# Ram Babu v. State of U.P

- **Citation:** (2024) 9 ILRA 253
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-20
- **Case number:** Criminal Appeal No. 2163 of 1983
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-babu-v-state-of-u-p-52583
- **Pages:** 10

## Headnote

Law
-
Appeal
against
conviction for murder and disposal of
evidence - Indian Penal Code, 1860 -
Section 302 r.w. Section 201 - Murder -
Causing disappearance of evidence of
offense - Ante-timed FIR - chance witness
- failure to recover material evidence -
doubt in prosecution story - Evidence of a
chance witness requires a very cautious
and close scrutiny and a chance witness
must adequately explain his presence at
the place of occurrence - Deposition of a
chance witness whose presence at the
place of incident remains doubtful should
be discarded - Conviction cannot be
sustained if the prosecution story has
lapses and if chance witnesses are not
credible
or
adequately
explain
their
presence.(Para - 12 ,14,15,16)

Accused
convicted
for
allegedly
killing
deceased during a gambling dispute -
deceased won money in gambling - refused
to return it - leading to his murder by
accused and co-accused using an axe and
throttling - FIR lodged following morning -
stated eyewitness accounts, including seeing
the body being dragged to a well
-
prosecution relied on eyewitnesses PW-3 and
PW-4 - who claimed to have seen incident in
torchlight. (Para - 1 to 9 )

HELD: - There are any number of lapses in
the prosecution story and the prosecution
case thus becomes doubtful. Nowhere was
the currency etc., which it was alleged was
won in the gambling by the deceased,
recovered. Charges as were framed against
the accused appellant were not proved
beyond reasonable doubt and, therefore, the
accused cannot be held guilty. Accusedappellant was acquitted of all charges as the
prosecution failed to prove the case beyond
reasonable doubt. (Para -16 to 18)

Appeal allowed. (E-7)

List of Cases cited:

## Text

9 All. Ram Babu Vs. State of U.P.
253
ओर्‌ से्‌ उपजस्थत्‌ हुई्‌ है, वे्‌ ननयमानुसार्‌
अपना्‌
शुल्क्‌
प्राप्त्‌
करने्‌
की्‌
अगधकाररणी्‌ है।

39. कायाफलय्‌
को्‌
ननदेश्‌
ददया्‌
जाता्‌
है्‌
कक्‌
पवचारण्‌
न्यायालय्‌
का्‌
अशभलेख्‌ वापस्‌ भेज्‌ ददया्‌ जाय्‌ तथा्‌
इस्‌ आदेश्‌ की्‌ एक्‌ प्रनतशलपप्‌ सांबांगधत्‌
पवचारण्‌ न्यायालय्‌
को्‌
अनुपालन्‌
हेतु्‌
तुरांत्‌ भेजना्‌ सुननजश्चत्‌ ककया्‌ जाय।
----------
(2024) 9 ILRA 253
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 2163 of 1983

Ram Babu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
D.S. Tiwari

Counsel for the Respondent:
D.G.A.

(A)
Criminal
Law
-
Appeal
against
conviction for murder and disposal of
evidence - Indian Penal Code, 1860 -
Section 302 r.w. Section 201 - Murder -
Causing disappearance of evidence of
offense - Ante-timed FIR - chance witness
- failure to recover material evidence -
doubt in prosecution story - Evidence of a
chance witness requires a very cautious
and close scrutiny and a chance witness
must adequately explain his presence at
the place of occurrence - Deposition of a
chance witness whose presence at the
place of incident remains doubtful should
be discarded - Conviction cannot be
sustained if the prosecution story has
lapses and if chance witnesses are not
credible
or
adequately
explain
their
presence.(Para - 12 ,14,15,16)

Accused
convicted
for
allegedly
killing
deceased during a gambling dispute -
deceased won money in gambling - refused
to return it - leading to his murder by
accused and co-accused using an axe and
throttling - FIR lodged following morning -
stated eyewitness accounts, including seeing
the body being dragged to a well
-
prosecution relied on eyewitnesses PW-3 and
PW-4 - who claimed to have seen incident in
torchlight. (Para - 1 to 9 )

