# Naresh Chandra v. State of U.P

- **Citation:** (2022) 10 ILRA 258
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Criminal Appeal No. 6351 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naresh-chandra-v-state-of-u-p-47713
- **Pages:** 17

## Headnote

A. Criminal Law -Criminal Procedure Code,
1973-Section 374(2) - Indian Penal Code,
1860-Section
302-Challenge
toConviction-One stranger killed a woman
with knife-no enmity-no motive- PW-4
and PW-5 had given ocular evidence that
they had seen the accused stabbing the
deceased and had also caught him on the
spot
with
murder
weapon-defence
witnesses found not reliable-no defect or
10 All. Naresh Chandra Vs. State of U.P.
259
irregularity found in the investigation of
the case-medical evidence also supports
the prosecution case-death caused by
accused
was
not
premeditated-injury
caused was not on the vital part of the
body-accused though had knowledge and
intention to cause bodily harm to the
deceased but did not want to do away
with the deceased-Hence, the Instant case
falls under the Section 304 Part I IPC.
(Para 1 to 80)

B. The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human body vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community
has a primary stake in the rehabilitation of
the offender as a means of a social
defence. Hence, a therapeutic, rather than
an 'in terrorem' outlook should prevail in
our
criminal
courts,
since
brutal
incarceration
of
the
person
merely
produces laceration of his mind. While
determining the quantum of sentence, the
court should bear in mind the 'Principle of
Proportionality'.(Para 75, 76)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,660 of 56,750. This is a partial read: ask again with offset=39660 for what follows._

258 INDIAN LAW REPORTS ALLAHABAD SERIES
because the burden to prove its case lies
heavily and solely beyond reasonable doubt
upon the prosecution. In the present case
also, on the basis of the defence evidence,
both oral and documentary and in the
circumstances of the case, the convicts /
appellants have succeeded to create a doubt
about the genuineness of the prosecution
case.

46. In Pankaj Versus State of
Rajasthan, 2016 AIAR (Criminal) 886
(Supreme Court), it has been held that "it
is well-settled principle of law that when
the genesis and the manner of the incident
is
doubtful,
the
accused
cannot
be
convicted". The evidence produced by the
prosecution
has
neither
quality
nor
credibility, it would be unsafe to rest
conviction upon such evidence. (Emphasis
supplied)

47. In the facts and circumstances of
the present case, the aforesaid law is clearly
applicable. On the basis of defence
evidence, the convicts / appellants have
succeeded
to
provide
an
alternative
approach to the Court to consider that they
might be innocent and the incident did not
occur in such a manner and at such place as
the
prosecution
claims. The
defence
evidence adduced by the convicts /
appellants
helps
their
case
by
a
preponderance of probability. The learned
trial court did not appreciate the defence
evidence and brushed it out in an improper
manner.

48. As a result thereof, in our view,
the appeals succeeds and the conviction
judgment and order of the learned trial
court is liable to be set-aside.

49. The Appeals are accordingly
allowed. The impugned judgment and order
of the Trial Court dated 15.09.2015
convicting and sentencing the convicts /
appellants is hereby set aside and the
appellants are acquitted of the charges
levelled against them. Appellants Smt.
Seema and Praveen Singh are on bail, their
personal bonds are cancelled and sureties
are discharged. Appellant Devendra Singh
is in jail. He shall be released forthwith, if
not wanted in any other case.

50. Let a copy of this judgment along
with lower court record be sent forthwith to
court concerned for compliance.
----------
(2022) 10 ILRA 258
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 6351 of 2007

Naresh Chandra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.P.S. Chauhan, Sri Narendra Kumar, Sri
Rabindra Bahadur Singh, Sri Sahabuddin

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law -Criminal Procedure Code,
1973-Section 374(2) - Indian Penal Code,
1860-Section
302-Challenge
toConviction-One stranger killed a woman
with knife-no enmity-no motive- PW-4
and PW-5 had given ocular evidence that
they had seen the accused stabbing the
deceased and had also caught him on the
spot
with
murder
weapon-defence
witnesses found not reliable-no defect or
10 All. Naresh Chandra Vs. State of U.P.
259
irregularity found in the investigation of
the case-medical evidence also supports
the prosecution case-death caused by
accused
was
not
premeditated-injury
caused was not on the vital part of the
body-accused though had knowledge and
intention to cause bodily harm to the
deceased but did not want to do away
with the deceased-Hence, the Instant case
falls under the Section 304 Part I IPC.
(Para 1 to 80)

B. The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human body vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community
has a primary stake in the rehabilitation of
the offender as a means of a social
defence. Hence, a therapeutic, rather than
an 'in terrorem' outlook should prevail in
our
criminal
courts,
since
brutal
incarceration
of
the
person
merely
produces laceration of his mind. While
determining the quantum of sentence, the
court should bear in mind the 'Principle of
Proportionality'.(Para 75, 76)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. Syed Ibrahim Vs St. of A.P. (2006) 6 JT SC
597

