Babloo Dubey @ Vishnudhar Dubey vs State Of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R
CRIMINAL APPEAL No. - 2089 of 2023
Babloo Dubey @ Vishnudhar Dubey
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Indrakesh Kumar Sharma, Manoj Kumar,
Raghuvansh Misra, Sadrul Islam Jafri
Counsel for Respondent(s) : Amit Kumar Yadav, Amit Daga, Chandra
Prakash Pandey, G.A., Saurabh
Chaturvedi, Shionath Jaishal
With
CRIMINAL APPEAL No. - 2855 of 2023
Suresh Yadav
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Sanjeev Kumar Singh
Counsel for Respondent(s) : Amit Daga, Amit Kumar Yadav, Chandra
Prakash Pandey, G.A., Saurabh
Chaturvedi, Shionath Jaishal
With
CRIMINAL APPEAL No. - 2861 of 2023
Govind Yadav
…..Appellant(s)
Versus

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CRLA No. - 2089 of 2023
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Pranav Tiwary, Sanjeev Kumar Singh
Counsel for Respondent(s) : Amit Daga, Amit Kumar Yadav, Chandra
Prakash Pandey, G.A., Shionath Jaishal
With
CRIMINAL APPEAL No. - 2088 of 2023
Rajan Yadav
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Manoj Kumar, Sadrul Islam Jafri
Counsel for Respondent(s) : Amit Daga, Amit Kumar Yadav, Chandra
Prakash Pandey, G.A., Shionath Jaishal
With
CRIMINAL APPEAL No. - 2519 of 2023
Rinku Alias Rajeev Yadav and another
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Amitesh Kumar Srivastava, Sanjeev
Kumar Singh, Sunita Chauhan
Counsel for Respondent(s) : Amit Kumar Yadav, Amit Daga, Chandra
Prakash Pandey, G.A., Saurabh Chaturvedi
Court No. - 42
HON'BLE SIDDHARTHA VARMA, J.
HON'BLE JAI KRISHNA UPADHYAY, J.
1. Since these criminal appeals arise out of same case crime
number, they have been heard together and are being decided by a

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CRLA No. - 2089 of 2023
common judgment and order. Criminal Appeal No. 2089 of 2023 is
being treated as a leading case.
2. The validity and sustainability of the judgment and order dated
13/17.2.2023 passed by the Additional Sessions Judge / Special Judge
(Anti Corruption Act) Court No.1 Gorakhpur, in Session Trial No.19
of 2015 (State of U.P. Vs. Govind Yadav and another), Session Trial
No. 290 of 2015 (State of U.P. vs. Rinku @ Rajiv Yadav and another),
Session Trial No. 445 of 2015 (State of U.P. vs. Rajan Yadav),
Session Trial No. 234 of 2017 (State of U.P. vs. Bablu Dubey @
Vishnudhar Dubey), arising out of Case Crime No. 463 of 2014 under
Sections 147, 148, 307/149, 302/149 IPC, Session Trial No. 252 of
2015 (State of U.P. vs. Govind Yadav), arising out of case crime no.
519 of 2014, under Sections 3/25 Arms Act and Session Trial No. 253
of 2015 (State of U.P. vs. Suresh Yadav), arising out of case crime no.
520 of 2014, under Sections 3/25 Arms Act, P.S. Khorabad, District
Gorakhpur whereby the appellants Govind Yadav, Suresh Yadav,
Rinku @ Rajiv Yadav, Monu Yadav, Rajan Yadav have been
convicted and sentenced to undergo imprisonment for life under
Section 302/149 IPC with a fine of Rs.50,000/- each, to undergo two
years imprisonment under Section 147 IPC, to undergo three years
imprisonment under Section 148 IPC, to undergo seven years
rigorous imprisonment under Section 307/149 IPC with a fine of Rs.
20,000/- each., appellant Babludhar Dubey @ Vishnudhar Dubey
has been convicted and sentenced to undergo imprisonment for life
under Section 302/149 IPC with a fine of Rs.50,000/-, to undergo two
years imprisonment under Section 148 IPC, to undergo two years
imprisonment under Section 504 IPC, to undergo seven years
rigorous imprisonment under Section 307/149 IPC with a fine of Rs.
20,000/-., appellants Govind Yadav and Suresh Yadav have also
been convicted and sentenced to undergo three years rigorous
imprisonment for the offence under Sections 3/25 Arms Act.

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CRLA No. - 2089 of 2023
3. All sentences were directed to run concurrently with default
clauses.
4. Upon an incident, which had occurred on 8.8.2014 wherein the
informant Shiv Pratap Yadav @ Sadhu Yadav son of Ram Vriksh
Yadav, resident of Behiahata Dakshin, Police Station Cantt., District
Gorakhpur, had got lodged a First Information Report (in short ‘FIR’)
with regard to it. It was informed that the informant had gone to a
particular plot of land which belonged to his bhabhi Sunita, wife of
Raju Yadav since the year 2007. The purpose of being there on the
plot in question on 8.8.2014 was that the foundation had to be laid
for the construction of a house and that was to be done in the
presence of the informant, his elder brother Raju Yadav and relatives
Rajesh Yadav and Manish Yadav. At the particular point of time when
the work of diging of pit for conducting Pooja etc. was going on and
around 10.00 a.m. Govind Yadav, Suresh Yadav and his two real
brothers, whose names were not known to the informant, alongwith
Bablu Dubey and one unknown person reached the place of incident.
They all were carrying revolvers and pistols and started abusing the
first informant and the other persons of the informant’s side. Not only
that they also asked them to leave the place and go away. This was
resisted by Raju Yadav, brother of the informant and upon this Bablu
Dubey exhorted the others to fired upon him and he himself and
Govind Yadav and Suresh Yadav came there near the deceased i.e.
Raju Yadav and from their fire arms they fire on the head of the
deceased and upon this the other accused persons also started firing
with an intention to kill. The deceased, however, died instantaneously.
The accused Bablu Dubey had also snatched away the licensed pistol
of the deceased from his waist and thereafter the other accused while
firing, in order to create terror in the area and thereafter fled from the
place of the incident. The informant, upon the incident having taken
place phoned up the Senior Superintendent of Police, Gorakhpur to

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give this message to him. Thereafter, they took the deceased to the
hospital where the doctor declared him dead.
5. Upon lodging the FIR, the police got into action and a
panchayatnama was conducted. The panchas present were Ram
Kewal Yadav, Sita Ram Yadav, Ramesh Yadav, Pappu Yadav and
Amarjeet Yadav. In the opinion of the panchas, the deceased had died
on account of the firing which was done on him. Thereafter, the body
was sent for post mortem on 8.8.2014 and in the post mortem report
following injuries were found :
“1. Firearm entry wound present on the left side of
the face, size 0.9 cm x 0.9 cm, which was circular in
shape, going inwards, and had blackening. And the
wound was 9 cm outside the angle of the mouth. On
dissecting the wound, the inner dermis (leather) of
the skin and flesh, and the bone of the face were
fractured. The lower part of the skull was
grazed/lacerated and a dark blood clot was present
there. In the right part of the back of the skull
(occipital) lower part, the size of the wound was 1.5
cm x 1.5 cm, the margins of which were everted
(protruding outwards). When a probe was passed
between the entry wound and the exit wound of the
bullet, both wounds communicated with each other.
Both these wounds are through and through.
2. Firearm entry wound in the lower part of the
left chest, which was 7.5 cm below the nipple, and
whose size was 0.9 cm x 0.9 cm, having inverted
margins and blackening. On dissecting this, there
was a dark blood clot in the skin, fascia, and muscle,
there was an abrasion between the two ribs. Inside
it, the lungs and pleura were ruptured (lacerated)