HELD: - There are any number of lapses in
the prosecution story and the prosecution
case thus becomes doubtful. Nowhere was
the currency etc., which it was alleged was
won in the gambling by the deceased,
recovered. Charges as were framed against
the accused appellant were not proved
beyond reasonable doubt and, therefore, the
accused cannot be held guilty. Accusedappellant was acquitted of all charges as the
prosecution failed to prove the case beyond
reasonable doubt. (Para -16 to 18)

Appeal allowed. (E-7)

List of Cases cited:
1. Manoj & ors. Vs St. of U.P., (2023) 2 SCC 352
2. Manoj & ors. Vs St. of M.P., (2003) 2 SCC 353
3. Harbeer Singh Vs Sheeshpal & ors., (2016)
16 SCC 418
4. Jarnail Singh & ors. Vs St. of Punj., (2009) 9
SCC 719
5. Bahal Singh Vs St. of Har.,1976 Criminal L.J.
1568
254 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Siddhartha Varma, J.)

1. This criminal appeal has been filed
against the judgment and order dated
23.05.1983 passed by the Sessions Judge,
Jalaun at Orai by which the appellant Ram
Babu was convicted under Section 302 of
the Indian Penal Code (henceforth called
the "IPC") read with Section 201 IPC and
punished the appellant under Section 302
IPC with life imprisonment and under
Section
201
IPC
with
a
rigorous
imprisonment of two years.

2. The brief facts of the case are that
upon an incident which allegedly occurred
on 21.8.1982 at around 7.30 to 8.00 PM, a
First Information Report (henceforth called
the "FIR") was lodged in that regard on
22.11.1982 at 7.05 AM. As per the FIR, the
brother of the first informant namely
Jagram, who was gambling with the
accused persons Ram Babu and Kisna, was
killed in the house of Ram Babu because the
deceased Jagram had won in the gambling and
Ram Babu and Kisna had asked for the return
of their money. When Jagram had refused to
return that money, then, it is alleged, the
accused persons Ram Babu and Kisna had
killed the deceased. It has been stated that
Kisna had used an axe to kill the deceased
while Ram Babu was responsible for throttling
the deceased. As per the FIR, when Jagram
shouted upon being attacked at 8.00 pm, then
Laxman Singh and Mulayam Singh had seen
the incident in the light of their torches. It has
been stated in the FIR itself that the dead body
of Jagram, after he was killed, was dragged by
the assailants and taken to a well which was
situated in the land of one Sri Dixit and that
the assailants had thrown the dead body into
the well.

3. The FIR was scribed by Mulayam
Singh on the dictation of the first informant
Takdeer Singh. Upon the FIR having been
lodged, the police got into action and
investigation
commenced.
The
panchayatnama
proceedings
which
commenced at around 11.15 am on
22.11.1982 states that the Constable Prem
Shanker Shukla reached the spot and he
after seeing the trail which had been
created because of the pulling of the dead
body by the accused towards the well had
traced out the dead body. It has been stated
that thereafter the panchayatnama was
prepared and completed at 12.30 PM. The
memo Ka-1 as was prepared by the
investigating police had stated that they had
only seen the torch of Mulayam Singh
which had three cells in it. The police had
also taken it into its custody. The police
had also recovered a Sadari and Angochha
(the clothes worn by the deceased) which
were blood stained which were exhibited as
Exhibit Ka-2. As per the Exhibit Ka-3
which was the memorandum prepared by
the police, the plain soil and the blood
stained soil were taken into custody. After
the panchayatnama was completed, the
dead body was sent for post mortem and
the post mortem report was prepared on
23.11.1982. The investigation having got
completed, the police submitted its report.
Since the accused Kisna was absconding,
charges were framed only viz.-a-viz. Ram
Babu under section 302/201 IPC. When the
accused
pleaded
not
guilty,
trial
commenced.

