313 Cr.P.C.
denied the prosecution case and alleged
false implication. They did not lead any
evidence in defence.

14. Learned Vth Additional Sessions
Judge, Jhansi by the impugned judgement
and order, convicted both the appellants
and sentenced them to imprisonment for
life u/s 302/34 I.P.C. while co-accused
Mehngu was acquitted.

15. Hence, this appeal.

16. It is contended by the learned
counsel for the appellants that the socalled eye witnesses of the occurrence,
P.W.2 Ram Narayan and P.W.3 Hari Om,
cousin brother and son of the deceased
and hence, highly interested in securing
the conviction of surviving appellant
Matadin @ Chapole (A1) for the murder
of Lakhan but there are irreconcilable
contradictions and inconsistencies in their
statements which totally belie their claim
of being the eye witnesses of the
occurrence. The number of injuries found
on the dead body of Lakhan by P.W.5 Dr.
B.D. Mangal who had conducted the
postmortem on the body of deceased
Lakhan, do not in any manner corroborate
the manner of assault as spelt out in the
F.I.R. and later deposed by the two socalled eye witnesses of the occurrence.
The very fact that the F.I.R. of the
incident was lodged by the village
Chaukidar P.W.1 informant Motilal and
not either by P.W.2 Ram Narayan or
P.W.3 Hari Om falsifies the prosecution
case that the occurrence had taken place
in their presence at the place mentioned in
the F.I.R. Had the deceased been attacked
by the accused in their presence, then
there is no reason why the F.I.R. of the
incident would not have been lodged
either by P.W.2 Ram Narayan or P.W.3
Hari Om, son and cousin brother of the
deceased. Moreover, from the perusal of
the F.I.R. recitals itself it is apparent that
P.W.1 informant Motilal had reached at
the crime scene after the incident. The
aforesaid
circumstance
supports
the
defence version that after some unknown
persons had shot dead Lakhan who was
an acknowledged anti-social element of
the village after being brutally attacked by
them and his dead body was discovered
by P.W.1 informant Motilal, Chaukidar of
the
village,
a
false
F.I.R.
falsely
implicating
the
surviving
appellant
Matadin @ Chapole (A1) and the other
accused, was got prepared and lodged by
P.W.1 who admittedly was not an eye
witness of the incident at the behest of
P.W.2 Ram Narayan and P.W.3 Hari Om.
No explanation is forthcoming from the
side of the prosecution that if the incident
had taken place in the presence of several
villagers, why no independent witness of
the occurrence was examined and only
P.W.2 Ram Narayan and P.W.3 Hari Om,
cousin brother and son of the deceased
whose presence at the place of incident at
the time of the occurrence is extremely
doubtful, were produced as witnesses of
fact. Such being the state of evidence,
neither the recorded conviction of the
appellants nor the sentences awarded to
them can be sustained and is liable to be
set-aside.

17. Per contra Sri J. K. Upadhyay,
learned A.G.A. appearing for the State
submitted that it is proved to the hilt from
the evidence of P.W.2 Ram Narayan and
P.W.3 Hari Om, cousin brother and son of
the deceased, that the deceased Lakhan
died as a result of injuries inflicted on him
by accused-appellants with country-made
2 All. Matadin @ Chapole & Anr. Vs The State of U.P.
81
pistols and 'pharsa'. The medical evidence
on record fully corroborates the ocular
version. The failure of the P.W.2 Ram
Narayan and P.W.3 Hari Om to lodge the
F.I.R. of the incident which was anyway
lodged promptly within 21⁄2 hours of the
occurrence by the P.W.1 informant
Motilal, village chaukidar, leave no room
for any deliberation or consultation, does
not in any manner indicate that they had
not witnessed the occurrence as they had
given a correct and cogent description of
the occurrence, assigning specific roles to
all the three accused including the
surviving appellant Matadin @ Chapole
(A1). This appeal lacks merit and is liable
to be dismissed.

18. We have heard learned counsel
for the parties present and perused the
entire lower court record very carefully.

19. The only question which arises
for our consideration is that whether the
prosecution has been able to prove its
case
against
the
accused-appellants
beyond all reasonable doubts or not ?

20. Before proceeding to evaluate
the evidence of the four witnesses of fact
produced by the prosecution during the
trial, we first propose to have a look at the
evidence of the formal witnesses.