2. Asraf Biswas Vs St. of W.B. (2016) SCC
Online Cal. 4342

3. Bhagwan Dass Vs St. (NCT) of Delhi (2011)
AIR SC 1863 C

4. C. Muniappan Vs St. of T.N. (2010) 9 SCC 567

5. St. of Guj. Vs Anirudhsing & anr. (1997) 6
SCC 514

6. Rajesh Yadav & anr.. Vs St. of U.P. (2022)
SCC Online SC 150

7. St. of A.P. Vs K. Srinivasulu Reddy & anr.
(2003) 12 SCC 660
8. Bikau Pandey Vs St. of Bih. (2003) 12 SCC
616

9. Anil Rai Vs St. of Bih. (2001) 7 SCC 318

10. Deepak Verma Vs St. of H.P. (2011) 10 SCC
129

11. Munshi Prasad Vs St. of Bih. (2002) 1 SCC
351

12. Veeran & ors. Vs St. of M.P. (2011) 11 SCC
367

13. Mohd. Giasuddin Vs St. of A.P. (1977) AIR
SC 1926

14. Deo Narain Mandal Vs St. of U.P.(2004) 7
SCC 257

15. Ravada Sasikala Vs St. of A.P. (2017) AIR
SC 1166

16. Jameel Vs St. of U.P. (2010) 12 SCC 532

17. Guru Basavraj Vs St. of Karn. (2012) 8 SCC
734

18. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

19. St. of Punj. Vs Bawa Singh (2015) 3 SCC
441

20. Raj Bala Vs St. of Har. (2016) 1 SCC 463

21. Khokan @ Khakhan Vishwas Vs St. of
Chhattisgarh (2021) 2 SCC 365

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Nalin Kumar Srivastava, J.)

1. This criminal appeal has been
preferred by the appellant against the
judgement and order dated 13.09.2007
passed by the Additional District &
Sessions Judge, Court No.9, Moradabad in
Session Trial No.127 of 2004 (State vs.
260 INDIAN LAW REPORTS ALLAHABAD SERIES
Naresh Chandra) (case crime no. 211 of
2003) convicting and sentencing the
appellant for the offence punishable under
Section
302
IPC
to
undergo
life
imprisonment and a fine of Rs. 10,000/-
with stipulation of default clause.

2. Brief facts of the case, as unfolded
by the informant Shyam Lal son of Daulat
in the First Information Report (in short
'F.I.R.'), are that on 9.10.2003 at about 9.30
a.m. while the informant alongwith his son
Natthu and daughter-in-law Shakuntala was
standing at Sirswan crossing in village
Manpur in front of Stall (khokha) of Pandit
Ji, Naresh, son of his brother Masih
Charan, suddenly came from behind the
Stall and catching the hair bun of
Shakuntala, stabbed with knife many times
on her body due to which she fell down on
another side of the road. The son of the
informant made noise but no one turned-up
to save her. When the informant rushed
towards the Chauki Manpur situated
nearby, he saw one Inspector and two
Sepoy coming there. Having seen the
policemen, Naresh ran away at once
towards the Vidhya Niketan School but the
policemen caught him alongwith the knife.
Recovery memo Ext. A-4 was prepared
and, thereafter, informant took away
injured Shakuntala to hospital where she
was declared dead. The dead body of
deceased was sent to Manpur Chauki and
accused Naresh was also brought to the
Police Station concerned.

3. On the basis of the written report
(Ext. ka-1) scribed by one Rajveer Singh,
chik First Information Report (Ext. Ka-5)
was registered at Police Station concerned
on 9.10.2003 at 12.10 p.m. mentioning all
the details as described in Ext. Ka-.1. G.D.
entry was also made at the same time,
which is Ext. Ka-6.

4. Investigation was entrusted to subInspector
Sanjiv
Kumar
(PW-7).
He
inspected the spot and prepared site plan -
Ext. ka-7. He also prepared the inquest
report of the deceased (Ext. ka-8) and
papers relating to post mortem Ext. A-9 to
Ext. A-14. The Investigating Officer also
took the sample of plain earth and
bloodstained earth from the place of
occurrence and prepared the memo Ext. ka15.

5. Autopsy report (Ext. ka-19) was
prepared by Dr. Allauddin Saifi after
performing the post mortem of the
deceased on 10.10.2003 at 2.00 p.m. On
examination of the dead body of the
deceased, following ante-mortem injuries
were found:

"i. A stabbed wound 3.0 x 2.0
cms. x cavity deep in left axilla.

ii. A stabbed wound 3.5 x 2.5 cms.
x muscle deep on anterior surface of left
arm 4.0 cms below top of shoulder (Not
exposed).

iii. Multiple abrasion in an area
20 x 6.0 cms. on posterior lateral surface of
left arm with elbow
iv. An abrasion 6.0 x 4.0 cms. on left side of
back of chest 8.0 cms. below left shoulder."

