# Vishal Gupta v. State of U.P

- **Citation:** (2021) 11 ILRA 902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-01
- **Case number:** Criminal Appeal No. 1181 of 2008
- **Bench:** Attau Rahman Masoodi, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-gupta-v-state-of-u-p-46679
- **Pages:** 15

## Headnote

Govt. Advocate, Salik Kumar Srivastava

Prosecution story regarding time and occurrence of
the incident is improbable-no other witnesses
corroborates with prosecution story-about place , time
and occurrence of incident.

Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,938 of 56,935. This is a partial read: ask again with offset=39938 for what follows._

902 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 313 Cr.P.C. statement at least to give a
plausible explanation for the cause for her
death. No such attempt was even made except
denying the prosecution case. These facts
completely are inconsistent with the innocence,
but consistent with the hypothesis that the
appellant is a prime accused in the commission
of gruesome murder of his wife."

51. In Kundula Bala Subrahmanyam
and another v. State of Andhra Pradesh ,
(1993) 2 SCC 684, while dealing with the aspect
of conduct of the accused immediately after the
incident, the Supreme Court observed as under:-

"...The normal human conduct of any
person finding someone engulfed in flames would
be to make all efforts to put off the flames and save
the life of the person. Though, the appellants were
the closest relations of the deceased, they did not
do anything of the kind. Let alone making any
effort to extinguish the fire, according to P.W. 2
when the father-in-law of the deceased, at her
request, was giving her the bontha to extinguish
the flames, appellant 2, the mother-in-law of the
deceased, objected to the same. This conduct
speaks volumes about the extent of hatred which
the mother-in-law exhibited towards her daughter
in-law. They rendered no first-aid to the deceased.
Their conduct at the time of the occurrence,
therefore, clearly points towards their guilt and is
inconsistent with their innocence. ... ...The theory
of suicide has no legs to stand upon. The conduct
of the appellants who did not try to extinguish the
fire or render any first-aid to her, also totally
betrays the theory of suicide and we agree with
the High Court that the theory as set up by the
appellants
is
highly
unbelievable
or
unacceptable.
The
prosecution
has,
thus,
successfully established that the conduct of both
the appellants both at the time of the occurrence
and immediately thereafter is consistent only with
the hypothesis of the guilt of the appellants and
inconsistent with their innocence."

52. In view of the foregoing discussions,
the prosecution has proved its case beyond
reasonable doubt against the appellant and the
finding of conviction and sentence recorded by
the trial court against the accused appellant
Saleem under Sections 302, 435, 427 I.P.C. does
not call for any interference by this Court, hence
the conviction and sentence recorded of the
appellant by the trial Court is hereby upheld.

53. The appeal lacks merit and is,
accordingly, dismissed.

54. The appellant is stated to be in jail. He
shall serve out the sentence as awarded by the
trial Court.

55. Office is directed to transmit the lower
court record along with certified copy of this
order to the court concerned forthwith for
necessary information and follow up action, if
any required.
----------
(2021)12ILR A902
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.12.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MANISH KUMAR, J.

Criminal Appeal No. 1181 of 2008
&
Criminal Appeal No. 1479 of 2008

Vishal Gupta ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Nadeem Murtaza, Ashok Kumar Verma, Pradeep
Kumar
Tripathi,
Ramesh
Chandra
Gupta,
Shivaam Shaarma, Sidharth Dhaon, Subodh
Kumar Shukla, Sushil Shukla, Yogesh Bhasin
11 All. Vishal Gupta Vs. State of U.P.
903
Counsel for the Respondent:
Govt. Advocate, Salik Kumar Srivastava

Prosecution story regarding time and occurrence of
the incident is improbable-no other witnesses
corroborates with prosecution story-about place , time
and occurrence of incident.

Appeal allowed. (E-9)

List of Cases cited:

1. St.of U.P. Vs Gokaran & ors. [ 1985 SCC (Cri) 41],

2. Pala Singh Vs St. of Pun. [ 1973 SCC (Cri) 55

3. Brahm Swaroop & anr. Vs St. of U.P. [ 2011 CRI LJ
306]

4. St. of Raj.Vs Teja Singh & ors. [2001 3 SCC 147]

5. Badam Singh Vs St. of M.P. [(2003) 12 SCC 792]

6. Meharaj Singh Vs St. of U.P. [(1994) 5 SCC 188],

7. Bir Singh & ors. Vs St. of U.P. [(1977) 4 SCC 420]

8. Shaikh Nabab Shaikh Babu Musalman & ors. Vs St.
of Mah. [(1993) Supp. (2) SCC 217]

9. Meharaj Singh (supra) & St. of Pun. Vs Harbans
Singh & anr. [(2003) 11 SCC 203]

10. Bharwada Bhoginbhai Hirjibhai Vs St. of Guj.
[(1983) 3 SCC 217]

11. Gangadhar Behra & ors. Vs St. of Orissa [ 2003
SCC (Cri) 32]

12. Vinay Kumar Rai & anr. Vs St. of Bihar [ 2008 CRI.
L. J. 4319]
(Delivered by Hon'ble Manish Kumar, J.)

The aforesaid criminal appeals arising out
of the same crime were heard together and are
being decided by a common judgment.