21. Dr. B.D. Mangal, Medical
Officer
who
had
conducted
the
postmortem on the dead body of Lakhan
on 09.03.1985 in Primary Health Centre,
Mauranipur was examined as P.W.5. He
deposed that he had found various antemortem internal and external injuries of
which we have already taken note
hereinabove and opined that Lakhan had
died within 24 hours of the postmortem
examination on account of shock and
haemorrhage as a result of firearm and
other injuries sustained by him. He
proved the postmortem report of the
deceased
as
(Ext.Ka.2).
From
the
evidence of P.W.5 Dr. B.D. Mangal, it is
proved that Lakhan died a homicidal
death.
However,
he
in
his
crossexamination on page 68 of the paper book
deposed that if the ''pharsa' used was
crescentric, the injury may be crescentric
in shape. He further deposed that none of
the injuries found were crescentric in
shape.

22. P.W.6 Raj Bahadur Singh,
deposed before the trial court that about
two years and nine months before at about
9 a.m. while he was going from Modi
crossing with one Alam towards the
market in Gursarain, he had met one
Daroga who was sitting in a jeep which
was parked before the police station with
2-3 accused sitting on it. He had stopped
them and asked them to listen to what the
accused were saying. Accused Kripa Ram
(A2) who was present in the Court had
told that he had thrown the 'pharsa' in the
river. The remaining two accused who
were also present in the Court had stated
before them that they had also thrown
their country-made pistols in the river.
Then the Daroga Ji asked him and Alam
to sit in the jeep and took them to the
place on the bank of the river where the
accused had concealed their weapons. He
further deposed that Kripa Ram (A2)
walked into the river bed and came out
with a 'pharsa'. The other two accused
tried to search their country-made pistols
in the river bed but the same could not be
recovered. He proved his signature on the
recovery memo of the 'pharsa' (Ext.Ka.3).

23. S.O. Subedar Singh, the
Investigating Officer of the case, was
82 INDIAN LAW REPORTS ALLAHABAD SERIES
examined as P.W.7. He in his statement
made before the trial court narrated the
various steps taken by him during the
course of investigation. He proved the
inquest report (Ext.Ka.4) of the deceased,
recovery memo of empty and live
cartridges (Ext.Ka.5), recovery memo of
blood-stained
and
simple
earth
(Ext.Ka.6), site plan of the place of
occurrence (Ext.Ka.7), recovery memo of
'pharsa' on the pointing out of surviving
appellant Matadin @ Chapole (A1) and
the site plan of the place of recovery of
'pharsa' (Ext.Ka.9) and the charge-sheet
(Ext.Ka.10). He proved the plain and
blood-stained earth produced during the
trial as material (Ext.10 and 11), check
F.I.R. which was in the handwriting and
signature of Head Constable Jagdish
Awasthi (Ext.Ka.11), original copy of the
relevant G.D. Entry which was prepared
vide rapat no. 14 time 4 p.m. dated
08.03.1985
was
prepared
by
Head
Constable
Jagdish
Awasthi
as
(Ext.Ka.12), P.W.7 S.O. Subedar Singh
also proved the criminal history of the
appellant Lakhan and deposed that he was
currently involved in Case Crime No.
89/87 u/s 396 I.P.C., P.S.- Gursarain,
Case Crime No. 79/78 u/s 395, 397 I.P.C.,
P.S.- Uldan, Case Crime No. 3/79 u/s 395,
397 I.P.C., P.S.- Uldan, Case Crime No.
95/80 u/s 399, 402 I.P.C., P.S.- Uldan and
Case Crime No. 42/81 u/s 325, 323 I.P.C.,
P.S.- Uldan while he had been acquitted
in the rest of the cases. He also deposed
that he did not find any blood on the
platform in the north of the house of Rati
Ram where the deceased was allegedly
sitting and singing Holi songs.

24. From the evidence of P.W.7 S.O.
Subedar Singh, the Investigating Officer
of the case, it is proved that no blood was
found on the platform in the northern part
of the house where as per the prosecution
case, he had been shot by Mehngu and
Kripa Ram (A2) from their country-made
pistols.

25. Having scrutinized the evidence
of formal witnesses, we now proceed to
evaluate the evidence of three witnesses
of fact produced by the prosecution
during the trial.