6. In the opinion of the doctor, death
was caused due to haemorrhage and shock
as a result of ante-mortem injuries.

7. After completing the investigation,
charge-sheet (Ext. ka-16) against the
appellant was filed. Concerned Magistrate
took the cognizance. The case being
exclusively triable by sessions court, was
committed to the Court of sessions.

8. Appellant appeared before the trial
court and charge under Section 302 IPC
10 All. Naresh Chandra Vs. State of U.P.
261
was framed against him. He denied the
charge and claimed his trial.

9. Trial proceeded and in order to
prove its case prosecution has examined in
all seven witnesses, namely, PW-1 Shyam
Lal
(informant),
PW-2
Natthu
(eye
witness), PW-3 Dr. Alauddin, PW-4 SubInspector Anil Kumar Yadav (eye witness),
PW-5
Constable
Shyam
Singh
(eye
witness), PW-6 H.C.P. Khem Singh (scribe
of F.I.R.) and PW-7 Sub-Inspector Sanjiv
Kumar, the Investigating Officer.

The
following
documents
were
exhibited :

10. Written report Ext. A-1, Recovery
and arresting memo Ext. A-2, Ext. A-3 and
Ext. A-4, F.I.R. Ext. A-5, G.D. Ext. A-6,
site plan - Ext. A-7, inquest report Ext. A-8,
photo lash Ext. A-9, paper No.33 Ext. A10, challan lash Ext. A-11, letter to R.I. Ext.
A-12, letter to C.M.O. Ext. A-13, sample
seal Ext. A-14, seizure memo of plain and
bloodstained soil Ext. A-15, charge sheet
Ext. A-16, Analysis report from Forensic
Science Laboratory Ext. A-17 and Ext. A18, Autopsy report Ext. A-19.

11. After closure of evidence,
incriminating materials appearing in the
prosecution evidence were put to the
appellant in his statement under Section
313 CrPC. He denied all the incriminating
evidence including the alleged recovery of
knife by claiming it to be false and bogus
and also claimed false implication due to
enmity.

12. Appellant in his defence has
examined DW-1 Shomit Kumar, DW-2 Dal
Chandra, DW-3 Narendra Sharma and DW4 Constable Brajmohan Rana. DW-4 has
proved the copy of G.D. as Ext. kha-1.

Evidence led by the Prosecution :

13. PW-1 Shyam Lal is the informant
and eye witness of the occurrence. In his
examination in chief he has stated that he
reached the spot after receiving the
information of murder and he did not see as
to who has murdered the deceased. No one
even told him the name of the accused. In
his deposition he has proved the written
report as Ext. A-1 and has stated that he
had dictated the report to Rajveer Singh
and whatsoever he has stated the same was
written in the report. He has also stated that
on his report F.I.R. was lodged. The witness
was declared hostile by the prosecution and
in his cross examination he denied so many
contents of the written report Ext. ka-1. On
the recovery memo of murder weapon
''knife' he has identified his thumb
impression which has been exhibited as
Ext. A-2 but he has deposed that his thumb
impression was taken on a blank paper by
the police. When the witness was crossexamined by the defence, he has stated that
since he was not in a fit mental condition,
he could not understand as to what was
written in the Tehrir and the villagers had
dictated the report to Rajveer Singh.

14. PW-2, minor son of the informant,
is also said to be the eye witness of the
occurrence. He is also a hostile witness and
has categorically stated that at the time of
occurrence he was not present over there
and he does not know as to who murdered
the deceased. He has also shown his
ignorance about the presence of his father
Shyam Lal on the spot. In his crossexamination the witness has identified his
signature over the recovery memo and Ext.
A-3 has been marked over it but he has
denied his statement under Section 161
CrPC given to the Investigating Officer.
This witness has also stated that his
262 INDIAN LAW REPORTS ALLAHABAD SERIES
signature was obtained on a blank paper at
the Police Chauki, Manpur. Accused
Naresh was not arrested before him and no
knife was recovered from the accused
before him.

