# Vinod Kumar & Anr v. State of U.P

- **Citation:** (2024) 3 ILRA 1600
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-24
- **Case number:** Criminal Appeal No. 826 of 1986
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-anr-v-state-of-u-p-51559
- **Pages:** 13

## Headnote

Law
-
Appeal
Against
Conviction - Indian Penal Code, 1860 -
Section
302
-
murder
-
Doubt
on
Prosecution's Case - Hostile Witnesses -
Reliability of Witnesses and Interpolation
in
Panchayatnama
-
Absence
of
Identification Parade - Dock Identification
-Doubt on Witness Presence at Crime
Scene - Indian Evidence Act, 1872 -
Section 154 - Party calling its own
witnesses may claim permission of the
Court to cross-examine them -
Mere fact that a witness is declared
hostile by the party calling him and
allowed to be cross-examined does not
3 All. Vinod Kumar & Anr. Vs. State of U.P.
1601
make him as unreliable witness so as to
exclude his evidence from consideration
altogether. (Para -18)

Appellant was convicted of murder - case
involved long-standing enmity - prosecution's
main witness, PW-1, alleged that appellant and
accomplices killed his father - due to prior
disputes
-
Witness
reliability,
timing
discrepancies, Interpolation in Panchayatnama
timing and absence of family members as
witnesses raised doubts - lack of a test
identification parade raised doubts about the
prosecution's case. (Paras 2-15, 20,21)

HELD: - Conviction of appellant was set aside
due to doubts regarding prosecution's case,
unreliable witness testimony and procedural
discrepancies in the Panchayatnama and postmortem handling. (Paras - 20 to 23)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,879 of 45,505. This is a partial read: ask again with offset=39879 for what follows._

1600 INDIAN LAW REPORTS ALLAHABAD SERIES

60. Thus, we find unbroken line of
authorities to the effect that the evidence of
eye-witness, if found forceful, can not be
discarded simply because witness is a
relative of the deceased. The only caveat is
that the evidence of interested witnesses
should be subjected to careful scrutiny and
accepted with caution. Thus, close scrutiny
of testimony of eye-witness shows that they
witnessed the incident, in question. The
evidence of P.W.-4 Dr. P.K. Jain, who
conducted the post-mortem and postmortem report also points out conclusively
to the culpability of the appellants for
commission of the offence.

61. It is trite law that in case of direct
evidence, the motive looses its significance.
If the evidence of the eye-witness is
trustworthy, there is no need to establish
any motive.

62. Thus, from the statements of the
witnesses adduced during the course of
trial, we are satisfied that the offence of
murder has been committed by the
appellants. We have carefully gone through
the impugned judgment and order of the
trial court and satisfied that the trial court
has appreciated the entire evidence on
record in proper perspective and learned
counsel for the appellants could not point
out any perversity in the finding of the trial
court.

63. Thus, we do not find any
infirmity, illegality or perversity in the
impugned judgement dated 15.01.2004
upholding conviction and sentence against
the appellants, by the trial court in Sessions
Trial No. 626 of 2000 (State Vs. Lala Ram
and Others), under Sections 147, 148,
302/149 IPC. The instant criminal appeal
lacks merit and is accordingly dismissed.
Surviving appellants, namely, Ram Naresh,
Narottam,
Mahima
@
Mahipal
and
Karamveer are directed to surrender before
the court below and serve out the sentence
awarded to them by the trial court and
affirmed by this Court.

64. Let a copy of this judgment and
order be forwarded to the court concerned
along
with
trial
court
record
for
compliance.
----------
(2024) 3 ILRA 1600
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.01.2024

BEFORE

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

Criminal Appeal No. 826 of 1986

Vinod Kumar & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.K. Saxena, Sri Akhilesh Chandra Shukla, Sri
R.R. Singh

Counsel for the Respondent:
D.G.A.

(A)
Criminal
Law
-
Appeal
Against
Conviction - Indian Penal Code, 1860 -
Section
302
-
murder
-
Doubt
on
Prosecution's Case - Hostile Witnesses -
Reliability of Witnesses and Interpolation
in
Panchayatnama
-
Absence
of
Identification Parade - Dock Identification
-Doubt on Witness Presence at Crime
Scene - Indian Evidence Act, 1872 -
Section 154 - Party calling its own
witnesses may claim permission of the
Court to cross-examine them -
Mere fact that a witness is declared
hostile by the party calling him and
allowed to be cross-examined does not
3 All. Vinod Kumar & Anr. Vs. State of U.P.
1601
make him as unreliable witness so as to
exclude his evidence from consideration
altogether. (Para -18)