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CRLA No. - 2089 of 2023
and in the side chest cavity and around the lungs,
one litre of dark blood clot was present. An iron
bullet was found from the posterior part of the right
chest, which was lodged between the fascia and
muscle.”
The immediate cause for the death of the deceased was hemorrhage
and shock and ante mortem firearm injuries.
6. The police got into action. The Investigating Officer had from
the place of occurrence recovered two live cartridges of 7.65 mm (32
bore) and one empty cartridge and recovery memo Ext. ka-2 was
prepared on 8.8.2014 itself. The plain and bloodstained soil was also
recovered and was kept in separate boxes on the same date.
Thereafter, the arrest had taken place on 9.9.2014 and on the pointing
out of the accused one country made pistol and two live cartridges
7.65 mm (32 bore) and one country made revolver with one empty
cartridge embedded in it and two live bullets of 32 bore were
recovered from the pointing out of accused Govind Yadav and
accused Suresh Yadav. Recovery memos were prepared and were
exhibited as Ext. ka-12. In the recovery memo itself it was stated that
there was no independent witness of the recovery. Needless to
mention, there was no disclosure statement also. Thereafter, the
empty cartridge, which was recovered from the place of incident, the
empty cartridge which was recovered from the country made revolver
and the bullet which was recovered from the chest of the deceased
alongwith the live cartridges recovered from the place of incident
were sent to the Forensic Science Laboratory. After completing
necessary formalities, the police submitted charge sheets. The matter
was committed to the Court of Sessions for trial.
7. Accused appeared and charges were framed by the Sessions
Judge, Gorakhpur on 1.5.20215 against accused Suresh Yadav, on
14.9.2015 against accused Rajan Yadav, on 10.7.2015 against accused

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Rinku @ Rajiv Yadav and Rajan Yadav under Sections 147, 148,
307/149 and 302/149 IPC and on 29.5.2015 and 11.6.2015 against
accused Govind Yadav and Suresh Yadav under Sections 3/25 Arms.
On 5.11.2016 charges against accused Bablu Dubey @ Vishnu Dhar
Dubey were framed under Sections 148, 307/149, 302/149, 396, 504
IPC. The accused persons pleaded not guilty and claimed to be tried.
8. To bring home the charges against the accused, the prosecution
produced as many as nine witnesses in oral evidence. They are
(P.W.1) Shiv Pratap Yadav @ Sadhu Yadav, informant, (P.W.2)
Brijesh Kumar Yadav, (P.W.3) Dr. Awadhesh, (P.W.4) S.I. Shailendra
Yadav, (P.W.5) S.I. Mahendra Kumar, (P.W.6) I.O. Jitendra Pal Singh,
(P.W.7) I.O. Ram Pal Yadav, (P.W.8) I.O. Pramod Kumar Singh and
(P.W.9) S.I. Narsingh were examined.
9. In documentary evidence, written report Ex. Ka-1, recovery
memo regarding two live cartridges and one empty cartridge 7.65
bore Ext. ka-2, memo regarding bloodstained and plain soil Ext. ka-3,
inquest report Ext. ka-5, letter to R.I. Ext. ka-6, challan lash Ext. ka-
7, letter to CMO Ext. ka-8, photo nash Ext. ka-9, chik FIR Ext. ka-10,
site plan Exl. ka-11, memo regarding recovery of murder weapon Ext.
ka-12, site plan of recovery Ext. ka-13, docket Ext. ka-14 to Ext. ka-
17, charge sheet Ext. ka-18 and Ext. ka-19, FSL report Ext. ka-19 and
Ext. ka-20, report police station Ext. ka-21, charge sheet Ext. ka-22,
docket Ext. ka-23, site plan Ext. ka-24, prosecution approval Ext. ka-
25 and Ext. ka-26, charge sheet Ext. ka-27 and Ext. ka-28, copy GD
Ext. ka-29, chik FIR Ext. k-30 and copy GD Ext. ka-31 were
examined and proved. In addition, recovery pistol material Ext.1, two
live cartridges material Ext. 2, country made revolver 32 bore
material Ext. 3 and empty cartridge and live cartridge material Ext. 4
were also proved.
10. The incriminating evidence and circumstances were put to the
accused persons under Section 313 Cr.P.C. wherein they claimed the

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entire prosecution evidence as false and fabricated and stated that the
case was prosecuted out of conspiracy and malice.
11. In defence evidence, D.W.-1 Dharmendra Mishra, DW-2 Ram
Ujagir Tripathi, DW-3 Deen Dayal Gupta, DW-4 S.I. Dhirendra
Kumar and DW-5 Pandit Mithlesh Chaudhary were produced.
12. PW-1 – Shiv Pratap Yadav @ Sadhu Yadav had appeared
before the Court and in his examination-in-chief he had stated that he
had three brothers. The eldest was Rajesh Pal, then there was Raju
Yadav (deceased) and he himself was the third brother. He had stated
that his bhabhi Sunita wife of Raju Yadav (deceased) had purchased
in the year 2007 a piece of land from one Gulab Yadav, who was the
father of some of the accused persons. The incident had occurred on
8.8.2014 at around 10.00. a.m. and the bhoomi poojan was to be done
on that particular date and with regard to that he himself alongwith
his brother Raju Yadav and relative Brijesh Yadav (PW-2) alongwith
Manish Yadav (not examined) and Rajesh Yadav ( not examined)
were present. He had stated that while the pit was being dug, the
accused Govind Yadav, Suresh Yadav, Rinku Yadav, @ Rajiv Yadav
and Monu Yadav, all sons of Gulab Yadav alongwith Babludhar
Dubey, who was accompanied by Rajan Yadav (six in number) came
on the spot with revolvers and pistols and all six of them asked his
brother Raju Yadav not to commence with the foundation and pooja.
The brother of the informant resisted the threat and therefore
Babludhar Dubey exhorted all the others to commit the crime and at
that point of time Suresh Yadav and Govind Yadav with an intention
to kill the brother of the informant fired on him and he fell down
bleeding and at that point of time Babludhar Dubey took out licensed
pistol from waist of the deceased. Thereafter the accused persons with
an intention to kill the first informant and the other persons also fired
towards them and after creating a terror in the area and after having
threatened fled the place of incident. He has stated that he had also
rung up the S.S.P., Gorakhpur at that point of time and thereafter had

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taken the injured brother in his Scorpio car to the hospital where he
was declared dead. He had stated that thereafter he had got the FIR
typed out and after signing the same lodged it. The statement of PW-1
was recorded at the police station itself on that date and he
accompanied the police to the place of the incident and showed the
site to the Investigating Officer. He also proved the FIR. In his cross-
examination he had stated that Suresh Yadav, Govind Yadav, Rinku
@ Rajiv Yadav and Monu were four brothers. The names of Rajiv @
Rinku and Monu he was knowing from before the incident. He had
stated that amongst those, who were present Brijesh Yadav was a
relative and that he lived around 7-8 kilometers away and was doing
business of milk and was also his brother-in-law. He had stated that
the land belonged to his bhabhi Sunita alone and that it was not in his
name. To lookafter the plot of land he never used to visit but his elder
brother Raju always used to go there and since the year 2007 itself
boundary wall was constructed without any dispute. Upon a
suggestion being made that the land was also his, he had stated that it
was wrong to say so. The plot of land had a gate on the western
boundary and that the boundary had a height of 4-1/2 feet. The
boundary was not all over the plot but only in the front. About the fact
that the bhoomi poojan was to take place he had stated that the
relatives were informed only one day prior to the date of incident and
from amongst the relatives Brijesh Yadav, Rajesh Yadav and Manish
Yadav had come to his house on their motorcycles. Thereafter he
alongwith Brijesh Yadav, Manish Yadav and his brother had gone to
the place of incident on a Scorpio Car. In the bhoomi poojan ladies
had not gone. He had categorically stated that for the bhoomi poojan
Pandit (priest) and nai (barber) had not come. They were planning to
call the priest and in fact he had in so many words stated that there
was no definite person in their mind and they were searching for him.
Same was the case for the Barber. From the Azad Chowk labour were
arranged and they were digging the pit. When the accused had
reached the place of incident, they had threatened his brother not to