15. PW-3 Dr. Alauddin Saifi has
performed the autopsy of deceased and has
proved the autopsy report as Ext. A-19.

16. PW-4 S.I. Anil Kumar Yadav is said
to be present over the place of occurrence at
the time of crime. He has stated in his
examination in-chief that on 9.10.2003 about
9.30 a.m. while coming to P.S. Bhagatpur
from Chauki Manpur alongwith Constable
Shyam Singh and Constable Brijesh Kumar
Tyagi, he saw from a distance of 50 yards
(gaj) that at Sirswan Mod one person was
stabbing a lady with knife and other person
and a boy were shouting to save her. The
aggressor fled towards Tanda but the
policemen chased and caught him in front of
Vidhya Niketan College at about 9.45 a.m.,
with a knife in his right hand. He was arrested
on the spot. Murder weapon ''knife' was also
taken into possession by the police and
seizure memo Ext. A-4 was prepared on the
spot. This witness has also proved the murder
weapon ''knife' as Material Ext.-1. In his
cross-examination PW-4 has stated that he
did not give any information to Tanda Police
and he brought the deceased alongwith the
accused to the Hospital. Deceased at that time
was alive.

17. PW-5 Shyam Singh is also said to
be the eye witness of the occurrence. In his
deposition he has corroborated the evidence
of PW-4 and has proved the factum of
arrest of accused as well as recovery of
murder weapon from his possession. He,
claiming himself to be the eye witness of
the occurrence, has identified his signature
over recovery memo Ext. A-1.

18. PW-6 Head Constable Khem
Singh is the scribe of the F.I.R. and has
proved the chik F.I.R. and G.D. Rapat No.
24 at 12.10 p.m. as Ext. A-5 and Ext. A-6
respectively. In his cross-examination he
has deposed that the scribe of report
Rajveer Singh did not come to the police
station alongwith the complainant.

19. PW-7 Sub-Inspector Sanjiv
Kumar, the Investigating Officer of the
case, has proved the proceedings of
investigation in his examination-in-chief
and also proved the site plan - Ext. A-7.
Inquest of the body of the deceased has
been performed by this witness and papers
relating to the post mortem have also been
prepared by him. He has proved the inquest
report, photo nash, Form No. 33, challan
nash, letter to R.I., letter to C.M.O. and
specimen seal as Ext. A-8 to A-14
respectively in his evidence. He has also
collected the bloodstained and plain soil
from the place of occurrence and its seizure
memo Ext. A-15 has also been proved by
him. In his cross-examination he has stated
that as per the memo, the deceased was
taken to the hospital by her father in-law
Shyam Lal and his companions but the
police had not accompanied the informant
Shyam Lal, according to the memo. He has
also narrated that in the memo the doctor
has endorsed that the stabbing was caused
by an unknown person.

Evidence led by the Defence :

20. DW-1 Shomit Kumar, DW-2 Dal
Chandra and DW-3 Narendra Sharma, the
witnesses produced by the accused, have
stated in their deposition that at the time of
occurrence they were present on the spot
and had seen an unknown person stabbing a
lady and accused Naresh Chandra was not
present over there at that time. They have
10 All. Naresh Chandra Vs. State of U.P.
263
also stated that they know the accused very
well and they were present at their
respective shops at the time and place of
occurrence.

21. DW-4 Constable Brajmohan Rana
has deposed that on 9.10.2003 at 10.00 a.m.
sweeper Awadhesh working at C.H.C.
Tanda had given a memo to him at the
police station bearing seal of C.H.C. Tanda
and signature of doctor, which was entered
by him in G.D. Rapat No.17 at 11.00 a.m..
The information was sent to police station
Bhagat Pur, District Moradabad through
wireless. DW-4 has proved the carbon copy
of the G.D. as Ext. kha-1.

22. On the basis of aforesaid
evidence, learned trial court came to the
conclusion
that
the
prosecution
has
succeeded to establish the guilt against the
accused person on the basis of cogent,
consistent and reliable evidence and charge
against
accused
was
proved
beyond
reasonable
doubt
and
accordingly
conviction order was passed.

23. Learned counsel for the appellant
has assailed the impugned judgment and
order on various grounds. It has been
argued that prosecution version rests upon
the ocular testimony of PW-1, PW-2, PW-3
and PW-4. PW-1 and PW-2 are hostile
witnesses
and
do
not
support
the
prosecution version at all. PW-3 and PW-4
are the police officials, who are the chance
witnesses and their presence over the place
of occurrence is not proved by any cogent
evidence. No independent witness has been
examined by the prosecution in support of
its case. It has also been submitted that the
place of occurrence is doubtful and there is
no clinching evidence as to fact that the
alleged occurrence happened at the same
place as the prosecution claims. It has
further been argued that the accused had no
motive to kill the deceased. It has further
been submitted that medical evidence does
not corroborate the ocular version. It has
also been submitted that the learned trial
court has illegally relied upon the statement
of accused given to the Investigating
Officer during the course of investigation
and in arbitrary and illegal manner has
passed the conviction order on the basis
thereof.

24.

Per
contra,
learned AGA
appearing for the State respondent has
vehemently argued that the prosecution
case was proved on the basis of cogent and
reliable evidence. There is no merit in the
appeal and the appeal is liable to be
dismissed.

25. We have carefully gone through
the record and have given our thoughtful
consideration to the rival contentions of the
parties.