4. The prosecution produced five
witnesses in the Court.

5. PW-1 was the first informant
Takdeer Singh. In his testimony before the
Court, he has stated that Kashi Singh and
Harmohan Singh had seen his brother
Jagram gambling. It has been stated by the
PW-1 that Kashi Singh and Harmohan
9 All. Ram Babu Vs. State of U.P.
255
Singh in fact had asked his brother not
gamble but neither did Jagram nor did the
assailants Ram Babu and Kisna stop
gambling. He has stated that when the sun
set and it became dark, the three who were
gambling, came out on the western side to
gamble and when Jagram had won a
substantial amount of money, then Ram
Babu and Kisna asked him to return the
money. When, however, Jagram refused to
return the money then Kisna assailed him
by an axe while Ram Babu had throttled
the deceased. Upon being attacked when
the deceased started shouting, then Laxman
Singh and Mulayam Singh who were
easing themselves in the open agricultural
field saw the incident in the light of their
torches. In the examination in chief, the
PW-1 has stated that Kisna and Ram Babu
had pulled the dead body down to the well
and had thrown the dead body in there.
PW-1 has stated that he was at his house
and when he heard the shouting, then he
had also reached the spot and over there
Laxman Singh and Mulayam Singh had
narrated the incident to him and had told
that Kisna and Ram Babu had killed the
brother of the PW-1. He has also stated that
when
the
two
eye-witnesses
namely
Laxman Singh and Mulayam Singh were
following the accused persons, they heard a
sound which clearly meant that the dead
body had been thrown into the well.
However, because of the fear of the
accused persons, it has been stated in the
examination in chief, the two eye-witnesses
and the PW-1, did not go near the well. He
has stated that the FIR was scribed by
Mulayam Singh on his dictation and
whatever he had told, was scribed by
Mulayam Singh in the FIR. In the cross
examination, he has stated that he had not
seen the two accused persons and the
deceased actually gambling. He has only
stated that when he had reached the spot
then Kisna and Ram Babu, the accused
persons, had pulled the dead body of the
deceased towards the well. He has also
stated that when he had reached the place
of incident then Mata Prasad, Jahar Singh,
Mukat Singh, Ram Babu son of Kandhai,
Vasdev and a few others had reached the
place of incident. He has stated that they
were all without any arms etc. He has also
stated that the well was situate in the southwest of the village. The house of the
accused Ram Babu was in the western
direction of the village whereas the house
of the first informant was in the northern
direction. At the time of the incident, in the
house of Ram Babu where gambling was
going on, the wife of the accused Ram
Babu, his two sisters and two younger
brothers were also staying with him and at
the time when the gambling was going on,
they were all present in the house. He has
emphatically stated that since he was not
there at the place of incident, he had no
knowledge of the entire incident. He has
stated that on the next date at around 7.00
AM he had gone to the police station to
lodge the report. He has also in the crossexamination, upon a question being asked
as to whether he tried to search out the dead
body of Jagram, he had categorically stated
that he had not tried to search out the dead
body. In fact, he has stated that he had not
even gone near the well. He has stated that
the entire FIR was scribed with the help of
Mulayam Singh at his house. After the FIR
was lodged, the police had come to the spot
at around 8.00 AM and had got the dead
body pulled out from the well. Upon a
further question being asked as to whether
the accused Ram Babu was into the
business of crackers, he told that he was not
aware. He has also categorically stated that
for the first time, he saw the dead body
when the same was pulled out from the
well. He has very categorically stated that
256 INDIAN LAW REPORTS ALLAHABAD SERIES
the well, situate in the land of Sri Dixit,
was around 250 steps away from the
agricultural fields of Mulayam Singh. He
has also stated that Laxman Singh and
Mulayam Singh were not his family.

6. PW-2 was Kashi Prasad son of
Gyan Singh who had stated that he had
seen the deceased and the two accused
gambling in the room of Ram Babu. He has
stated that he had not actually entered the
place where gambling was going on but
while passing through the house of Ram
Babu, he had seen the three i.e. the
deceased Jagram and the two accused were
playing cards and he assumed that they
were gambling.