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CRLA No. - 2089 of 2023
do the pooja and that his brother was at that point of time inside the
western boundary. In the cross-examination he had also stated that
Govind had fired on the head of the deceased while Suresh had fired
on the right side of the chest. He however stated that it was correct to
say that in the FIR he had stated that both Govind Yadav and Suresh
Yadav had fired from very near the deceased and had stated that
Suresh and Govind both had fired in the head of the deceased. He
further stated that he wanted to say that they had fired towards the
head. He had thereafter confirming what he had stated in the FIR and
also had got recorded under Section 161 CrPC before the police that
both Govind Yadav and Suresh Yadav had fired in the head of the
deceased, categorically stated that he neither had stated in the FIR nor
had informed the police that the firing was done on the chest. He was
in a state of shock and he was stating the correct fact in the Court
when he was stating that one firing was done in the chest. He had
stated that he was not present at the time when the panchayatnama
was being filled. He has very categorically stated that the accused had
entered from the eastern side which did not have a boundary and the
brother of the informant was standing inside the boundary wall. He
had then stated that he himself, Manish, Rajesh and Brijesh were
standing inside the boundary wall. From which side the accused
Govind had fired he did not remember. He however had categorically
stated that his brother was standing on the eastern side 5-7 feet away
from the pit. He also stated that firing was done from a very short
distance i.e. of 3-4 steps. He thereafter tried to inform the Court with
regard to how the FIR was typed out in 10-12 minutes and how he
had singed the same. Because only Sadhu was written, therefore,
there was a cutting and he wrote Sadhu Yadav @ Shiv Pratap Yadav.
He had stated that he had lodged the FIR after getting the same typed
out and after taking legal advise. With regard to Babludhar Dubey he
had stated that he was not knowing the name of his father and
therefore he had not mentioned the same in the FIR. He had also not
mentioned his other name i.e. Vishnudhar Dubey. About his other

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name and the name of his father he mentioned for the first time in the
Court. Upon a specific question being asked as to how pooja had been
planned, he stated that he had no knowledge about it. Upon a question
being put with regard to the fact that whether any food etc. was taken
by the deceased before the informant’s side had reached the place of
incident, he had stated that no one had taken either tea, water or any
food etc. He had thereafter stated that he had started from his house at
betia hata and had reached the place of incident in 15 minutes and
very categorically had stated that he had made phone call from betia
hata using his mobile and that in between the place of incident and
house many other areas had to be crossed namely, Azad Chowk and
Durga Chowk. He had also stated that from the place of incident he
had rung up the S.S.P. Gorakhpur from his mobile no. 9415619199.
He had also given the telephone number of Brijesh which was
9616623045 and telephone number of Manish Yadav as 8896104235
and then from his memory he has given the mobile number of Rajesh
Yadav as 7860489999. He thereafter on the cross-examination being
done on behalf of Rinku Yadav had stated that when the firing was
done the accused were inside the boundary wall and had very
categorically stated that he had no idea if any empty cartridge was
found outside the boundary wall. Upon suggestion being made that
the other relatives were not there he had denied the suggestion and
stated that the other relatives were definitely there. Again upon cross
examination done by Monu Yadav he stated that he knew the family
of Gulab Yadav including the wife and the sons. The names of two
sons were not mentioned in the FIR, because at that time he could not
recollect their names. He had informed that Rajesh Yadav was a clerk
in Punjab National Bank. With regard to bhoomi pujan upon being
asked as to how the planning was done he stated that 3-4 days prior to
the incident priest had given the auspicious time (muhurt) after
consultation. He however did not remember the name of priest who
had told the auspicious time. He had then stated that the accused had
entered from the gate and then had turned right and had fired on his

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brother. Upon the cross-examination done by Rajan Yadav, he had
stated that at the time of lodging the FIR he had not remembered the
name of Rajan as he was in a state of shock and that the name of
Rajan was taken in the Court itself. He had further stated that he was
well aware of the fact that the police had submitted final report vis-a-
vis Babludhar Dubey but no action was taken from the side of
informant. Nothing with regard to Babludhar Dubey was told to the
Investigating Officer in the statement recorded under Section 161
CrPC and he was telling about Babludhar Dubey for the first time in
the Court. He was also not aware that in the house of Babludhar
Dubey recitation of Ramayan was going on. He had stated that he had
two brothers-in-law namely Brijesh and Manish. Brijesh was engaged
in the business of Milk and Manish was an Advocate in the Civil
Court.
13. PW-2 - Brajesh Kumar Yadav in his examination-in-chief had
stated the same story about the pooja etc. and that he alongwith others
was present at the time of pooja. He had also narrated the manner in
which Raju Yadav was shot dead by Suresh Yadav and Govind Yadav.
He also stated that Govind Yadav had shot in the head of the deceased
and Suresh Yadav had shot him in his chest. He had also stated that
the other accused persons were trying to also kill the other persons
but the others who were present had run away. He had stated that the
land belonged to the informant and his Bhabhi Sunita. He had stated
that he had no mobile telephone number. The recovery memos with
regard to the empty cartridges and soil etc. were prepared in his
presence. He had stated that the Investigating Officer had reached the
place of incident after the FIR was lodged and taking the empty
cartridges in his possession, he had very specifically stated that the
recovery of empty cartridge etc. was done from the place where the
incident had occurred. He had further stated that the pit was dug-up
before the pooja. He had categorically stated that Raju Yadav was not
killed anywhere inside the boundary but he was killed outside the
boundary wall gate. The firing was not done inside the boundary wall

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but was done outside it. Raju Yadav and accused had gone out talking
with each other and outside the plot Raju was murdered, while he
himself remained inside the plot near the pit. Raju Yadav was hit by a
bullet fired by Govind Yadav on the head and this was absolutely a
close range shot and Suresh had fired on the left side of the chest of
Raju Yadav. He had then stated that while he was inside the plot he
had seen that Raju Yadav had fallen down thereafter second shot was
fired upon him by Suresh and the shot on the chest was from a close
range. He had stated that the accused had also fired on the others,
who were present with an intention to kill them all. This answer came
in response to a specific question put to him as to in what direction
the accused had run away. He had then upon being recalled on
6.7.2017 stated the very same story that Govind and Raju were
talking to each other and they went out of the western gate and others
remained near the pit in the plot and Raju while had gone out of the
gate was murdered. He had stated that Raju was killed outside the
gate. He had stated that this fact was mentioned in his statement
under Section 161 CrPC and how the same was not recorded, he does
not know. He had stated that everything was being done in a very
normal manner and then Raju and Govind had gone out of the gate
talking to each other and thereafter suddenly there was firing done by
Govind and Suresh. When Govind had gone out the gate then Suresh
had also left the plot and had gone out of the gate. He had then stated
that when Suresh was coming inside the plot then he himself had
noticed the firearm in his hand. When Suresh had left the plot and had
gone out by that time the first firing had already been done and
everybody else was in a state of shock. He had stated that Suresh had
fired upon Raju from the front. When the firing was done those
persons including he himself, all were inside the boundary. He had
stated that all the accused persons had gone out from the southern
side. He had also stated that when Raju was taken to the hospital
there was blood on his pant and shirt and this was also shown to the
Investigating Officer. He had however stated that an NCR which was