1. The two criminal appeals have been
filed against the common judgment and order
dated 23.04.2008 passed by Additional Sessions
Judge, Court No. 1, Lucknow in Sessions Trial
Nos. 140 of 2007 (State Vs. Alok Gupta), 520 of
2006 ( State Vs. Smt. Kalpana) and 644 of 2005
(State Vs. Vishal Gupta) relating to Case Crime
No. 129 of 2004, under Sections 302, 120 B
IPC,
Police
Station
Ashiyana
(CBCID),
whereby, the appellants have been convicted
under Section 302 IPC and sentenced to life
imprisonment and fine of Rs. 10,000/- and in
default of payment of fine, they shall undergo
rigorous imprisonment for a further period of
one year, whereas, Smt. Kalpana was acquitted.

2. We have heard Shri Pradeep Kumar
Tripathi, learned counsel, who appeared for the
appellants.
Shri
Vaibhav
Kaliya,
learned
counsel, on our request, volunteered to assist the
Court and was permitted to do so on behalf of
the appellants. Shri Umesh Verma, learned
Additional Government Advocate appeared for
the State. Learned counsel for the parties argued
at length and took us through the record.

3. According to the prosecution case, on
29.08.2004 an FIR was lodged under Section
302/120- B IPC by the complainant, who was
the father of the deceased/PW-1-Ashok Gupta,
at about 5.25 P.M. stating therein that on
29.08.2004 at around 5.00 P.M., when the
complainant along with his daughters namely,
Alka, Anita, Aparajita, Anamika and son-Sachin
were present at home, at that time the appellants
namely, Alok Gupta and Vishal Gupta along
with one unknown person knocked the door and
on opening the door, they barged into the house
having Tamancha in their hands. The three
accused persons indiscriminately fired on his
daughter namely Aparajita, wife of Ajay Gupta
with the intention to kill her while she was
sitting with her sisters in the second room. On
shouting, they ran away. The neighbours in fear
closed their windows and doors. Thereafter, the
complainant took her daughter to the Awadh
Hospital where the doctor declared her brought
dead. Smt. Kalpana Gupta is the first wife of the
904 INDIAN LAW REPORTS ALLAHABAD SERIES
Ajay Gupta, thus, the present appellants kept
enmity with the deceased and her husband Ajay
Gupta. After two years of marriage of Ajay
Gupta with the deceased, they had kidnapped
him and for that the FIR was lodged at Sitapur.
The Kalpana Gupta instigated his brothers i.e.
the present appellants to murder the daughter of
the complainant.

4. After investigation, the charge sheet was
filed under Section 302 read with Section 120-B
IPC in the Court concerned against the present
appellants. Thereafter, the trial court framed
charges against the appellants under Section 302
read Section 120-B IPC for hatching the
conspiracy along with other co-accused namely,
Kalpana Gupta.

5. The prosecution in order to prove its
case had produced four witnesses of fact namely
Ashok Kumar Gupta (the complainant and father
of the deceased) as PW-1, Sachin Gupta( the
brother of the deceased) as PW 2, Sudheer
Kumar Gupta as PW -3 (private servant of Ajay
Gupta), Ajay Gupta ( the husband of the
deceased) as PW-4 and also produced four
formal witnesses i.e. Dr. Harshwardhan as PW5, HCP Raj Kumar Srivastava as PW-6,
Inspector Rangeela Singh as PW-7 and Arjun
Prasad Mishra as PW-8.

6. As documentary evidences, the
prosecution has proved the copy of FIR as Ext.
Ka-7, the Post Mortem Report as Ext-Ka-6,
Forensic Report as Ext. Ka-20, Recovery memo
as Ext Ka-3, Recovery memo as Ext. Ka-4,
Recovery Memo as Ext. Ka-5, Chik FIR as Ext.
Ka-7, Extract of chick report in GD as Ext. Ka8, Inquest Report as Ext. Ka-2, Preparation of
Inquest Report and got prepared other relevant
papers as Ext. Ka-9, Photo Lass as Ext. Ka-10,
Letter of the police form of sending the dead
body to the headquarter as Ext. Ka-11, Sample
seal as Ext. Ka 12, Spot where the site plan was
prepared as Ext. Ka-13 and recovery seizure
memo of one empty cartridge of .315 bore from
the spot as Ext. Ka-5, blood stained bed sheet of
the double bed and two pieces of these bed
sheets as Ext. Ka-4, blood stained and plain
earth from the spot as Ext. Ka-3, Charge sheet
against Vishal Gupta, Alok Gupta and Kalpana
under Section 302/120 IPC as Ext. Ka-19,
Medical examination report of the maxi as Ext.
Ka-20.