26. P.W.1 informant Motilal who
was the village chaukidar had deposed
that at the time of the incident, he was in
his house. On hearing the noise, he went
to the place of incident which had taken
place at about 1.30 p.m. When he had
reached there, the persons who were
singing Holi songs, had fled. P.W.3 Hari
Om had told him about the incident. The
written report of the incident was scribed
by P.W.4 Manohar on his dictation. He
proved the written report of the incident
as (Ext.Ka.1). He further deposed that
when he had reached the place of
occurrence, he had found P.W.2 Ram
Narayan and P.W.3 Hari Om present
there.
He
admitted
in
his
crossexamination that the deceased was a
history sheeter.

27. P.W.4 Manohar, scribe of the
F.I.R., stated before the the trial court that
he had scribed the written report of the
incident (Ext.Ka.1) on the dictation of
P.W.1 informant Motilal. He further has
not deposed about the presence of P.W.2
Ram Narayan and P.W.3 Hari Om at the
place of the incident when he was
scribing the F.I.R. on the dictation of
P.W.1 informant Motilal.

28. It is very strange that although
P.W.2 Ram Narayan and P.W.3 Hari Om
claim themselves to be the eye witnesses
2 All. Matadin @ Chapole & Anr. Vs The State of U.P.
83
of the occurrence but no explanation is
coming forth why the written report of the
incident was written by P.W.4 Manohar
on the dictation of P.W.1 informant
Motilal. In the natural course, if the
deceased had been killed in the presence
of P.W.2 Ram Narayan and P.W.3 Hari
Om, who were the cousin brother and son
of the deceased, the written report of the
incident would have been scribed either
on the dictation of P.W.2 Ram Narayan
and P.W.3 Hari Om who had seen the
incident and not on the dictation of P.W.1
informant Motilal who deposed that
whatever he had stated in the written
report was narrated to him by P.W.2 Ram
Narayan
or P.W.3 Hari
Om.
The
prosecution has failed to pin-point any
reason for the written report of the
incident having not been scribed on the
dictation of either P.W.1 informant
Motilal or P.W.3 Hari Om. The very fact
that the written report of the incident was
written by P.W.4 Manohar on the
dictation of P.W.1 informant Motilal is in
itself a very material circumstance which
belies their claim of being the eye witness
of the occurrence.

29. Moreover, after going through
the statements of P.W.2 Ram Narayan and
P.W.3 Hari Om, we have found that there
is a material contradiction in their
statements with regard to which of the
two accused, Mehngu or deceased Kripa
Ram (A2) had fired at the deceased first,
who had stated on oath that on the date of
the incident at the relevant time, some of
the residents of village- Atarsua had
gathered in front of the house of the Rati
Ram of the same village to celebrate Holi
festival and was singing Holi (phag)
songs while P.W.2 Ram Narayan, P.W.3
Hari Om, Nand Ram, Damodar etc. were
enjoying the songs. Both the above socalled eye witnesses had also deposed that
Matadin @ Chapole (A1) and Mehngu
armed with country-made pistols and
Kripa Ram (A2) armed with 'pharsa'
suddenly arrived at the scene of the
incident. P.W.2 Ram Narayan stated in
his examination-in-chief as well as in
paragraph 18 of his cross-examination
that Mehngu had fired the first shot at the
deceased
which
had
hit
him
and
thereafter, Matadin @ Chapole (A1) had
shot Lakhan which had also hit him. After
being shot by the country-made pistols,
Lakhan tried to run away but Mehngu
caught hold of him while deceased Kripa
Ram (A2) inflicted injuries on his person
by 'pharsa' on his head, neck and other
parts of the body while P.W.3 Hari Om
stated before the Court that when on
08.03.1985 at about 1.30-2.00 p.m., he
was standing in front of the door of Rati
Ram's house and listening to the Holi
songs,
Matadin
@
Chapole
(A1),
deceased Kripa Ram (A2) and accused
Mehngu had committed the murder of his
father Lakhan. The incident had taken
place in front of the house of Rati Ram on
the platform in front of the door of the
house of Rati Ram. Matadin @ Chapole
(A1) had fired the first shot at the
deceased with his country-made pistol
which had hit the deceased on his head.
The second shot fired by accused Mehngu
had missed the target. Deceased Kripa
Ram (A2) and Mehngu had then caught
hold of the deceased Lakhan by his waist
when he had got up after being shot after
the second shot which was fired by
Matadin @ Chapole (A1) had hit his
father Lakhan on his head. Then Kripa
Ram (A2) inflicted injuries on his father
by 'pharsa'. His father died on the spot.

