Corroboration of Prosecution Evidence

WWW.LIVELAW.
IN
1 Criminal Appeal No. 6 of 2009 &

other connected appeals
A.F.R.
Reserved on 11.05.2016
Delivered on 26.05.2016
(i) Case :- CRIMINAL APPEAL No. - 6 of 2009
Appellant :- Ashok Singh @ Mintu Singh (Pintu)

Respondent :- State Of U.P.
Counsel for Appellant :- Nagendra Mohan,A.M.
Shukla,C B Pandey,Manish Kumar,Vivek Shrotria
Counsel for Respondent :- G.A.,B.K. Singh,K.K.
Singh,Maneesh Kumar Singh,Nishar Ahmed, R.P.Singh,
Ram Prakash Singh,Rishad Murzata,S C Shukla,Vaibhav
Kalia
along with
(ii) Case :- CRIMINAL APPEAL No. - 8 of 2009
Appellant :- Om Prakash Tiwari

Counsel for Appellant :- Raghvendra Singh
Counsel for Respondent :- G.A.,K.K. Singh,Maneesh
Kumar Singh,Nisar Ahmed,Ram Prakash Singh,Rishad
Murtaza,S C Shukla,Vaibhav Kalia
(iii) Case :- CRIMINAL APPEAL No. - 81 of 2009
Appellant :- Sunil Kumar Tiwari

Counsel for Appellant :- Raghvendra Singh,A.M.
Shukla, Akhilesh Chandra,Indrajeet Shukla,Nagendra
Mohan,Rakesh Pathak,Surya Kant Misra,Vivek Shrotria
Counsel for Respondent :- G.A.,B.K. Singh,K.K.
Singh, Maneesh Kumar Singh,Nisar Ahmed,Ram Prakash
Singh,Rishad Murtaza,Vaibhav Kalia
And
Case :- CRIMINAL APPEAL No. - 1781 of 2009
Appellant :- State Of U.P.

Respondent :- Sunil Kumar Tiwari
Counsel for Appellant :- Govt. Advocate
Counsel for Respondent :- Indrajeet Shukla
WWW.LIVELAW.IN

Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Anil Kumar Srivastava-II,J.
(Per Surendra Vikram Singh Rathore, J.)
1. All the aforesaid criminal appeals arise out of a common
judgment, hence these are being disposed of together.
2. Criminal Appeal No. 6 of 2009 has been preferred by
convicted accused persons Ashok Singh alias Mintu
Singh (Pintu) and Shailesh Kumar alias Pappu Singh
while Criminal Appeal No. 8 of 2009 has been preferred
by Om Prakash Tiwari and Babu Ram Tiwari, Criminal
Appeal No. 81 of 2009 has been preferred by appellants
Sunil Kumar Tiwari, Prem Nath Dubey, Rudra nath
Dubey, Indra Nath Dubey, Santosh Singh, Ramji Tiwari
and Girjesh Singh and Criminal Appeal No. 1781 of
2009 has been preferred by the State challenging the
acquittal of accused persons under Section 302/149
I.P.C.
3. Heard Mr. Nagendra Mohan, Mr. C.B. Pandey and Mr.
Indrajeet Shukla, learned counsels for the appellants,
Mr. Umesh Verma, learned A.G.A. for the State, Mr. I.B.
Singh, learned Senior Advocate and Mr. Manish Kumar
Singh, Advocate for the complainant and perused the
lower court record.
4. Under challenge in all the aforesaid appeals is the
judgment and order dated 17.12.2008 passed by

WWW.LIVELAW.IN

learned Additional Sessions Judge, Fast Track Court No.
2, Gonda in Sessions Trial No. 177 of 2004 arising out of
Case Crime No.114-A of 2001, Police Station
Nawabganj, District Gonda whereby all the appellants
were convicted and sentenced as under:-
(i) Under Section 147 I.P.C., one year

rigorous imprisonment and also with fine of
Rs. 1,000/- each with default stipulation of
three months additional rigorous
imprisonment.
(ii) Under Section 148 I.P.C., two years
six months additional rigorous
imprisonment.
(iii) Under Section 304 (I) read with
Section 149 I.P.C. with imprisonment for
life and also with fine of Rs. 10,000/- each
with default stipulation of two years
additional rigorous imprisonment.
(iv) Under Section 342 I.P.C., six months
one year additional imprisonment.
However, all the accused persons were
acquitted of the charge under Section
325/149 I.P.C.
5. In brief the case of the prosecution was that
complainant Shiv Bux Singh, who happens to be the
father of deceased Chandreshwar Pratap Singh lodged

WWW.LIVELAW.IN

an F.I.R. on 11.9.2001 at 14:15 hours at Police Station
Nawabganj, District Gonda alleging therein that his
younger son Chandreshwar Pratap Singh was managing
the Taxi Stand Theka of Nawabganj. Janardan Prasad
Tiwari, who has his shop in front of cold-storage and
was P.R.O. of then Health Minister of Government of
U.P. Sri Ramapati Shashtri, taking undue advantage of
his influence, used to ply his vehicles and vehicles of the
persons known to him without any serial and without
token. This conduct was objected to by the deceased
Chandreshwar Pratap Singh due to which an altercation
took place on 31.7.2001 between Chandreshwar Pratap
Singh and son of above-named Tiwari. Due to this
altercation, Janardan Tiwari and his companions had
threatened the son of the complainant with dire
consequences. On 9.9.2001 Chandreshwar Pratap Singh
was coming from Gonda and was going towards
Nawabganj on a jeep at about 11:00 a.m. When his
jeep reached near the turn of cold-storage, then one
TATA 407 (minibus) was parked obliquely on the road
due to which the entire road was blocked. The driver of
the jeep of Chandreshwar Pratap Singh tried to take his
jeep by the side of the road due to which the speed of
jeep became very slow. In the meantime, all the
accused persons, namely Sunil Tiwari, Babu Ram Tiwari,

WWW.LIVELAW.IN

Om Prakash Tiwari, Ramji Tiwari resident of
Majhanpurwa, Police Station Nawabganj Gird, Santosh
Kumar Singh, Ashok Singh resident of Ballipur, Pappu
Singh resident of Jalalpur, Girjesh Singh resident of
Ballipur, Prem Dubey, Indresh Dubey resident of Khirhi
Deeh, Police Station Wajeerganj armed with rifle, gun,
hockey, Danda, iron rod, pistol surrounded the jeep and
all the accused persons challenged Chandreshwar
Pratap Singh and pulled him out of jeep and started
beating him with hockey, Sonta, Danda, Sariya and with
the butt of rifle, gun and took him to the shop of
Janardan Tiwari and after closing the door of channel,
he was badly beaten by the appellants. In the
meantime, Ram Naresh Singh, Bhupendra Bux Singh,
Rakesh Tiwari, Abdul Aziz reached there and saw the
incident and immediately gave information of this
incident at his house to his son Vijay Pratap Singh. On
getting this information, his son Vijay Pratap Singh
along with some other persons reached on the spot and
found that Chandreshwar Pratap Singh was lying inside
the channel door. Vijay Pratap Singh took his brother to
Faizabad Hospital. The complainant also reached there,
where after giving primary treatment he was asked to
take him to Lucknow as his condition was serious. At
that time, Janardan Tiwari, who was P.R.O. of Health

WWW.LIVELAW.IN

Minister was present in the hospital, therefore, under
his pressure, proper treatment was not ensured by the
doctors. The complainant took his son to Mayo Medical
Centre, Gomti Nagar, when his health improved a bit
then he came to the Police Station Nawabganj district
Gonda on 11.9.2001 and lodged the F.I.R. of this case.
6. On the basis of this report, case crime number 114-A of
2001 was registered and investigation proceeded, which
was entrusted to PW-11 S.I. Lal Mani. During
investigation of this case, as per prosecution story, on
14.9.2001 Lal Mani went to Mayo Hospital, Lucknow for
recording the statement of Chandreshwar Pratap Singh
and recorded his statement under Section 161 Cr.P.C.
Subsequently Chandreshawar Pratap Singh succumbed
to the injuries on 16.9.2001 thereafter the case was
converted under Section 302 I.P.C.
7. In this case, investigation was subsequently transferred
to CBCID and after completion of investigation, charge
sheet was filed against all the accused persons.
8. Chandreshwar Pratap Singh was initially medically
examined at District Hospital, Faizabad on the date of
incident at 1:55 p.m. and following injuries were noted
on his body:-
(i) Lacerated wound 5 cm x 1 cm x

muscle deep right side of forehead 3.5 cm
WWW.LIVELAW.IN

above right eyebrow. Fresh bleeding.