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reported against somebody else, had his telephone no. as
8896104234.
14. PW-3 – Dr. Awadhes had done the post mortem of the deceased
and had stated about the injuries sustained by the deceased. The first
injury was 1.5 x 1.5 cm of entry in the head and that it had also gone
out of the back of the head and therefore the other injury was an exit
wound. The second injury was in the chest which was 7.5 cm below
the left nipple and was measuring .9 x.9 cm. He had stated very
categorically that while the small intestine was empty, in the large
intestine there was gas and faecal matter. He had categorically stated
upon cross-examination done by the defence counsel that both the
injuries i.e. in the head and in the chest were from the same firearm.
Upon a question being asked with regard to faecal matter and the gas
he categorically stated that the situation he had found with regard to
faecal mater and gas in the large intestine could have been there only
if the food had been taken two hours prior to the incident. He had also
stated that he had found the bullet inside the body of the deceased.
15. PW-4 - S.I. Shailendra Yadav is the person before whom the
inquest had taken place. He had also tried to explain the interpolation
in the panchayatnama.
16. PW-5 is the S.I. Mahendra Kumar, who was head moharrir and
had prepared the chik. He had categorically stated that the FIR was
transmitted to Chief Judicial Magistrate’s Court only on 11.8.2014.
17. PW-6 – S.I. Jitendra Pal Singh was the first Investigating
Officer. He had categorically stated that the site plan was prepared on
the pointing out of PW-1. While recording the statement of PW-1
under Section 161 CrPC he had categorically stated that Govind
Yadav and Suresh Yadav fired in the head of the deceased from a
close range. He had also stated that statement of PW-2 under Section
161 CrPC was recorded on 10.8.2014. He had thereafter stated in his
examination-in-chief as to how he had conducted the investigation

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and that thereafter submitted the charge sheet. In his cross-
examination he had stated that he had followed all the rules and
regulations as had been given in the Police Act and Police
Regulations and thereafter in the cross-examination also he had stated
that he had prepared the site plan on the pointing out of the
PW-1/informant. PW-6 has further stated that the statement of PW-1
was not recorded at the police station. However, subsequently in his
cross-examination he had stated that the statement of PW-1 under
Section 161 CrPC was recorded at the police station itself. The
statement of Rajesh Yadav was recorded on 10.8.2014. Thereafter he
had told the manner in which the recovery was done under Section 27
of the Evidence Act. He had prepared only one recovery memo
regarding recovery of both firearms and cartridges. He, in his cross-
examination, had stated that even though Brijesh Yadav was present
while site plan was being prepared but he had prepared the site plan
only on the pointing out of PW-1. Thus, he had stated that in the site
plan there was no mention of Brijesh Yadav, PW-2. With regard to the
delay in the reaching of the special report to the Magistrate’s office,
he had stated that the same was sent on the same date by registering it
in the dak-bahi. However, with regard to the person who had taken
the special report he had not mentioned anything in the case diary. He
had stated that on 8.8.2016 the Court had called for call details of the
mobile numbers 9415619199 (PW-1), 7860489999 (Rajesh) and
8896104234 (PW-2) and he had given out in his cross-examination as
to where the telephone numbers were found at the time of the
incident. With regard to the sending of the pistol, revolver, empty
cartridges and the live bullets he had mentioned that they had all gone
for matching to the FSL. He had also stated that on the date of the
incident he had also enquired if there was a Ramayan Path in the
house of Babludhar Dubey.
18. PW-7 – Inspector Rampal Yadav is the second Investigating
Officer. He had mentioned as to how he had excluded the name of
Babludhar Dubey.

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CRLA No. - 2089 of 2023
19. PW-8 - S.I. Pramod Kumar Singh was the I.O. of the Arms Act.
20. PW-9 - S.I. Narsingh was Head Moharrir at the time of
preparation of the chik FIR with regard to Arms Act.
21. Upon closure of recording of statement of prosecution
witnesses statements of accused under Section 313 CrPC were
recorded. Whereafter, five defence witnesses appeared, out of which
DW-1, DW-2 and DW-3 had appeared for proving the alibi of
Babludhary Dubey.
22. DW-1 Dharmendra Mishra had stated in detail as to how he
was attending the Ramayan Paath at the house of Babludhar Dubey
and Babludhar Dubey was at his home during Ramayan Paath.
23. DW-2 Ram Ujagir Tripathi was the phupha of Babludhar
Dubey and he had also stated in so many words as to how Ramayan
Paath was going on and Babludhar Dubey was at his home during
Ramayan Path. He stood firm in the cross-examination.
24. DW-3 Deen Dayal Gupta was the cook / bavarchi, who had
also stated with regard to the alibi of Babludhar Dubey and also stood
firm in the cross-examination.
25. DW-4 S.I. Dhirendra Kumar was the incharge Surveillance
Cell at Gorakhpur and he had proved the case as was there with
regard to the locations of mobile numbers 9415619199, 7860489999
and 8896104234 and he had stated that the location was got by due
process and was thereafter placed before the Court.
26. DW-5 is Pandit Mithlesh Chaturvedi. He had stated that on that
particular date there was no auspicious day for bhoomi pujan.
27. The learned trial court upon scrutiny of the evidence on record
concluded that the case of prosecution was proved beyond reasonable
doubt against the accused appellants and recorded conviction and
sentenced them, as mentioned here-in-above. It may be noted that

17
CRLA No. - 2089 of 2023
appellant Babludhar Dubey however was acquitted under Section 396
IPC. Hence, these appeals.
28. We have heard Shri Manish Tiwari, learned Senior Advocate
assisted by Shri Pranav Tiwari and Shri Atharva Dixit, learned
counsel for the appellants in Criminal Appeal Nos. 2855 of 2023 and
2861 of 2023. Criminal Appeal No. 2089 of 2023 was argued by Shri
Rahul Mishra and Shri Raghuvansh Mishra. Shri N.I. Jafri, learned
Senior Advocate assisted by Shri Sadrul Islam Jafri, learned counsel
argued for the appellant in Criminal Appeal No.2088 of 2023, Shri
Sanjeev Kumar Singh, learned counsel was heard for the appellant in
Criminal Appeal No. 2519 of 2023. Shri Amit Daga, learned Senior
Advocate assisted by Shri Ankit Srivastava, Shri C.P. Pandey and
Shri V.C. Shukla, was the learned counsel for the informant. Shri
C.B.Dhar Dubey and Shri Muni Raj Mehrotra, learned Additional
Government Advocates appeared for the State.
29. Assailing the impugned judgment and order, learned counsel
appearing for the appellants have made the following submissions :
(i) PW-4 S.I. Shailendra Yadav, who was responsible for
conducting the inquest proceeding of the body of the deceased in his
cross-examination has categorically submitted that he had not
mentioned about any alleged eye witness.
(ii) Delay in sending the report from the police station to the
concerned Chief Judicial Magistrate under Section 157 of CrPC was
not condonable. In the instant case it is clear that the FIR was lodged
on 8.8.2014 but the report was sent on 11.8.2014.
(iii) Learned counsel for the appellant in Criminal Appeal No. 2861
of 2023 and Criminal Appeal No. 2855 of 2023 submitted that the
manner of assault was also questionable. In the initial version put
forth in the FIR it had been categorically stated by the
PW-1/informant that the appellants Govind Yadav and Suresh Yadav