7. After closure of the evidence of
prosecution, the statement under Section 313
Cr.P.C. attributable to all the three accused were
recorded and all three accused denied their
involvement in the incident. Kalpana Gupta has
specifically told in her statement that she and
Ajay were staying together till the date of the
incident. The appellant namely Vishal Gupta has
stated in his statement that he was not present at
the place of incident when the incident occurred.
He was busy in the departmental duty on the day
of the incident.

8. After recording of the statement of the
accused/appellants, they preferred to enter into
the defense and examine as many as seven
defense witnesses
namely Dinesh Kumar
Pandey,
Assistant
Registrar,
Kanoongo,
Tehsildar Puwayan, District Shahjahanpur as
DW-1, Ram Sahayas DW-2, Jamun Prasad,
Revenue Inspector as DW-3, Om Prakash
Gupta, Ex-MLA as DW-4, Vinod Kumar Arora
as DW-5, Tauhid Ahmad, Supervisor of Avadh
Hospital as DW-6 and lastly Jaswant Singh,
Income Tax Inspector examined as DW-7.

9. The trial Court on appreciation of
evidence placed before it had opined that the
FIR was lodged by the complainant, who is an
eye witness/father of the deceased, which was
duly proved by evidence of PW-1. According to
the trial Court, the FIR of the case is not anti
time and the Crime No./Special Report was sent
to the court after ten days of the incident and
further observed that Court was not convinced
11 All. Vishal Gupta Vs. State of U.P.
905
with the arguments of the learned defense
counsel because PW-1 has clarified in his cross
examination that he had written the Tehrir in
Police Station by taking 10 to 15 minutes. So far
as the statement of PW-1 that the inquest
proceeding started at 8.00 P.M. is concerned, it
will also not belie the entire prosecution case.

10. Further, the trial court did not accept
the argument that the inquest on the body of the
deceased was not conducted in Awadh Hospital
nor the body of the Aparajita was even taken to
Awadh Hospital for treatment. It has also not
been accepted that no death certificate was
produced by the prosecution. The mere assertion
of the witness that the inquest proceedings were
conducted in the house of the complainant was
not enough to prove that fact. The presence of
Padma Thapa is not quite seriously disgranted
by the learned counsel for the defence. The trial
court did not accept the evidence on record that
despite indiscriminate firing by three persons on
Aparajita, no pellet or any firing remains were
found on the spot; any sign of the fire was not on
floor or furniture; no report of the serologist was
available on the record regarding the blood stain,
plain earth and blood stained bed sheet; no hole
with blackening were found on the Maxi worn
by the deceased; that in spite of three others
sisters, who were sitting close to Aparajita, none
of them got fire arm injuries; that in Site Plan
the Investigating Officer has not shown any
Takhat on which the deceased would have been
sitting. On the aforesaid facts on the record, the
trial court did not find much force.

11. The evidence of the case was proved
against the accused/appellants, thus the trial
court
convicted
and
sentenced
them
as
mentioned above.

12. The learned counsel for the appellant
has submitted that the FIR is anti time for the
reason that as per the prosecution case, the
incident took place at around 5.00 P.M. and the
FIR was lodged at 5.25 P.M. i.e. within 25
minutes
of
occurrence,
which
is
highly
improbable for the reason that as according to
the version in the FIR, the appellants along with
one unknown person reached the house of the
complainant at around 5.00 P.M. and knocked
the door and when door was opened by the
complainant/PW-1, the appellants along with
one unknown person directly entered in the
second room, where the daughters of the
complainant were sitting including the deceased
Aparajita and all the three started indiscriminate
firing and ran away. Thereafter, the injured
Aparajita was taken to the Awadh Hospital,
which is around 1.5 to 2 Kms away from the
house of the complainant, where the doctor
declared her brought dead. After the declaration
by the doctor, the complainant went to the Police
Station which was four Kms away from the
hospital. On reaching Police Station, the
complainant took ten to fifteen minutes in
writing the Tahreer and thereafter it was lodged
at the Police Station. All the aforesaid exercise is
not possible to be made within a short span of 25
minutes especially when the complainant does
not own any vehicle by which he had gone to the
Hospital. Arranging a Car for taking the injured
to Hospital must have taken some considerable
time.

13. It is further submitted that the crime
report/special report was not enclosed with the
inquest report, whereas as per Section 157
Cr.P.C. after the information of the offence, the
same has to be intimated to the Magistrate
forthwith.

14. It is further submitted that in the
enclosures with the inquest report, two pages
have been shown for the FIR and one page for
GD, whereas the FIR is of three pages, so
neither any FIR was in existence at the time of
inquest nor any special report/ crime report was
there till then. The purpose of Special
Report/Crime Report is to make check or
906 INDIAN LAW REPORTS ALLAHABAD SERIES
supervise
over
the
investigation
by
the
Magistrate.

15. As per the statement of Head Moharrir,
the Special Report/Crime Report might have been
forwarded but the same is not on the record.
Meaning thereby, the Special Report/Crime Report
was never forwarded to the Magistrate in
compliance with Section 157 Cr.P.C.. It is further
contended that it has been mentioned in the
judgment impugned that the Special Report/Crime
Report was filed after ten days. The same was
never proved and no opportunity was given to the
defence to make any suggestion on the Special
Report/Crime Report.

16. On the other hand, learned Additional
Government Advocate has submitted that the
purpose of the Special Report/Crime Report is to
supervise the investigation by the Magistrate and
filing it with delay will not vitiate the trial and
benefit of it can not be given to the
accused/appellants. In support thereof, he placed
reliance upon the judgment rendered by Hon'ble
Supreme Court in the cases of State of U.P. Vs.
Gokaran and others [ 1985 SCC (Cri) 41], Pala
Singh Vs. State of Punjab [ 1973 SCC (Cri) 55
and Brahm Swaroop & Anothers Vs. State of
U.P. [ 2011 CRI LJ 306] wherein, it has been held
that no adverse inference can be drawn on the
ground that the Special Report/Crime Report was
sent with a delay to the Magistrate, if the same has
been explained.

17. After hearing the learned counsel for
the appellant and the learned AGA, it is found
that the prosecution story regarding the time and
occurrence of the incident and lodging of an FIR
within twenty five minutes is highly improbable
& doubtful for the reasons that it is an admitted
case of the prosecution that the alleged incident
took place at around 5.00 P.M..

18. After the incident, the injured was
taken to the Awadh Hospital in the Maruti Car.
The Awadh Hospital is 1.5 to 2 KMs from the
place of incident, where the doctor declared
brought her dead. Thereafter, the complainant
had gone to the police station, which is 4 Kms
from the hospital, where he taken 10 to 15
minutes to write down the long Tehreer and
some time would have been in arranging the
vehicle for taking the deceased to the hospital.
All this could not been done within a short
period of 25 mintues and it makes the story of
the prosecution doubtful.

19. The non forwarding of the Special
Report/Crime Report forthwith by the Police to
the Magistrate, as mandated by Section 157
Cr.P.C. also deprives Magistrate to supervise the
investigation and creates credibility about the
FIR. The only inference, which can be drawn
from the statement of Head Moharrir is that no
Special Report/Crime Report was forwarded to
the Magistrate though in the judgment, it has
been recorded that it has been filed with delay of
ten days but there is no finding that any reason
for delay was indicated by the Investigating
Officer while filing the Special Report/Crime
Report nor at any point of time any opportunity
was provided to the defence side to make their
submissions either in support or against the
Special Report/Crime Report. The same has not
been proved nor made exhibit. The judgments
cited by the learned AGA are not applicable in
the present case for the reason that the Hon'ble
Supreme Court in the judgment of Gokaran
(supra) has relied upon the judgment of Pala
Singh (Supra). The relevant extract of Pala
Singh (Supra) is being quoted hereunder for
ready reference:-

"Shri Kohli strongly criticised the fact
that the occurrence report contemplated by S.
157, Cr.P.C. was sent to the magistrate
concerned very late. Indeed, this challenge, like
the argument of interpolation and belated
despatch of the inquest report, was developed
for the purpose of showing that the investigation
11 All. Vishal Gupta Vs. State of U.P.
907
was not just, fair and forthright and, therefore,
the prosecution case must be looked at with
great
suspicion.
This
argument
is
also
unacceptable. No doubt, the report reached the
magistrate at about 6 p.m. Section 157, Cr. P.C.
requires such report to be sent forthwith by the
police officer concerned to a magistrate
empowered to take cognisance of such offence.
This is really designed to keep the magistrate
informed of the investigation of such cognizable
offence so as to be able to control the
investigation
and
if
necessary
to
give
appropriate direction under s. 159. But when we
find in this case that the F.I.R. was actually
recorded without delay and the investigation
started on the basis of that F.I.R. and there is no
other infirmity brought to our notice (emphasis
laid by us), then, however improper or
objectionable the delayed receipt of the report
by the magistrate concerned it cannot by itself
justify the conclusion that the investigation was
tainted and the prosecution insupportable. It is
not the appellants case that they have been
prejudiced by this delay."

20. After going through the aforequoted
judgment, the position, which emerges out is
that the aforesaid judgment is not applicable in
the present case, as there was no other infirmity
brought to the notice of the Court whereas there
are many in the present case, as already
mentioned above. The another judgment relied
upon by the learned AGA i.e. Brahm Swaroop
(supra) is also not applicable in the present case,
as in the said judgment, the Hon'ble Apex court
has relied and quoted the judgment rendered in
the case of State of Rajasthan Vs. Teja Singh
and others [2001 3 SCC 147] wherein it has
been held that, if the Special Report/Crime
Report has been forwarded with delay then the
explanation so furnished by the prosecution
must be convincing and acceptable. The para
nos. 13 and 16 of the said judgment is being
quoted hereunder :-

" 13. In State of Rajasthan v. Teja
Singh & Ors., (2001) 3 SCC 147, this Court held
that the receipt of special report by the
Magistrate is a question of fact and the
prosecution may explain the delay in sending
the special report. However, the explanation so
furnished
by
the
prosecution
must
be
convincing and acceptable. (emphasis laid by
us) The same view has been re-iterated in
Ramesh Baburao Devaskar & Ors. v. State of
Maharashtra, (2007) 13 SCC 501."

"16.
In
State
of
Kerala
v.
Anilachandran @ Madhu & Ors., AIR 2009 SC
1866, this Court placed reliance upon its earlier
judgments in Pala Singh v. State of Punjab, AIR
1972 SC 2679; and Sarwan Singh v. State of
Punjab, AIR 1976 SC 2304 and held that the
police should not unnecessarily delay sending
the FIR to the Magistrate as the delay affords
the opportunity to introduce improvement and
embellishment thereby resulting in a distorted
version of the occurrence (emphasis laid by
us). However, in case the prosecution offers a
satisfactory explanation for the delay, the court
has to test it. An un-explained delay by itself
may not be fatal, but it is certainly a relevant
aspect which can be taken note of while
considering the role of the accused persons for
the offence.(emphasis laid by us)

A similar view has been re-itereated in
Pandurang Chandrakant Mhatre & Ors. Vs.
State of Maharashtra, (2009) 10 SCC 773 (
2010 AIR SCW 236; 2010 (2) AIR Bo R 209
(SC)"

21. The Hon'ble Supreme Court in the case
of Brahm Swaroop (supra) has also relied upon
the judgment rendered in the case of Badam
Singh vs. State of Madhya Pradesh [(2003) 12
SCC 792] wherein, it has been held that if the
Investigating Officer categorically states that he
is not in a position to give any explanation for
the delay in sending the special report, it may be
fatal to the prosecution case.
908 INDIAN LAW REPORTS ALLAHABAD SERIES

22. The judgments cited hereinabove, by
the learned AGA are on the point that if the
special report is submitted with delay and it has
properly been explained, which is convincing
and without infirmity, then it could not be fatal,
whereas in the present case, neither any reason
for delay has been furnished nor it has been
explained.

23. In view of the facts placed before us as
mentioned in preceding paragraphs, it is evident
that the delay without any explanation in
submitting the special report makes the
prosecution case doubtful, when the same is read
along with other infirmities brought before the
Court.

24. We have seen from the facts stated as
mentioned hereinabove that all that what is
said to have been done till the actual lodging
of the report in no case probably could be
done within 25 minutes. It leads to the
inference that the report has been ante-time
which fact also stands supported by not
sending the Special Report/Crime Report
forthwith or promptly to the Magistrate for
which no explanation comes forward from
prosecution side.

25. Learned counsel for the appellants
has
further
submitted
that
when
the
prosecution
witnesses
are
near
relative/interested
witnesses,
then
their
statement needs corroboration and close
scrutiny by the Court. In the present case, it
has been contended that PW. 1 & 2 are the
interested witnesses, as the PW-1 is the
complainant/father
of
the
deceased/eye
witness while PW 2 is the brother of the
deceased. The statements of the PW-1 and 2
do not corroborate with the prosecution story.
The prosecution also failed to disclose the
facts that as to why the vehicle used for taking
the deceased to the hospital was never taken
into the custody. Further, it has also not been
disclosed by the prosecution that what is the
number of the vehicle and who was owner &
driving it at that time.

26. In support of his submission, learned
counsel for the appellant relied upon various
judgments of Hon'ble Apex Court in the cases
of Meharaj Singh vs. State of U.P. [(1994) 5
SCC 188], Bir Singh & Ors. vs. State of Uttar
Pradesh [(1977) 4 SCC 420], Shaikh Nabab
Shaikh Babu Musalman & Ors. vs. State of
Maharashtra [(1993) Supp. (2) SCC 217].

27. It has further been submitted that no
blood stained clothes of the prosecution
witnesses were ever recovered, which makes the
presence of the appellant at the time of incident
doubtful. In support of his submission, he placed
reliance on the judgments rendered by the
Hon'ble Supreme Court in the cases of Meharaj
Singh (supra) and State of Punjab Vs. Harbans
Singh and another [(2003) 11 SCC 203]. The
para no. 9 of the said judgment is being
reproduced hereunder for ready reference:-

"9. It is the prosecution case itself that
Darshan Singh who was one of the witnesses to
the incident who also helped PWs.4 and 11 to
carry the injured to the hospital and remained
with them almost right through has not been
examined by the prosecution. The explanation
given is that he has been won over by the
accused. But then it is also to be noted that there
were many neighbours also who came to the
place of incident but none of them have been
examined as witnesses leaving only PWs 4 and
11 as the sole eye- witnesses in this case.
Further it is to be noticed that these two
witnesses along with Darshan Singh carried
both the injured persons in the vehicle and
thereafter helped in carrying the injured
persons to the Primary Health Centre but no
blood stained clothes were recovered from the
possession of these witnesses which also throws
considerable doubt about the presence of these
11 All. Vishal Gupta Vs. State of U.P.
909
witnesses at the time of incident (emphasis laid
by us). PW-11 though says that there was a little
blood stain on his cloth, he washed the same in
the hospital which explanation, in our opinion,
is highly artificial. "

28. It has further been submitted that no
blood trail was found from the place of incident,
which makes the alleged incident doubtful. In
support of his submissions, he placed reliance on
the judgments passed in the cases of Meharaj
Singh (supra) and Bir Singh (supra) .

29. It has also been submitted that as per
the prosecution witnesses, indiscriminate firing
was done by the appellants but no one got
injured especially when the three daughters of
the deceased were sitting along with the
deceased. It makes the prosecution case
doubtful. In support thereto, he placed reliance
in the case of Harbans Singh (supra).

30. Learned counsel for the appellants has
next contended that, as per the admitted case of
the prosecution that there was an indiscriminate
firing but no bullet mark was found either on the
furniture in the room or on the walls of the
room, where the incident as alleged had
occurred. It makes the place of occurrence
doubtful. It is an admitted case of the
prosecution witnesses that the deceased was
wearing a saree at the time of incident but as per
the inquest report, she was wearing maxi and
there is no explanation for the same. During the
cross-examination, the P.W. 2 had stated that he
is not aware about the clothes of her sister. It is
further submitted that there is a major
contradiction in the statements of PW 1 & 2 as
far as the fact that body of the deceased was
taken to the Awadh Hospital and inquest was
made there. The PW-1 in his examination in
chief as well as in cross examination has stated
that he took her daughter to the Awadh Hospital
where the inquest was done, whereas, PW 2 in
his cross examination has stated that the
investigating officer along with constable came
to the house and made the inquest at 8.00 P.M..
It belies the prosecution story. It is further
submitted that there are same contradictions in
the statements of Investigating Officer who had
given the statement that inquest was prepared in
the Hospital which started at till 5.50 P.M. and
the statements of PW 2, who had given
statement that police came to house and inquest
was made at 8.00 P.M.

31. It is further submitted that as per the
admitted case of the prosecution that when the
appellants along with one unknown person were
firing indiscriminately on the daughter of the
complainant, she was sitting and could not get
up. The said statement does not corroborate with
the medical evidence, as in the post mortem
report, one gun-shot injury is in upwards
direction, which is highly improbable.

32. Learned counsel for the appellants has
further submitted that as per the prosecution
case, the three sisters of the deceased were
accompanied her in the room at the time of
incident, they covered her but no one got
injured. Their statements was recorded under
Section 161 Cr.P.C. and their names were also in
the charge-sheet but they were not produced as a
prosecuting witnesses during the trial nor any
application for discharge has been moved.

33. On the other hand, learned AGA has
submitted that these are the minor contradictions
and will not adversely affect the prosecution
case. In support thereof, he placed reliance on
the judgment of Hon'ble Apex Court rendered in
the case of Bharwada Bhoginbhai Hirjibhai vs
State of Gujarat [(1983) 3 SCC 217] wherein it
has been held that discrepancies, which do not
go to the root of the matter and shake the basic
version of the prosecution, will not vitiate the
trial. He further placed reliance on the
judgments of the Hon'ble Supreme Court in the
cases of Gangadhar Behra and others Vs. State
910 INDIAN LAW REPORTS ALLAHABAD SERIES
of Orissa [ 2003 SCC (Cri) 32], Vinay Kumar
Rai and anothers Vs. State of Bihar [ 2008
CRI. L. J. 4319]. It has been argued on behalf of
the State that it is not necessary to produce all
the witnesses, it is the choice of the prosecution
to choose and produce the witnesses. It is the
quality of the evidence which matters not the
quantity. It has lastly been submitted that the
defence has been failed to demolish the
prosecution case that the prosecution witnesses
had not seen the incident and the Court has to
separate the grain from the chaff to find out the
truth.

34. After hearing the learned counsel for
the respective parties and going through the
record available, the position which emerges out
in the present case is that mere making a
statement that appellants made indiscriminate
firing and killed her daughter is not sufficient to
prove the prosecution case beyond reasonable
doubt,
especially,
when
the
prosecution
witnesses are close relatives of the deceased.
Where the prosecution witnesses are the
interested
witnesses,
their
testimonies
or
statements require close scrutiny, as per the law
laid down by the Hon'ble Apex Court in the
cases of Meharaj Singh (supra), Bir Singh
(supra) and Shaikh Nabab Shaikh Babu
Musalman (Supra). The para nos. 13 and 15 of
the judgment passed in the case of Meharaj
Singh (supra) is being quoted hereunder :-

"13. It appears that it was a blind
murder and none of the eyewitnesses were
actually present at the scene. The ante-timing of
the FIR was obviously made to introduce
eyewitnesses to support the prosecution case.
We may demonstrate this by noticing that though
PW 3 Smt Kamlesh the widow of the deceased
claimed that she was present with her husband
at the time of the occurrence, her conduct was
so unnatural that not only she did not try to save
her husband by trying to provide a cover but
even after her husband fell down and was
inflicted repeated injuries with the knife by the
appellant Meharaj Singh, she did not even try to
go anywhere near her husband and even later
on hold his head in her lap and try to provide
some comfort to him. This becomes obvious
from the absence of any bloodstains on her
clothes. She admitted that she had not even
received a scratch during the occurrence. In a
situation like this,( emphasis laid by us) the
normal conduct of any wife would be firstly to
make an effort to save her husband even by
taking the blow on herself and if that is not
possible then at least to go so close to his
person, at least after the assailants had left that
there would be no escape from the blood oozing
out of the injuries of the deceased to come on
to her clothes. Similar criticism is also available
against Balbir PW 2, Shiv Charan PW 4 and
Satkari PW 5. It is not the case of the
prosecution that the clothes of any of them had
got bloodstained. The very fact that none of
these witnesses went to lodge a report and
instead left it to the father of the deceased to
lodge the FIR would also go to show that the
witnesses in all probability were not present at
the spot. The absence of any blood in the field
of Kirpal Singh as also the absence of blood
trail from the field of Kirpal Singh to the place
where the dead body was found, as admitted by
PW 8, also suggests that the occurrence did not
take place in the manner suggested by the
prosecution and that the genesis of the fight
has been suppressed from the court.

.........That being the position, it is
obvious that the ocular testimony does not fit in
with the medical evidence and instead it
contradicts it. ( emphasis laid by us)"

"15. The alleged eyewitnesses are
undoubtedly
deeply
interested
in
the
prosecution but that by itself cannot be a
ground to discard their testimony. It, however,
certainly puts this Court on its guard to
scrutinise their evidence more carefully and
keeping in view their unnatural conduct, as
noticed above, it appears to us that none of the
11 All. Vishal Gupta Vs. State of U.P.
911
alleged eyewitnesses had actually seen the
occurrence and they were introduced as
eyewitnesses after thoughtful deliberations and
consultations. ( emphasis laid by us) It appears,
that since it was a blind murder, the appellants
have been roped in on account of misguided
suspicion because of the previous enmity. Our
independent analysis of the evidence on the
record coupled with the infirmities which we
have noticed above has created an impression
on our minds, that the prosecution has not been
able to bring home guilt to either of the
appellants beyond a reasonable doubt. The trial
court was, therefore, right in acquitting them
and the High Court even after noticing the
infirmities, in our opinion, fell in error in
convicting the appellants. The reasons given by
the High Court, to set aside the order of
acquittal do not commend to us. They are
neither sufficient nor adequate or cogent much
less compelling."