(ii) Lacerated wound 6 cm x 1.5 cm x
muscle deep on right side of head 3 cm
above injury no. (i). Fresh bleeding
present.
(iii) Lacerated wound 4 cm x 1.5 cm x
muscle deep on the right side of head 1.5
cm above injury no. (ii).
(iv) Lacerated wound 4 cm x 1 cm x
muscle deep on right side of head 8 cm
above left mastoid region.
(v) Lacerated wound 4 cm x 0.5 cm x
muscle deep on the occipital region.
(vi) Lacerated wound 2.5 cm x 0.5 cm x
muscle deep anterior aspect of second
phalynx of right ring finger.
(vii) Multiple contusion in an area of 30 cm
x 5 above anterior aspect of right forearm,
just above wrist.
(viii) Contusion 5 cm x 2.5 cm on the
dorsal dorsal aspect of right hand.
(ix) Multiple abrasion in an area of 18 cm
x 2 cm on the anterior aspect of right leg, 4
cm below knee.
(x) Contusion 10 cm x 7 cm on the dorsal
of right foot, lateral aspect just below
ankle.
(xi) Abrasion 1 cm x 0.1 cm on the
dorsum of left foot 7 cm below the left
ankle.
(xii) Abrasion 2 cm x 1 cm of anterior of
left leg 12 cm below the knee.
(xiii) Abrasion 2 cm x 0.5 cm on the left leg
WWW.LIVELAW.IN

front aspect 4 cm below injury no. (ii)

(xiv) Multiple contusion in an area of 30 cm
x 13 cm on right side of back starting from
the top of shoulder.
(xv) Multiple contusion in an area of 26 cm
x 18 cm on left side back starting from the
top of shoulder.
(xvi) Contusion 13 cm x 7 cm on the left
side of back 4 cm below injury no. (xv).
(xvii)Contusion 4 cm x 2 cm in the middle
of back.
In the opinion of doctor, injury nos. (ii),
(iii), (iv), (v), (vii) and (xiv) were kept
under observation and x-ray was advised.
All the injuries were caused by hard and blunt object
and were fresh in duration.
9. The deceased succumbed to the injuries on 16.9.2001
at 3:30 p.m. On the death of deceased, inquest
proceedings were conducted by the Inspector of Police
Station Gomti Nagar on the basis of death memo sent
by Mayo Hospital, Gomti Nagar and postmortem on the
body of the deceased was conducted on 16.9.2001 at
5:30 p.m. and following ante-mortem injuries were
found on his body:-
(i) Lacerated wound 3 cm long with three

stitches with right side forehead 3 cm
above right eyebrow.
(ii) Lacerated wound 10 cm long with
eight stitches on the top of head and 3 cm
WWW.LIVELAW.IN

behind injury no. (i).

(iii) Lacerated wound 3 cm long with three
stitches on left side of head, 6cm above
and behind left ear.
(iv) Lacerated wound 4 cm long with three
stitches 2.5 cm above injury no. (iii).
(v) Contusion 8 cm x 4 cm on front of left
shoulder.
(vi) Stitched wound on middle dorsal
phalynx of right ring finger 4 cm long on
opening pus present in the middle inner
phalynx bone of ring finger fracture.
(vii) Contusion on dorsum of right hand 4
cm x 4 cm.
(viii) Partially healed multiple abrasions in
an area of 10 cm x 8 cm on middle dorsum
aspect of right forearm.
(ix) Multiple abrasions in an area of 12 cm
x 4 cm present on shin of left lower leg.
(x) Multiple healed abrasion (partially) in
an area of 8 cm x 6cm on shin of right leg.
In the opinion of the doctor, the cause of death was
septicemia as a result of ante-mortem injuries.
10. The appellants have pleaded a cross version in
their defence for which a F.I.R. was lodged on the date
of incident at 9:10 p.m. as Case Crime No. 114 of 2001
and investigation of the same was also entrusted to PW-
11 Lal Mani.
11. The defence of the appellants as comes up from

WWW.LIVELAW.IN

the evidence of DW-1 and DW-2 was that one TATA 407
(a mini passenger bus) left the Taxi Stand for Gonda.
The said TATA 407 was chased by a jeep on which
deceased Chandreshwar Pratap Singh was present. The
said jeep overtook TATA 407 near cold-storage where it
was stopped by Chandreshwar Pratap Singh thereafter
he started abusing driver as he has taken the bus
without taking the token and without paying the tax. On
this the driver replied that he shall pay the tax after his
return from Gonda for both the sides but Chandreshwar
Pratap Singh asked him to take back the bus to the taxi
stand and started beating the driver. The passengers
sitting on the bus objected such act of Chandreshwar
Pratap Singh. Then Chandreshwar Pratap Singh started
abusing the passengers also. DW-2 was a passenger of
the bus and DW-1 was a person present there. In the
meantime, Om Prakash Tiwari, asked Chandreshwar
Pratap Singh why the passengers are being harassed
while driver is ready to pay tax. It annoyed
Chandreshwar Pratap Singh and he raided his jeep on
Om Prakash Tiwari due to which his leg was fractured
and jeep stopped in the pile of crushed stones (gitti)
and as it could not move and stopped there. Seeing
such activities of Chandreshwar Pratap Singh the
passengers sitting in the bus and other persons present

WWW.LIVELAW.IN

there started beating Chandreshwar Pratap Singh. Om
Prakash Tiwari was also medically examined at District
Hospital, Faizabad on the same day at 1:45 a.m. and
following injuries were noted on his person:-
(i) Abrasion 2 cm x 1 cm on the bridge

of nose oozing present.
(ii) Contusion abraded 12 cm x 4 cm on
the mid chest just below the nipple, kept
under observation.
(iii) Abrasion 6 cm x 2 cm on the lower of
left side arm just below the elbow oozing
present.
(iv) Contusion 15 cm x 1 cm on the
middle of right thigh red in colour, kept
under observation.
(v) Abraded contusion on the right
patella oozing present.
(vi) Abraded contusion 2 cm x 2 cm on
left patella oozing.
Injury no. (ii) and (iv) were kept under observation. X-
ray was advised. The injuries were caused by hard and
blunt object and were fresh in duration.
12. At this stage, it is pertinent to mention here that
on the report lodged by Sunil Kumar Tiwari against
Chandreshwar Pratap Singh regarding the cross version
of this incident, police filed final report because of the
death of Chandreshwar Pratap Singh, who was sole
named accused in that case. However, police could not
trace out the two unnamed accused persons.

WWW.LIVELAW.IN

Brief description of evidence recorded during trial
is as under:-
13. PW-1 Shiv Bux Singh is not a witness of this
incident. He has given evidence regarding earlier
incident that took place on 31.7.2001 as motive of this
offence.
PW-2 Ram Naresh Singh is an eyewitness. He has
supported the case of the prosecution. He is the first
cousin of the complainant and was a chance witness,
who as per his evidence reached place of occurrence by
coincidence. He is resident of a village situated at a
distance of about 6 -7 kilometers from place of
occurrence. He has also stated that in his presence
statement of Chandreshwar Pratap Singh was recorded
by Investigating Officer in Mayo Hospital at Lucknow.
PW-3 Vijay Pratap Singh, PW-2 Ram Naresh Singh
gave information to this witness at his house. When he
came along with PW-2 and other persons to the place of
occurrence then he saw that Chandreshwar Pratap
Singh was lying in an injured condition inside the
channel gate of appellant Sunil Kumar Tiwari and
appellants were beating him. On the alarm raised by
this witness appellants ran away. He has also stated
that in Mayo Hospital in his presence statement of his
brother was recorded by Investigating Officer.

WWW.LIVELAW.IN

PW-4 Dr. Sunil Agarwal, Neuro Surgeon of Mayo
Hospital, who has proved the bed head ticket of
Chandreshwar Pratap Singh.
PW-5 Dr. Arvind Kumar Srivastava, who has
medically examined injured Chandreshwar Pratap Singh
at District Hospital Faizabad and also medically
examined appellant Om Prakash Tiwari, injured of the
cross case.
PW-6 Jagdish Yadav is a formal witness who has
prepared chik report and G.D. of this case.
PW-7 Dr. Sadanand has conducted postmortem on
the body of deceased, details of which has already been
mentioned earlier.
PW-8 Vishnu Pratap Singh is witness of the inquest
proceedings.
PW-9 Uday Pratap Singh is a witness of the previous
incident that took place on 31.7.2001, which is said to
be the motive to commit this offence. He also reached
at that time by chance.
PW-10 Ramesh Chandra Singh Yadav is
Investigating Officer of CBCID.
PW-11 S.I. Lal Mani is Investigating Officer of the civil
police, who has investigated both the cases till the
investigation was handed over to CBCID.
PW-12 S.I. Ram Iqbal Singh, the then S.O. Gomti

WWW.LIVELAW.IN

Nagar, who has prepared inquest report on the body of
the deceased.
14. CW-1 Dr. Ramesh Chandra, the then surgeon of
District Hospital, Faizabad, who has treated injured
Chandreshwar Pratap Singh in District Hospital,
Faizabad and has also stated that since his condition
was serious, therefore, he was given first aid and was
referred to Lucknow.
CW-2 Shri Ram Lakhan Dubey, the owner of the jeep
on which deceased Chandreshwar Pratap Singh had
gone to the place of occurrence. During investigation
this jeep was taken into custody from the place of
occurrence. He has given evidence, though, hearsay,
but in favour of the defence.
DW-1 is Siya Ram Pande and DW-2 Vijay Bhan
Singh have stated the defence case as stated earlier.
DW-3 Markandey Pande has proved the medical
examination report of Vijay Pratap Singh dated
4.11.1999 as secondary evidence.
15. After appreciating the evidence available on
record, the trial court has considered the evidence of
PW-2 and PW-3 wholly reliable and has also found the
statement of deceased recorded by PW-11 Lal Mani to
be wholly reliable as his dying declaration. The defence
theory was discarded by the trial court observing that