18
CRLA No. - 2089 of 2023
shot at the deceased by two different firearms, viz. a pistol and
revolver in the head and the same was done upon instigation of
Babludhar Dubey. The post mortem report gave a version very
different from that put forth by the informant and it revealed that only
one single firearm was used for the injuries that were on the head as
also on the chest. Learned counsel for the appellants, therefore,
submitted that the prosecution version as had been brought forth was
absolutely falsified, if statements of PW-1 and PW-2 are seen. It
becomes clear that they, upon seeing the entry and exit injuries in the
head, had somehow come to the conclusion that there were two
firings done on the head itself. This version of PW-1 and PW-2 was
maintained even in the statements given under Section 161 CrPC.
However, when they had knowledge of the post mortem report and
they had thereafter appeared in the Court then they had given a
version which was absolutely different, i.e. two injuries were there
out of them one was in the head and another in the chest.
(iv) PW-1 stated in his examination-in-chief that all the six accused
had firearms with them, however, the role of shooting was assigned
only to Govind Yadav and Suresh Yadav. It had been stated by them
that all indiscriminately fired on the informant’s side. However, there
were no empty cartridges corresponding to this version of the
prosecution. PW-1 and PW-2 admittedly were inside the premises of
the plot and the incident had happened outside the premises and,
therefore, the version of the prosecution that PW-1 and PW-2 had
seen two firing being done was absolutely erroneous since when first
firing was done the deceased had fallen down. From inside the
boundary wall definitely PW-1 and PW-2 could not have seen the
incident happening. What is more he submitted that apart from the
deceased, no other person had received any firearm injury.
(v) If the prosecution version is properly seen then it becomes very
evident that PW-1 and PW-2 and also the other relatives were not
there at the site at all. PW-1 had throughout stated that the incident

19
CRLA No. - 2089 of 2023
had actually happened within the boundary wall of the plot, however,
PW-2 gave a contradictory version wherein he had stated that in fact
the incident had happened outside the gate of the western side and
when PW-1 and PW-2 both had found that the empty cartridges had
fallen outside the western gate then PW-1 while getting the site plan
prepared had in fact told to the Investigating Officer that the incident
had happened outside the western side of the gate.
(vi) Relying upon the call detail reports it has been submitted that
the three telephones were at places where the report had suggested
them to be. Mobile No. 9415619199, as per the CDR report, was at
Betia Hata, thereafter at Azad Chowk and thereafter at 11.12.53 at
Durga Chowk, meaning thereby firstly it was found at Betia Hata,
then at Azad Chowk and thereafter at Durga Chowk and thereafter
ultimately well after the time of the incident the telephone had
reached the place of incident. This showed that PW-1, who had stated
that at the time of the incident he had called the Senior
Superintendent of Police, Gorakhpur from the site in the question
then definitely he was not at the place of incident because the call
detail had showed that at that point of time PW-1 was at Betia Hata.
Further, it was said that Babludhar Dubey @ Vishnu Dhar Dubey,
who had exhorted the two assailants, namely, Govind Yadav and
Suresh Yadav to kill the deceased, was present but learned counsel
appearing for appellant Babludhar Dubey in Criminal Appeal No.
2089 of 2023 had submitted that Babludhar Dubey was in fact having
Akhand Ramayan Path at his house, therefore, he was not present at
the place of incident and since the prosecution tried to put him at the
place of occurrence, it clearly shows that the prosecution case was a
concocted one.
(vii) Prosecution case got falsified by the statements of DW-1, DW-
2 and DW-3, who are pandit, cook/bawarchi and phupha of
Babludhar Dubey and they had definitely stated that there was
Akhand Ramayan Path at the house of Babludhar Dubey. If the

20
CRLA No. - 2089 of 2023
defence witnesses were believed, then the prosecution case as was
there in the FIR and thereafter would become absolutely falsified.
(viii) The cause for assembling of the deceased alongwith PW-1 and
PW-2 and other relatives that there was bhoomi pujan going to take
place at the place of incident also appeared to be fictitious. The scene
of incident and the time of incident all became doubtful in view of the
fact that neither there was Pandit (priest) nor Nai (barber) and also no
pooja items were found. What is more even one of the defence
witnesses had stated that in fact auspicious time as was stated by the
prosecution was not there on that particular date.
(ix) The witnesses, who were produced, namely, PW-1 and PW-2
were virtually interested witnesses. The other persons, namely, Rajesh
Yadav and Manish Yadav were not produced in the witness box,
meaning thereby that such persons who could have actually revealed
the truth were never produced.
(x) Learned counsel for the appellant in Criminal Appeal No. 2088
of 2023 submitted that Rajan Yadav was not named in the FIR.
Subsequently upon his name being mentioned he was arrested and
thereafter he was produced as an accused However, nowhere at any
point of time he was identified either during investigation by the
method of test identification parade or during trial in the dock. He
submits that test identification parade and dock identification are very
important since the appellant Rajan was not named in the FIR and
also in the statements under Section 161 CrPC. It was therefore
important that the witnesses ought to have identified him, at least in
the Court. In support of this submission he has placed reliance upon a
decision of the Apex Court in Tukesh Singh v. State of Chattisgarh
2025 SCC OnLine SC 1110 , wherein the Apex Court has observed
that :
“ 21. In a case where there are eyewitnesses, one
situation can be that the eyewitness knew the accused

21
CRLA No. - 2089 of 2023
before the incident. The eyewitnesses must identify
the accused sitting in the dock as the same accused
whom they had seen committing the crime. Another
situation can be that the eyewitness did not know the
accused before the incident. In the normal course, in
case of the second situation, it is necessary to hold a
Test Identification Parade. If it is not held and if the
evidence of the eyewitness is recorded after a few
years, the identification of such an accused by the
eyewitness in the Court becomes vulnerable.
Identification of the accused sitting in the Court by
the eyewitness is of utmost importance. For example,
if an eyewitness states in his deposition that “he had
seen A, B and C killing X and he knew A, B and C”.
Such a statement in the examination-in-chief is not
sufficient to link the same to the accused. The
eyewitness must identify the accused A, B and C in
the Court. Unless this is done, the prosecution cannot
establish that the accused are the same persons who
are named by the eyewitness in his deposition. If an
eyewitness states that “he had seen one accused
assaulting the deceased with a sword, another
accused assaulting the deceased with a stick and
another accused holding the deceased to enable
other accused to assault the deceased.” In such a
case, the eyewitness must identify the accused in the
open Court who, according to him, had assaulted the
accused with a stick, who had assaulted the deceased
with a sword and who was holding the deceased.
Unless the eyewitnesses identify the accused present
in the Court, it cannot be said that, based on the
testimony of the eyewitnesses, the guilt of the accused
has been proved.”

22
CRLA No. - 2089 of 2023
(xi) Learned counsel for the appellants submitted that when the
prosecution failed to establish the circumstances to prove the
prosecution case beyond reasonable doubt, a doubt shall be created
and for that purpose they have relied upon the judgment of Apex
Court in State of U.P. v. Arun Kumar Gupta, (2003) 2 SCC 202 ,
(paragraph nos. 14,16, 20 and 21 of the said judgment) :
“14. We have heard the learned counsel and
perused the records of the case and we are
inclined to concur with the judgment of the
High Court. As pointed out by the High Court
that the prosecution though has been able to
establish some of the links in the chain of
circumstances, it has failed to establish some
of the vital links beyond all reasonable doubts.
Therefore, the High Court was justified in
coming to the conclusion that the chain of
circumstances in this case is not complete. On
examining the evidence of Lilaldhar (PW 3),
who allegedly saw the deceased with the
respondent entering the house of the
respondent on 27-5-1988 at about 3.00 to 3.30
p.m., we notice that even in his examination-
in-chief he had admitted that he did not inform
this fact to the father of the deceased, who at
that point of time was searching for the
deceased. Though, in the cross-examination,
he has tried to fill in this omission, we think
this circumstance is of such importance and if
really he had noticed the deceased entering the
house of the respondent on that afternoon, he
would not have failed to mention this in his
examination-in-chief itself, which omission
should be taken note of while appreciating his

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CRLA No. - 2089 of 2023
evidence. Then we notice that this witness also
belongs to the same biradari of PW 1 and was
on visiting terms with him. Thus he is also an
interested witness. He also stated in his
evidence that the factum of seeing the deceased
entering the house of the respondent was
mentioned by him for the first time to the
investigating officer when his statement was
recorded even though ample opportunity was
there to mention the same earlier. This coupled
with the fact that the explanation given by him
as to his presence near the house of the
respondent on the afternoon being doubtful, we
think the High Court was justified in coming to
the conclusion that the evidence of this witness
is not wholly reliable. We will next discuss the
probability of the recovery of the dead body
from the house of the respondent. In this
regard, we have already noted the argument of
the learned counsel for the respondent. Even
according to the prosecution, the house in
question belongs to the respondent and he was
staying in that house with his family consisting
of his wife and young children. The house is
situated in a crowded locality and a large
number of other houses and shops are in the
close vicinity. We agree with the learned
counsel for the respondent that no reasonable
person would commit a ghastly murder like the
one with which we are concerned by taking the
victim to such a house where his family was
residing. The prosecution has not produced
any material to show either the presence or

24
CRLA No. - 2089 of 2023
absence of the family members of the
respondent at the time of the murder in the
house. That apart, it is highly unlikely that
neighbours and passers-by would not have
been attracted if really the deceased, who
suffered as many as 30 injuries was murdered
in that house. Therefore, in all probability, the
murder of the deceased was not committed in
the house of the respondent.
16. In this regard, the prosecution relies on the
evidence of PW 4. We have earlier noticed that
PW 4 is not a resident in the immediate
proximity of the house of the respondent. He
belongs to the same biradari of the
complainant and lives behind the house of the
investigating officer, PW 9. We find no
reasonable explanation, why such a person
was called to be a witness to the recovery
when there were any number of people
available and who are residents of the houses
in the immediate proximity of the house of the
respondent. We also notice from the records
that a large number of people were present at
the time of the recovery, therefore, the
prosecution should have come forward with
some explanation, why PW 4 was so selectively
chosen to be the witness for the recoveries. We
also notice, though the preparation of memos
of the recoveries took a long time, still for all
the recoveries PW 4 is a common witness.
There is also considerable discrepancy in
regard to the manner in which PW 4 came to
be a witness to the recoveries. From the

25
CRLA No. - 2089 of 2023
evidence on record, it is seen that at one place
it is stated that PW 4 had come to the house of
the respondent on hearing the commotion that
took place because of the breaking open of the
lock of the house. At another place, we find
that the IO, PW 9 had summoned PW 4 from
his house to be a witness for the recovery. This
discrepancy also adds to the doubt in regard to
the evidence of PW 4. Therefore, in our
opinion as held by the High Court, it is not
safe to rely on the evidence of this witness.
PWs 7 and 9 who were police officers are also
witnesses, who speak about the recoveries
made from the house of the respondent. PW 9
at one point says that all the recoveries in
question were made by him and he left the
house of the respondent around 11.00 or 11.30
p.m. in the night of 28-5-1988, while PW 7,
who was also present at that point of time says
that PW 9 was there throughout the night of
28-5-1988 till the morning of 29-5-1988 when
the recoveries were completed. Thus we find a
material contradiction in the evidence of these
two witnesses. From the records, we see that
the recoveries of the bloodstained knife and the
bloodstained earth were made on 29-5-1988.
And according to PW 9 he had made the
recoveries and he had left the place by about
11.30 p.m. in the night. It is not possible to
reconcile these two facts. If actually PW 9 was
the person responsible for preparing the
recovery memos then, the date 29th May does
not fit into the prosecution case since

26
CRLA No. - 2089 of 2023
according to this witness himself he left at
about 11.30 in the night of 28-5-1988.
Therefore, there is force in the arguments of
the learned counsel for the respondent that
these recoveries cannot be believed, more so in
the background of the fact that the
bloodstained knife and the bloodstained earth
were not sent to the serologist. This Court in
the case of Lakshmi Singh v. State of Bihar
[(1976) 4 SCC 394 : 1976 SCC (Cri) 671 : AIR
1976 SC 2263] has stated that: (SCC p. 402,
para 14)
“14. To add to this another important
circumstance is the omission on the part of the
prosecution to send the bloodstained earth
found at the place of occurrence for chemical
examination which could have fixed the situs of
the assault. In almost all criminal cases, the
bloodstained earth found from the place of
occurrence is invariably sent to the Chemical
Examiner and his report along with the earth
is produced in the court, and yet this is one
exceptional case where this procedure was
departed from for reasons best known to the
prosecution. This also, therefore, shows that
the defence version may be true. It is well
settled that it is not necessary for the defence
to prove its case with the same rigour as the
prosecution is required to prove its case, and it
is sufficient if the defence succeeds in throwing
a reasonable doubt on the prosecution case
which is sufficient to enable the court to reject
the prosecution version.”

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CRLA No. - 2089 of 2023
20. From the material produced by the
prosecution, it shows that this witness was
taking extraordinary interest in the
investigation and was present at practically
every important place and time in the course of
the investigation. The High Court has very
elaborately discussed the evidence of this
witness and has rejected the same for reasons
with which we agree. In our opinion, the
evidence of this witness does not inspire much
confidence.
21. From the above discussion, in our opinion
the prosecution has been able to establish only
a motive as against the respondent for
committing the murder, while most of the
circumstances which are otherwise important
to be proved in this case have not been
established. We are of the opinion, the High
Court was justified in interfering with the
judgment of the Sessions Judge and allowing
the appeal.”
(xii) For the purposes of non-examination of the material witnesses
by the prosecution, learned counsel for the appellants have relied
upon the decision of Supreme Court in Meharaj Singh v. State of
U.P., (1994) 5 SCC 188 , paragraph nos. 13,14,15 and 16 of the said
judgment:
“13. It appears that it was a blind murder and
none of the eyewitnesses were actually present
at the scene. The ante-timing of the FIR was
obviously made to introduce eyewitnesses to
support the prosecution case. We may
demonstrate this by noticing that though PW 3