Appellant was convicted of murder - case
involved long-standing enmity - prosecution's
main witness, PW-1, alleged that appellant and
accomplices killed his father - due to prior
disputes
-
Witness
reliability,
timing
discrepancies, Interpolation in Panchayatnama
timing and absence of family members as
witnesses raised doubts - lack of a test
identification parade raised doubts about the
prosecution's case. (Paras 2-15, 20,21)

HELD: - Conviction of appellant was set aside
due to doubts regarding prosecution's case,
unreliable witness testimony and procedural
discrepancies in the Panchayatnama and postmortem handling. (Paras - 20 to 23)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Rabindra Kumar Dey Vs St. of Orissa, AIR
1977 SC 170

2. Namdeo Vs St. of Maha., AIR 2007 SC (Supp)
100

(Delivered by Hon'ble Siddhartha Varma, J.
& Hon'ble Anish Kumar Gupta, J.)

1. Written Arguments submitted by
learned counsel for the appellant be kept on
record.

2. When on 2nd December, 1979,
Virendra Kumar was shot dead, a First
Information Report allegedly was got
lodged on 02.12.1979 at 02:30 pm. The
first informant was one Girish Kumar, the
son
of
the
deceased.
In
the
First
Information Report, it has been stated that
the first informant was belonging to Mauja
- Gandhaur P.S. - Chandpur, District -
Bijnor. He has stated that in the year 1977
when the elder brother of his father one Sri
Bhupendra
Kumar
was
killed
by
Radheyshyam etc. then there were a case
contested by Radhyshyam in which he was
acquitted. Thereafter in the year 1978,
Radheshyam himself was killed. For the
murder of Radheyshyam, Virendra Kumar,
the father of the First Informant, Harendra
Kumar,
Atul,
Surendra
Kumar
and
Dushyant, were named as accused and ever
since then Radheyshaym's brother Vinod
Kumar and others were inimical to
Virendra Kumar the father of the First
Informant and they were always in the look
out for taking revenge of the death of
Radheyshaym. He has stated in the First
Information Report that around 15 days
prior to the incident, Narayan @ Madan
resident
of
Meerapur,
District
-
Muzaffarnagar and the Pradhan of the
village Om Prakash had contacted the
father of the first informant and had stated
that the date in the case of the murder of
Radheyshaym
was
approaching
and
insisted that a compromise could be entered
into
between
the
parties.
The
first
informant specifically took the name of
Vinod Kumar and said that the compromise
could be entered into between Virendra
Kumar and Vinod Kumar who was the
brother of Radhey Shyam. It has further
been stated that Vinod was a teacher in
Shiv Inter College, Gajraula. Still further, it
has been stated that Om Prakash had taken
the first informant to Gajraula for a meeting
with Vinod Kumar. There, he could not
meet Vinod Kumar. Later Narayan and Om
Prakash told him that on 2.12.1979 it was
Sunday and they had to bring Virendra and,
thereafter, a compromise could be entered
into and, their matter with regard to the
murder case vis-a-vis Radheyshyam would
be settled between the parties. When
Girish, the first informant, told these
happenings to his father Virendra, he did
not agree with Girish and said that now the
1602 INDIAN LAW REPORTS ALLAHABAD SERIES
date with regard to the case of the murder
of Radhey Shyam was approaching and
that he was also busy with the business of
crushing and therefore no meetng could
take place. Thereafter, it has further been
stated that on 2.12.1979 despite the fact
that the father of first informant had not
agreed to meet Vinod etc. for the purpose
of conciliation, Om Prakash and Narayan
reached the house of Virendra and he was
taken from Gajraula to meet Vinod Kumar.
The first informant has further stated that
along with Om Prakash and Narayan, the
first informant had also gone to meet
Vinod. He has stated that along with Om
Prakash and Narayan, Som Prakash son of
Radhey Shyam residents of Bareilly and
Subhash son of Roop Kishore resident of
Bijnor had headed for Gajraula. Narayan
had asked the first informant and all the
other persons who had accompanied him to
Gajraula to sit at the Almora Hotel, station
road, Gajraula and, thereafter, he went
away to call Vinod. It has been stated that
while these persons were having tea, from
the northern side, at around 2:00pm, Vinod
armed with a gun and Narayan armed with
a country made pistol approached the five
of them, namely, Virendra, Girish, Om
Prakash, Som Prakash and Subash.

3. Om Prakash instigated Vinod to kill
Virendra and, thereafter, both of them i.e.
Narayan and Vinod fired at Virendra, the
father of the first informant, who fell down.
Vinod and Narayan, thereafter ran away
from the spot, but despite the fact that they
were
followed,
they
could
not
be
apprehended. Upon unsuccessfully having
tried to catch hold of the assailants, the first
informant returned to the spot and over
there he found that Om Prakash had also
disappeared. He, therefore, stated that in a
planned manner his father was brought to
the place of the incident and was killed by
Narayan, Vinod and Om Prakash. He had,
thereafter, has stated that he left the dead
body on the spot and had gone to the Police
Station to get the first information report
lodged.

4. Investigation, thereafter, ensued.
Panchayatnama was got prepared and in the
Panchayatnama, it had been stated that it
commenced at 3:00PM on 2.12.1979 in the
presence of 5 witnesses, namely, Trilok
Singh s/o Ram Singh, Dev Singh son of
Ram Singh, Mangal Singh son of Khushal
Singh, Jaipal Singh s/o Dayaram and
Mahendra Singh s/o Phool Singh. The first
three witnesses had given out as residents
of Almora Hotel, Station Road, Gajraula,
while Jaipal Singh son of Dayaram Singh
were a resident of Salempur, Police Station
- Gajraula and Mahendra Singh son of
Phool Singh had been described as resident
of Mandi, Ghanaura, Bahraich. Thereafter,
from the spot, the Investigating Officer
kept in his custody, three articles found
there, namely, one pair of shoes, a pair of
socks and a coat which was blood stained.
These were worn by the deceased. The
recovery memo was exhibited as exhibit -
Ka.11. Also the plain soil and blood stained
soil were taken from the spot and a
recovery memo was prepared and exhibited
as Exhibit -ka.13. The recovery memo of
empty cartridges was also prepared and
exhibited as Exhibit - ka 14.

5. From the record, we find that the
post-mortem, thereafter, was conducted on
3.12.1979 at 3:30pm. The investigation
after having been completed, a police
report was submitted before the Magistrate
who took cognizance on 15.1.1980 and
forwarded the same before the Sessions
Judge for trial on 1.9.1980. Charges were
framed against Vinod Kumar & Narayan @
Madan under Section 302 IPC and against
3 All. Vinod Kumar & Anr. Vs. State of U.P.
1603
Om Prakash, the charges was framed under
Section 302/34 IPC. When they denied the
charges, trial commenced. From the side of
the prosecution 7 witnesses appeared.

6. P.W. - 1 was the first informant
Girish Kumar; P.W. - 2 was Som Prakash
son of Radhey Shyam; P.W. - 3 was Dr.
Naveen Chandra; P.W. - 4 was Dev Singh;
P.W. - 5 was Suresh Chandra; P.W. - 6 was
Subhash and Chandra Pal who was the
Investigating Officer was produced as P.W.
- 7.

7. The trial when was concluded, the
7th Additional Sessions Judge on 5.3.1986
acquitted Narayan but convicted Vinod
Kumar under Section 302 IPC and Om
Prakash under Section 302/34 IPC and
sentenced them to life imprisonment.
Aggrieved thereof, the two accused,
namely, Vinod Kumar and Om Prakash
filed the instant Criminal Appeal.

8. It has been stated that the appellant
no. 2, Om Prakash, died during the
pendency of the Appeal and, therefore, the
Appeal against the appellant no. 2, Om
Prakash, abated on 2.5.2019. The appellant
Vinod too had died but this Court by the
order dated 2.5.2019 permitted the wife of
the appellant Vinod Kumar, namely, Smt.
Sushma Sharma, under Section 394 (2)
Cr.P.C. to continue the Appeal.

9. P.W. - 1 in his statement-in-chief
has proved the first information report and
he has reiterated the facts as were
mentioned in the first information report.
He has tried to establish the place of
incident i.e. the Almora Hotel and has
narrated the facts as had, according to him,
taken place. The P.W. - 1 in the crossexamination has stated that he had not
mentioned this fact in his first information
report that Om Prakash was with Radhey
Shyam in the election of Pradhan. He has
stated that in the murder of Radhey Shyam
his father was wrongly implicated. He has
further stated that Ramesh had got the first
information report lodged with regard to
the murder of Radhey Shyam against his
father Virendra. He has stated that because
of the implication of his father in the case,
his father had to suffer a lot and he had also
to remain in jail for quite sometime and had
to
contest
the
case.
He
has
very
categorically stated that Vinod Kumar was
neither the first informant in the murder
case of Radhey Shyam and nor was he a
witness in it. He has further stated that at
the time, when the murder of Radhey
Shyam had taken place, Girish Kumar, the
first informant was studying in Kanpur. He
has also stated very categorically that in the
talks which were initiated for settling the
murder case with regard to Radhey Shyam
around 15 days prior to the incident, the
other accused in Radheyshyam murder
case, namely, Surendra, Harendra and Atul
had not participated and that on the date of
incident also they had not come. He has
also stated that nobody had brought to the
fore that, in a murder case, no compromise
could take place. He has stated that on the
date of the incident, the father of the first
informant and others, namely, Om Prakash,
Narayan, Subhash and Som Prakash had
started from Gandhaur which was his
village. Subhash and Som Prakash, he has
also stated, were not related to either of the
parties. Narayan, he submits, also was not
having any relation with any of the parties.
He has stated that he had also accompanied
the others alongwith his father. They had
started from Gandhaur at around at around
9:45 AM on 2nd December, 1979 and had a
mind to come back on the same night.

10. This witness has further tried to
give credence to the story as was narrated
1604 INDIAN LAW REPORTS ALLAHABAD SERIES
in the first information report and has stated
that on the date of incident he alongwith his
father, Om Prakash, Narain, Subhash and
Som Prakash started from Gandhaur,
reached their sister's house where they had
taken food which was packed with them
with tea which was prepared by their sister.
Thereafter, it has been stated that they had
got down from the bus at the bus stand
which was situate near the place of
incident. Upon a question being asked as to
whether Virendra had travelled to the place
of incident alone, he denied. He reiterated
that the Roadways Bus Stand was 35 steps
away from the Hotel. He had stated that the
Restaurant was a full fledged Restaurant
and that the tables were laid from east-west
and that the chairs were placed in such a
manner that the occupants either faced the
north or the south and that the occupants
i.e. five persons who had reached the Hotel
were sitting facing southwards and it has
been stated that apart from the six persons
i.e. the father and five others no one else
was sitting there. Thereafter, he has tried to
give the position as to in what manner the
six occupants were sitting. He has stated
that the Tehrir (report) was written while
the informant was sitting at the Hotel on
the paper which he had obtained from the
Hotel itself. He has further stated that he
reached the police station on a Rickshaw
and that the police station was around one
furlong away from the place of incident. He
has specifically denied the fact that he was
called later on at the spot and that he was
not there at the time of incident at all. He
has also stated that Virendra, before the
incident, had smoked a Biri and the Biri
must have fallen down at the place of
incident. He has stated that the police had
taken the dead body to the police station
but he was not aware that how long the
dead body was lying at the police station.
However, he has stated that he had left the
police station at 4 p.m. for his home. The
first informant had stated that prior to the
incident he was living in Kanpur but at the
time when the incident had taken place he
had returned to his village after completion
of his educational course at Kanpur. He had
then stated that he had done M.Sc. in the
year 1978 and that he had returned to the
village around 6 - 7 months prior to the
death of his father.

11. P.W.-2 Som Prakash was the
person who had allegedly accompanied
Girish, Virendra, Om Prakash and Narain to
the place of incident. In his deposition, he
had stated that he had no knowledge about
the incident and that in fact he did not
know the three accused persons. He was
thereafter declared hostile.

12. P.W.-3 Dr. Naveen Chand Pandey
has proved the post mortem report.

13. P.W.-4 Dev Singh is allegedly the
owner of the Hotel. He had stated that he
was at the Hotel on the date and time of the
incident. He did not recognize the deceased
Virendra. He had stated that the incident
actually occurred outside his Restaurant.
He has also stated that he did not recognize
the assailants. He has also stated that the
Panchayatnama was not prepared in his
presence and that his signature were
obtained at the police station. He was
declared hostile but was cross examined by
the prosecution and he stood firm in his
cross examination about what he had stated
in his chief. However, in the cross
examination done by defence counsel, he
had stated that his shop was called Laxmi
Mishthan Bhandhar. He has further stated
that the person who had died had come
from the side of Gajraula station and had
come all alone and that he was not
accompanied by anyone.
3 All. Vinod Kumar & Anr. Vs. State of U.P.
1605

14. P.W.-5 is Suresh Chand, Constable
and has deposed that he reached the place
of incident at around 4.30p.m. on 2.12.1979
and that he had remained at the place of the
Panchayatnama till the dead body was
sealed and that thereafter he had taken the
dead body on a vehicle of the Police to
Moradabad. He has stated that the vehicle
when had reached Rajjopur had developed
certain defects and therefore he had
reached Moradabad late. He has stated that
the
distance
between
Gajraula
and
Moradabad was of two hours and not of
one hour. He has further stated that
throughout the night he had stayed at
Rajjopur in the vehicle. The defects in the
machinery of the vehicle were rectified at
around 8.00 a.m. and thereafter vehicle had
proceeded from Rajjopur and reached
Moradabad at around 10.00 a.m. on
3.12.1979. He has specifically stated that at
the time of arrival, he had got his arrival
recorded in the General Diary but he has
specifically stated that he had not got
recorded in the General Diary the fact that
the vehicle had developed certain defects.

15. P.W. 6- Subhash is again the
person who had accompanied Virendra,
Girish, Om Prakash, Narayan and Som
Prakash to Gajraula. He has stated that
though he had known Virendra and Girish
but at the time of incident he was not with
them. He has also stated that he had not
seen the assailants. This witness was also
declared hostile but thereafter was crossexamined wherein he had denied all the
statement which he had got recorded under
section 161 Cr.P.C.

16. P.W. -7 Chandra Pal Singh,
Inspector is the Investigating Officer of the
case and he had stated that at the time of
incident he was posted as Station Officer,
Gajraula and that on 2.12.1979 Girish
Kumar had reached the police station to
lodge the first information report. He has
proved the chik FIR. He had also stated that
on the FIR being lodged he reached the
place of incident and had taken the dead
body in his custody and that he had deputed
S.I. Surat Singh and other persons to search
out the accused persons. He has further
stated
that
the
Panchayatnama
was
prepared in his presence and that he had
also sealed the dead body and had handed it
over to Constable Suresh Chandra for a
post mortem examination. He has stated
that he had prepared the site plan and had
seized all the articles that were there in the
recovery memos. He has stated that he had
taken the statements of Girish Kumar, the
informant, Dev Singh, Mohan Singh,
Triloki and Mangal and that on the next day
i.e. 3.12.1979 the statements of Som
Prakash, Subhash were also taken and that
the accused Narain and Om Prakash were
being searched for. He has stated that on
13.12.1979
the
accused
Vinod
had
surrendered himself and on 29.12.1979
charge sheet was submitted before the
court. In his cross examination he stood
firm to what he had stated earlier. However,
when he was specifically asked about the
overwriting which had taken place in the
Panchayatnama with regard to the time
when
the
proceedings
of
the
Panchayatnama were initiated, he has
stated that some ink had spread and
therefore it appeared that there was some
overwriting. He has denied that before
writing 0 after 3, 14 was written. He has
also denied the fact that before 3 was
written some other digit or figure was
written. When he was questioned about the
Thana and district being filled in different
ink he stated that the pen and the ink were
the same but because of the fact that the ink
in the pen was about to finish the shine in
the alphabets was different. He had stated
1606 INDIAN LAW REPORTS ALLAHABAD SERIES
that it is wrong to say that the name,
address and age of the deceased was
written by a different pen and the police
station and district were written by a
different pen. He has also denied the fact
that the crime number was written by a
different pen. He has stated that he was not
remembering that the first informant had
shown his hands smeared with blood. After
seeing the case diary he has stated that this
fact was not reduced in writing in the G.D.
He
had
specifically
stated
that
the
witnesses Som Dutt and Subhas had not
met him on the place and date of the
incident and that he had stated that these
witnesses had given their statements in the
police station on 3.12.1979. He has also
denied the fact that the FIR was actually
written on a date after 2.12.1979. He has
denied the fact that the Chief Judicial
Magistrate had passed any orders on the
application which had been filed by Vinod
Kumar and Narain which was for test
identification parade. He has also stated
that he had not got the test identification
parade done as the accused in the FIR were
named and that they were known to the
witnesses from before.

17. In the statements of the accused
persons recorded under section 313 Cr.P.C.
they have specifically denied having
committed the crime and had stated that
they were falsely implicated in the case due
to old enmity.

18. Learned counsel for the appellant
Sri Akhilesh Chandra Shukla has argued
that the conviction of Vinod Kumar was
wrongly done. In support of his argument,
he has made the following submissions :-

(i) The signature of the first
informant Girish Kumar on the Tehrir
(written report) is absolutely different from
the signature he had made in the statement
before the Court. For this purpose, learned
counsel for the appellant showed to the
Court the record. This record was also
shown to the learned AGA. Evidently, even
by naked eyes, one can make out that
definitely there were signatures in two
different styles and cannot, by any stretch
of imagination, be said to be of the same
person.

(ii) Learned counsel for the
appellant
has
stated
that
the
panchayatnama, if is perused, then the time
of commencement of the proceedings of
panachayatnama had been stated to be 3.00
PM. It does not stand to reason that how
when the incident had occurred at 2.00 PM
the First Information Report could be
lodged at 2.30 PM when the PW-5 had
stated in his statement before the Court that
he and P.W. - 7 had, in fact, reached the
place of incident much later. He states that
the place where the panchayatnama was
being performed was around 1 kilometer
away from the place of incident and,
therefore, immediately on their reaching
the spot, the panchayatnama proceedings
could not have commenced. He has further,
looking to the statement of PW-5, stated
that the PW-5-Suresh Chandra had actually
reached the spot at 4.30 PM along with the
Sub-Inspector Chandra Pal-PW-7. Since,
learned counsel for the appellant relied
heavily upon the statement of PW-5, which
is found at page 44 of the Paper-Book,
same is being reproduced here as under :-