WWW.LIVELAW.IN

when incident of this case had taken place at 11:00
a.m., in which Chandreshwar Pratap Singh had received
injuries then it was not possible subsequent thereto at
11:30 a.m. that he could have taken part in any
incident and on this ground the defence theory was
discarded. The trial court was of the view that offence
committed by the accused persons inter alia shall fall
under Section 304 (I) I.P.C., as no deadly weapon was
used and accordingly convicted the appellants, hence all
the aforesaid criminal appeals.
16. Very lengthy arguments were advanced in these
appeals from both the sides. On behalf of the appellants
Mr. Nagendra Mohan, Mr. Chandra Bhushan Pande and
Mr. Indrajeet Shukla have argued at length. The
substance of the argument raised on behalf of the
defence was that PW-2 Ram Naresh Singh was a chance
witness. His evidence clearly shows that he was not
even present at the place of occurrence. PW-3 Vijay
Pratap Singh claims himself to have come to the place
of occurrence on the information given by PW-2,
therefore, once the presence of PW-2 Ram Naresh Singh
is found to be doubtful then the presence of PW-3 Vijay
Pratap Singh also cannot be believed on the place of
occurrence. He has also argued that the trial court has
overlooked all the material inconsistencies in recording

WWW.LIVELAW.IN

the statement of deceased under Section 161 Cr.P.C.,
and without considering all these aspects, has found the
same to be wholly reliable and has convicted the
appellants. Learned counsel for the appellants has
further submitted that the prosecution has not given
any explanation as to how Om Prakash Tiwari has
received injuries. Learned counsel for the appellants has
placed reliance on several pronouncements of Hon'ble
Apex Court, which shall be considered at the relevant
part of the judgment.
17. On behalf of the State, learned A.G.A. Mr. Umesh
Kumar Verma, and on behalf of complainant Mr. I.B.
Singh, learned Senior Advocate and Mr. Manish Kumar
Singh, Advocate have made their submissions.
18. Learned A.G.A. has submitted that the statement
under Section 161 Cr.P.C. of the deceased was
admissible under Section 32 of the Indian Evidence Act
as dying declaration. He has also argued that the
presence of TATA 407 was shown in the site plan of
Case Crime No. 114-A of 2001 and said site plan has
not been challenged in the cross examination, therefore
the presence of TATA 407 on the place of occurrence by
which the road was blocked, stands established. The
witnesses have fully supported the case of the
prosecution and the trial court has rightly appreciated

WWW.LIVELAW.IN

the evidence available on record.
19. Mr. I.B. Singh, learned Senior Counsel has argued
on behalf of the complainant that the date, time and
place of occurrence has been admitted by some accused
persons themselves in the statement recorded under
Section 313 Cr.P.C. in reply to question number (1) and
the manner of assault has been stated by the
witnesses. Therefore, the trial court was right in
concluding that the appellants have caused this offence
and has rightly convicted them.
20. Mr. Manish Kumar Singh, Advocate has argued on
behalf of the complainant that offence committed by the
appellants would fall under Section 302 I.P.C. and not
under Section 304 (I) I.P.C., because the deceased was
given blows so mercilessly that they all had intentionally
caused injuries with the knowledge that the injuries
caused by them shall in all probability result into the
death of the deceased, so the offence committed by the
appellants would fall under Section 302 I.P.C. Apart
from it, he has also made submission regarding the
truthfulness of the prosecution witnesses and the
reliability of the dying declaration.
21. Keeping in view the rival submissions, the
evidence of the prosecution witnesses has to be
appreciated. In the instant case, admittedly there is no

WWW.LIVELAW.IN

dispute to the fact situation that only two witnesses of
fact have been examined in support of the prosecution.
PW-2 Ram Naresh Singh, who is first cousin of the
complainant was resident of a village situated at a
distance of 6 - 7 kilometers from the place of
occurrence. He is the person who has given the
information, as per the case of the prosecution, to PW-3
Vijay Pratap Singh at his residence and thereafter PW-3
Vijay Pratap Singh came to the place of occurrence
along with some other persons and had taken
Chandreshwar Pratap Singh in injured condition to
District Hospital Faizabad on a jeep. It is true that
incident of this case has taken place on a road, so every
person who was a passerby may be a witness of this
incident. But such person must come with a reason for
his presence there.
22. In this case the prosecution has come with a motive
that on 31.7.2001, the incident of altercation had taken
place with Sunil Kumar Tiwari and others on one side
and the deceased Chandreshwar Pratap Singh on other
side. The reason for such incident was that Sunil Kumar
Tiwari, who happens to be the nephew of Janardan
Prasad Tiwari under his political influence used to run
the vehicles as Taxi without taking token from the taxi
stand and without paying the taxes. This act was

WWW.LIVELAW.IN

objected to by Chandreshwar Pratap Singh on which this
quarrel took place wherein Chandreshwar Pratap Singh
was threatened by Sunil Kumar Tiwari and his
associates and because of that enmity, the offence has
been committed. Since the prosecution has come with
direct evidence and law is settled on the point that in
case of direct evidence, the motive pales into
significance. On this point, reference may be made to
the pronouncement of Hon'ble the Apex Court in the
case of Hon'ble the Apex Court in the case of Darbara
Singh Vs. State of Punjab reported in 2012 (10)
SCC 476, Sanjeev Vs. State of Haryana reported in
2015 4 SCC 387 and Birendra Das and another Vs.
State of Assam reported in 2013 12 SCC 236. In the
case of Darbara Singh (supra), Hon'ble the Apex
Court has observed in paragraph no. 15 and 16 as
under:-
“15. So far as the issue of motive is

concerned, it is a settled legal proposition
that motive has great significance in a case
involving circumstantial evidence, but
where direct evidence is available, which is
worth relying upon, motive loses its
significance. In the instant case, firstly,
there is nothing on record to reveal the
identity of the person who was convicted
for rape, there is also nothing to reveal the
status of his relationship with the Appellant
and further, there is nothing on record to
determine the identity of this girl or her
relationship to the co-accused Kashmir
Singh. More so, the conviction took place
WWW.LIVELAW.IN

20 years prior to the incident. No

independent witness has been examined to
prove the factum that the Appellant was
not on talking terms with Kashmir Singh. In
a case where there is direct evidence of
witnesses which can be relied upon, the
absence of motive cannot be a ground to
reject the case. Under no circumstances,
can motive take the place of the direct
evidence available as proof, and in a case
like this, proof of motive is not relevant at
all.
16. Motive in criminal cases based solely
on the positive, clear, cogent and reliable
ocular testimony of witnesses is not at all
relevant. In such a fact-situation, the mere
absence of a strong motive to commit the
crime, cannot be of any assistance to the
accused. .........................”
(Underlined by us)
23. PW-1 complainant Shiv Bux Singh in his
examination in chief on this point has not stated that
any information of the incident dated 31.7.2001 was
given to the police but Head Moharir of the police
station PW-6 has stated that an application to this effect
was given at police station but the case was not
registered under the political pressure. PW-9 has also
given evidence on the point of motive but he was also a
chance witness. He has stated that by chance he had
gone to take petrol for his scooter and has witnessed
the incident dated 31.7.2001. Since we have already
observed that it is a case of direct evidence and motive
takes a back seat in cases of direct evidence, so we do
not find it necessary to deal with this point in detail.

WWW.LIVELAW.IN

24. In order to appreciate the evidence of a witness
the first question that has to be considered by the court
is whether he was present at the place of occurrence, if
reply to this query is in affirmative then the next
question arises whether his evidence is reliable or not.
So we will first deal with the point whether he was
present at the place of occurrence.
25. Before proceeding further in the matter, we would
like to mention that it is settled principle of criminal law
that the prosecution must stand on its own legs and it
cannot take advantage of the weaknesses of defence.
On this point reference may be made to the
pronouncement of Hon'ble the Apex Court in the case of
Suchand Pal Vs. Phani Pal reported in (2003) 11
SCC, 533 wherein Hon'ble Apex Court has held as
under:-
“It is an established position in law that the

prosecution can succeed by substantially
proving the version it alleges. It must stand
on its own legs and cannot take advantage
of the weakness in the defence case. The
court cannot on its own make out a new
case for the prosecution and convict the
accused on that basis. Only when a
conclusion is arrived at on the evidence and
the substratum of the case is not changed,
such a course is permissible.”
26. Now we come to the evidence of PW-2 Ram Naresh
Singh and first we shall examine it to ascertain whether
he was present at the scene of occurrence as claimed

WWW.LIVELAW.IN

by him and if yes whether his evidence is reliable.
Hon'ble the Apex Court in the case of
Acharaparambath Pradeepan and another Vs.
State of Kerala reported in (2006) 13 SCC 643 has
considered the evidence of a chance witness and has
held in paragraph no. 32 as under:-
“32. Some caution is also required to be

exercised in case of chance witnesses. It
requires a close scrutiny of the evidence of
a chance witness.”
27. Admittedly PW-2 Ram Naresh Singh is the first cousin of
complainant Shiv Bux Singh and has been accused in
some criminal cases with complainant Shiv Bux Singh.
This fact has been admitted by this witness in his cross-
examination. Regarding his presence on the place of
occurrence, he has stated during trial that one day prior
to the incident, he had gone on motorcycle to Gonda to
the house of his uncle Ram Iqbal. He stayed there in the
night and in the following morning, he moved from
Gonda and went to Banbhusara village near
Dumariyadeeh where his daughter was married. While
he was coming back from the house of his daughter,
and reached at Gonda-Faizabad Road near cold-storage
then he saw a TATA 407 was parked there and
thereafter he claims to have witnessed the incident. On
this point, in cross-examination, he has stated that on