7. PW-3 was the eye-witness
Mulayam Singh. He is also the scribe of the
first information report. He had stated that
he was easing in the fields at around 8.00
PM and when he heard some noises from
the southern side of the village, then with
the help of his torch, he saw that the
accused Ram Babu and Kisna were beating
up Jagram. He had stated that Laxman
Singh, the another eye-witness, was also
near him. When the sounds were heard of
beating etc., Laxman Singh had enquired as
to what was going on and to this, the
accused persons had threatened the two
eye-witnesses with dire consequences. He
has stated that he had seen the accused
persons dragging the dead body towards
the well. However, since it was night, they
had gone to their houses. He has also stated
that the FIR was written by him on the
dictation of Takdeer Singh and had proved
the FIR which was Exhibit Ka-1. In the
cross-examination, he has stated that the
FIR was written by him on the dictation of
Takdeer Singh and whatever Takdeer Singh
had dictated, he had written. He had also
very categorically stated that in between
the incident which had occurred and the
lodging of the FIR, he had not talked to
Takdeer Singh. He has, upon a question
being asked as to whether both, he himself
and Laxman Singh were easing themselves
at a close distance, he had, at one point,
stated that Laxman was easing himself in
the fields of Ramdayal and then he had
stated that in fact Laxman was easing
himself in the fields of Santram Mishra and
thereafter he had stated that he was around
4-6 steps away from him. He has stated that
Laxman Singh had reached the fields to
ease himself before he had gone. After they
had eased themselves, they heard the
sounds which were created because of the
scuffle which was going on between the
deceased and the accused persons. He has
stated that the place of incident was around
30-40 steps away from the place where
they were easing themselves. He has
thereafter upon a question being asked as to
whether he had seen the entire incident
from where he was easing himself, he had
replied that in fact he had not seen the
incident from the place where he was
easing. He further stated that when he had
reached the place where Laxman Singh was
easing himself, then from there he had seen
the incident which was around 25 steps
away from the place of incident. He has
again stated that he had not brought the
torch which he was using on that date. He
has also stated that the axe was being used
by Kisna whereas the other accused Ram
Babu had actually throttled the deceased to
death.

8. PW-4 is the eye-witness, Laxman
Singh and he, in his examination-in-chief,
has stated that he had known Ram Babu,
the accused, from before. He has also stated
the same story with regard to the fact that
he had seen the incident from a distance
while he had gone to ease himself in the
late hours of 21.11.1982. He has stated that
9 All. Ram Babu Vs. State of U.P.
257
in fact he had seen Kisna assailing the
deceased by an axe and Ram Babu
throttling the deceased to death and he had
also stated in his examination-in-chief that
the accused persons were making it clear
that if anybody went near them then they
would also be done to death. He has stated
that he had also seen the accused persons
dragging the dead-body of Jagram. He
has also stated that when a hue and cry
was raised by the eye-witnesses then
Rajendra, Takdeer Singh, Bhagirath,
Samrath Singh and a few others had also
reached the place of incident. He has
stated that he had himself told about the
entire incident to the first informant,
Takdeer Singh. He has also stated that
when they had followed the accused
persons then they had heard something
been thrown into the well and thereafter
they
had
stopped
the
pursuit
of
apprehending the accused persons. In the
cross-examination, he has stood affirm
with
what
he
had
stated
in
the
examination-in-chief. When a question
was being asked as to whether there was
any enmity between the PW-3 and the
deceased because of some business of
crackers etc., then he had denied the
same. He has stated that his torch had
got damaged and, therefore, he had not
brought it. He had also stated that when
the
dead-body
was
being
dragged
towards the well, he himself alongwith
10-15 people had followed the accused
persons. After they had tried to follow
the accused for around a furlong, they
had dropped the idea as it was a dark
night. He has also stated that the well
was around two furlong away from the
agricultural fields of Mulayam Singh.

9. PW-5 Kailash Nath Tiwari was the
Investigating Officer who had scribed the
chick and had also proven the same.

10. Thereafter, the statement of the
accused, Ram Babu was recorded under
Section 313 Cr.P.C. and he had denied that
he was not responsible for the crime.

11. Upon the conclusion of the trial,
when the Sessions Judge, Jalaun at Orai on
23.05.1983 convicted the accused Ram
Babu under Section 302 read with Section
201 IPC and punished the appellant under
Section 302 IPC with life imprisonment
and under Section 201 IPC with a rigorous
imprisonment of two years, the instant
Criminal Appeal was filed.