30. P.W.2 Ram Narayan however in
paragraph 19 of his cross-examination
84 INDIAN LAW REPORTS ALLAHABAD SERIES
resiled from his statement given by him in
his examination-in-chief as well as in
paragraph 18 of his cross-examination by
deposing in paragraph 19 of his crossexamination that the first shot fired by
Mehngu had failed to hit Lakhan and
thereupon Mehngu fired a second shot
which hit the deceased on his head.

31. Similarly, although the initial
version of the incident as narrated by
P.W.3 Hari Om in his examination-inchief was the first shot fired by Mehngu
had not hit Lakhan's head (paragraph 1 of
his examination-in-chief). However, he
tried to bring his testimony in consonance
with the version of the incident given by
P.W.2 Ram Narayan by stating in
paragraph 18 of his cross-examination
that Mehngu's shot had also hit Lakhan's
head, the fact which was conspicuous by
its absence in his statement recorded u/s
161 Cr.P.C.

32. The aforesaid discrepancies in
the statements of P.W.2 Ram Narayan and
P.W.3 Hari Om, in our opinion, are
sufficient to discard the evidence of
P.W.2 Ram Narayan and P.W.3 Hari Om.
There is only one firearm wound of entry
with two corresponding exit wounds of
firearm on deceased's body. The question
which arises for our consideration is that
how the above noted discrepancies could
have crept into the statements of P.W.2
Ram Narayan and P.W.3 Hari Om when
admittedly the incident had taken place in
broad daylight and both the witnesses
claim themselves to be the eye witnesses
of the occurrence.

33. The presence of P.W.2 Ram
Narayan and P.W.3 Hari Om at the place
of the incident at the time of the
occurrence further stands belied from the
fact that none of them were made inquest
witnesses.

34. Thus, considering the fact that
the written report of the incident was
neither scribed on the dictation of P.W.2
Ram Narayan nor by P.W.3 Hari Om or
given at the police station by them for
which no explanation is forthcoming from
the side of the prosecution and the
irreconcilable
discrepancy
in
the
statements of P.W.2 Ram Narayan and
P.W.3 Hari Om, the two so-called eye
witnesses of the occurrence with regard to
the manner of assault to which we have
already referred and dealt with in detail
hereinabove, we cannot believe their
claim of being present at the scene of the
occurrence. Apart from the aforesaid,
both P.W.2 Ram Narayan and P.W.3 Hari
Om are cousin brother and son of the
deceased and as such, highly interested
witnesses. There is no doubt that it now
stands well-settled that evidence of eye
witnesses who are closely related to the
deceased can neither be discarded nor
disbelieved
on
account
of
close
relationship of such witnesses with the
deceased but it is equally true that the
evidence of a witness who is related to the
deceased, is to be scrutinized with utmost
caution and if the Court, after a careful
appraisal of his evidence, finds that he has
given a correct and cogent description of
the incident, in that case, his evidence
cannot be discarded merely on the ground
of his being a relative of the deceased. In
this regard, it would be useful to refer to
the following authorities laid down by the
Apex Court :-

35. Regarding evidentiary value of
testimony of the interested or relatives
witnesses, Hon'ble Supreme Court in
Mano Dutt and another Vs. State of U.P.
2 All. Matadin @ Chapole & Anr. Vs The State of U.P.
85
reported in 2012 (77) ACC 209, has
observed in paragraph no. 19 referring to
the case of Namdeo Vs. State of
Maharashtra reported in 2007 (58) ACC
414 (52) = 2007 (54) AIC 162, that this
Court drew a clear distinction between a
chance witness and a natural witness.
Both these witnesses have to be relied
upon subject to their evidence being
trustworthy and admissible in accordance
with law.

36. In Chand Khan Vs. State of
U.P., reported in 1995 ACC 685 (SC), it
was observed that minor discrepancies in
evidence of eye-witnesses who have
given convincing and reliable evidence
with regard to details and manner of
assault will not affect their evidentiary
value. Absence or insufficiency of motive
is immaterial if the incident is proved by
evidence of eye witnesses.

37. Hon'ble Supreme Court in
Waman
and
others
Vs.
State
of
Maharashtra reported in 2011 Crl. L.J.
4827 has observed in paragraph no. 9
which reads as follows:

"In Balraje @ Trimbak Vs. State
of Maharashtra, reported in 2010 (70) ACC
12 (SC) = 2010 (90) AIC 32, this Court held
that mere fact that the witnesses were related
to the deceased cannot be a ground to discard
their evidence. It was further held that when
the eye-witnesses are stated to be interested
and inimically disposed towards the accused,
it has to be noted that it would not be proper
to conclude that they would shield the real
culprit and rope in innocent persons. The
truth or otherwise of the evidence has to be
weighed pragmatically and the court would
be required to analyse the evidence of related
witnesses and those witnesses who are
inimically disposed toward the accused. After
saying so, this Court held that if after careful
analysis and scrutiny of their evidence, the
version given by the witnesses appears to be
clear, cogent and credible, there is no reason
to discard the same."