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CRLA No. - 2089 of 2023
Smt Kamlesh the widow of the deceased
claimed that she was present with her husband
at the time of the occurrence, her conduct was
so unnatural that not only she did not try to
save her husband by trying to provide a cover
but even after her husband fell down and was
inflicted repeated injuries with the knife by the
appellant Meharaj Singh, she did not even try
to go anywhere near her husband and even
later on hold his head in her lap and try to
provide some comfort to him. This becomes
obvious from the absence of any bloodstains
on her clothes. She admitted that she had not
even received a scratch during the occurrence.
In a situation like this, the normal conduct of
any wife would be firstly to make an effort to
save her husband even by taking the blow on
herself and if that is not possible then at least
to go so close to his person, at least after the
assailants had left that there would be no
escape from the blood oozing out of the
injuries of the deceased to come on to her
clothes. Similar criticism is also available
against Balbir PW 2, Shiv Charan PW 4 and
Satkari PW 5. It is not the case of the
prosecution that the clothes of any of them had
got bloodstained. The very fact that none of
these witnesses went to lodge a report and
instead left it to the father of the deceased to
lodge the FIR would also go to show that the
witnesses in all probability were not present at
the spot. The absence of any blood in the field
of Kirpal Singh as also the absence of blood

29
CRLA No. - 2089 of 2023
trail from the field of Kirpal Singh to the place
where the dead body was found, as admitted by
PW 8, also suggests that the occurrence did
not take place in the manner suggested by the
prosecution and that the genesis of the fight
has been suppressed from the court. The
evidence of Dr Pande who conducted the post-
mortem examination showing that the stomach
contained partially digested food material
weighing about 150 gms and concluding
therefrom that the occurrence must have taken
place between 9.00 and 9.30 a.m. if the
deceased had taken his food at 7.00 a.m. would
also throw a doubt on the correctness of the
prosecution version which alleged time of
occurrence as 11.30 a.m., presumably to lend
an assurance that PWs 2, 3, 4 and 5 were
present in the field at that time. The evidence
of Dr Pande also to the effect that he had
found incised injuries on the deceased
including a L shaped injury (injury 11) and a
semi-circular injury (injury 18) is indicative of
the fact that these two injuries were caused
with different weapons and looking to the
nature of the other incised wounds present on
the deceased, the possibility that three types of
sharp-edged weapons were used cannot be
ruled out. That being the position, it is obvious
that the ocular testimony does not fit in with
the medical evidence and instead it contradicts
it.
14. It is interesting in this connection also to
note that Satkari PW 5 named Resham also as

30
CRLA No. - 2089 of 2023
an eyewitness. The High Court rightly held
Satkari to be a chance witness also but the
prosecution has not explained as to why
Resham who was alleged to be an eyewitness
has not been examined. According to Balbir
PW 2, Jog Raj was also an eyewitness. He too
has not been examined. Shiv Charan PW 4,
also named Resham and Jog Raj as
eyewitnesses. Thus, it appears to us that a
concerted effort was made by the prosecution
witnesses to introduce Resham and Jog Raj as
false eyewitnesses in the case but since they
have not been examined, it would be fair to
draw a presumption, that they perhaps were
not prepared to support the false case. The
High Court while setting aside the order of
acquittal did not deal with these various
infirmities.
15. The alleged eyewitnesses are undoubtedly
deeply interested in the prosecution but that by
itself cannot be a ground to discard their
testimony. It, however, certainly puts this Court
on its guard to scrutinise their evidence more
carefully and keeping in view their unnatural
conduct, as noticed above, it appears to us that
none of the alleged eyewitnesses had actually
seen the occurrence and they were introduced
as eyewitnesses after thoughtful deliberations
and consultations. It appears, that since it was
a blind murder, the appellants have been roped
in on account of misguided suspicion because
of the previous enmity. Our independent
analysis of the evidence on the record coupled

31
CRLA No. - 2089 of 2023
with the infirmities which we have noticed
above has created an impression on our minds,
that the prosecution has not been able to bring
home guilt to either of the appellants beyond a
reasonable doubt. The trial court was,
therefore, right in acquitting them and the
High Court even after noticing the infirmities,
in our opinion, fell in error in convicting the
appellants. The reasons given by the High
Court, to set aside the order of acquittal do not
commend to us. They are neither sufficient nor
adequate or cogent much less compelling.
16. As a result of our above discussion, we
hold that the case against both the appellants
has not been proved beyond a reasonable
doubt and that they are entitled to benefit of
doubt. Their appeals consequently succeed and
are allowed. The conviction and sentence
recorded against them by the High Court are
set aside. The appellants shall be set at liberty
forthwith, if not required in any other case.”
(xiii) Since the case throughout of PW-1 was that the incident had
happened inside within the boundary wall and that of PW-2 was that
it had happened outside the boundary wall, therefore, when the place
of occurrence itself was doubtful and it had shifted as per the
prosecution witnesses, then the case definitely becomes doubtful. For
this purpose, they have relied upon on the decision of Apex Court in
Syed Ibrahim v. State of A.P., (2006) 10 SCC 601, paragraph nos.
10,11 and 12 of the said decision:
“10. Stress was laid by the accused-appellants
on the non-acceptance of evidence tendered by
PW 1 to a large extent to contend about the

32
CRLA No. - 2089 of 2023
desirability to throw out the entire prosecution
case. In essence the prayer is to apply the
principle of “falsus in uno falsus in omnibus”
(false in one thing, false in everything). This
plea is clearly untenable. Even if major
portion of evidence is found to be deficient, in
case residue is sufficient to prove guilt of an
accused, his conviction can be maintained. It is
the duty of the court to separate grain from
chaff. Where chaff can be separated from
grain, it would be open to the court to convict
an accused notwithstanding the fact that
evidence has been found to be deficient, or to
be not wholly credible. Falsity of material
particular would not ruin it from the beginning
to end. The maxim “falsus in uno falsus in
omnibus” has no application in India and the
witness or witnesses cannot be branded as
liar(s). The maxim “falsus in uno falsus in
omnibus” has not received general acceptance
nor has this maxim come to occupy the status
of the rule of law. It is merely a rule of caution.
All that it amounts to, is that in such cases
testimony may be disregarded, and not that it
must be disregarded. The doctrine merely
involves the question of weight of evidence
which a court may apply in a given set of
circumstances, but it is not what may be called
a mandatory rule of evidence. (See Nisar Ali v.
State of U.P. [1957 SCR 657 : AIR 1957 SC
366 : 1957 Cri LJ 550] ) In a given case, it is
always open to a court to differentiate the
accused who had been acquitted from those

33
CRLA No. - 2089 of 2023
who were convicted where there are a number
of accused persons. (See Gurcharan Singh v.
State of Punjab [AIR 1956 SC 460 : 1956 Cri
LJ 827] .) The doctrine is a dangerous one
specially in India for if a whole body of the
testimony were to be rejected, because the
witness was evidently speaking an untruth in
some aspect, it is to be feared that
administration of criminal justice would come
to a dead stop. Witnesses just cannot help in
giving embroidery to a story, however, true in
the main. Therefore, it has to be appraised in
each case as to what extent the evidence is
worthy of acceptance, and merely because in
some respects the court considers the same to
be insufficient for placing reliance on the
testimony of a witness, it does not necessarily
follow as a matter of law that it must be
disregarded in all respect as well. The
evidence has to be sifted with care. The
aforesaid dictum is not a sound rule for the
reason that one hardly comes across a witness
whose evidence does not contain a grain of
untruth or at any rate exaggeration,
embroideries or embellishment. (See Sohrab v.
State of M.P. [(1972) 3 SCC 751 : 1972 SCC
(Cri) 819] and Ugar Ahir v. State of Bihar
[AIR 1965 SC 277 : (1965) 1 Cri LJ 256] .) An
attempt has to be made to, as noted above, in
terms of felicitous metaphor, separate grain
from the chaff, truth from falsehood. Where it
is not feasible to separate truth from falsehood,
because grain and chaff are inextricably mixed