26. Place of occurrence has always
been an essential part of the prosecution
story, which is necessary to be proved by
prosecution by cogent evidence in order to
succeed.

27. Reliance has been placed upon
Syed Ibrahim vs. State of Andhra Pradesh,
JT 2006 (6) SC 597 where it has been
expressly held that it would not be proper
to accept the prosecution case when the
place of occurrence itself has not been
established. Also in Asraf Biswas vs. The
State of West Bengal, 2016 SCC OnLine
Cal. 4342 which was relied upon by the
learned counsel for the appellant, it was
found from the evidence on record that the
place of occurrence was not proved beyond
all reasonable doubts. The Calcutta High
Court held that "Once it is held that the
264 INDIAN LAW REPORTS ALLAHABAD SERIES
place
of
occurrence
has
not
been
established beyond all reasonable doubts,
then the other circumstances are hardly
sufficient to establish the guilt of the
accused".

28. In light of the aforesaid
observations, the learned counsel for the
appellant has pointed-out that in the present
matter the place of occurrence is highly
suspicious and from the evidence on record
a genuine doubt arises in respect of the
certainty of the place of occurrence. He has
submitted that in the F.I.R. (Ext. A-5) place
of occurrence is mentioned at Sirsawa
Tiraha, Village Manpur, P.S. Bhagat Pur,
District Moradabad. In the written report
Ext. A-1 it has been mentioned that at the
time of occurrence, informant alongwith
his son and daughter-in-law, was standing
in front of Khokha of Pandit Ji at Sirsawa
Tiraha, Village Manpur and that was the
place where the incident occurred. It has
also been mentioned in Ext. A-1 that when
the accused tried to escape towards Vidhya
Niketan School, two policemen caught him.

29. Learned counsel for the appellant,
referring to the written report Ext. A-1 has
submitted
that
after
the
occurrence
informant immediately rushed towards
Police Chauki, Manpur but in the site plan
(Ext. A-7) this fact has not been shown. It
has also been submitted that place of
occurrence has not been proved by the so
called eye witnesses of the incident,
namely, PW-1 and PW-2.

30. We made a close scrutiny of the
oral and documentary evidence on record
in view of the aforesaid submissions made
by the learned counsel for the appellant.

31. PW-1 and PW-2 have been
declared hostile and have stated that they
were not present on the spot at the time of
occurrence. What is the value of their
evidence as hostile witness will be
evaluated later on in this judgment but so
far as the place of occurrence is concerned
PW-1 in the opening part of his deposition
has clearly stated that occurrence happened
at Manpur Tiraha.

32. PW-4 and PW-5 are the two
policemen, who happened to be present on
the spot when crime was being committed
by the accused and they are the persons
who caught the accused with the murder
weapon. PW-4 has clearly stated that he
had seen one person stabbing a woman by
knife at Sirawa Turn (Mod) and when he
tried to escape and ran away towards
Tanda, he and his associate policeman
chased and caught him in front of Vidhya
Niketan College alongwith knife. PW-5,
who was accompanying PW-4 at the time
of occurrence, has also narrated the same
facts in his statement.

33. PW-7 the Investigating Officer
has proved the site plan Ext. A-7 in his
deposition. It is pertinent to mention that
nothing adverse has been stated by this
witness in his cross-examination on the
point of place of occurrence.

34. A perusal of the site plan Ext. A-7
reveals that the Khokha (small shop),
where the informant was said to be
standing alongwith his son and deceased, is
situated at Tiraha and at the same place the
accused assaulted the deceased and she fell
down. Accused ran away towards Vidhya
Niketan College trying to escape but
policemen, who were coming from Chauki
Manpur, saw the incident and grabbed him
in front of Vidhya Niketan College. All this
topography has been shown in clear terms
in Ext. A-7 with specific points and in this
10 All. Naresh Chandra Vs. State of U.P.
265
way the place of occurrence as mentioned
in Ext. A-1 and Ext. A-5 finds support from
the oral evidence as well as from the site
plan Ext. A-7. Learned AGA has also
pointed out that seizure memo of plain and
bloodstained soil has been proved as Ext.
A-15 by PW-7 the Investigating Officer, as
PW-7 has deposed that from the place of
occurrence he had collected it and thus the
place of occurrence is fixed with the aid of
Ext. A-15 also.

35. We, therefore, do not find any force
in the contentions of the learned counsel for
the appellant regarding the fixation of place
of occurrence.

. The prosecution has a definite
case that the deceased was assaulted with
knife by the accused and, therefore, it is very
significant to search out from the evidence on
record whether the death of the deceased was
caused by use of knife or not. Learned
counsel for the appellant has vehemently
argued that the medical evidence on this point
does not support the prosecution version and
at this juncture the whole prosecution story
fails.

37. The post mortem report is on
record, which has been proved by the Dr.
Alauddin Saifi - PW-3. PW-3 while proving
the autopsy report Ext. A-2 has clearly and in
specific terms stated that death of the
deceased was caused due to haemorrhage and
shock and injury no. 1 and 2 may have been
inflicted by knife. He has also pointed out
that death may have occurred on 9.10.2003 at
12.00 noon. It is to be reminded here that
injury no. 1 and 2 are stab wounds. PW-3 in
his cross examination has clarified that injury
no. 1 and 2 were sufficient to cause death.

38. It is noteworthy that in the inquest
report Ext. A-8 the panchas have also
opined that death of deceased seems to be
caused by stabbing.

39. Learned trial court has discussed
the prosecution evidence with a view to
find out whether it is in conformity with the
medical evidence or not and has correctly
opined that the prosecution version finds
corroboration with the medical evidence.
Hence, we are of the considered view that
the prosecution story is fully supported
with the medical evidence and on this point
the objections raised by the learned counsel
for the appellant are proved to be futile.

40. The point, which has been most
vehemently argued by the learned counsel
for the appellant is that there is no
independent witness of the occurrence
except PW-1 and PW-2, who are the fatherin-law and brother-in-law of the deceased
respectively. Two other persons allegedly
the eye witness of the occurrence are the
police personnels and are only the chance
witnesses and their presence on the spot is
highly improbable. No other independent
witness has been examined and more over
PW-1 and PW-2 have been declared hostile
by the prosecution and they do not support
the prosecution version at all.

41. PW-1, the informant / father inlaw of the deceased, has stated in his
examination in-chief that he reached the
spot after being informed regarding the
murder of his daughter-in-law. He did not
see as to who was the author of the crime.
He has been declared hostile by the
prosecution. In his cross examination he,
though identifying his thumb impression on
seizure memo of knife Ext. A-2, has stated
that it was a plain paper when his thumb
impression was taken over it. He also
resiled from his statement made to the
Investigating Officer under Section 161
266 INDIAN LAW REPORTS ALLAHABAD SERIES
CrPC and has also stated in the crossexamination that the written report was
written by Rajveer Singh on the dictation of
villagers and he never narrated this fact to
Rajveer Singh, the scribe, that this was the
accused Naresh who had assaulted his
daughter in-law with knife and was caught
on the spot.

42. PW-2 was also declared hostile by
the prosecution when he stated in his
examination in- chief that at the time of
occurrence he was not present over there
and he even does not know who has
murdered the deceased. He has also resiled
from his statement under Section 161 CrPC
and has identified his signature as Ext. A-3
over the seizure memo - Ext. A-2. It has
also been stated by him that his signature
was obtained by police on plain paper. He
has also deposed that accused was never
arrested before him nor any recovery of
knife was made from him.

43. In an honour killing case reported
as Bhagwan Dass vs. State (NCT) of
Delhi, AIR 2011 SC 1863 (C), the Hon'ble
Supreme Court found that the mother of the
accused stated before the police that her
son (the accused) had told her that he had
killed the deceased but when she was
confronted with this statement in Court she
resiled from her earlier statement and was
declared hostile. The Hon'ble Apex Court
held that her subsequent denial in the Court
is not believable because she obviously had
afterthoughts and wanted to save her son
(the accused) from punishment. The
Hon'ble Supreme Court further held that
"we are of the opinion that the statement of
Smt. Dhillo Devi to the police can be taken
into consideration in view of the proviso to
Section 162(1) CrPC and her subsequent
denial in Court is not believable because
she obviously had afterthoughts and wanted
to save her son (the accused) from
punishment."

44. The principle laid down in the
aforesaid judgment is clearly applicable in
this case where PW-1 and PW-2, father and
brother of the accused, respectively are
trying to save the accused and with this
motive they have resiled from their
statement given to the Investigating Officer
under Section 161 CrPC.

45. The law, so far as the evidentiary
value of a hostile witness is concerned, is
settled. In a catena of decisions the Hon'ble
Supreme Court and this High Court have
held that the evidence of a hostile witness
would not be rejected if spoken in favour of
prosecution but it can be subjected to close
scrutiny and that portion of the evidence,
which is consistent with the case of
prosecution, may be accepted. In C.
Muniappan v. State of T.N., (2010) 9 SCC
567, the Hon'ble Apex Court settled the
legal position as "the evidence of a
prosecution witness cannot be rejected in
toto merely because the prosecution chose
to treat him as hostile and cross-examined
him. The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent their version is found
to be dependable on a careful scrutiny
thereof."

46.