12. Sri Rajiv Nayan Singh, who was
appointed as an Amicus Curiae to argue the
case on behalf of the appellant, has argued
that the appellant Ram Babu was innocent.
He has made the following submissions :-

(i) Learned Amicus Curiae has
submitted that the FIR was an ante-dated
one. He has submitted that in the FIR itself
the first informant had made a statement
that the dead-body was thrown into the well
and this he had stated on the information
being given by Mulayam Singh and
Laxman Singh. However, learned Amicus
Curiae has drawn the attention of the Court
to the Panchayatnama which is annexed at
page no. 30 of the paper book and he has
read out the statements made in the
Panchayatnama that the Constable Prem
Shankar Shukla had come to the spot and
he upon tracking down till the well with the
help of the marks which were made on the
ground because of the dragging of the dead
body, had found out the body. Learned
Amicus Curiae, therefore, states that it was
for the first time that the dead-body was
traced out i.e. when the Police Official
Prem Shankar Shukla had come to the
village. Learned Amicus Curiae states that
wrongly in the FIR, it had been stated that
the first informant was aware of the fact
258 INDIAN LAW REPORTS ALLAHABAD SERIES
that the dead-body had been dragged down
from the place of incident to the well.
Learned Amicus Curiae states that it was
for the first time, the prosecution had got
information as to where exactly the body
was lie when the Police had come and had
tracked down the dead body with the help
of the marking which was there on the
ground which started from the alleged
place of incident and ended at the well and,
therefore, learned counsel for the appellant
states that it was impossible for the first
informant to have known at the alleged
time of lodging the FIR that he had known
about the fact that the dead-body was
thrown into the well. Had the FIR been in
existence then the Police which had come
on 22.11.1982 after the lodging of the FIR
at 07:05 AM, would not have endeavoured
to search out the dead-body. They would
have,
as
per
the
first
informant,
immediately reached the well which was
situate in the fields of Sri Dixit and would
have found out the dead-body. Learned
Amicus Curiae further states that if the FIR
was being scribed on the dictation of the
first informant Takdeer Singh by Mulayam
Singh, then the language as was there in the
FIR would have been slightly different. In
the FIR, the eye-witness Mulayam Singh
who himself had scribed the FIR, would
not have contained such averments which
were being known for the first time by the
eye-witness Mulayam Singh.

(ii)
Learned
Amicus
Curiae
further states that Mulayam Singh who was
an educated person and had known about
the incident on the night of 21.11.1982,
would not have waited till the next day for
the brother of the deceased to have got the
FIR lodged. He would himself have
reached the Police Station and would have
lodged the FIR.

(iii) Learned Amicus Curiae
further states that no material relating to the
incident was at all found. The torch was
nowhere to be seen. The playing cards,
which allegedly were being used for
gambling, were also not recovered.

(iv) Learned Amicus Curiae has
thereafter stated that the PW-3 and PW-4
were also not the eye-witnesses. They were
only chance witnesses. To bolster his case,
learned Amicus Curiae has stated that a
chance witness is such a witness who is
only planted by the prosecution to prove a
point. In the instant case, if the eyewitnesses had been there on the spot and
had they seen the incident, as they had
narrated in the statement-in-chief before the
trial Court, then they would themselves
have taken action upon seeing the murder
having taken place in the village but since
they had actually not seen the incident, they
were planted by the prosecution to only
prove the point that the implicated persons
had
actually
committed
the
murder.
Learned Amicus Curiae relied upon a
decision of the Supreme Court in (2023) 2
SCC 352 : Manoj and Ors. vs. State of U.P.
and has submitted that a chance witness
cannot be taken to be a reliable witness and,
therefore, the testimony of a chance witness
could not be in any manner used to convict
the accused. Learned counsel for the
appellant states that as per the law laid down
by the Supreme Court a testimony of a
chance witness should be utilised by the
prosecution very cautiously. He submits that
the evidence of the chance witness requires a
very cautious and strict scrutiny and if there
was any slackness in the explanation about
the presence of the chance witness at the
place of incident then his deposition ought to
be rejected. Since learned counsel for the
appellant relied heavily on paragraphs 102,
103 and 104 of the judgment reported in
(2003) 2 SCC 353 : Manoj & Ors. vs. State
of Madhya Pradesh, the same are being
reproduced here as under :-
9 All. Ram Babu Vs. State of U.P.
259

"102. A chance witness is one,
who appears on the scene suddenly. This
species of witness was described in Puran
v. State of Punjab (AIR 1953 SC 459), in
the following terms:

"Such witnesses have the habit of
appearing suddenly on the scene when
something is happening and then of
disappearing after noticing the occurrence
about which they are called later on to give
evidence."