WWW.LIVELAW.IN

8.9.2001, he had gone to the house of his uncle Ram
Iqbal in Gonda to talk with him about agriculture. He
himself had gone to his house. It was not pre-planned
visit nor he was called by his uncle on 8.9.2001. He had
gone alone on motorcycle and took about two hours to
reach Gonda from his house. The distance of Gonda
from his house was 40 km. Next day in the morning i.e.
on the date of incident, he left Gonda at about 9:00
a.m. or 9:15 a.m., he reached the house of Kali Prasad
Singh in village Banbhusara with whose son, his
daughter has been married. He has stated that at about
10:00 - 10:15 in the morning, he reached the village of
his daughter. He has admitted that his visit to the house
of his daughter was just coincidence and it was not a
pre-planned visit. He talked about the welfare of his
daughter and took tea and thereafter he left at 10:30
a.m. and reached the place of occurrence at about
11:00 a.m. Thus he took about half hour time in
covering the distance from the house of his daughter to
the place of incident. He has himself admitted that after
undertaking a drive on motorcycle of more than one
hour and fifteen minutes, he reached at about 10:15
a.m. to the house of his daughter and left about 10:30
a.m. while he had no other planned programme. The
question arise as to what was the hurry to this witness

WWW.LIVELAW.IN

to stay at the house of his own daughter only for 15
minutes when he had gone to his daughter's house after
covering such a long distance. Virtually he is giving an
explanation simply to show that he was present at the
place of occurrence. All these statements that he went
to Gonda one day prior to this incident and on the date
of incident, he went to meet his daughter, does not find
place in his statement under Section 161 Cr.P.C. His
statement under Section 161 Cr.P.C. was first recorded
after about eight days of the incident by the civil police
and thereafter again by the CBCID. In both the
statements, he has stated that on the day of incident,
he had gone to Dumariyadeeh with his personal work
where-from he was coming back. He has stated that he
had told all these details to the Investigating Officer but
he could not furnish any reason as to why it was not
written by the Investigating Officer. On this point, PW-
11 Lal Mani, Investigating Officer has stated that Ram
Naresh Singh had told him that he had gone to
Dumariyadeeh on the date of incident and on that day,
he was coming back. Thus he has not stated during
investigation that he had gone to the house of his uncle
and from there to the house of his daughter and after
staying there only for 15 minutes, he left the village
Banbhusara and reached the place of incident at 11:00

WWW.LIVELAW.IN

a.m. PW-10 Ramesh Chandra Singh Yadav, who is
Investigating Officer of CBCID has stated that he made
no effort to record the statement of Ram Iqbal, uncle of
the complainant. Thus, very contradictory statement
regarding the reason as to when he left his village and
where-from he reached the place of occurrence were
given by PW-2 Ram Naresh Singh. In our considered
opinion, it was obligatory on the prosecution to examine
Ram Iqbal where this witness claims to have stayed in
the night on 8.9.2001 and also Kali Prasad or his own
daughter to establish that on the date of incident or a
day prior thereto, this witness had come to their house.
Non-examination of these two witnesses regarding the
presence of this witness at the place of occurrence
create doubt. Admittedly the place of occurrence was
neither the normal place of his presence nor the place
of his vocation. So prosecution was supposed to
establish his presence. If prosecution fails to prove his
presence by link evidence then it will give rise to an
adverse inference against the prosecution. On this point
reference may be made to the pronouncement of
Hon'ble the Apex Court in the case of State of Uttar
Pradesh Vs. Satveer and others reported in (2015)
9 Supreme Court Cases 44 wherein in similar
circumstances, Hon'ble the Apex Court has observed in

WWW.LIVELAW.IN

paragraph no. 13 as under:-
“13. We now proceed to examine the

testimony of the sole witness in the context
of the material on record. According to
PW2 Mewa Ram he was sitting on a bench
in front of the clinic of a doctor with
Vijaypal when he saw Akash being led
inside the baithak by the Respondents.
Apart from his own testimony nothing has
been placed on record by the prosecution
which could lend corroboration to his own
presence and the content of his version.
First, no reason has been given why Mewa
Ram and Vijaypal were sitting on the bench
outside the clinic of the doctor. Neither the
doctor nor Vijaypal were examined. Beyond
the testimony of the witness himself there
is nothing to indicate whether PW2 Mewa
Ram was actually there at the relevant
time or not. Secondly, the place from
where he allegedly witnessed the
occurrence is not a natural place where
either the witness resides or carries on any
vocation. The reason for his being there is
not placed on record. Again the reason for
his continuing to be there for 20-25
minutes is also not spelt out. Thirdly, none
from the house of Akash was examined nor
did PW1 Roop Basant throw any light as to
when Akash left the house and in whose
company was he playing. Neither has the
prosecution given the names of those
children nor has anybody else been
examined to say that he had seen the
children playing at the place in question.
There is nothing on record which could
corroborate that Akash was actually
present with other children. Fourthly, there
is nothing to indicate how far was the
house of Akash and whether that was the
normal place where Akash would always be
playing. Lastly, if the incident created
chaos in the village so much so that the
villagers went and thrashed the
Respondents, there is no reason why none
of them was examined.”
(emphasis added)
WWW.LIVELAW.IN

28. Thus prosecution has failed to prove the presence
of this witness at the scene of occurrence by link
evidence. Even otherwise he himself has given
contradictory statements about his presence during
investigation and during trial. There is yet another
reason which belies the presence of the two eye-
witnesses. As per admitted case of the prosecution
these two witnesses had taken the injured to District
Hospital Faizabad. It has come in evidence that parents
of Chandreshwar Pratap ingh reached Faizabad Hospital
subsequently. As per evidence none of these two eye-
witnesses admitted him in Hospital. He was admitted by
his mother. Normally in such circumstances, it is the
male member of the family who come forward and
woman, particularly in rural background, are kept away
from such responsibility. But in this case no male
member admitted Chandreshwar Pratap Singh in
Hospital. It also supports the defence theory that these
persons were not present and injured was taken to
hospital by his mother.
29. Thus we find that presence of this witness on the
place of occurrence for the reasons stated above to be
doubtful. Inspite of that we have examined the
reliability of his evidence. He has stated that at about
11:00 a.m., he reached near cold-storage. Road was

WWW.LIVELAW.IN

blocked by TATA 407 so he stopped his motorcycle
there. Generally the practice of motorcyclist is that in
case there is any blockage on the road then inspite of
stopping there, they take out their motorcycle from any
other side even driving through Kachcha Road. Bare
perusal of the site plan shows that there were open
area on both the sides of the road. So there was
absolutely no occasion for this witness to stop his
motorcycle and to wait for the arrival of Chandreshwar
Pratap Singh. Neither he was aware of the fact that
Chandreshwar Pratap Singh shall come to the place of
occurrence nor Chandreshwar Pratap Singh was having
any information that he was present at the place of
occurrence. He has fairly conceded in his cross-
examination that his arrival at the place of occurrence
was just a coincidence. All the accused persons were
known to this witness but he has not stated as to what
weapon was possessed by each accused. On this point,
when he was questioned during cross-examination then
he has stated that he was not aware as to what weapon
was possessed by each accused. He has also not stated
as to how many persons were sitting in the jeep. He has
expressed his ignorance totally about the cross case and
the injuries sustained by appellant Om Prakash Tiwari.
When the evidence of this witness is considered in the

WWW.LIVELAW.IN

light of statement of PW-3 then it is clear that the
information about the incident was given by this witness
to PW-3 Vijay Pratap Singh. He has assigned specific
weapon in the hands of each accused. But as stated
earlier, this witness himself was not aware of the fact of
the weapons possessed by each accused. A general
statement was made by him on this point. Once he
himself was not aware of the weapon of each accused
persons then he was not in a position to tell the said
fact to PW-3 Vijay Pratap Singh. PW-3 Vijay Pratap
Singh has also expressed his ignorance about the cross
case and has also not disclosed the name of jeep driver
and cleaner on which Chandreshwar Pratap Singh
reached the place of occurrence. PW-3 Vijay Pratap
Singh has stated that it was Ram Naresh who told him
about the incident, the name of the persons who
stopped the jeep and have beaten Chandreshwar Pratap
Singh along with their weapons but this statement of
PW-3 Vijay Pratap Singh is contrary to the statement
given by PW-2 Ram Naresh as he has expressed his
ignorance regarding the weapon possessed by each
individual accused. Even in the dying declaration of the
deceased weapons of each accused were not disclosed
by him, though he has narrated names, parentage and
residence of all the accused persons. How complainant

WWW.LIVELAW.IN

mentioned this detail in F.I.R. is best known to him only.
Submission of learned counsel for the appellants has
substance that deliberately these two witnesses have
concealed the name of jeep driver and cleaner because
they were the best witness of the incident and
prosecution has deliberately withheld them and has
produced planted witnesses.
30. Admittedly in this case prosecution has itself
proved the injuries sustained by Om Prakash Tiwari as
Ex. Ka-7. According to the evidence of PW-5 Dr. Arvind
Kumar Srivastava, appellant Om Prakash Tiwari was
examined about ten minutes prior to the examination of
deceased Chandreshwar Pratap Singh at about 1:45
a.m., and these injuries were found on his person,
which were caused by hard and blunt object and it has
come in evidence that his right leg was fractured. All the
witnesses of fact produced by prosecution were given
an opportunity on behalf of the defence to explain the
injuries sustained by appellant Om Prakash Tiwari but
all the witnesses of fact produced by prosecution have
expressed their total ignorance about the existence of
any cross-case and about the injuries sustained by Om
Prakash Tiwari. None of them disclosed the name of the
driver, cleaner or any other occupant of the jeep.
31. Submission of learned counsel for the appellants

