# Pravesh & Anr v. State of U.P

- **Citation:** (2024) 3 ILRA 1612
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-04
- **Case number:** Criminal Appeal No. 1640 of 2012
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pravesh-anr-v-state-of-u-p-51563
- **Pages:** 12

## Headnote

Criminal Law
-
Appeals Against
Conviction for Murder - Acquittal - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302, 504, Arms Act, 1959 - Section
25 - Eyewitness reliability - Juvenile - The
importance
of
consistent
eyewitness
testimony and the reliability of witness
statements in establishing guilt beyond
reasonable doubt
-
Contradictions in
eyewitness statements can render the
prosecution's case unreliable, leading to
acquittal. (Para - 20 to 28)

Case involved a incident - where three
individuals were allegedly murdered by accused
- who were charged under various sections of
the IPC - Eyewitnesses claimed that accused
stopped the tractor-trolley carrying victims and
shot them - Contradictory statements and
inconsistencies
between
eyewitnesses
and
police reports became key issues during the
trial. (Paras - 1 to 8,20)

HELD: - Appellants were in fact not guilty of
crime as the prosecution had failed to prove its
case beyond reasonable doubt against the
appellants. Appellants were acquitted due to
unreliable
and
contradictory
witness
testimonies,
procedural
issues
in
the
investigation. Court ordered the release of the
appellants unless required in other cases. (Paras
- 26,27,28)

Appeal allowed. (E-7)

## Text

_Characters 0–39,986 of 42,545. This is a partial read: ask again with offset=39986 for what follows._

1612 INDIAN LAW REPORTS ALLAHABAD SERIES
21.12.1979, the Chief Judicial Magistrate
had not taken cognizance of the case which
was actually taken on 15.1.1980 and we
find from the record that in fact the Chief
Judicial Magistrate had also passed orders
for the test identification parade. This
identification having not taken place
definitely renders the evidence of Girish
Kumar absolutely worthless, inasmuch the
accused Vinod Kumar and Narayan were
throughout saying that Girish Kumar did
not recognize them. If the P.W. - 1 Girish
Kumar had never identified the alleged
assailant Vinod Kumar then all evidence
which he had led becomes absolutely
worthless.

23. For the reasons stated above, the
appeal succeeds and is allowed. The
judgment and order dated 5.3.1986, so far
as it concerns the appellant, Vinod Kumar
is set aside and is quashed. The appellant
Vinod Kumar who, as of today is dead, is
acquitted of the charges which were
levelled against him.

24. The appeal stands allowed so far
as the appellant Vinod Kumar is concerned.
----------
(2024) 3 ILRA 1612
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Criminal Appeal No. 1640 of 2012
with
Criminal Appeal No. 1647 of 2012

Pravesh & Anr. ...Appellants
Versus
State of U.P. ...Respondent
Counsel for the Appellants:
Sri Atul Kumar Srivastava (Amicus Curiae), Sri
Apul Misra

Counsel for the Respondent:
G.A.

(A)
Criminal Law
-
Appeals Against
Conviction for Murder - Acquittal - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302, 504, Arms Act, 1959 - Section
25 - Eyewitness reliability - Juvenile - The
importance
of
consistent
eyewitness
testimony and the reliability of witness
statements in establishing guilt beyond
reasonable doubt
-
Contradictions in
eyewitness statements can render the
prosecution's case unreliable, leading to
acquittal. (Para - 20 to 28)

Case involved a incident - where three
individuals were allegedly murdered by accused
- who were charged under various sections of
the IPC - Eyewitnesses claimed that accused
stopped the tractor-trolley carrying victims and
shot them - Contradictory statements and
inconsistencies
between
eyewitnesses
and
police reports became key issues during the
trial. (Paras - 1 to 8,20)

HELD: - Appellants were in fact not guilty of
crime as the prosecution had failed to prove its
case beyond reasonable doubt against the
appellants. Appellants were acquitted due to
unreliable
and
contradictory
witness
testimonies,
procedural
issues
in
the
investigation. Court ordered the release of the
appellants unless required in other cases. (Paras
- 26,27,28)

Appeal allowed. (E-7)

(Delivered by Hon'ble Anish Kumar
Gupta, J)

1. Upon an incident having taken
place on 26.07.2007 at around 6:30 P.M.,
wherein three persons, namely Ram Murti,
s/o Mohkam Singh, Malkhan Singh, s/o
Ratan Singh and Pappu, s/o Mohkam
Singh, had died, a First Information Report
3 All. Pravesh & Anr. Vs. State of U.P.
1613
was got lodged at 8:15 P.M. (20:15 P.M.)
by one Sri Shyam Singh (PW-1), s/o
Mohkam Singh. Upon the First Information
Report being lodged, the Police got into
action and thereafter recoveries of the dead
bodies was done. Thereafter, the inquest
report was prepared by Sri R.D. Gautam
(PW-3).
The
investigation,
thereafter,
ensued and a charge-sheet was submitted
against five accused persons namely
Kishan Singh, Vipin, Pravesh, Manoj and
Rajveer. At the time of submission of the
charge-sheet, initially on 17.10.2007, the
accused
Pravesh
and
Manoj
were
absconding. Subsequently, when they were
found out the Police submitted its chargesheet. Initially charges were framed against
Kishan Singh, Vipin and Rajveer on
21.04.2008 u/S 147, 148, 149, 302 and 504
I.P.C in Case Crime No. 412 of 2007. The
sessions trial was numbered as 112 of 2008.
Upon taking cognizance by the Magistrate
and thereafter after the trial being placed
before the Sessions Court, the latter
initially framed charges against Vipin in
Sessions Trial No. 112 of 2008 under
sections 147, 148, 302, 504 I.P.C. and
thereafter charges were framed against
Kishan Singh and Rajveer in the same
session trial under sections 147, 148, 149,
302 and 504 I.P.C. Subsequently the
charges were framed against the accused
Pravesh and Manoj under sections 302/149,
148, 147, 504 IPC in Sessions Trial No.538
of 2008. Against the accused Vipin,
separate charge under section 25 of the
Arms Act was also framed in Sessions Trial
No.113 of 2008. The accused persons were
read over the charges and they denied the
charges and claimed trial.

2. From the side of the prosecution,
there were five prosecution witnesses who
were examined. Shyam Singh, s/o Mokam
Singh was produced as PW-1; Rakesh
Kumar, s/o Om Prakash was produced as
PW-2; Sub-Inspector R.D. Gautam, who
had prepared the inquest report, was
examined as PW-3 and the Doctor Ajay
Agarwal,
who
had
conducted
the
postmortem
and
had
proved
the
postmortem report, was examined as PW-4.
The Inspector Rakesh Sharma, who was the
Investigating Officer of the case, was
examined as PW-5.

3. The PW-1, Shyam Singh, who
appeared in the witness box and gave his
examination-in-chief on 15.09.2008 stated
that on 26.07.2007, his cousin Rakesh
Kumar alongwith him was going on a
tractor trolley of one Harprasad, from
Sadabad to Rasgawan. Alongwith them,
three persons, it has been stated, namely his
uncle Malkhan Singh and his brothers Ram
Murti and Pappu, were also travelling on
the tractor. When the tractor trolley reached
near the field of Chandrapal, then Kishan
Singh, Manoj, Vipin Pravesh and Rajveer
accosted the tractor on two motorcycles
and got the tractor trolley stopped. He
states that from the tractor trolley, uncle
Malkhan Singh and his own brothers Ram
Murti and Pappu, were pulled down by the
three accused namely Vipin, Pravesh and
Manoj and Kishan Singh and Rajveer
exhorted the accused Vipin, Pravesh and
Manoj that the three may not go alive. At
this exhortation, Vipin, Pravesh and Manoj,
took out their country made pistols from
their belts, which they were wearing at
their waist and shot at uncle Malkhan,
brothers Ram Murti and Pappu, as a result
of which the three died on the spot. He has
stated that he himself alongwith Rakesh ran
towards the fields and they raised a hue and
cry, as a result of which a lot many people
from the Village- Rasgawan came on the
spot. He has further stated that upon the
crime having been committed, the accused
1614 INDIAN LAW REPORTS ALLAHABAD SERIES
persons ran away firing in the air on their
motorcycles. He has specifically stated that
the incident occurred at 6:30 P.M. He has
further stated that there was a legal case
with regard to their agricultural fields,
which was going on in the Court and after
attending the case they were returning
home. He has stated that because of this
case the accused persons had enmity with
them. He has proved the first information
report and had stated that he had himself
lodged the same at the police station. The
written report, which he had proved, was
marked as Exhibit 4-अ/3. He has further
stated on 26.07.2007, the panchayatnama
of the dead-bodies of Ram Murti, Malkhan
Singh and Pappu, were prepared in his
presence. He has stated that when the
panchayatnama was prepared, he was a
witness therein. The Inspector had also got
his signature on the panchayatnama and
had also got his views about the incident
and the panchayatnama was exhibited as क2, क-3, क-4. ]

4. In his cross-examination, however,
the PW-1 has stated that the written report
(Tehrir) was written while he was sitting at
the Roadways Bus Stand. He specifically
states that the report was not written at the
Police Station. He then states that the report
was written while sitting in a shop and
when he was sitting in the shop, the time
was 9:15 P.M. and then he clarifies that the
shop was of STD/PCO. He states that the
paper on which the report was written was
brought by his cousin (bua's son). He
further states that the cousin had come to
his village one day prior to the incident. He
clarifies that he had not gone to his village
after the incident. He further states that
when the cousin (bua's son) had come to
him, the Police had also reached the place
of incident. The police had, thereafter,
alongwith his cousin, brought the first
informant and other persons to the Police
Station. He states that the cousin had come
from Agra. He further states that the
information was scribed by PW-1 himself.
It was not written on the dictation of
anybody. Upon being asked as to how the
cousin had reached him, he states that
probably the villagers had phoned him up.
He specifically stated that at that point of
time, the dead bodies were in the premises
of the Bus Stand, in a Police Van, at the
time when the information was being
written down. He then reiterates that the
writing of the information took place at
around 9:15 P.M. He specifically states that
at 9:15 P.M., the dead bodies were not lying
at the Bahardoi Crossing (Teeraha). He,
thereafter, specifically states that the dead
bodies were sealed at the place of incident
at around 8:30 P.M. He further states that
the Thana- Hasanpur was around 20
Kilometres from Sadabad. Upon being
probably asked as to whether the case in
the District Court of Hathras was in the
Lower Court or the Appellate Court, he
states that he was not aware whether the
case was in the Lower Court or the
Appellate Court. He, however, states that
his counsel at Sadabad was one Mahesh
Chand Sharma. He then further states that
he had, in fact, not gone to the courts. The
uncle Malkhan, brother Ram Murti and
Pappu alone had gone to the court. He still
further states that Rakesh (PW-2), who was
his uncle's son had also gone to the Court.
He states that it was wrong to say that there
was no date fixed in the case on the date of
incident. In the further cross-examination,
which was done on 22.09.2008, the PW-1
states that he was not aware as to whether
on the date of incident any case was fixed
in Sadabad. He states that as a routine he
used to go to Sadabad everyday. Then, he
states that he used to go to Sadabad on
tractor as he was employed by someone at
3 All. Pravesh & Anr. Vs. State of U.P.
1615
Sadabad. Then, he further states that in
Kukargawan, one Rohitash Singh had
employed him in a dairy. Then, he states
that he was commuting daily between
Kukargawan and Sadabad and he rarely
went to his village. He further states that on
the date of incident, he was returning from
Kukargawan. He states that the milk, which
he was carrying, was being transported by a
tanker and that he used to drive the tanker.
He further states that the accused persons
had come on two separate motorcycles.
Pravesh, Kishan and Rajveer were on one
motorcycle whereas Manoj and Vipin were
on the other motorcycle. One motorcycle
was being driven by Manoj and the other
motorcycle was being driven by Pravesh.
He, however, had stated that he was not
aware about the name and number of the
motorcycle.

5. In his further cross-examination,
the PW-1 states that when the accused
persons had come near the tractor, they
were having their country made pistol in
their hands and when they had pulled down
the deceased persons then also they were
having their country made pistols in their
hands.
He
specifically
states
that
throughout the fire arms were never in the
belt, which they were wearing and he states
that it was such a fact which he had also
got stated in the first information report.
Upon being confronted with the F.I.R. he
states that he did not know as to how in the
F.I.R., it had been stated that the accused
persons had taken out the fire arms from
their belts. He states that when the incident
occurred, he was sitting in the trolley
attached to the tractor and when the
accused persons were around 10 to 12
yards away, he had already seen them. He
states that the deceased persons were sitting
on the tractor and they were not sitting in
the trolley. He specifically states that he
knew the difference between a tractor and a
trolley. He states that the accused persons
had pulled down the deceased from the
tractor and they were not taken out from
the trolley. He states that if he had stated in
the first information report that they were
pulled out from the trolley, then it was a
wrong fact. He also states that if he had
stated in the examination-in-chief that they
were pulled out from the trolley, then also it
was stated inadvertently. He states that he
had told the Investigating Officer also that
the deceased were pulled down from the
tractor and if the Investigating Officer had
not written about the fact that the deceased
had been pulled out from the tractor then he
did not know why that statement had been
written and in fact he states that if the
Investigating Officer had written that the
deceased were pulled out from the trolley
then it was a wrong fact. He further states
that in the tractor and on the trolley there
were 8 to 10 people. He specifically states
that he had not got their names recorded in
the complaint despite the fact that he knew
the names of those persons. He states that
he had not given names of the persons
present in the trolley as they were not ready
to be the witnesses in the case. He states
that the tractor belonged to one Har Prasad,
who was a resident of his village and he
states that the tractor was being driven by
his son. He further states that the moment
he had seen the accused persons, he had
jumped out from the trolley and had run
away and that before the incident had
actually occurred, he had run across 2 to 4
fields. He specifically states that Rakesh
had also jumped out and run away in the
same direction i.e., towards the village-
Rasgawan. He specifically states that what
happened after they had run away was not
known to him. However, he was not aware
as to how many rounds of firings he had
heard. He states that he had run towards the
1616 INDIAN LAW REPORTS ALLAHABAD SERIES
village for help. He further states that when
people from the village reached the spot,
then he had come thereafter. The three
deceased had died on the spot. He states
that village- Rasgawan was one kilometre
away from the place of incident and when
he came back, the motorcycles were not
there. The tractor trolley had also gone to
the village. He states that he had seen that
the accused persons had run away from
Bahardoi. Probably, there was no mention
about the presence of food in the dead body
at the time of postmortem and when the
question was put, then, PW-1 states that he
did not know as to whether the deceased
had taken food when they left their homes.
He further states that when the spot was
shown to the Police, it was around 9 or
quarter to 9 and this showing of the spot
was done after the First Information Report
was got lodged. To show that the PW-1 was
in the tractor, the PW-1 states that even
though routinely the PW-1 used to go on
bus or tempo, he had traveled by tractor on
that day as he had got the tractor as a
means of travel on that day incidentally.

6. When the accused Pravesh and
Manoj were apprehended, the court framed
charges against them on 01.04.2009, the
PW-1 was again brought in for his
statement-in-chief and cross-examination
on 09.07.2010. Here again, he reiterates
what he had stated in the examination-inchief, earlier. He reiterates that the first
information was actually written down by
him at around 9:15 P.M. He states in his
cross-examination that the panchnama of
the dead bodies was done prior to his
getting the First Information Report lodged
and he states that the Police had reached
the spot on the information given by
someone else. He states that on the date of
incident at around 3:00 P.M., he had
returned
from
Kukargawan
and
that
thereafter he had stayed there and at around
6:30 P.M. he was still at the village-
Kukargawan
and
he
had
received
information at Kukargawan itself about the
incident and upon getting the information,
he came to village Rasgawan. He states that
when he had reached the place of incident,
the Police had already reached before him
and the primary investigations were going
on.
He
further
states
that
from
Kukargawan, he had come on a motorcycle
to the place of incident. He states that he
had neither seen any motorcycle nor any
tractor trolley. He also states that he was
not aware as to who was present in the
tractor. He further states that he was not
aware as to who had called Rakesh (PW-2)
at the place of incident. From where
Rakesh
had
appeared,
he
had
no
knowledge. He states that the distance
between Kukargawan and Rasgawan was
two and a half to three kilometres and that
as soon as he has heard about the incident
at Kukargawan, he reached the spot. He
further states that when he reached the
place of incident, quite a few people had
collected at the spot and that the three
deceased had already died.

7. The PW-2, Rakesh Kumar, s/o Om
Prakash, on 21.10.2008, appeared in the
witness box and gave his statement-in-chief
and stated that the incident was of
26.07.2007 and the PW-2 and Shyam Singh
were on the tractor of Harprasad. He
further states that Kishan, Rajveer, Pravesh,
Vipin and Manoj, came on motorcycles.
They got down from the motorcycles, came
to the tractor trolley which they had
stopped and thereafter fired. From the
tractor Malkhan, Ram Murti and Pappu,
were pulled out by Vipin, Manoj, Kishan,
Pravesh and Rajveer, wherein Kishan and
Rajveer had exhorted the other three that
the deceased may not escape alive. At the
3 All. Pravesh & Anr. Vs. State of U.P.
1617
exhortation, Manoj, Pravesh and Vipin took
out their country made pistols from their
belts, which they had tied on their waists
and fired on Malkhan Singh, Ram Murti
and Pappu and upon being shot at they
immediately fell down on the spot. He
further states that Shyam Singh (PW-1) and
he himself had seen whole incident with
their own eyes. However, upon the firing
having taken place, the two had jumped out
from the trolley and had run away towards
Bardohi. He further states that in the trolley
there were many other persons sitting.

8. In the cross-examination, the PW-2
has stated that on the date of incident at
around 12:00 P.M., the PW-2 had started
from Sadabad. He had stated that there
were many cases pending against Malkhan
Singh. However, he states that he had not
gone to the courts on the date of the
incident alongwith the deceased. He states
that even though there were 15 to 20 cases
against Malkhan Singh, there was only one
case in between Malkhan Singh and the
accused persons. He specifically states that
Malkhan Singh, Ram Murti and Pappu,
were sitting in the trolley attached to the
tractor and that he too was also sitting in
the trolley. He states that Shyam Singh
(PW-1) had gone to Sadabad in connection
with the delivery of milk and that Shyam
Singh had, in fact, come to the spot on a
milk tanker. He states that Shyam Singh
had driven the tanker and at that time he
was accompanied by one more boy, whose
name he did not remember. He states that
Shyam
Singh
and
the
boy,
who
accompanied
him,
had
come
from
Kukargawan. He states that Shyam Singh
had gone from the village- Rasgawan to
Kukargawan and from Kukargawan, he had
taken milk and had gone to Sadabad. He
states Shyam Singh had stayed in his
village- Rasgawan, for about an hour, after
the incident. He states that the fact that
Shyam Singh had stayed at his village for
an hour, after the incident, was not told to
him by anybody but it was from his
personal knowledge that he was stating this
fact. He also states, as has been stated by
PW-1, that in the tractor trolley, there were
10 to 12 people sitting and they were all
from his village and he also knew them.
However, he did not know the women
sitting in the tractor. He states that the
panchnama of the dead bodies took place
between the 8:30 P.M. and 9:00 P.M. He
further states that apart from him, the
witnesses of the panchnama were Jaswant
(Pradhan), Ram Gopal and Neetu. He states
that the Police had reached the spot one and
a half hour after the incident and they were
called by the villagers of some other village
on the phone. He states that the Police had
reached the spot even before he had
reached. He states that nobody had called
him on the spot but because the other
villagers were going, he had accompanied
them upon hearing the hue and cry.

9. PW-2 further states that the accused
persons had fired in the air and had stopped
the tractor. He further states that when the
firing took place, Shyam Singh ran away
towards Bardohi. He states that he also ran
towards Bardohi. Still further, he states that
at the time when the accused pulled out the
deceased, the two i.e. Shyam Singh and
Rakesh had already jumped out from the
trolley and had run away. He specifically
states that Pappu had been pulled out by
Manoj, Malkhan had been pulled out from
the trolley by Vipin and Pravesh had been
pulled out by Ram Murti and these three
the persons (deceased) were sitting by the
side of the trolley attached to the tractor. He
states that the accused persons had pulled
out the deceased victims from the trolley.

10. PW-2 further stated that the
accused persons had also tried to catch hold
1618 INDIAN LAW REPORTS ALLAHABAD SERIES
of him and PW-1 Shyam Singh but they
could not do so as they had already run
away by that time. He further states that at
the time when the accused had gone into
the trolley, they were empty handed. The
accused had got into the trolley and after
that they had pulled out the three deceased
and before they pulled them out from the
trolley, there was some physical altercation
also. He states that the accused persons had
fired on the deceased after two or three
minutes when they had pulled the victims
out from the trolley.

11. The PW-3 Ram Dev Gautam
(Sub-Inspector) who had prepared the
inquest gave his statement on 14.1.2011
and had proved the inquest reports Exhibit
Ka-2, Ka-3 and Ka-4. He had also proved
the related documents being Exhibit Ka-9,
Ka-10, Ka-11 and Ka-12. He has stated in
his cross examination that he had reached
the spot and had prepared Exhibit K-2 on
the spot at 23.00 hours (11.00 PM) and had
prepared Exhibit Ka-4 at 2200 hours (10.00
PM) and Ka-3 at 2400 hours (12.00 PM)
and then all the three dead bodies were sent
for post-mortem. He has also stated that the
three dead-bodies, before being sent for the
post mortem, were lying at the spot till
12.00 PM. Upon being confronted by the
statements of Shyam Singh PW-1 with
regard to the dead bodies being sealed at
8.30 PM, he had stated that he was telling
the truth and that the statement of Shyam
Singh was a wrong one. He has throughout
through his statements stated that the
statements of the witness Shyam Singh
were irrelevant and wrong.

12. PW-4 Dr. Ajay Agarwal who had
conducted the post-mortem had stated that
on 27.7.2007, he had conducted the postmortem and had proved the post mortem
reports and had given his opinion that the
death had occurred because of the injuries
caused by firing. He had also stated that he
did not mention the fact as to whether there
was food in the stomach and in the
intestines of the dead-bodies and he had
still further stated that it was wrong to state
that he had not mentioned about the food in
the dead bodies of the deceased because
this fact gives the probability to ascertain
the right time of death. He specifically had
stated that on the dead bodies of the
deceased, there were no physical injuries
other than the injuries caused by firing.

13. PW-5 is the Investigating Officer
Sub-Inspector Rakesh Sharma. He has
proved the site plan and the recovery of the
country made pistol. He has stated that
upon the recovery being made of the
firearms at the behest of the accused Vipin,
the firearms and the bullets etc. were sent
to the ballistic expert on 12.3.2008. He
states that the delay had occurred despite
the fact that the District Magistrate had
given the permission on 9.10.2007. He had
stated that in between 9.10.2007 and
12.3.2008 the firearm and the bullets
samples etc. could not be sent as there were
other businesses to perform and, therefore,
he
could
not
send
the
samples
expeditiously. The Investigating Officer
has, upon being questioned as to why he
had not put Guddu, the driver of the tractor,
in the list of witnesses, answered that it was
a correct fact that he had not taken any
statement of the independent witness
namely Guddu. He has also stated that at
the time of the incident, there were Amar
Singh son of Vasdev; Brijmohan son of
Ram Khiladi; Bhole son of Mauji; Sunil
Kumar; Anil Kumar and Susheela Bahan Ji
sitting on the tractor trolley but he had not
taken the statements of these persons. He
has stated that he had not taken the
statements of these persons as they were
3 All. Pravesh & Anr. Vs. State of U.P.
1619
not ready to give their statements and he
had even mentioned this fact in his inquiry
report. He had stated that he knew the
difference between a tractor and a trolley
attached to it. He has stated that the
witnesses had told him at the time of
investigation that the three deceased were
sitting in the trolley and that they were not
sitting on the tractor.

14. CW-1 Constable 170 Har Narayan
Singh has proved the death of accusedRajveer.

15. Thereafter statements were taken
of the accused persons under section 313
Cr.P.C. and the accused persons namely
Kishan Singh and Vipin had stated that all
the evidence were got prepared and were a
bundle of lies and that the reports were all
false. They denied the incident saying that
they had been falsely implicated due to
enmity.

16. From the side of the accused
persons, DW-1 Guddu was produced and
examined who allegedly was the driver of
the tractor which was carrying the three
deceased namely Ram Murti, Pappu and
Malkhan and also the PW-1 and PW-2.
However, the DW-1 in his statement had
categorically stated that the PW-1 Shyam
Singh and PW-2 Rakesh were not sitting in
his tractor trolley. He also in fact had stated
that Rajveer, Kishan Singh, Manoj, Pravesh
and Vipin had not killed Ram Murti, Pappu
and Malkhan after pulling them out from
the tractor. He states that he would
recognize the accused assailants. He also
states that he does not even remember the
number of the tractor.

17. Upon trial having been completed,
the District & Sessions Judge, Hathras on
24.3.2012 convicted the accused Kishan
Singh, Pravesh, Manoj and Vipin under
section 302 read with section 149 IPC.
With regard to the offences under sections
147, 148 and 504 IPC, no conclusion was
arrived at. Under section 25 of the Arms
Act, the accused Vipin who was charged
under section 25 of the Arms Act, was
acquitted. During trial, accused Rajveer
died on 10.11.2010 and, therefore, the trial
had abated viz.-a-viz. Rajveer.

18. Sri Apul Mishra, learned counsel
appearing for the appellants assisted by Sri
Atul Kumar, Advocate in effect argued that
the appellants were innocent and that they
had been wrongly implicated. Following
were the arguments raised by learned
counsel for the appellants :-

(i) Learned counsel for the
appellants states that though the incident
occurred but the appellants were not the
ones who had committed the crime.
Learned
counsel
relying
upon
the
statements made by the PW-1 and PW-2
has stated that the eye-witness account of
the PW-1 and PW-2 were absolutely not
convincing. Learned counsel took us
through the statements made by PW-1
Shyam Singh and has stated that despite the
fact that Shyam Singh had lodged the First
Information Report on 26.7.2007 and the
FIR clearly had stated that it was being
lodged at 20.15 (8.15 PM). Shyam Singh
had stated in his cross-examination that the
written report was scribed by him at around
9.15 PM while sitting at a STD shop in the
neighbouring bus stand. He had stated that
the paper on which the complaint/written
report was written was brought to him by
his cousin (Bua's son) and on it he scribed
the report. Learned counsel states that this
is in direct contravention to the time which
had been given in the FIR. Relying upon
this contradictory statement of the PW-1,
1620 INDIAN LAW REPORTS ALLAHABAD SERIES
learned counsel states that the statement of
the eye-witness PW-1 becomes very
unreliable and the evidence can be said to
be a shaky one and not to be relied upon for
convicting the accused.

(ii) He further states that in the
statement of PW -1 it had been stated that
the dead bodies were sealed and were in the
police van stationed at the bus stand while
he was writing down the written report but
the Investigating Officer, PW -5, in his
statement had stated that he had not
received the information with regard to the
incident on phone and he had reached the
spot on his own on getting information at
about 10:00 PM and at that point of time
the dead bodies were still lying on the spot.

Since the learned counsel for the
appellants compared the statements of PW1 and PW-5, they are being reproduced
here as under:-

"मै कक्षा 8 िक पढा वलखा ह ाँ। F.I.R.
थाने के बाहर वलखी थी। रोडवेज बस स्टेन्ड पर बैठ कर वलखी थी।
िुकान पर बैठकर (का० फटा) थी। राि के सवा नौ बज रहे थे िुकान
वकसकी थी मुझे नही मालुम। िुकान STD की थी। ररपोटा वलखने
के वलए कागज मेरी बूआ का लडका लेकर आये थे। बुआ का
लडका मेरे घर पर एक विन पूवा घूमने आया था। मै घटना स्थल से
गााँव नही गया था। जब िक बुआ का लडका घटना स्थल पर आ
चुका था िब िक मौके पर पुवलस आ चुकी थी। पुवलस मुझे िथा
मेरे बुआ के लडके िथा अन्य व्यवक्तयों को लेकर थाने आई थी। मेरी
बूआ का लडका आगरा से आया था। F.I.R. मैंने स्वय वलखी थी
वकसी ने बोली नही थी। मेरी बूआ का लड़का बब्लू मुड़ी जहाांगीर
पुर का रहने वाला है। ववजय कुमार पुत्र उियभान वसांह भी मेरी बूआ
का लडका है जो हसनपुर का रहने वाला है।"

The statement of the P.W.-5 which
states that the dead bodies were lying at the
place of incident at 10:00PM is being
reproduced here as under :-

"मुझे इस घटना की सूचना फोन से नही वमली थी, मै
ररपोटा िजा होने से पहले घटना स्थल पर नही पहुाँचा था, मैं
घटनास्थल पर करीब िस बजे पहुाँचा था और उस समय िक लार्शें
घटना स्थल पर मौजूि थी।"

(iii)
The
counsel
for
the
appellants has stated that the statements of
PW-1 and PW-2 with regard to the fact that
as to whether the deceased Ram Murthi,
Pappu and Malkhan were sitting on the
tractor or trolley is not reliable. In the first
information report, the PW-1 had stated
that the deceased were sitting in the trolley
whereas in the cross-examination he has
categorically stated that the deceased were,
in fact, sitting on the tractor and they were,
in fact, pulled out from the tractor. The PW2 has, in direct contravention to what had
been stated by PW-1, had stated that the
deceased were sitting in the trolley. Upon
being cross-examined, the two witnesses
had clearly stated that they knew the
difference between a tractor and a trolley
and, therefore, the statements, learned
counsel for the appellants states, of the two
eyewitnesses
becomes
absolutely
unreliable.

(iv)
The
counsel
for
the
appellants
has
questioned
about
the
presence of the PW-1 and PW-2 also. He
has stated that PW-1 has, in the first
information report, stated that he was
sitting in the tractor trolley when the
incident occurred. However, in the crossexamination, he has stated at one point of
time that when he saw the assailants
coming he alongwith PW-2 had jumped out
and had run away and at another point of
time he had stated that he was, in fact,
working for a businessman who was
dealing in milk and that he was, in fact, in
Kukargawan at the time when the incident
had occurred and that he later on came by a
motorcycle upon getting the information
that the incident had occurred.

(v) Learned counsel for the
appellants has further relying upon the
statements of PW-2 stated that even PW-2
was not clear as to whether the PW-1 and
PW-2 were present at the time of incident.
3 All. Pravesh & Anr. Vs. State of U.P.
1621
He states that PW-2 has very categorically
stated that at the time when the incident
had occurred the two i.e. the PW-1 and
PW-2 had already jumped out from the
trolley and had ran away.

(vi) Learned counsel for the
appellants has further stated that had the
witnesses been on the spot they would not
have given contradictory statements as to
whether the firearms were taken out from
the waist of Vipin, Pravesh and Manoj or
whether the firearms were in their hands. In
the First Information Report, it has been
stated that at first firing was done in the air
and the tractor was stopped and the
deceased victims were pulled out from the
trolley and thereafter at the exhortation of
Kishan and Rajveer, the three assailants i.e.
Vipin, Pravesh and Manoj had taken out the
pistol from their waists and had shot the
bullets whereas in the cross-examination of
PW-1 and PW-2, a contrary statement had
been given that the three assailants namely
Vipin, Pravesh and Manoj had throughout
held the firearm in their hands and along
with the firearms they had entered the
trolley and pulled the three victims out and
killed them.

(vii) Learned counsel for the
appellants has stated that the tractor trolley
as per the PW-2 and 5 had around 10-12
other persons in it. They all were known to
the PW-1 and PW-2 but their names were
not mentioned in the list of witnesses and
that they were also never produced in the
witness box. They were uninterested
witnesses as compared to PW-2 and the
PW-1 who was the brother of Pappu and
Ram Murti and the nephew of Malkhan.
He, therefore, states that only on the basis
of an unreliable interested witnesses, the
conviction of the accused could not take
place.

(viii) Learned counsel for the
appellants also has further submitted that
despite the fact that the PW-5, the
Investigating Officer, was in the know of
the fact that the driver was Guddu and that
he was a neutral person, PW-5 had not
examined Guddu even at the time of the
investigation and, therefore, definitely he
was not produced in the witness box. He
submits that the driver of the tractor namely
Guddu was produced as DW-1 and was
cross-examined by the parties and he, as
per the learned counsel for the appellants,
has very categorically stated that even
though
the
incident
had
occurred,
definitely, Rakesh and Shyam Singh were
not there in the tractor trolley. This, learned
counsel states, was a conclusive evidence
of the fact that the PW-1 and PW-2 who
were claiming themselves to be eyewitnesses, were in fact not present at the
spot.