38. It has been further observed in
Waman (supra) that relationship cannot
be a factor to affect the credibility of a
witness. The evidence of a witness cannot
be discarded solely on the ground of his
relationship with the victim of the
offence. The plea relating to relatives'
evidence remains without any substance
in case the evidence has credence and it
can be relied upon. In such a case the
defence has to lay foundation if plea of
false implication is made and the court
has to analyse evidence of related
witnesses carefully to find out whether it
is cogent and credible. The same view has
been reiterated in State of U.P. Vs.
Naresh and others reported in 2011 (75)
ACC 215 (SC) = 2011 (106) AIC 76 (SC).

39. In the present case, since after a
threadbare
scrutiny
and
a
thorough
evaluation of the evidence of P.W.2 Ram
Narayan and P.W.3 Hari Om, we have found
that
there
are
contradictions
and
discrepancies in their statements with regard
to the manner of assault which cannot be
ignored as being trivial or attributed to errors
in perception driving from the senses or lapse
of memory and hence, we do not find it safe
at all to maintain the recorded conviction of
Matadin @ Chapole (A1) on the basis of
their evidence. It has come on the record that
apart from P.W.2 Ram Narayan and P.W.3
Hari Om, the incident was witnessed by a
large number of independent witnesses but
none of them including one Rati Ram, in
front of whose house, the murder of Lakhan
was committed, was examined during the
trial.
86 INDIAN LAW REPORTS ALLAHABAD SERIES

40. The prosecution has miserably
failed to adduce any evidence linking the
'pharsa'
allegedly
recovered
on
the
pointing out of Kripa Ram (A2) from the
river bed with the commission of the
murder of the deceased. The 'pharsa'
admittedly was not sent to the forensic lab
for chemical examination. Similarly,
blood allegedly recovered from the place
where the deceased had fallen after being
shot while he was sitting on the platform
and
the
empty
cartridges
allegedly
recovered from the place of incident were
not sent for chemical examination.

41. The different dimensions of the
incised wounds noted by P.W.5 Dr. B. D.
Mangal on the deceased's body clearly
suggest use of not one but several sharp-edged
weapons in inflicting incised wounds on the
deceased's body, thus totally nullifying the
prosecution theory that the injuries sustained
by the deceased were caused by the ''pharsa'
allegedly recovered on the pointing out of
Kripa Ram (A2).

42. There is another very strange aspect
of the matter. Along with appellants before us,
one Mehngu was also charge-sheeted and
tried for the charge u/s 302/34 I.P.C. The role
assigned to him by P.W.2 Ram Narayan was
that he had fired the first shot at the deceased
which had hit him and thereafter he had
caught hold of the deceased along with
Matadin @ Chapole (A1) while Kripa Ram
(A2) had inflicted injuries on him with
'pharsa'. According to P.W.3 Hari Om, the
shot fired by him at the deceased had missed
him. The trial court however strangely
proceeded to acquit Mehngu and convicted
Kripa Ram (A2) on the same set of evidence.
The learned trial Judge has failed to assign
any reason for disbelieving the evidence of
two eye witnesses qua Matadin @ Chapole
(A1) while relying upon the same for the
purpose of convicting Kripa Ram (A2).

43. Thus, upon a wholesome
consideration of the facts of the case,
attending circumstances and the evidence
on record, we do not find that the
prosecution has been able to prove its
case against the surviving appellant
Matadin @ Chapole (A1) beyond all
reasonable doubts and he is entitled to
benefit of doubt.

44. The appeal succeeds and is
accordingly allowed.

45. Matadin @ Chapole (A1) is on bail.
He need not surrender. His bail bonds are
cancelled
and
his
sureties
discharged.
However, he shall comply with the provisions
of Section 437-A of Cr.P.C.

46. There shall however, be no order
as to costs.
----------

(2019)10ILR A 86

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.07.2019

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE ANIL KUMAR IX, J.

Criminal Appeal No. 2813 of 2014
connected with
Criminal Appeal No. 2770 of 2014

Sheela @ Sushila ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel
for
the
Appellant: