Khema @ Khem Chandra Etc. vs The State Of Uttar Pradesh Etc.

He submitted that the appellants have been falsely

implicated in the case. It is submitted that though Omveer

(PW­1) is projected as an eye witness, it is clear from his

testimony that he could not have witnessed the incident. He

submitted that even the trial court has held that from the

deposition of Omveer (PW­1), it is clear that he has not

witnessed the incident. He further submitted that Inder

(PW­2) who is said to be an injured witness, also appears to

be a planted witness. It is submitted that from the evidence

4 of the prosecution witnesses, there is serious doubt with

regard to the timing as to when Inder (PW­2) has sustained

injuries and as to when he was medically examined. He

submitted that there are material contradictions and

inconsistencies in the evidence of Inder (PW­2) and Dr.

Anoop Kumar (PW­6).

6. The learned Senior Counsel further submitted that

the so­called recoveries at the instance of appellants are also

false and could not have been relied upon. The learned

Senior Counsel submitted that the prosecution has not

examined Vijay Singh, brother of the deceased, who was the

first to inform the incident to the Police Station Shergarh on

telephone. It is submitted that the station diary entry on the

basis of telephonic information given by Vijay Singh has also

not been brought on record by the prosecution. It is therefore

submitted that the prosecution has tried to suppress the real

genesis of the incident. It is further submitted that though

Kripa and Omwati, wife and sister of the deceased are said to

have received injuries, they have not been examined. It is

further submitted that though independent witnesses were

5 available, the prosecution has failed to examine them and as

such, an adverse inference is required to be drawn against

the prosecution. The learned Senior Counsel therefore

submitted that the judgment and order passed by the trial

court and maintained by the High Court is liable to be

quashed and set aside.

7. Ms. Prashad submitted that merely because Omveer

(PW­1) and Inder (PW­2) are relatives of the deceased, it

cannot be a ground for discarding their testimonies. It is

submitted that both of them have undergone cross­

examination and nothing damaging could be elicited in their

cross­examination. She further submitted that the ocular

testimonies of Omveer (PW­1) and Inder (PW­2) are duly

corroborated by the recovery of incriminating material on the

memorandum under Section 27 of the Evidence Act, 1872

(hereinafter referred to as the “Evidence Act”). The learned

Senior Counsel therefore submitted that no interference is

warranted in the concurrent orders passed by the trial court

and the High Court.

6

8. Shri Singh, learned Senior Counsel submitted that

Inder (PW­2) is an injured witness. He therefore submitted

that in view of the law laid down by this Court in the case of

Jarnail Singh and Others v. State of Punjab1, the

testimony of the injured witness will have a special

evidentiary status. He also relies on the judgment of this

Court in the case of Abdul Sayeed v. State of Madhya

Pradesh2 to further buttress his submission.

9. Shri Singh further submitted that the findings of the

trial court as well as the High Court are based upon

appreciation of evidence. He submitted that this Court will

not normally enter into re­appraisement or review of the

evidence unless the decision of the High Court is vitiated by

error of law or procedure. He relies on the judgment of this

Court in the case of Smt. Dalbir Kaur and Others v. State

of Punjab3.

10. A perusal of the judgment of the trial court as well as

the High Court would reveal that the conviction is based

1 (2009) 9 SCC 719 2 (2010) 10 SCC 259 3 (1976) 4 SCC 158 7 basically on the testimonies of Omveer (PW­1) and Inder

(PW­2). The Court has sought corroboration to the

testimonies of these witnesses from the recoveries made on

the basis of memorandum of the accused under Section 27 of

the Evidence Act. The trial court observed that the farsa was

seized on the basis of identification done by accused

Kanhaiya. The trial court further observed that the weapons

farsa and rifle were seized at the instance of accused Deepi

and Balveer.

11. To examine the correctness of these findings, we will

first assess the testimony of Omveer (PW­1) and Inder (PW­2).

Both these witnesses are brothers of deceased Prakash. As

such, they would fall in the category of interested witnesses,

being related to the deceased. However, their testimonies

cannot be discarded only on the ground that the witnesses

are interested witnesses. The only requirement would be

that the evidence of such witnesses is required to be

scrutinized with greater care and circumspection.

12. Omveer (PW­1) states that when his deceased

brother Prakash and Kripa (wife of Prakash) along with their

8 sister Omwati were going to extend invitation for the

upcoming marriage, all the accused persons were hiding

themselves in the house of Deepi. On seeing deceased

Prakash, all of them came out. Accused Deepi and Kanhaiya

were armed with farsa, accused Khema @ Khem Chandra

was armed with lathi, accused Jasram and Mahaveer were

armed with country made pistols and accused Balveer was

having a rifle and they assaulted his deceased brother

Prakash. He states that the blows were given from the

reverse side of the farsa. He states that on hearing hue and

cry, he as well as other residents of the village reached at the

spot and saw the occurrence. There are many improvements

in the deposition of Omveer (PW­1). It will be relevant to

refer to an excerpt from the cross­examination of Omveer

(PW­1):

“When the quarrel started, then I was inside my house. I heard four­five rounds of firing. I came out of the house after hearing the sound of firing and after reaching the spot, then I found that Prakash was lying dead. When I reached at the spot, then Inder was at the spot. Inder had fallen after sustaining the injury. He was not fully unconscious.”

9

13. It will also be relevant to note that even Inder (PW­2)

has also admitted that Omveer (PW­1) was inside the house

when the incident occurred.

14. Not only this, but the trial court itself has observed

in its judgment thus:

“It is explicit on perusal of testimony of said witness in entirety that said witness was not present at the spot since earlier, but he reached at the spot after hearing the gunshots. Therefore he did not see the occurrence, but due to he having reached at the spot after hearing the hue and cry, so the testimony of said witness is significant with respect to presence of the accused at the spot and they had been armed with the weapons as disclosed and that having been given by them that in case anybody would get the first information lodged, then he would be killed.”

15. It is thus clear that even the trial court has come to

a conclusion that Omveer (PW­1) could not have witnessed

the incident.

16. That leaves us with the testimony of Inder (PW­2).

No doubt that Inder (PW­2) is an injured witness and

therefore, his testimony could not be brushed aside lightly.

The reliance placed by Shri Singh on the judgments of this

Court in the cases of Jarnail Singh (supra) and Abdul 10 Sayeed (supra) is well merited. The fact that the witness

received injuries establishes his presence at the scene of

occurrence. The evidence of such a witness cannot be

rejected unless there are strong grounds for such rejection.

Inder (PW­2) has given detailed narration as to how the

incident has occurred. He has stated that accused Deepi

and Kanhaiya assaulted with farsa, accused Khema

assaulted with lathi and accused Balveer, Mahaveer and

Jasram assaulted with the butts of their guns. Accused

Balveer, Mahaveer and Jasram fired simultaneously. He

states that when Omwati lay on him to save him, accused

persons assaulted Omwati with stones and danda.

17. The incident had occurred on 27 th April 2002.

However, the statement of Inder (PW­2) was recorded under

Section 161 Cr.P.C. on 21st May 2002. In his cross­

examination, he admitted that the police did not interrogate

him on 30th April 2002. Not only is there a long delay in

recording his statement but there are serious discrepancies

with regard to the medical examination of Inder (PW­2) as

well. In the injury report (Ex.­P7), the time of examination is

11 stated to be 10.20 pm. From the evidence of Omveer (PW­1)

and Inder (PW­2), it is clear that after the incident occurred,

they had gone to Police Station Shergarh and they were in

the Police Station Shergarh from 10.00 am to 11.00 am. In

his evidence, Inder (PW­2) has stated that he has reached the

hospital at 12.00 o’clock and that his medical check­up was

done during day time. In his examination­in­chief, Dr. Anoop

Kumar (PW­6) has stated that there was a possibility that the

injuries were inflicted at 08.00 am on 27 th April 2002. In his

cross­examination, he admits that in the report of medical

examination, he has mentioned the injuries as fresh meaning

thereby that such injuries had been inflicted within a period

of 2 hours to 6 hours. He further admits that the medical

examination was done at 10.20 pm on 27 th April 2022. As

such, the injuries could be inflicted subsequent to 04.20 pm.

He has further admitted that there are no entries made with

respect to the injuries caused to Inder (PW­2) in the

concerned register.

18. It is pertinent to note that after noticing such

inconsistencies with regard to time of injuries sustained and

12 the time of medical examination of Inder (PW­2), Dr. Anoop

Kumar (PW­6) was recalled at the request of the Additional

District Government Pleader. In his re­examination, he has

stated that due to some mistake, 10.20 pm was mentioned in

the medical examination report and actually, it was done on

27th April 2002 at 10.20 am. In his further cross­

examination, he has given contradictory answers. He has

stated that he had never done duty in the night and

therefore, he could say that he had not done the medical

examination at 10.20 pm. He has further admitted that the

duties are fixed on the basis of the roster and the duties are

not on a regular basis. He has further admitted that they are

required to do the duties on shift basis. It could thus clearly

be seen that there are serious discrepancies with regard to

the time of injuries sustained and the time of medical

examination of Inder (PW­2).

19. The version of Dr. Anoop Kumar (PW­6) that he had

examined Inder (PW­2) at 10.20 am itself is falsified by the

evidence of Omveer (PW­1) and Inder (PW­2). According to

both of them, they were in the Police Station Shergarh from

13 10.00 am to 11.00 am and thereafter, Inder (PW­2) left for

Mathura. Even according to Inder (PW­2), he reached

Mathura after 12.00 o’clock. He stated that after reaching

the hospital, he was examined after about 2 hours. As such,

even if the version of Dr. Anoop Kumar (PW­6) in re­

examination that he had examined Inder (PW­2) at 10.20 am

is to be accepted, the same is totally inconsistent with the

testimony of Omveer (PW­1) and Inder (PW­2). As such, the

possibility of some fabrication in the injury certificate cannot

be rejected.

20. We are conscious that on the ground of minor

inconsistencies, the evidence of Inder (PW­2) cannot be

brushed aside. However, it is to be noted that there are

material improvements in his evidence. His evidence

therefore is required to be scrutinized with greater caution

and circumspection. It is further to be noted that even

according to the prosecution, there is previous enmity

between the accused and the deceased. As held by this

Court in the case of Ramashish Rai v. Jagdish Singh4,

previous enmity is a double­edged sword. On one hand, it 4 (2005) 10 SCC 498 14 provides motive to the crime and on the other, there is a

possibility of false implication.

21. This Court, in the celebrated case of Vadivelu

Thevar v. State of Madras5, has observed thus:

“…….Hence, in our opinion, it is a sound and well­established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..……”

5 [1957] SCR 981 15

22. We find that the testimony of Inder (PW­2) would fall

under the 3rd category i.e. his evidence can be said to be

“neither wholly reliable nor wholly unreliable”. As such, it

will be necessary that there is some corroboration to his

ocular testimony.

23. The trial court had relied on the recoveries of the

weapons on the memorandum of the accused persons alleged

to have been used in the commission of crime. Insofar as the

seizure at the instance of accused Kanhaiya is concerned, he

was arrested on 1st May 2002. It is to be noted that there are

no independent panchas to the seizure memo. Apart from

that, the memorandum statement of accused Kanhaiya, as is

required to be recorded under Section 27 of the Evidence Act,

has also not been brought on record.

24. Insofar as the recoveries at the instance of accused

Deepi and Balveer are concerned, the said accused have

surrendered in court on 7 th May 2002. Inspector Ashok

Kumar Singh, Investigating Officer (PW­7) has stated that on

8th May 2002, a search for the weapons was made in Burji at

Kosi Road, but he could not recover any weapon. However

16 on 17th May 2002, the recoveries are alleged to have been

made at the instance of accused Deepi and Balveer. Even

the seizure memo of the recovery in respect of these two

accused is not signed by any independent panch witness. In

the case of these two accused, the memorandum recorded

under Section 27 of the Evidence Act is also not placed on

record. As such, the said recoveries cannot be said to be free

from doubt.

25. It is further to be noted that immediately after the

incident, Vijay Singh, brother of deceased Prakash as well as

Omveer (PW­1) and Inder (PW­2), informed about the incident

to Police Station Shergarh on telephone which fact has come

on record in the evidence of Omveer (PW­1) and Inder (PW­2).

Neither Vijay has been examined nor has the station diary

entry with regard to the said telephonic message been placed

on record. Though Inder (PW­2) has admitted that the

incident was witnessed by Parmal, Rajveer and other

residents, none of them was examined. As such, the

possibility of the prosecution not bringing on record the real

genesis of the incident cannot be ruled out.

17

26. Shri Singh has strongly relied on the judgment of

this Court in the case of Smt. Dalbir Kaur (supra) in

support of the submission that in view of the concurrent

findings of fact, this Court should not re­appreciate the

evidence. No doubt that the reliance placed by Shri Singh on

the judgment of this Court in the case of Smt. Dalbir Kaur

(supra) is well merited. However, it is to be noted that this

Court, in a catena of cases, has held that though in cases of

concurrent findings of fact this Court will not ordinarily

interfere with the said findings, in exceptional

circumstances, this Court is empowered to do so. If this

Court finds that the appreciation of evidence and findings is

vitiated by any error of law or procedure or found contrary to

the principles of natural justice, errors of record and

misreading of the evidence, or where the conclusions of the

High Court are manifestly perverse, this Court would not be

powerless to reappreciate the evidence. Reliance in this

respect could be placed on the judgments of this Court in the

cases of Himachal Pradesh Administration v. Shri Om

Prakash6, Arunachalam v. P.S.R. Sadhanantham and 6 (1972) 1 SCC 249 18 Another7, Mithilesh Kumari and Another v. Prem Behari

Khare8, State of U.P. v. Babul Nath9, and Pattakkal

Kunhikoya (Dead) By LRs. v. Thoopiyakkal Koya and

Another10.

27. Recently, this Court in the case of Ashoksinh

Jayendrasinh v. State of Gujarat11 had also held that

when the High Court has failed to appreciate the oral

evidence, this Court would certainly be entitled to appreciate

the evidence in correct perspective. In the said case also,

this Court, finding that the conviction was recorded after

ignoring the vital evidence, has set aside the order of

conviction and acquitted the accused.

28. In the present case, we notice that the trial court as

and the High Court have failed to take into consideration the

vital discrepancies and inconsistencies in the evidence of the

prosecution witnesses.

29. From the perusal of the evidence as well as the

findings of the trial court itself, it is clear that Omveer (PW­1) 7 (1979) 2 SCC 297 8 (1989) 2 SCC 95 9 (1994) 6 SCC 29 10 (2000) 2 SCC 185 11 (2019) 6 SCC 535 19 cannot be said to be an eye witness. Though, Inder (PW­2) is

an injured eye witness, there are serious discrepancies and

inconsistencies with regard to time of the injuries sustained

and time at which he was medically examined. Dr. Anoop

Kumar (PW­6), in his evidence, has changed his stance on

several occasions. His testimony is totally contrary to that of

Omveer (PW­1) and Inder (PW­2). As held by us, it will not be

safe to base the conviction on the sole testimony of Inder

(PW­2) though he is an injured witness. The corroboration

sought by the prosecution with regard to alleged recoveries of

the weapons used in the crime is also not free from doubt.

Neither the station diary entry with regard to telephonic

intimation given by Vijay Singh at 9.05 am has been brought

on record nor has Vijay Singh been examined. Though

independent witnesses were available, the prosecution has

failed to examine them. We therefore find that this is a case

wherein the appellants are entitled for benefit of doubt.

30. In the result, we pass the following order:

(i) The appeals are allowed;

20

(ii) The judgment and order dated 30th April 2019 passed

by the High Court of Judicature at Allahabad in

Criminal Appeal Nos. 6961, 7260 and 6227 of 2006

and the judgment and order dated 28 th September

2006 passed by the trial court in Sessions Trial Nos.

515 and 655 of 2002 are quashed and set aside; and

(iii) The appellants are acquitted of all the charges

charged with. Deepi, who has been enlarged on bail,

shall have his bail bonds cancelled, while the rest of

the accused are directed to be set at liberty forthwith,

if not required in any other case.

31. Pending application(s), if any, including application

for bail, shall stand disposed of in the above terms.

…..….......................J. [B.R. GAVAI]

…….................................................J. [PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

AUGUST 10, 2022.

21