(ix) The DW-1 has further in
definite terms had stated that the appellants
were not the assailants in the incident and
he could identify the actual assailants.
Thus, learned counsel for the appellants
submits that though the incident has taken
place but the appellants were not the actual
assailants and they have been implicated
due to enmity.

(x) Learned counsel for the
appellants Sri Apul Mishra has further
submitted that the whole investigation
becomes doubtful in view of the fact that
the Exhibit Ka-8 which has been prepared
by the Investigating Officer PW-5 shows
that the Investigating Officer has signed the
documents on 29.7.2007 whereas the
seizure of the empty cartridges was done on
26.7.2007. He further states that if the
statement of PW-5 is seen then it would
become clear that in fact he had seized the
empty cartridges on 27.7.2007.

19. Learned AGA Sri Amit Sinha
assisted by Ms. Mayuri Mehrotra has
1622 INDIAN LAW REPORTS ALLAHABAD SERIES
argued that if the incident has been proved
to have occurred and if the injuries were
proved by the medical report then even if
there were certain discrepancies in the
statements of PW-1 and PW-2 then the
conviction was proper and that the appeal
be dismissed. Learned AGA has submitted
that as the recovery of arms was done at the
pointing of Vipin, it was only indication of
the fact that Vipin was definitely involved
in the incident. Also, he has submitted that
there was absolutely no ground whatsoever
to exonerate the appellants.

20. We have heard learned counsel for
the appellants Sri Apul Mishra assisted by
Sri Atul Kumar and the learned AGA Sri
Amit Sinha for the State. The counsel
appearing for the appellants has argued
primarily that two eye-witnesses i.e. PW-1
and PW-2 were not reliable eye-witnesses.
There is contradiction in the statements of
PW-1 to a very large extent. Initially, it was
stated that the deceased were sitting inside
the trolley but subsequently the PW-1 had
stated that they were sitting on the tractor
and that the deceased was pulled out from
the tractor.

21. Learned counsel for the appellants
has stated that even though the PW-1 in the
first information report has stated that he
was sitting in tractor trolley, in his crossexamination
he
had
stated
that
he
alongwith PW-2 had jumped out of the
tractor trolley and at the point of time when
the incident had occurred, he was not there
in the tractor trolley.

22. Still further in the crossexamination, the PW-1 had stated that he
was working for a businessmen and that, in
fact, at the time of the incident, he was at
Kukargawan and that he reached the spot
later on by a motorcycle.

23. Learned counsel for the appellants
has still stated that even the statement of
PW-2 was not reliable as his statement was
in contradiction to the statement of PW-1.
The PW-2 had stated in his crossexamination that at the time when the
incident had occurred, both the PW-1 and
PW-2 were not there in the tractor trolley
and that they had at an earlier point of time
jumped out of the trolley.

24. Still further, we find substance in
the argument of learned counsel for the
appellants that when the eye-witnesses
were giving eye-witness account, they
would
not
have
given
contradictory
statement as to whether the fire-arms, from
the beginning till the firing taken place,
were in the hands of the appellants or
whether they were in their waist and that
they were taken out at the time of firing.

25. We also find substance in the
argument of learned counsel for the
appellants that had the PW-1 and PW-2
been at the spot and had witnessed the
incident then they would definitely have
mentioned the names of 10 to 12 persons
who were accompanying them and the
deceased persons in the tractor trolley.

26. We also find substance in the fact
that the PW-5, the Investigating Officer,
had despite the fact known the name of the
driver of the tractor never examined and
had never included him in the list of
witnesses. We also find substance in the
argument of learned counsel for the
appellants that the recovery of the empty
cartridges was done in a very slipshod
manner. Even though the seizure of the
empty cartridges was done on 26.7.2007,
the document showing the recovery was
signed on 29.7.2007. The manner in which
the prosecution witnesses had changed
3 All. Vikram Singh Vs. State & Anr.
1623
there stand about the fact as to how they
had witnessed the incident makes the entire
prosecution story unreliable. Even though it
is correct that minor discrepancies should
be ignored, we find that the discrepancies
are of such a nature which cannot be
ignored and we thus hold that the
appellants were in fact not guilty of the
crime as the prosecution has failed to prove
its case beyond reasonable doubt against
the appellants herein.

27. The appeals are, therefore,
allowed. The judgment and order 24.3.2012
is set aside. The appellants before us, in
both the appeals, are declared innocent and
are acquitted of the charges levelled against
them in the instant case.