35. The para nos. 8 ,9 and 18 of the
judgment passed in the case of Bir Singh
(supra) are being quoted hereunder for ready
reference:-

"8. P.W. Vidya Devi is the daughter of
the own uncle of Surajpal Singh and deeply
interested. P.W. 4 Roshan Singh is the own
brother of Hira Singh who was an accused in a
case under Section 307 which was started
against him for shooting Sheo Shankar Singh
Bhanja a nephew of Ramoo Singh. P.W. Sughar
was also a co-accused along with Hira Singh the
brother of this witness. It would thus appear
that all the eye-witnesses are interested,
inimical and belonging to the faction of the
deceased and have taken sides with them and
against the accused in earlier litigations. The
learned Additional Sessions Judge, therefore,
rightly thought that it was not safe to rely on
the evidence of these witnesses unless their
evidence was corroborated by independent
witnesses (emphasis laid by us). In this
connection it may be noted that in the F.I.R. it is
clearly mentioned that while the altercation
between Bans Gopal and the accused was taking
place Shambhu Bhujwa and Bhikari apart from
Roshan Singh had come to the scene of
occurrence. Both Shambhu Bhujwa and Bhikari
were independent witnesses and bore no animus
against the accused. Even from the evidence it
would appear that these two persons had seen
the entire occurrence."

"9. P.W. 2 Sughar has clearly stated
that at the time of altercation Roshan and
Bhikari were present at that place. Similarly,
P.W. 3 Vidya Devi has stated at page 29 of the
paper book that while the altercation was going
on Roshan and Bhikari came to the scene of
occurrence. Similar is the evidence of P.W. 4
Roshan Singh at page 35 of the paper book
where he says that when the altercation was
going on Shambhu Bhujwa and Bhikari Khatic
were at that time present there. It would thus
appear from the evidence of eye- witness that
Shambhu and Bhikari were exactly in the same
position as the eye-witnesses and yet no
reasonable explanation has been given by the
prosecution for not examining them. It is true
that it was not incumbent on the prosecution to
examine each and every witness so as to
multiply witnesses and burden the record. This
rule however does not apply where the evidence
of the eye-witnesses suffers from various
infirmities and could be relied upon only if
properly corroborated. In the instant case all
the eye-witnesses had serious animus against
the accused and they were interested in
implicating the accused. The substitution of
Ram Dularey Singh in the general diary was a
suspicious circumstance. The fact that the police
was not able to re-cover any weapon or to
explain how the appellants got hold of the guns
was yet another circumstance that required a
reasonable explanation from the prosecution.
According to the finding of the learned Sessions
Judge even the F.I.R. was ante-timed and
although the High Court has not accepted this
912 INDIAN LAW REPORTS ALLAHABAD SERIES
finding we feel, that the High Court on this
aspect has entered into the domain of
speculation.
In
view
of
these
special
circumstances it was incumbent on the
prosecution to examine the two witnesses at
least to corroborate the evidence and if they
were not examined the Sessions Judge was
justified in drawing an adverse inference
against the prosecution. At any rate it cannot be
said that if under these circumstances the
Sessions Judge was not prepared to accept the
evidence of these witnesses his judgment was
wrong or unreasonable. It may be that the High
Court could have taken a different view but that
by itself as held by this Court is not a sufficient
ground for reversing an order of acquittal."

"18. Another important argument
advanced by counsel for the appellants is that
there is absolutely no evidence to show that
there was any blood at the place where P.W. 2
fell down. It was contended that according to the
Doctor's version having regard to the injury,
blood must have been oozing out. If the blood
was there then the Investigating Officer could
not have failed to notice the same. The fact that
blood at that place was not indicated in the
sketch map clearly shows that P.W. 2 did not
receive
injuries
at
the
place.
This
is
undoubtedly an important aspect which merits
serious consideration. The Sessions Judge
seems to have commented on the fact that P.W. 2
did not accompany the dead body but in our
opinion nothing much turns on that because
P.W. 1 must have been in a hurry to rush to the
Police Station and as P.W. 2 was seriously
injured, he may not have thought it advisable to
carry him. But the fact remains that the
prosecution has not been able to show that
there was any blood at the place where P.W. 2
fell down which raises a reasonable inference
that P.W. 2 may have been assaulted elsewhere
and once that is so then the case regarding the
assault of the deceased at the place of
occurrence also automatically fails because the
two incidents are parts of the same transaction.

36. The para no. 6 of the judgment
rendered in the case of Shaikh Nabab Shaikh
Babu Musalman (supra) are being extracted
hereunder :-

"6. Both of them did not attribute any
other overt act to Appellants 2 to 5. Since both
the witnesses are highly interested and
partisan, their evidence has to be subjected to a
greater scrutiny.