"मैं करीव 4 1/2 वजे र्शाम मौके पर पहुांच गया था।
िरोगा चन्र पाल भी मेरे साथ थाने से गये थे उस विन 2.12.79
िारीख थी मुझे लार्श 4 1/2 वजे वमल गई थी खुि कहा हम मौके
पर पहले पहुाँच गये थे। मैं मौके पर जव िक पांचायिनामा भरा गया
व लार्श सील मोहर की गई िव िक रहा था करीव एक डेढ घन्टा
3 All. Vinod Kumar & Anr. Vs. State of U.P.
1607
मौके पर रहा होऊांगा। लार्श को मैं मौके से ही सवारी में रखकर
मुरािाबाि ले आया था यह सवारी पुवलस की वड़ी गाड़ी थी।"

(iii) Learned counsel for the
appellant to prove the fact that the PW-1
Girish Kumar was not there at the spot has
stated that had PW-1 been on the spot then
he would definitely have been a witness of
the panchayatnama. He has further stated
that Trilok Singh, Dev Singh, Mangal
Singh, Jaypal Singh and Mahendra Singh
were absolute outsiders and they had stated
in their statements that they had not even
recognised the deceased person. Learned
counsel, therefore, states that under such
circumstances how the name of the
deceased person was recorded in the
panchayatnama was also not known.

(iv) Learned counsel for the
appellant has stated that the panchayatnama
continued till 4.30 PM but the PW-1 had
left the spot at 4.00 PM. Learned counsel
relying upon the statement of PW-1, states
that this becomes evident as per paragraph
31 the statement of PW-1 which is at page
30 of the Paper-Book. The statement relied
upon by learned counsel for the appellant is
reproduced here as under :-

" odqvs के बाि 20-25 आिमी वहाां इकट्ठा हो गये थे।
जब गोली काण्ड हुआ िो हम सब चाये पी चुके थे व कप वगैरा
िुकान वाले ने उठा वलये थे। मेरे वपिा उस समय बीM+h पी रहे
थे। बीडी मेरे वपिा के हाथ में थी। मावचस व बीM+h बण्डल कहा
था मैं नहीं कह सकिा। बीM+h वहीं नीचे वगर गयी होगी। मैंने
िरोगा जी को वह बीM+h नही विखाई। लार्श को िरोगाजी थाने ले गये
थे थाने पर लार्श कब िक रही मुझे नही मालूम। मैं थाने से करीब 4
बजे र्शाम घर चला गया था। उस वक्त िक लार्श थाने पर ही थी।
थाने पर मेरे जाने से पहले न कोई वलखा पढी हुई न मेरे वकसी
कागज पर िस्िखि कराये। मुझे कोई कागज भी थाने से नही वमला।
खुि कहा नकल की रपट मुझे िी थी। थाने से जाने के कुि िेर पहले
ही िी थी।"

(v) Learned counsel for the
appellant
has
stated
that
if
the
panchayatnama is seen and if the location
which has been given of the dead body is
seen then it is evident that the dead body
was facing the northern direction but the
PW-1 in his statement has stated that the
dead body was facing the south. Since,
learned counsel for the appellant has relied
upon paragraph 23 of the statement of PW1, the relevant portion of it, is being
reproduced here as under :-

िवखन को हमारा मुांह था। हम ि (6) आिवमयों के
अलावा उस मेज पर कोई नही बैठा था। । जो पक्की सडक स्टेर्शन
को जािी है उसके पूरब िरफ यह मेज पड़ी थी। सडक से मेज
वकिनी िूर थी मुझे ध्यान नही। यह मेज सड़क व होटल के बीच में
पडी थी। हम सभी िओां जने बराबर 2 िवखन को मुांह वकये बैठे थे

(vi) Learned counsel for the
appellant has stated that from the recovery
of the empty cartridges, it can be made out
that only one bullet was fired but there
were in fact 4-5 injuries.

(vii) Learned counsel for the
appellant has stated that the details of the
deceased were written in a different ink and
the ink in which the police station and the
district were written were very different.
This fact, he says, if is taken into
consideration then it could mean that the
name and the details of the deceased were
filled in later after P.W. - 1came on the
spot.

(viii) Learned counsel for the
appellant has stated that the police after had
submitted the charge sheet on 29.12.1979,
the Magistrate had taken cognizance of the
crime on 15.1.1980 and before that, on
21.12.1979, on the application of Vinod
Kumar and Narayan which says that Girish
Kumar did not recognize them, an order
was passed that a test identification parade
be done. He, however, submits that this test
identification parade was never conducted.

(ix) Learned counsel for the
appellant has further stated that if the
statement of Girish Kumar (P.W.-1) is
perused, then also it becomes evident that
he had never stated that he had recognized
the accused Vinod Kumar and Narayan
1608 INDIAN LAW REPORTS ALLAHABAD SERIES
who were present in the Court i.e. to say
that there was also no dock identification of
the accused Vinod Kumar and Narayan.
This non-recognition makes the case very
doubtful and it gives credence to the fact
that, in fact, the first informant was not
present at the spot.

(x) Learned counsel for the
appellant has further submitted that if the
First Information Report is perused, it
becomes evident that the First Information
Report has gone into such minute details
the recording of which is highly unlikely.
He submits that in fact Om Prakash and
Narayan though had met Virendra, the
appellant Vinod had never met the deceased
or the informant. He, therefore, submits
that the entire story was a concocted story.
He submits that in fact at the time of
incident, the PW-1 who had got the First
Information Report lodged was never at the
spot of the incident and that the First
Information Report was a well thought out
document and this was the reason, he
states, that the post mortem was also
conducted almost after 24 hours of the
death and not immediately when the body
was sent for post mortem at around 4.30
PM on 2.12.1979. He further submits that
since the post mortem had to be conducted
well within a reasonable time and the First
Information Report was also not lodged by
the time the post mortem was conducted,
there was no mention of the case crime
number in the post mortem report.

(xi) Learned counsel for the
appellant has stated that though the PW-2,
PW-4 and PW-6 have been declared hostile,
they are important witnesses and that what
had been stated by them could not be just
thrown out. Learned counsel for the
appellant relying upon a decision of the
Supreme Court in the case of Rabindra
Kumar Dey vs. State of Orissa reported in
AIR 1977 SC 170 has submitted that
simply because a witness is declared hostile
by a party which had called him would not
make him an unreasonable witness so as to
exclude his evidence from consideration
altogether. Since, learned counsel for the
appellant has relied upon paragraphs 10
and 12 of the judgment, the same are being
reproduced here as under :-

10. Before proceeding further we
might like to state the law on the subject at
this stage. Section 154 of the Evidence Act
is the only provision under which a party
calling its own witnesses may claim
permission of the Court to cross-examine
them. The section runs thus:

"The Court may, in its discretion
permit the person who calls a witness to
put any question to him which might be put
in cross-examination by the adverse party."

The section confers a judicial
discretion on the Court to permit crossexamination and does not contain any
conditions or principles which may govern
the exercise of such discretion. It is,
however well settled that the discretion
must be judiciously and properly exercised
in the interests of justice. The law on the
subject is well settled that a party will not
normally be allowed to cross-examine its
own witness and declare the same hostile,
unless the Court is satisfied that the
statement of the witness exhibits an element
of hostility or that he has resiled from a
material statement which he made before
an earlier authority or where the Court is
satisfied that the witness is not speaking the
truth and it may be necessary to cross-
examine him to get out the truth. One of the
glaring instances in which this Court
sustained the order of the Court in allowing
cross-examination was where the witness
resiles from a very material statement
regarding the manner in which the accused
committed the offence. In Dahyabhai v.
3 All. Vinod Kumar & Anr. Vs. State of U.P.
1609
State of Gujarat, (1964) 7 SCR 361 at pp.
368, 369, 370: (AIR 1964 SC 1563 at p.
1569) this Court made the following
observations:

"Section 154 does not in terms, or
by necessary implication confine the
exercise of the power by the Court before
the examination-in-chief is concluded or to
any particular stage of the examination of
the witness. It is wide in scope and the
discretion is entirely left to the Court to
exercise the power when the circumstances
demand. To confine this power to the stage
of examination-in-chief is to make it
ineffective in practice. A clever witness in
his
examination-in-chief
faith-
fully
conforms to what he stated earlier to the
police or in the committing court, but in the
cross-examination introduces statements in
a subtle way contradicting in effect what he
stated in the examination-in-chief. If his
design is obvious, we do not see why the
Court cannot, during the course of his
cross-examination,
permit
the
person
calling him as a witness to put questions to
him which might be put in crossexamination by 'he adverse party."

"Broadly stated, the position in
the present case is that the witnesses in
their statements before the police attributed
a clear intention to the accused to commit
murder but before the Court they stated
that the accused was insane and, therefore,
he committed the murder."

A
perusal
of
the
above
observations will clearly indicate that the
permission to cross-examine was upheld by
this Court because the witnesses had
categorically stated before the police that
the accused had committed the murder but
resiled from that statement and made out a
new case in evidence before the Court that
the accused was insane. Thus it is clear
that before a witness can be declared
hostile and the party examining the witness
is allowed to cross-examine him, there must
be some material to show that the witness
is not speaking the truth or has exhibited
an element of hostility to the party for
whom he is deposing. Merely because a
witness in an unguarded moment speaks the
truth which may not suit the prosecution or
which may be favourable to the accused,
the discretion to allow the party concerned
to cross-examine its own witnesses cannot
be allowed. In other words a witness should
be regarded as adverse and liable to be
cross-examined by the party calling him
only when the Court is satisfied that the
witness bears hostile animus against the
party for whom he is deposing or that he
does not appear to be willing to tell the
truth. In order to ascertain the intention of
the witness or his conduct, the Judge
concerned may look into the statements
made
by
the
witness
before
the
Investigating Officer or the previous
authorities to find out as to whether or not
there is any indication of the witness
making a statement inconsistent on a most
material point with the one which he gave
before the previous authorities. The Court
must, however, distinguish between a
statement made by the witness by way of an
unfriendly act and one which lets out the
truth without any hostile intention.