103. This court has sounded a
note of caution about dealing with the
testimony of chance witnesses. In Darya
Singh v. State of Punjab (AIR 1965 SC
328), it was observed that:

"...where the witness is a close
relation of the victim and is shown to share
the victim's hostility to his assailant, that
naturally makes it necessary for the
criminal courts examine the evidence given
by such witness very carefully and
scrutinise all the infirmities in that evidence
before deciding to act upon it. In dealing
with such evidence, Courts naturally begin
with the enquiry as to whether the said
witnesses
were
chance
witnesses
or
whether they were really present on the
scene of the offence......If the criminal
Court is satisfied that the witness who is
related to the victim was not a chancewitness, then his evidence has to be
examined from the point of view of
probabilities and the account given by him
as to the assault has to be carefully
scrutinised."

104. In Jarnail Singh v. State of
Punjab [(2009) 9 SCC 719] again, this
Court held that:

"22. The evidence of a chance
witness requires a very cautious and close
scrutiny and a chance witness must
adequately explain his presence at the place
of occurrence (Satbir v. Surat Singh (1997)
4 SCC 192 30, Harjinder Singh v. State of
Punjab
(2004)
11
SCC
253,
Acharaparambath Pradeepan and Anr. v.
State of Kerala (2006) 13 SCC 643 and
Sarvesh Narain Shukla v. Daroga Singh
(2007) 13 SCC 360). Deposition of a
chance witness whose presence at the place
of incident remains doubtful should be
discarded (vide Shankarlal v. State of
Rajasthan (2004) 10 SCC 632)."

Since the learned counsel for the
appellant also relied upon paragraphs 22 to
24 of the judgment reported in (2016) 16
SCC 418 : Harbeer Singh vs. Sheeshpal
& Ors., the same are being reproduced
here as under :-

"22. The High Court has further
noted that there were chance witnesses
whose statements should not have been
relied upon. Learned counsel for the
respondents has specifically submitted that
PW5 and PW6 are chance witnesses whose
presence at the place of occurrence was not
natural.

23. The defining attributes of a
"chance
witness"
were
explained
by
Mahajan, J., in Puran v. State of Punjab,
AIR 1953 SC 459. It was held that such
witnesses have the habit of appearing
suddenly on the scene when something is
happening and then disappearing after
noticing the occurrence about which they
are called later on to give evidence.

24. In Mousam Singha Roy v.
State of W.B., (2003) 12 SCC 377, this
Court discarded the evidence of chance
witnesses while observing that certain
glaring contradictions/omissions in the
evidence of PW 2 and PW 3 and the
absence of their names in the FIR has been
very lightly discarded by the courts below.
Similarly,
Shankarlal
v.
State
of
Rajastahan, (2004) 10 SCC 632 and
Jarnail Singh v. State of Punjab, (2009) 9
SCC 719, are authorities for the proposition
that deposition of a chance witness, whose
260 INDIAN LAW REPORTS ALLAHABAD SERIES
presence at the place of incident remains
doubtful, ought to be discarded. Therefore,
for the reasons recorded by the High Court
we hold that PW5 and PW6 were chance
witnesses and their statements have been
rightly discarded."

Similarly, paragraphs 20 to 23 of
the judgment of the Supreme Court in
Jarnail Singh & ors. vs. State of Punjab
reported in (2009) 9 SCC 719 are also
being reproduced here as under :-

"20. After considering the oral as
well as documentary evidence on record,
the High Court came to the conclusion that
the statement of Gurcharan Singh (PW-18)
in respect of the fact of hatching of a
conspiracy by Balbir Singh and Gurdip
Singh, at the Bus-stand Bassi Pathana on
21-6-2000 at 7.30/8.00 p.m. was not
worthy of credence. Gurcharan Singh (PW18), a chance witness could not explain
under what circumstances he was present at
the bus-stand at the said time.