WWW.LIVELAW.IN

was that non-examination of the injuries of accused Om
Prakash Tiwari gives rise to the only inference that the
prosecution is suppressing the genuineness of the case
and is not coming with clean hands.
32. On this point, reliance has been placed on the
Balwan Singh Vs. State of Haryana reported in
(2005) 11 SCC 245 wherein Hon'ble the Apex Court in
paragraph no. 12 has held as under:-
“12. The question then arises whether the

failure of the prosecution to explain the
injuries suffered by the accused is not fatal
to the case of the prosecution. It is true
that in all cases failure of the prosecution to
explain injuries to accused may not be
fatal, and that the consequence of to
explain such injuries depends upon the
facts and circumstances of the case, the
nature of the occurrence and the nature of
the injuries suffered by the accused. In this
case we find that the injuries suffered by
A1 to A3 are numerous. We can say that
the injuries were serious because any of
the injuries on the skull could have proved
fatal. Fortunately, that did not happen. The
High Court noticing the evidence took the
view that though the prosecution had not
explained the injuries on the accused
persons and may not have come out with a
correct version of the occurrence, this could
be said to be a case of a free fight and,
therefore, right of private defence was not
available to any of the participants and
each one must be held responsible for is
own conduct and action. We do not find
ourselves in agreement with this view. The
mere fact that the accused are also found
to have sustained serious injuries
unexplained by the prosecution does not
necessarily give rise to an inference that
WWW.LIVELAW.IN

there must have been a free fight. In the

instant case, we find that there is ample
evidence on record to establish that the
occurrence took place in a different manner
altogether in which the accused were also
injured. They were promptly examined by
the doctor who was examined as PW6, and
they had also lodged a first information
report stating relevant facts and alleging
that it was the prosecution party which was
the aggressor. From the facts of the case it
becomes apparent that the prosecution has
not disclosed the true genesis of the
occurrence. The motive suggested by the
prosecution does not appeal to us, because
if there was an altercation between A1 and
A2 in village Juan when a request was
made by PW5 to A1 to take the groom on
his motor cycle to the Choupal, there
appears to be no reason why the accused
would have assaulted his father after
returning to the village, particularly, when
PW5 was not with his father. The motive as
alleged by the prosecution does not appeal
to us because it does not appear to be
natural that for the conduct of his son at a
different place, the appellant would return
to the village and kill his father. Having
regard to the place of occurrence as found
by the High Court, the defence of the
accused is probablised. It is well settled
that while the prosecution has to prove its
case beyond reasonable doubt, the defence
has only to produce evidence or show
material on record which probably its
defence.”
Reliance has also been placed on the pronouncement of
Hon'ble the Apex Court in the case of Ganesh Dutt Vs.
State of Uttarakhand reported in (2014) 12 SCC
389 in which Hon'ble the Apex Court has held in
paragraph no. 21:-
“21. The eye-witnesses who deny the

presence of injuries on the person of the
WWW.LIVELAW.IN

accused are lying on most material point,

and therefore, their evidence is unreliable.
It assumes much greater importance where
the evidence consists of interested or
inimical witnesses. In the present case
admittedly there was enmity between the
accused family and the deceased family and
PWs 1 to 3 are interested as well as inimical
witnesses and their denial of injuries on the
person of accused, makes their evidence
unreliable.”
Reliance has also been placed on the pronouncement of
Hon'ble the Apex Court in the case of Vijay Narain
Mishra Vs. State of U.P. reported in (2013) 83 ACC
444 wherein a Division Bench of this Court in paragraph
no. 30 has observed as under:-
“30. ..................... Thus, on an overall

examination of facts and circumstances,
the out come which can be safely arrived at
is that the prosecution has not been able to
establish the guilt of the appellant beyond
all reasonable doubt and has suppressed
the real genesis of the incident. Its
witnesses have not deposed real truth and
has concealed very significant aspect of
accused injuries, which makes them
untrustworthy witnesses. FIR is imbibed
with an element of concoction and hence
looses its authenticity and corroborative
value and consequently for all these
reasons all the accused appellants are
entitled to acquittal.”
33. In the facts of this case also only related chance
witness could be produced. PW-2 Ram Naresh Singh
was also accused with complainant in some cases and
he admits that he reached the place of occurrence by
coincidence. He has also not explained the injuries

WWW.LIVELAW.IN

sustained by appellant Om Prakash Tiwari. Identity of
most natural witness, the driver and cleaner of jeep has
been concealed.
34. Thus, in this case, non-explanation of injuries of
Om Prakash Tiwari further makes the evidence of this
witness to be unreliable.
35. In the instant case, both the parties have made
allegations against each other regarding abuse of their
influence. The complainant side says that Janardan
Prasad Tiwari was PRO of the then Health Minister Sri
Ramapati Shashtri and under his influence proper
treatment at District Hospital Faizabad was deliberately
not given to Chandreshwar Pratap Singh by the hospital
authorities. On the contrary, the appellants have stated
that Yash Pal Singh, the then DGP was in close contact
with the complainant side. He had come to attend the
marriage of his daughter, therefore, the police was
deliberately siding the complainant side. Because of
such conduct of the police, the appellants made a
request for transfer of the investigation, so that the
case may be fairly investigated. We do not find it
appropriate or the least necessary to indulge into the
political or any other influence as alleged by both the
parties against each other. But we consider it
appropriate to confine ourselves to the material

WWW.LIVELAW.IN

available on record and to decide the case only on the
basis of the evidence led by the parties during trial.
36. Learned counsel for the appellants during course of
argument has drawn the attention of this Court towards
the evidence of CW-2 Shri Ram Lakhan Dubey, who was
the owner of the jeep and has stated in his cross-
examination by the accused that in between 9:00-
10:00 a.m., Chandreshwar Pratap Singh came to his
jeep and asked the key of the jeep from his driver and
told him that he will chase a vehicle. The driver of the
jeep declined to give him the key of the jeep. But he
forcibly snatched the key of the jeep and went on the
said jeep. It is true that this statement of the witness is
hearsay as he himself has admitted that on the date of
incident he was in Delhi. When he came back from Delhi
then he got his jeep released from the court. He has
also disclosed the name of the driver of the jeep but it
is really strange to note that the police made absolutely
no effort to work out the name of the driver or owner of
the jeep. The prosecution in this case has tried to
conceal the name of owner and driver of the jeep on
which Chandreshwar Pratap Singh went to the place of
occurrence. Reason behind it is apparent that either
they apprehended that their story shall not be
supported by these persons or they were apprehending

WWW.LIVELAW.IN

that in case they disclose the name of driver of the jeep
then he shall be made an accused in the cross case and
both these inferences adversely affect the case of the
prosecution. CW-2 Ram Lakhan Dubey has also stated
that at the time of incident, his brother was present in
Katara Nawabganj along with (PW-3) Vijay Pratap
Singh. This statement of the witness has not been
challenged. No cross-examination on behalf of the
prosecution was made to this witness. Virtually the
statement given by this witness in his cross-
examination remains unchallenged. His jeep was found
at the place of occurrence and the same was taken into
custody by the police in damaged condition. The jeep
was found entangled in pile of crushed stone pieces
(Gitti), which was shown in the site plan of this case
also. It is really strange to note that inspite of taking
the jeep into police custody, the police says that he
could not work out the name of the driver and owner of
the jeep. So the evidence of this witness was
detrimental to the case of the prosecution.
37. Once PW-2 Ram Naresh Singh fails to satisfy the
court on the point of reason for his presence at the
place of occurrence, which admittedly was coincidence
then this fact makes his evidence unworthy of credence.
The presence of PW-2 Ram Naresh Singh at the place of

WWW.LIVELAW.IN

occurrence would adversely affect the evidence of PW-3
Vijay Pratap Singh as he was brought by PW-2 at the
place of occurrence and found Chandreshwar Pratap
Singh lying inside the channel gate. Thus evidence of
both these witnesses was not reliable. No effort was
made by prosecution to examine any independent
witness though some were named in F.I.R.
38. Since we have already concluded that the evidence
of PW-2 Ram Naresh Singh and PW-3 Vijay Pratap Singh
was not reliable for the reason stated above, therefore,
the only evidence that remains to connect the
appellants with the instant offence would be the
evidence of dying declaration of the deceased.
39. Learned counsel for the parties have laid great
emphasis on this point and have stated that the dying
declaration by itself, even if the evidence of two
witnesses is not found to be wholly reliable, was
sufficient to convict the appellants.
40. Learned A.G.A. has drawn the attention of this
Court towards the pronouncement of Hon'ble the Apex
Court in the case of Sri Bhagwan Vs. State of Uttar
Pradesh reported in (2013) 12 SCC 137 and has
drawn our attention towards paragraph no. 24 of the
said judgment, which reads as under:-
“24. As far as the implication of 162 (2) of