12. It is also clearly well settled
that the mere fact that a witness is
declared hostile by the party calling him
and allowed to be cross-examined does not
make him as unreliable witness so as to
exclude his evidence from consideration
altogether. In Bhagwan Singh v. State of
Haryna, (1976) 1 SCC 389,391-92: (AIR
1976 SC 202 at p. 203), Bhagwati, J.
speaking for this Court observed as
follows:

"The prosecution could have even
avoided requesting for permission to crossexamine the witness under section 154 of
1610 INDIAN LAW REPORTS ALLAHABAD SERIES
the Evidence Act. But the fact that the
Court gave permission to the prosecutor to
cross-examine his own witness, thus
characterising him as, what is described as
a hostile witness, does not completely
efface his evidence. The evidence remains
admissible in the trial and there is no legal
bar to base a conviction upon his
testimony if corroborated by other reliable
evidence."

(Emphasis supplied)

(xii) Learned counsel for the
appellant very categorically states that if
the statement of PW-2 is perused then it
becomes evident that this witness who
allegedly had accompanied the deceased
and the First Informant at the place of
incident, when had stated that he did not
recognize the persons who were the
accused in the case, then that statement
could not be simply thrown out. The
witness Som Prakash was much relied upon
by the PW-1 and when he states certain
facts then in conjunction with all the other
facts, namely, that the panchayatnama had
no witness known to the deceased; the
panchayatnama had interpolations and the
post mortem report had no case crime
number, could not be simply thrown away.
It had to be given some credence and the
case had to be decided accordingly.
Similarly, learned counsel for the appellant
states that when the prosecution was
throughout trying to base its case on the
fact that the incident had occurred at
Almora Hotel the owner of which was Dev
Singh and when Dev Singh had himself
stated that he did not recognize Vinod
Kumar and that the panchayatnama was not
written in his presence and that the
signature of his was taken subsequently
then the case of the prosecution becomes
doubtful. This again in view of what had
been argued by the learned counsel for the
appellant, cannot be simply thrown out. He
further submits that when the PW-4 Dev
Singh had stated that he had noticed that
the deceased (whose name was not known
to him) had walked into his restaurant alone
from the side of Gajraula Station then also
his statement cannot be thrown out without
considering its evidentiary value.

(xiii) Learned counsel for the
appellant has further stated that the
evidence of PW-6 Subhash, who again was
a much relied upon witness throughout by
the PW-1 when had turned hostile could not
be junked as he had stated that he knew
Girish Kumar and Virendra Kumar but
when he had refuted the claim of PW-1 that
he had accompanied him, then that
statement
cannot
be lightly
ignored.
Learned
counsel
for
the
appellant,
therefore, has submitted that the fact that
PW-1 was on the spot becomes doubtful.
Learned counsel states that the fact that
panchayatnama was prepared immediately
at the time of incident also becomes
doubtful. Still further, learned counsel for
the appellant states that the presence of
such persons who the PW-1 alleged were
there at the time of incident, for the
arguments which have been made earlier,
also becomes doubtful.

(xiv) Learned counsel for the
appellant has submitted that the guilty
could have been convicted even on the
witness of a sole witness had it been
reliable but in the instant case the evidence
of even the sole witness i.e. P.W. - 1 was
absolutely unreliable. He submits that the
evidence of P.W. - 1 becomes unreliable
also because of the fact that he had borne
grudges for the past so many years. For this
purposes, he relied upon a decision of the
Supreme Court in Namdeo vs. State of
Maharashtra reported in AIR 2007 SC
(Supp) 100, and has submitted that the
3 All. Vinod Kumar & Anr. Vs. State of U.P.
1611
value of every piece of evidence had to be
seen and evaluated individually.

19. Learned AGA Sri Amit Sinha has,
however, opposed the appeal and has
submitted that all such evidence of the
crime specially with regard to the presence
of the witnesses; the ante-dating of the First
Information Report; the fact that the
panchayatnama
was
interpolated
are
subject matters which were looked into by
the Trial Court and the Trial Court after
having seen the relevancy and admissibility
of evidence had concluded that the
appellants were to be convicted and this
Court therefore may while reassessing the
evidence acquit the accused-appellant. He
submits, therefore, that when the PW-2,
PW-4 and PW-6 had turned hostile then
definitely their statements could not be
looked into and cannot be considered while
deciding the case.

20.