21. In Sachchey Lal Tiwari v.
State of U.P. (2004) 11 SCC 410, this Court
while considering the evidentiary value of
the chance witness in a case of murder
which had taken place in a street and
passerby had deposed that he had witnessed
the incident, observed as under:

"If the offence is committed in a
street only a passer-by will be the witness.
His evidence cannot be brushed aside
lightly or viewed with suspicion on the
ground that he was a mere chance witness.
However, there must be an explanation for
his presence there."

The Court further explained that
the
expression
"chance
witness"
is
borrowed from countries where every
man's home is considered his castle and
everyone must have an explanation for his
presence elsewhere or in another man's
castle. It is quite unsuitable an expression
in a country like India where people are
less formal and more casual, at any rate in
the matter of explaining their presence.

22. The evidence of a chance
witness requires a very cautious and close
scrutiny and a chance witness must
adequately explain his presence at the place
of occurrence (Satbir v. Surat Singh (1997)
4 SCC 192; Harjinder Singh v. State of
Punjab
(2004)
11
SCC
253;
Acharaparambath Pradeepan & Anr. v.
State of Kerala (2006) 13 SCC 643; and
Sarvesh Narain Shukla v. Daroga Singh
and Ors. (2007) 13 SCC 360). Deposition
of a chance witness whose presence at the
place of incident remains doubtful should
be discarded (vide Shankarlal v. State of
Rajasthan (2004) 10 SCC 632).

23. Conduct
of
the
chance
witness, subsequent to the incident may
also be taken into consideration particularly
as to whether he has informed anyone else
in the village about the incident. (vide
Thangaiya v. State of Tamil Nadu (2005) 9
SCC 650). Gurcharan Singh (PW-18) met
the informant Darshan Singh (PW-4)
before lodging the FIR and the fact of
conspiracy was not disclosed by Gurcharan
Singh (PW-18) and Darshan Singh (PW-4).
The fact of conspiracy has not been
mentioned in the FIR. Hakam Singh, the
other witness on this issue has not been
examined by the prosecution. Thus, the
High Court was justified in discarding the
part of the prosecution case relating to
conspiracy. However, in the fact situation
of the present case, acquittal of the said two
co-accused has no bearing, so far as the
present appeal is concerned."

Paragraph 10 of the judgment
reported in 1976 Criminal L.J. 1568 :
Bahal Singh vs. State of Haryana is also
being reproduced here as under :-

"10. As to the presence of P. Ws.
4 and 5 at the time and place of occurrence
the trial Court entertained grave doubts. If
9 All. Ram Babu Vs. State of U.P.
261
by coincidence or chance a person happens
to be at the place of occurrence at the time
it is taking place, he is called a chance
witness. And if such a person happens to be
a relative or friend of the victim or
inimically disposed towards the accused
then his being a chance witness is viewed
with suspicion. Such a piece of evidence is
not necessarily incredible or unbelievable
but does require cautious and close
scrutiny. In the instant case, P.Ws. 4 & 5
were agnatic relations of the deceased-one
of them a close one. The reason given by
them for being at the place of occurrence
did not appear to be true to the trial Court.
There was not any compelling or sufficient
reason for the High Court to differ from the
evaluation of the evidence of the two
chance witnesses. It may well be as
remarked by the High Court that the
respondent was also their collateral but
they appeared to be partisan witnesses on
the side of the prosecution and hence their
testimony was viewed with suspicion by
the trial Judge."

13.

Sri
Amit
Sinha,
learned
Additional Government Advocate has,
however, supported the judgment of the
trial court and submitted that the case was
that of a direct evidence based on the eyewitness account of PW-3 and PW-4 and the
eye-witness account could not be done
away lightly.

14. Having heard Sri Rajiv Nayan
Singh, learned Amicus Curiae and Sri Amit
Sinha, learned Additional Government
Advocate, we find upon the assessment of
all the evidence that definitely the FIR was
an ante-timed FIR. Had the prosecution
known about the fact that the dead-body
had been dragged from the spot 'B' and
'C', as had been given in the site plan, to
the village well marked as point 'F' which
was around 440 yards (two furlongs) away,
then there was absolutely no requirement
for the Investigating Police to have come to
the spot after the FIR was lodged and
thereafter searched for the dead-body as
had been stated in the inquest report.
Further we are of the view that had the
incident which has been narrated in the FIR
been definitely witnessed by the eyewitnesses, then the FIR itself would have
been lodged only under Section 302 IPC
and there would not have been any doubt
with regard to the fact as to where the deadbody had been thrown and, therefore, the
FIR would not have been lodged under
Section 201 IPC.