WWW.LIVELAW.IN

Code of Criminal Procedure is concerned,

as a proposition of law, unlike the excepted
circumstances under which 161 statement
could be relied upon, as rightly contended
by learned senior Counsel for the
Respondent, once the said statement
though recorded Under Section 161 Code
of Criminal Procedure assumes the
character of dying declaration falling within
the four corners of Section 32 (1) of
Evidence Act, then whatever credence that
would apply to a declaration governed by
Section 32 (1) should automatically
deemed to apply in all force to such a
statement though was once recorded
Under Section 161 Code of Criminal
Procedure. The above statement of law
would result in a position that a purported
recorded statement Under Section 161 of a
victim having regard to the subsequent
event of the death of the person making
the statement who was a victim would
enable the prosecuting authority to rely
upon the said statement having regard to
the nature and content of the said
statement as one of dying declaration as
deeming it and falling Under Section 32 (1)
of Evidence Act and thereby commend all
the credence that would be applicable to a
dying declaration recorded and claimed as
such.”
41. There is no dispute to the legal position that
statement of a person recorded by the Investigating
Officer regarding cause of his death is admissible in
evidence under Section 32 of the Indian Evidence Act as
his dying declaration after the death of such person.
42. Learned counsel for the appellants have not
challenged that it was not a dying declaration. But their
submission is that it was virtually a fabricated document
and was prepared subsequently by PW-11 Lal Mani,

WWW.LIVELAW.IN

Investigating Officer of the civil police. The submission
is that the prosecution itself was aware of the fact that
the evidence of the two witnesses was very weak type
of evidence as most natural and independent witnesses
were withheld, therefore, both these witnesses have
started saying before the Court during trial for the first
time that in their presence the statement of
Chandreshwar Pratap Singh was recorded by the
Investigating Officer. Learned counsel for the appellants
have also challenged that photostat copy of dying
declaration has been filed and it is not clear from the
record whether the original was before the court at the
time when it was proved. We do not consider it
necessary to indulge into this controversy because
during trial, no objection was raised on behalf of the
appellants that such a photo copy was not admissible in
evidence. So we will consider it on merits. According to
the prosecution case, this dying declaration was
recorded by PW-11 Lal Mani at Mayo Hospital, Gomti
Nagar, Lucknow. Admittedly he has not taken any
consent from the attending doctor whether his
statement can be recorded nor there is any such
mention in the bed head ticket that any statement of
this patient was recorded by the police. Cross-
examination of PW-11 Lal Mani shows that he left

WWW.LIVELAW.IN

Gonda for Lucknow on 14.9.2001 and recorded the
statement of Chandreshwar Pratap Singh in Lucknow
but he expressed his inability to disclose the time at
which such statement was recorded. He has also
admitted that serial number of the case diary and
volume number of the case diary in which this
statement was recorded was not clear. He has fairly
admitted that on that day, he had taken a different case
diary. Thus it means the statement was recorded by this
witness neither in the case diary of case crime no. 114
of 2001 or 114-A of 2001. When he was questioned
during cross-examination as to how, he used third case
diary for recording the statement of Chandreshwar
Pratap Singh then he could not reply this question and
kept mum. He has admitted that he came back from
Lucknow on 17.9.2001. He has also admitted that in the
G.D. of the police station, his movement has not been
recorded in connection with the investigation of Case
Crime No. 114-A of 2001 on 14.9.2001. It is really
strange to note that a police officer, who is investigating
a serious offence, which has taken place in the heart of
city, without any movement for the said purpose
without the case diary of that case went to the hospital
to record statement. He does not remember the time at
which he recorded the statement of the injured.

WWW.LIVELAW.IN

Admittedly such statement was recorded without
seeking any permission from the doctor or without
obtaining the fitness certificate from the doctor. We do
not find the requirement of the certificate of the doctor
to be very necessary because the statement was not
recorded as dying declaration where Regulation 115 of
the U.P. Police Regulation may apply. But inspite of that
recording of such statement on third case diary
definitely creates doubt and makes the defence theory
probable that under undue enthusiasm PW-11 Lal Mani
has fabricated this dying declaration. Since dying
declaration came into existence, therefore, PW-2 Ram
Naresh Singh and PW-3 Vijay Pratap Singh started
saying that they were present in the hospital at the time
when statement of Chandreshwar Pratap Singh was
recorded. But when we examined the evidence of PW-
11 Lal Mani himself on this point, who has recorded the
statement of these two witnesses then we found that
PW-11 Lal Mani has stated that PW-2 Ram Naresh Singh
told him that he got the information yesterday that
Chandreshwar Pratap Singh, who was under treatment
in Mayo Hospital, Lucknow, has expired. He has not told
him that during his treatment, he was present there
while PW-2 Ram Naresh Singh has stated that he went
with Chandreshwar Pratap Singh to Faizabad hospital

WWW.LIVELAW.IN

and there-from to Mayo Hospital, Lucknow and
remained there upto 12.9.2001 and came back to
Gonda and again went to Mayo Hospital on 14.9.2001.
But no such statement was given by him to PW-11 Lam
Mani. On the contrary, PW-11 Lal Mani, Investigating
Officer of the civil police has stated that PW-2 Ram
Naresh Singh told him that he got the information of
this death. This fact was not disclosed by the witness to
the Investigating Officer and for the first time, PW-2
Ram Naresh Singh and PW-3 Vijay Pratap Singh have
come with a case that in their presence, statement of
Chandreshwar Pratap Singh was recorded by PW-11 Lal
Mani. So such a statement before the court for the first
time by PW-2 Ram Naresh Singh and PW-3 Vijay Pratap
Singh comes within the purview of an improvement that
cannot be relied upon keeping in view the
Yudhishtir Vs. State of Madhya Pradesh reported in
1971 (3) SCC 436 wherein Hon'ble the Apex Court has
held that if any fact is not disclosed in the F.I.R. or
during investigation and for the first time, it is stated
during trial, then the said statement would amount to
an improvement and cannot be relied upon. Hon'ble the
Apex Court has considered this point in paragraph no.
24 of the said judgment, which reads as under:-

WWW.LIVELAW.IN

“24. ................ We are of the opinion that

these omissions, pointed out above, are not
minor, but they are omissions of a very
substantial nature, which affect the truth of
the evidence given before the Court. On the
earliest occasion, these witnesses have
omitted to refer to the decisive role stated
to have been played by the appellants in
the commission of murder. Therefore, the
statement before the Court implicating
appellants must, in the circumstances, be
considered to be an improvement. ”
43. On the point of dying declaration of deceased, PW-
10 Ramesh Chandra Singh, Investigating Officer of
CBCID, who has taken up the investigation after the
death of Chandreshwar Pratap Singh has recorded the
statement of PW-1 Shiv Bux Singh and PW-3 Vijay
Pratap Singh. According to the prosecution version, PW-
1 Shiv Bux Singh came to Gonda and lodged F.I.R. on
11.9.2001 and thereafter he went to Lucknow and
remained in the hospital. PW-3 Vijay Pratap Singh has
stated that he remained in the hospital, PW-2 Ram
Naresh Singh has also stated during trial that in his
presence statement of deceased Chandreshwar Pratap
Singh was recorded by the Investigating Officer. Similar
statement was given by PW-3 Vijay Bahadur Singh
during trial. But the statement on this point given by
PW-1 complainant Shiv Bux Singh and PW-3 Vijay
Pratap Singh are very very important and virtually the
said statements lead to the only conclusion that dying

WWW.LIVELAW.IN

declaration of deceased Chandreshwar Pratap Singh is a
fabricated document and is brain child of initial
Investigating Officer of civil police namely, PW-11 Lal
Mani. PW-10 Ramesh Chandra Singh Yadav has proved
statement of PW-1 Shiv Bux Singh under Section 161
Cr.P.C. wherein he has told the Investigating Officer that
“ 9-9-2001 ls 16-9-2001 ds e/; fdlh mPpkf/kdkjh tSls MkDVj]
eftLVsªsV] iqfyl v/kh{kd] ,l0 vks0 ,l0 vkbZ0 vkfn us esjs iq= dk
c;ku vafdr ugha fd;k vkSj tuin xksaMk ds Fkkuk uokcxat dh iqfyl
HkrhZ ds e/; y[kuÅ ns[kus ;k c;ku vafdr djus ughsa vk;hA”.
Similar statement was given by PW-3 Vijay Pratap
Singh. Such statements lead to the only conclusion that
by the time their statement was recorded by the
Investigating Officer of CBCID the said dying declaration
was not even in existence. When we examine the case
diary in the light of the aforesaid statements of these
two witnesses then we found that dying declaration of
the deceased was recorded on a different case diary.
Paper book number of the said case diary was 5262 and
it was recorded on pages no. 99-100 while the case
diary of this case was on book no. 27632 and it started
from page no. 42 after the statement of Chandreshwar
Pratap Singh, which was on different pages of a
different volume of case diary, again the old case diary
started from page no. 48. Page no. 47 of the case diary
WWW.LIVELAW.IN

was not the part of the case diary of Case Crime No.
114-A of 2001.
44. All these circumstances were not the least
considered by the trial court and he found that the
dying declaration was wholly reliable. But keeping in
view the aforesaid circumstances we conclude that the
dying declaration was a fabricated document, which was
brain child of PW-11 Lal Mani. Therefore, no reliance
can be placed on such a dying declaration.
45. The trial court has discarded the cross-version only
by a single stroke, without appreciating the evidence,
that the incident of this case has taken place at 11:00
a.m., in which Chandreshwar Pratap Singh sustained
injuries then there was no question of his participation
in the incident at 11:30 a.m. as claimed by the accused
persons. We find that this approach of the trial court
was erroneous and was the result of improper
appreciation of evidence. There was absolutely nothing
on record to infer that two incident had taken place at
two different times. Deceased Chandreshwar Pratap
Singh and appellant Om Prakash Tiwari, both have
sustained injuries in one and the same incident. The
Investigating Officer of CBCID Ramesh Pratap Singh has
admitted in his cross examination that during
investigation, he could not get any evidence that Om

WWW.LIVELAW.IN

Prakash Tiwari has sustained injuries at any place other
than the place of occurrence. Apart from it, the F.I.R. of
this case was lodged after two days and at that time,
the registration of the cross case against Chandreshwar
Pratap Singh and two other unknown persons must be
within the knowledge of the complainant side. So simply
because they had stated that the incident has taken
place at 11:00 a.m. would not mean that two incidents
at two different times had taken place rather it is only
cross-version of the same incident. It is really strange
to note that during investigation absolutely no effort
was made by the Investigating Officer to work out the
names of the unknown persons, who were occupants of
the jeep and were cited as accused in the said case.
While this fact could have been very easily ascertained
by the owner of the jeep, who has been examined in
this case as CW-1 and has disclosed the name of the
driver of his jeep. Admittedly the said jeep was taken
into police custody by the police in a damaged condition
and its head lights and front glass were also broken.
Therefore, we are of the view that approach of the trial
court to discard the defence theory out rightly without
examining its probability was not in accordance with
law. Law is settled on the point that prosecution is
obliged to prove its case beyond reasonable doubt and

WWW.LIVELAW.IN

the defence is obliged only to show that his defence was
probable. On this point, reference may be made to the
Shudhakar Vs. State of Madhya Pradesh reported in
(2012) 7 SCC 569 wherein Hon'ble the Apex Court has
held in paragraph no. 10 as under:-
“10. It is a settled principle of law that the

prosecution has to prove its case beyond
any reasonable doubt while the defence has
to prove its case on the touchstone of
preponderance and probabilities. Despite
such a concession, the accused has
miserably failed to satisfy the court by
proving his stand which itself was vague,
uncertain and, to some extent, even
contradictory.”
46. Learned A.G.A. has vehemently argued that
original defence papers, which have been proved during
trial, how those papers came on record, is a mystery.
But we do not consider it the least important to explore
this reason because not even a single question on the
point of admissibility of these documents was raised on
behalf of the prosecution during trial. On the contrary
injuries of appellant Om Prakash Tiwari were proved by
the prosecution itself.
47. Submission of learned A.G.A. was that since the
site plan of Case Crime No. 114-A of 2001 was not
challenged and PW-11 Lal Mani was asked only to prove
the site plan of Case Crime no. 114 of 2001. So the

WWW.LIVELAW.IN

facts mentioned in the site plan of Case Crime No. 114-
A of 2001 stands admitted. Thus the fact that TATA 407
was parked on the road and with the aid of the same,
the road was blocked stands admitted. But we do not
find any substance in this argument. First reason is that
the Investigating Officer has nowhere mentioned that
when he reached the place of occurrence at that time
TATA 407, was parked on the road. During entire
investigation, said TATA 407 was not taken into custody.
So the presence of TATA 407 on the road has been
shown by the Investigating Officer as told by the person
on whose pointing out the site plan was prepared.
Therefore, the Investigating Officer himself was not a
witness of this fact mentioned in the site plan and to
this extent it was a hearsay evidence so far as
Investigating Officer is concerned. But in the site plan of
the cross-case, he has shown the existence of the jeep,
which was also recovered by the police in damaged
condition. Site plan of the cross-case has been proved
in defence. There is yet another very important ground
to exclude this submission of learned A.G.A. Even for
the sake of argument, we admit that simply because
the site plan has not been challenged so TATA 407 was
parked on the road becomes admitted fact but then we
will also have to conclude on the basis of un-

WWW.LIVELAW.IN

controverted site plan that the witnesses were not
present at the scene of occurrence because the
Investigating Officer has not shown any place where-
from any witness has witnessed the incident in the site
plan of Case Crime No. 114-A of 2001. We are
conscious of the legal position that the evidence of the
witnesses recorded during trial is substantive evidence
and the case has to be decided on the basis of the
substantive evidence. The injuries sustained by Om
Prakash Tiwari in the cross-case is an admitted fact.
During trial, the prosecution itself has proved his injury
report. Appellant Om Prakash Tiwari was examined by
the same doctor, who has examined deceased
Chandreshwar Pratap Singh and the same witness has
proved the injury report of Om Prakash Tiwari as Ex.
Ka-7 however, the defence has also proved it as Ex.
Kha-4. So the injuries sustained by appellant Om
Prakash Tiwari is an admitted fact. Admittedly
absolutely no explanation has been furnished from the
side of prosecution explaining such injuries. It has come
in evidence that because of the injuries, his right leg
was fractured.
48. Mr. I.B. Singh, learned Senior counsel has
vehemently argued that in the statement of appellants
recorded under Section 313 Cr.P.C., date time and place

WWW.LIVELAW.IN

has been admitted and the manner in which the incident
has taken place stands established by the evidence of
two eye-witnesses. So the prosecution has been
successful in proving its case beyond reasonable doubt.
49. We have gone through the statement of accused
persons some of the accused persons have replied the
question no. (1) as true wherein the time of incident
was mentioned as 11:00 a.m. In rural background, it is
very common that the persons inspite of telling the
exact time, tells the approximate time. Statement of the
accused has to be considered as a whole. Appellants in
reply to the question whether they also wants to say
anything have stated the manner in which the incident
has actually taken place according to them. According
to their statements some of the appellants have stated
that they are resident of a village situated at a distance
of 11 km. situated in a different police station. Law is
settled on the point that the prosecution must stand at
its own legs and it cannot take the benefit of weakness
of the defence. If the prosecution admits the statement
under Section 313 Cr.P.C. then it has to be considered
as a whole and it is not permissible under law to accept
only one part of his statement, which supports the
prosecution and to exclude the remaining part.
50. Hon'ble the Apex Court in the case of Nagaraj Vs.

WWW.LIVELAW.IN

State represented by Inspector of Police, Salem
Town, Tamil Nadu reported in 2015 (4) SCC 739 has
discussed the object of Section 313 Cr.P.C. and has held
in paragraph no. 15 as under:-
“15. In the context of this aspect of the

law it is been held by this Court in
Parsuram Pandey v. State of Bihar (2004)
13 SCC 189 that Section 313 Code of
Criminal Procedure is imperative to enable
an accused to explain away any
incriminating circumstances proved by the
prosecution. It is intended to benefit the
accused, its corollary being to benefit the
Court in reaching its final conclusion; its
intention is not to nail the accused, but to
comply with the most salutary and
fundamental principle of natural justice i.e.
audi alteram partem, as explained in Arsaf
Ali v. State of Assam (2008) 16 SCC
328. .......................”
In the case of Nar Singh Vs. State of Haryana
reported in (2015) 1 SCC 496 Hon'ble the Apex Court
has considered the object of Section 313 Cr.P.C. and has
observed in paragraph no. 16 as under:-
“16. Undoubtedly, the importance of a

statement Under Section 313 Code of
Criminal Procedure, insofar as the accused
is concerned, can hardly be minimised. The
statutory provision is based on the rules of
natural justice for an accused, who must be
made aware of the circumstances being put
against him so that he can give a proper
explanation to meet that case. If an
objection as to Section 313 Code of
Criminal Procedure statement is taken at
the earliest stage, the Court can make good
the defect and record additional statement
of the accused as that would be in the
interest of all. When objections as to
WWW.LIVELAW.IN

defective Section 313 Code of Criminal

Procedure statement is raised in the
appellate court, then difficulty arises for the
prosecution as well as the accused. When
the trial court is required to act in
accordance with the mandatory provisions
of Section 313 Code of Criminal Procedure,
failure on the part of the trial court to
comply with the mandate of the law, in our
view, cannot automatically enure to the
benefit of the accused. Any omission on the
part of the Court to question the accused
on any incriminating circumstance would
not ipso facto vitiate the trial, unless some
material prejudice is shown to have been
caused to the accused. Insofar as non-
compliance of mandatory provisions of
Section 313 Code of Criminal Procedure, it
is an error essentially committed by the
learned Sessions Judge. Since justice
suffers in the hands of the Court, the same
has to be corrected or rectified in the
appeal.”
In the case of Jitendra Kumar Vs. State of Haryana
reported in (2012) 6 SCC 204, Hon'ble the Apex Court
has again occasioned to this consider this aspect and
has observed in paragraph no. 73 as under:-
“73. The proposition of law advanced by

the counsel for the Appellants cannot be
disputed. The fact of the matter remains
that statement of Ratti Ram under Section
313 Code of Criminal Procedure is part of
the judicial record and could be used
against Ratti Ram for convicting him, if the
prosecution had proved its case in
accordance with law. .............”
In the case of Balaji Gunthu Dhule Vs. State of
Maharashtra reported in (2012) 11 SCC 685 wherein
Hon'ble the Apex Court in paragraph no. 7 has observed
as under:-
WWW.LIVELAW.IN

“7. This Court in Manu Sao v. State of

Bihar (2010) 12 SCC 310, has examined
the vital features of Section 313 of the
Code and the principles of law as
enunciated by judgments, analysing the
guiding factors for proper application and
consequences that shall flow from the said
provision and has observed:
14. The statement of the accused
can be used to test the veracity
of the exculpatory nature of the
admission, if any, made by the
accused. It can be taken into
consideration in any enquiry or
trial but still it is not strictly
evidence in the case. The
provisions of Section 313 (4)
explicitly provides that the
answers given by the accused
may be taken into consideration
in such enquiry or trial and put in
evidence against the accused in
any other enquiry or trial for any
other offence for which such
answers may tend to show he
has committed. In other words,
the use is permissible as per the
provisions of the Code but has its
own limitations. The courts may
rely on a portion of the statement
of the accused and find him
guilty in consideration of the
other evidence against him led by
the prosecution, however, such
statements made under this
section should not be considered
in isolation but in conjunction
with evidence adduced by the
prosecution. ..................”
51. Thus in view of the aforementioned legal position,
it is clear that the statements given by the accused
persons can be used for the purpose of appreciation of
evidence and can also be used for corroboration of the
prosecution evidence. But the burden of the prosecution