In
State
of
Gujarat
vs.
Anirudhsing and another, (1997)6 SCC
514, it has been held that :

"29. In view of the above settled
legal position, merely because some of the
witnesses have turned hostile, their ocular
evidence recorded by the court cannot be
held
to
have
been
washed
off
or
unavailable to the prosecution. It is the
10 All. Naresh Chandra Vs. State of U.P.
267
duty of the court to carefully analyse the
evidence and reach a conclusion whether
that part of the evidence consistent with the
prosecution case, is acceptable or not. It is
the salutary duty of every witness who has
the knowledge of the commission of crime,
to assist the State in giving evidence;
unfortunately for various reasons, in
particular deterioration in law and order
situation
and
the
principle
of
selfpreservation, many a witness turn hostile
and in some instances even direct witnesses
are being liquidated before they are
examined by the Court................."

47. Virtually it is a legal duty of the
Trial Judge or the Appellate Judge to scan
the evidence, test the anvil of human
conduct and reach a conclusion whether the
evidence brought on record even if the
witnesses
turning
hostile
would
be
sufficient to bring home the commission of
crime. In continuity of this discussion this
fact is also to be examined whether ocular
evidence of PW-4 and PW-5 are credible of
evidence or not on the two fold tests : (i)
they are police personnel, and (ii) they are
the chance witnesses.

48. In the impugned judgment the
trial court has discussed the evidence of
PW-1 and PW-2 at length and has found
that according to the written report Ext. A-1
accused is the son of Masih Charan, who is
the brother of informant and PW-2 is the
son of PW-1, hence, accused is the nephew
of PW-1 and cousin of PW-2. The trial
court has also found that deceased
Shakuntala is the wife of accused. On the
basis of the scrutiny of evidence of PW-1
and PW-2, the learned trial court has come
to the conclusion that PW-1 probably does
not want his nephew to be convicted for
murder of the deceased and that is why he
turned hostile. It is also noteworthy that
PW-1 in his examination in-chief has
clearly stated that it was he who dictated
the written report Ext. A-1 to scribe
Rajveer Singh and whatsoever he had
spoken was written over it but in his cross
examination he resiled from his earlier
statement and stated that the written report
was dictated by the villagers. Learned
counsel for the appellant failed to explain
as to why the earlier statement made by
PW-1 in his examination-in-chief should
not be relied upon. This makes it clear that
PW-1 has deliberately trying to hide the
truth and at this juncture we find ourselves
in full agreement with the conclusion
arrived at by the learned trial court so far as
the evidence of PW-1 is concerned. Same is
the position of PW-2, whose signature finds
place over the arresting and recovery memo
Ext. A-2. In his cross examination he has
stated that his signature was obtained by
the police at Chauki Manpur but according
to his statement if he was not present on the
spot, how and why he reached police
chauki, Manpur and when his signature was
obtained on Ext. A-2 has not been clarified
by this witness. Hence, this witness is also
trying to hide the correct facts of the case.
In Rajesh Yadav and another vs. State of
U.P., 2022 SCC OnLine SC 150 the
Hon'ble Supreme Court held as under:

"21........................Once evidence
is completed, the said testimony as a whole
is meant for the court to assess and
appreciate qua a fact. Therefore, not only
the specific part in which a witness has
turned hostile but the circumstances under
which it happened can also be considered,
particularly in a situation where the chief
examination was completed and there are
circumstances
indicating
the
reasons
behind the subsequent statement, which
could be deciphered by the court. It is well
within the powers of the court to make an
268 INDIAN LAW REPORTS ALLAHABAD SERIES
assessment, being a matter before it and
come to the correct conclusion."

49. According to the prosecution story
at the time of occurrence PW-4 and PW-5,
the police personnels, were coming from
Police Chauki, Manpur when they saw the
occurrence and caught the accused with the
murder weapon. In this way they may be
termed as ''chance witness'. Whether a
chance witness is devoid of trust and only
by levelling him as chance witness whether
his evidence can be shattered as without
any foundation, has been discussed in the
judgment
of
State
of
A.P.
vs.
K.
Srinivasulu Reddy and another, (2003) 12
SCC 660 wherein the Apex Court has held
that :

"(13).............In a murder trial by
describing the independent witnesses as
"chance witnesses" it cannot be implied
thereby that their evidence is suspicious
and their presence at the scene doubtful.
Murders are not committed with previous
notice
to
witnesses;
soliciting
their
presence. If murder is committed in a
dwelling house, the inmates of the house
are
natural
witnesses.
If
murder
is
committed in a street, only passers-by will
be witnesses. Their evidence cannot be
brushed aside or viewed with suspicion on
the ground that they are mere "chance
witnesses".