15. In the instant case, we do not
hesitate to conclude that till such time as
the Police had come, it was not known to
anyone as to where the dead-body was and
after the investigation had taken place and
Police had recovered the dead-body, the
FIR was lodged and, thereafter, pursuant to
a definite conference between the first
informant and the Police, the accused
appellant was named in the FIR. It is just
possible that there was some dispute with
regard to some accounting with regard to
the cracker business which was being done
by the deceased and therefore, the first
informant and the two eye-witnesses
namely Laxman Singh and Mulayam Singh
had ganged together to implicate the
appellant in the instant case. We are
definitely of the view that when all the eyewitnesses were mentioning that quite a few
people of the village had collected at the
place of incident and in fact PW-1 had
taken the names of Mata Prasad, Jahar
Singh, Mukut Singh, Ram Babu Singh S/o
Kandhai, Vasdev and other villagers and
PW-4 had taken the names of Rajendra,
Takdeer Singh, Bhagirath, Samrath Singh
but none of these villagers who were as per
262 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-1 and PW-4, eye-witnesses present had
come to the witness box. We do find that
Mulayam Singh, Laxman Singh and the
first informant though were not of the same
family but definitely were close to each
other and, therefore, they had ganged
together to implicate the accused, Ram
Babu. Further, we are of the view that
when the investigation was being done and
it was alleged that gambling was done with
the help of playing cards then at least an
effort ought to have been made to recover
the playing cards and to keep them in
police custody. Neither the playing cards
had been taken into custody nor any of the
torches in the light of which the incident
was seen, were taken into custody.

16. We are definitely, therefore, of the
view that there are any number of lapses in
the prosecution story and the prosecution
case thus becomes doubtful. Also, we find
that nowhere was the currency etc., which
it was alleged was won in the gambling by
the deceased, recovered.

17. Under such circumstances, the
charges as were framed against the accused
appellant
were
not
proved
beyond
reasonable
doubt
and,
therefore,
the
accused cannot be held guilty and,
therefore, we acquit him of all the charges
levelled against him.

18. The appeal therefore, stands
allowed. The impugned judgment and order
dated 23.05.1983 passed by the Sessions
Judge, Jalaun at Orai is set-aside. The
appellant, Ram Babu, is on bail. He need
not surrender. The sureties and the bail
bonds are discharged.

19. We do appreciate the hard work
done by the learned Amicus Curiae Sri
Rajiv Nayan Singh and provide that he
would be paid a fee of Rs.25,000/- by the
High Court Legal Services Authority. The
Registrar General of this Court to see that
this order for the payment of the fee to the
learned Amicus Curiae is complied with.
----------
(2024) 9 ILRA 262
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.09.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 2217 of 2023

Kamal K.P. ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sheeran Mohiuddin Alavi, Harsh Vardhan
Kediya

Counsel for the Respondents:
G.A.

(A)
Criminal
Law
-
The
National
Investigation Agency Act, 2008 - Section
21(4) - Appeal - Indian Penal Code, 1860 -
Sections 153-A, 295-A, 124-A & 120-B -
The Unlawful Activities (Prevention) Act,
1967 - Section 17 & 18 , The I.T.
(Amendment) Act, 2008 - Section 65 & 72,
The Code of Criminal Procedure, 1973 -
Section 167(2) - Default bail - Statutory
Right -Indefeasible Right - Article 21 -
Liberty - Right of default bail under
Section 167(2) of CrPC is not only a
statutory right but is a right that flows
from Article 21 of the Constitution of India
- It is an indefeasible right, nonetheless it
is enforceable only prior to the filing of
the challan or the charge-sheet and does
not survive or remain enforceable on the
challan being filed, if already not availed
of - Right to life & personal liberty can
only
be
confined
by
following
due