WWW.LIVELAW.IN

to prove its case beyond reasonable doubt is not
reduced to any extent.
52. In the facts of the instant case, though it is
admitted that some of the accused persons have
admitted the first question put to them under Section
313 Cr.P.C. wherein the time of alleged incident as
11:00 a.m. was mentioned. But as discussed earlier,
only one incident has taken place and the Investigating
Officer has categorically stated that he got no evidence
that Om Prakash Tiwari received injuries at any other
place. Thus simply because the accused persons have
stated in their statements under Section 313 Cr.P.C.
that incident has taken place at about 11:00 a.m., then
the same cannot be taken to be their confession of the
offence because in the last reply, they have also
furnished the manner in which the incident has taken
place. So in the facts of the instant case, keeping in
view the aforementioned legal position, conviction of
the appellants cannot be based only on the basis that in
reply to the question no. (1), some of the appellants
have admitted the time of incident as 11:00 a.m.
Admittedly the place of occurrence of both the offences
was one and the same. There is absolutely no evidence
to infer that two different incidents at two different

WWW.LIVELAW.IN

places had taken place. Virtually there are two different
versions of the same incident. F.I.R. of this case was
lodged after about two days of the registration of the
cross-case. So possibility that deliberately time of
incident was changed in the F.I.R. cannot be ruled out.
53. Law is settled on the point that if the prosecution
succeeds in proving its case only then the probability of
the defence theory is to be considered. Though in this
case we are of the view that the prosecution has not
been successful in proving its case beyond reasonable
doubt but inspite of that, we consider it appropriate, in
the peculiar facts of this case, to examine the
probability of the defence theory. According to the
admitted case of the prosecution, deceased
Chandreshwar Pratap Singh was coming on jeep, which
was driven by some other person and cleaner and
others were also present in the jeep but the prosecution
has utterly failed to disclose the identity of those
persons and to our opinion it has deliberately withheld
the name of these persons, who were occupants in the
jeep along with Chandreshwar Pratap Singh under the
apprehension that true facts may not come to light and
chance witnesses were introduced. On the contrary, the
purpose for which deceased Chandreshwar Pratap Singh
was coming, has also not been explained neither during

WWW.LIVELAW.IN

investigation nor during trial. Not even a single person
of the vicinity has come to say that any road was
blocked by TATA 407. The incident has taken place on
the main road which goes from Gonda to town
Nawabganj and if the road was blocked then the traffic
must have stopped and there must have been several
vehicles parked on both the sides of the road but no
such statement has come forward in evidence of any of
the eye-witness. The prosecution story with which the
prosecution has come forward does not explain the
injuries of appellant Om Prakash Tiwari. On the
contrary, when we examine the defence theory then the
only conclusion that can be derived was that it was
most probable version of the story. Admittedly there
was dispute of plying the minibus without paying the
taxes and without taking token. As per the evidence of
defence witness, TATA 407 was chased and it was at
some distance stopped by deceased Chandreshwar
Pratap Singh after chasing it on a jeep and because of
the misbehaviour of Chandreshwar Pratap Singh with
the driver and with the public sitting on TATA 407
(minibus) on his insistence to take the jeep back to taxi
stand and not to accept the request of the driver of the
TATA 407 that he will make the payment of both the
sides after coming to the taxi stand and on the

WWW.LIVELAW.IN

interference of appellant Om Prakash Tiwari, the jeep
was raided on him, which was recovered from the same
place as claimed in the defence version. The public
assembled there, because of this misbehaviour of
deceased Chandreshwar Pratap Singh, has beaten him
due to which he sustained injuries. Thus the defence
theory finds corroboration by the fact that a damaged
jeep was recovered by the police and Om Prakash Tiwari
sustained injuries. The purpose for which deceased
Chandreshwar Pratap Singh came to the place of
occurrence also stands established by the defence
theory while on the contrary neither the purpose for
which deceased Chandreshwar Pratap Singh came to
the place of occurrence nor the purpose as to why his
jeep was damaged and how Om Prakash Tiwari
sustained injuries remains absolutely unexplained by
the prosecution evidence. Thus in our considered
opinion, the defence theory was more probable and
accordingly we are of the considered view that the
prosecution has utterly failed to prove its case beyond
reasonable doubt. The aforementioned appeals
preferred by appellants challenging the conviction
deserve to be allowed, consequently the State appeal
deserves to be dismissed.
54. In view of the discussion made above, all the

WWW.LIVELAW.IN

aforesaid criminal appeals preferred by convicted
appellants deserve to be allowed and are hereby
allowed. The judgment and order dated 17.12.2008
passed by learned Additional Sessions Judge, Fast Track
Court No. 2, Gonda in Sessions Trial No. 177 of 2004
arising out of Case Crime No.114-A of 2001, Police
Station Nawabganj, District Gonda is hereby set aside.
They are acquitted of the charges levelled against them.
The accused appellants are on bail. They need not to
surrender. Their bail bonds are cancelled and sureties
discharged.
55. Criminal Appeal No. 1781 of 2009 preferred
by the State is hereby dismissed.
56. Office is directed to certify this order to the court
concerned forthwith to ensure compliance and also to
send back the lower court record.
Order Date :-26.5.2016 (Anil Kumar Srivastava-II, J.) (S.V.S. Rathore, J.)
Virendra

Corroboration of Prosecution Evidence

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Corroboration of Prosecution Evidence

Uploaded by

Copyright:

Available Formats

WWW.LIVELAW.

1 Criminal Appeal No. 6 of 2009 &

(i) Case :- CRIMINAL APPEAL No. - 6 of 2009

Appellant :- Ashok Singh @ Mintu Singh (Pintu)

(ii) Case :- CRIMINAL APPEAL No. - 8 of 2009

Appellant :- Om Prakash Tiwari

(iii) Case :- CRIMINAL APPEAL No. - 81 of 2009

Appellant :- Sunil Kumar Tiwari

Case :- CRIMINAL APPEAL No. - 1781 of 2009

Appellant :- State Of U.P.

2 Criminal Appeal No. 6 of 2009 &

Hon'ble Surendra Vikram Singh Rathore,J.

(Per Surendra Vikram Singh Rathore, J.)

1. All the aforesaid criminal appeals arise out of a common

judgment, hence these are being disposed of together.

2. Criminal Appeal No. 6 of 2009 has been preferred by

convicted accused persons Ashok Singh alias Mintu

Singh (Pintu) and Shailesh Kumar alias Pappu Singh

while Criminal Appeal No. 8 of 2009 has been preferred

by Om Prakash Tiwari and Babu Ram Tiwari, Criminal

Appeal No. 81 of 2009 has been preferred by appellants

Sunil Kumar Tiwari, Prem Nath Dubey, Rudra nath

Dubey, Indra Nath Dubey, Santosh Singh, Ramji Tiwari

and Girjesh Singh and Criminal Appeal No. 1781 of

2009 has been preferred by the State challenging the

acquittal of accused persons under Section 302/149

3. Heard Mr. Nagendra Mohan, Mr. C.B. Pandey and Mr.

Indrajeet Shukla, learned counsels for the appellants,

Singh, learned Senior Advocate and Mr. Manish Kumar

Singh, Advocate for the complainant and perused the

lower court record.

4. Under challenge in all the aforesaid appeals is the

judgment and order dated 17.12.2008 passed by

3 Criminal Appeal No. 6 of 2009 &

learned Additional Sessions Judge, Fast Track Court No.

2, Gonda in Sessions Trial No. 177 of 2004 arising out of

Case Crime No.114-A of 2001, Police Station

Nawabganj, District Gonda whereby all the appellants

were convicted and sentenced as under:-

(i) Under Section 147 I.P.C., one year

complainant Shiv Bux Singh, who happens to be the

father of deceased Chandreshwar Pratap Singh lodged

4 Criminal Appeal No. 6 of 2009 &

an F.I.R. on 11.9.2001 at 14:15 hours at Police Station

Nawabganj, District Gonda alleging therein that his

younger son Chandreshwar Pratap Singh was managing

the Taxi Stand Theka of Nawabganj. Janardan Prasad

Tiwari, who has his shop in front of cold-storage and

was P.R.O. of then Health Minister of Government of

U.P. Sri Ramapati Shashtri, taking undue advantage of

his influence, used to ply his vehicles and vehicles of the

persons known to him without any serial and without

token. This conduct was objected to by the deceased

Chandreshwar Pratap Singh due to which an altercation

took place on 31.7.2001 between Chandreshwar Pratap

Singh and son of above-named Tiwari. Due to this

altercation, Janardan Tiwari and his companions had

threatened the son of the complainant with dire

consequences. On 9.9.2001 Chandreshwar Pratap Singh

was coming from Gonda and was going towards

Nawabganj on a jeep at about 11:00 a.m. When his

jeep reached near the turn of cold-storage, then one

TATA 407 (minibus) was parked obliquely on the road