50. When we translate the aforesaid
principle with their application to the facts
of this case, we gather an impression that
the learned trial court has rightly relied
upon the evidence of PW-4 and PW-5. It is
to be noted that for the purpose of the
present case PW-4 and PW-5 shall be taken
as independent witnesses. There was not
even single suggestion to these witnesses
that they had any animosity to the accused.
There was no reason why these witnesses
could falsely implicate the accused in a
murder case. Learned counsel for the
appellant has vehemently argued that no
Rawangi G.D. has been produced before
the Court to show that PW-4 and PW-5
were coming indeed from Police Chauki,
Manpur. We do not find any force in this
contention. Mere absence of Rawangi G.D.
on record so as to show the presence of
PW-4 and PW-5 on the spot at the time of
occurrence does not affect the prosecution
case adversely. The whole evidence of PW4 and PW-5 is reliable and trustworthy.
They were not present on the spot as police
personnels but they are simply eye
witnesses of the occurrence. They may be
dealt with for violation of any rule to leave
the Police Chauki without rawangi G.D.
but this does not make their presence on the
spot improbable, if a murder suddenly took
place before them. They have not only
grabbed the accused red handed in front of
Vidhya Niketan College but also recovered
the murder weapon ''knife' from his
possession and arrest and seizure memo
Ext. A-2 was also prepared by PW-4. The
T.I. and signatures of PW-1 and PW-2 and
of the police personnels present over there
were
also
obtained.
No
material
contradiction or unnatural statement may
be found in the version of PW-4 and PW-5.
They are wholly reliable witnesses of fact
and their ocular version finds support from
other evidence available on record.

51. It has been held by Hon'ble
Supreme Court in State of Gujarat vs.
Anirudhsing case (supra) that merely
because the witnesses are police officers,
their evidence cannot and must not be
rejected outright as unreliable or unworthy
of acceptance. It requires to be subjected to
careful evaluation like any other witness of
occurrence.
10 All. Naresh Chandra Vs. State of U.P.
269

52. Learned counsel for the appellant
has taken us through the evidence on record
and has submitted that no motive has been
assigned to the accused to commit the
alleged crime. He has pointed out that no
witness even PW-1 and PW-2, who are said
to be family members of the deceased, no
where mentioned in their entire deposition
that the accused had any enmity with the
deceased or he had any motive to kill her.

53. Although learned trial court has
relied upon the statement of accused given
to the Investigating Officer during course
of investigation to determine the motive
behind the crime, yet it has been submitted
by the learned AGA that the present case
rests upon the direct evidence wherein
motive has no significance. Emphasis has
been laid down upon the decisions of the
Apex Court in Bikau Pandey Vs. State of
Bihar (2003) 12 SCC 616, Anil Rai Vs.
State of Bihar (2001) 7 SCC 318 and
Deepak Verma Vs. State of Himachal
Pradesh (2011) 10 SCC 129.

54. If we go through the evidence of
PW-4 and PW-5, we have no hesitation to
say that both the witnesses have given
ocular evidence regarding the occurrence.
They have seen the accused stabbing the
deceased and have also caught him on the
spot with murder weapon. They are reliable
and trustworthy witnesses having no
grudge or enmity with the accused. In these
circumstances, we feel that the prosecution
was never under any obligation to prove the
motive in the present case and accordingly
no force is found in the plea of the learned
counsel for the appellant so far as the
motive is concerned.

55. The genuineness of the written
report Ext. A-1 and the F.I.R. Ext. A-5 has
also been put under challenge by the learned
counsel for the appellant, who has referred
the statement of PW-1 and submitted that this
witness has given contradictory statements in
his
examination
in-chief
and
cross-
examination as to whether written report was
dictated to the scribe Rajveer Singh by him or
it was dictated by the villagers. It has been
pointed out earlier that if any witness turns
hostile, as PW-1 was declared, the portion of
his evidence which supports the prosecution
version may be acted upon. In his
examination in-chief PW-1 has clearly stated
that he himself had dictated the written report
to the scribe Rajveer Singh. Learned counsel
for the appellant was unable to explain as to
why this portion of his examination in-chief
could be rejected or overlooked. The
occurrence is said to be happened on
9.10.2003 at 9.30 a.m. and F.I.R. Ext. A-5 has
been lodged on the same day at 12.10 p.m.. It
is mentioned in Ext. A-5 that the police
station is at a distance of 10 kilometers from
the place of occurrence and in the evidence it
has been shown that the deceased was
immediately taken to the hospital after the
occurrence to save her life but she could not
be survived and, hence, the F.I.R. is prompt
and not a result of deliberations or after
thought. PW-6, the scribe of the F.I.R., has
proved chik F.I.R. and registration G.D. as
Ext. A-5 and Ext. A-6 and there is no
adversity in his testimony.

56. Learned AGA has drawn our
attention towards the F.S.L. report Ext. A-18,
which reveals that blood clots were found
over all the materials sent to the forensic
laboratory i.e. plain and bloodstained soil,
knife, clothings of the deceased and
belongings found over her body. No doubt
the F.S.L. report has also supported the
prosecution version.

57.