34
CRLA No. - 2089 of 2023
up, and in the process of separation an
absolutely new case has to be reconstructed by
divorcing essential details presented by the
prosecution completely from the context and
the background against which they are made,
the only available course to be made is to
discard the evidence in toto. (See Zwinglee
Ariel v. State of M.P. [(1952) 2 SCC 560 : AIR
1954 SC 15 : 1954 Cri LJ 230] and Balaka
Singh v. State of Punjab [(1975) 4 SCC 511 :
1975 SCC (Cri) 601] .) As observed by this
Court in State of Rajasthan v. Kalki [(1981) 2
SCC 752 : 1981 SCC (Cri) 593] , normal
discrepancies in evidence are those which are
due to normal errors of observation, normal
errors of memory due to lapse of time, due to
mental disposition such as shock and horror at
the time of occurrence and those are always
there however honest and truthful a witness
may be. Material discrepancies are those
which are not normal, and not expected of a
normal person. The courts have to label the
category to which a discrepancy may be
categorised. While normal discrepancies do
not corrode the credibility of a party's case,
material discrepancies do so. These aspects
were highlighted in Krishna Mochi v. State of
Bihar [(2002) 6 SCC 81 : 2002 SCC (Cri)
1220] and in Sucha Singh v. State of Punjab
[(2003) 7 SCC 643 : 2003 SCC (Cri) 1697] . It
was further illuminated in Zahira Habibulla H.
Sheikh v. State of Gujarat [(2004) 4 SCC 158 :
2004 SCC (Cri) 999] , Ram Udgar Singh v.

35
CRLA No. - 2089 of 2023
State of Bihar [(2004) 10 SCC 443 : 2004 SCC
(Cri) Supp 550] , Gorle S. Naidu v. State of
A.P. [(2003) 12 SCC 449 : 2004 SCC (Cri)
Supp 462] and in Gubbala Venugopalaswamy
v. State of A.P. [(2004) 10 SCC 120 : 2004
SCC (Cri) 1764]
11. In the background of principles set out
above it is to be seen how far the evidence of
PW 1 is cogent and credible. Merely because
he was the solitary witness who claimed to
have seen the occurrence, that cannot be a
ground to discard his evidence, in the
background of what has been stated in Section
134 of the Evidence Act, 1872 (in short “the
Evidence Act”). No particular number of
witnesses are required for the proof of any
fact; material evidence and not number of
witnesses has to be taken note of by the courts
to ascertain the truth of the allegations made.
Therefore, if the evidence of PW 1 is accepted
as cogent and credible, then the prosecution is
to succeed. It is to be noted that PW 1, father
of the appellant, claimed to have set law into
motion. The testimony of PW 1 was to the
effect that after witnessing a part of the
occurrence he had run to the police station and
had come back within about five minutes. The
evidence on record disproves veracity of this
part of his evidence. The occurrence is alleged
to have taken place at about 10 p.m. The FIR
was lodged at the police station at about 11.30
p.m. PW 1 and the investigating officer
accepted that it will take nearly one hour for

36
CRLA No. - 2089 of 2023
somebody on foot to reach the police station
considering the distance of the alleged place of
occurrence and the police station. There is
another interesting factor : PW 1 accepted in
the cross-examination that the report (Ext. P-
1) was written in the police station in the
presence of Sub-Inspector and a constable. But
in his examination-in-chief, he had stated that
he had got written the report by somebody at a
hotel and the person normally writes petitions.
No particulars of this person who allegedly
scribed the report, not even his name, was
stated by PW 1. His evidence is further to the
effect that he alone had come to the police
station where the report was lodged and that is
how he admitted that the report was written at
the police station. This may not appear to be
that important a factor considering the
illiteracy of PW 1. But there is another
significant factor which completely destroys
the prosecution version and the credibility of
PW 1 as a witness. He has indicated four
different places to be the place of occurrence.
In his examination-in-chief he stated that the
occurrence took place in his house. In the
cross-examination he stated that the incident
took place at the house of his wife, the
deceased's mother. This is a very important
factor considering the undisputed position and
in fact the admission of PW 1 that he and his
wife were separated nearly two decades ago,
and that he was not on visiting terms with his
wife. Then the question would automatically

37
CRLA No. - 2089 of 2023
arise as to how in spite of strained relationship
he could have seen the occurrence as alleged
in the house of his wife. That is not the end of
the matter. In his cross-examination he further
stated that the incident happened in the small
lane in front of the house of his wife. This is at
clear variance with the statement that the
occurrence took place inside the house where
allegedly he, the deceased, his son, PW 2 and
daughters, PWs 3 and 6 were present. That is
not the final say of the witness. He accepted
that in the FIR (Ext. P-1) he had stated the
place of occurrence to be the house of the
deceased. Though the FIR is not a substantive
evidence yet, the same can be used to test the
veracity of the witness. PW 1 accepted that
what was stated in the FIR was correct. When
the place of occurrence itself has not been
established it would not be proper to accept
the prosecution version.
12. Above being the position, the High Court
was not right in lightly brushing aside the
apparent inconsistencies and discrepancies by
making a general observation that PW 1 is an
illiterate person. Above being the position the
impugned judgment of the High Court is set
aside. The accused be set at liberty forthwith
unless he is required to be in custody in
connection with any other case. ”
In Pohlu v. State of Haryana, (2005) 10 SCC 196, the Apex Court
has held as under : paragraph nos. 9, 10, 11, 13 and 17 of the said
decision:

38
CRLA No. - 2089 of 2023
“9. So far as motive is concerned, it is settled law
that failure to prove motive is not fatal to the case
of the prosecution if there is reliable evidence to
prove the case of the prosecution. However, there
is substance in the submission urged on behalf of
the appellants that there was really no reason for
the appellants to assault Sukhdei, and for that
purpose to go to her house, even if they bore a
grudge against Hukam Chand, the deceased. It is
not understood as to why the appellants went to
the house of Sukhdei and assaulted her when it
was really Hukam Chand who was their target
and who was living separately from Sukhdei.
Moreover, the election took place on 19-12-1994
and thereafter for about 18 days nothing
untoward happened. There is no reason why
suddenly the appellants decided to assault
Sukhdei. It was therefore, contended that the real
genesis of the occurrence has not been disclosed
by the prosecution, and that probabilises the
defence case that in a different occurrence, and in
a different manner, the informant and the
deceased were assaulted.
10. It was then submitted that some of the
material witnesses were not examined and in this
connection it was argued that two of the
eyewitnesses named in the FIR, namely, Chander
and Sita Ram were not examined by the
prosecution. Dharamvir, son of Sukhdei was also
not examined by the prosecution though he was a
material witness, being an injured eyewitness,
having witnessed the assault that took place in the
house of Sukhdei, PW 2. It is true that it is not

39
CRLA No. - 2089 of 2023
necessary for the prosecution to multiply
witnesses, if it prefers to rely upon the evidence of
the eyewitnesses examined by it, which it
considers sufficient to prove the case of the
prosecution. However, the intrinsic worth of the
testimony of the witnesses examined by the
prosecution has to be assessed by the court. If
their evidence appears to be truthful, reliable and
acceptable, the mere fact that some other
witnesses have not been examined, will not
adversely affect the case of the prosecution. We
have, therefore, to examine the evidence of the two
eyewitnesses, namely, PW 1 and PW 2, and to find
whether their evidence is true, on the basis of
which the conviction of the appellants can be
sustained.
11. PW 2 Sukhdei has alleged in the FIR that the
occurrence took place near the village chaupal in
which Hukam Chand, the deceased, was
assaulted. Before that the appellants and others
had entered her house, assaulted her and
thereafter proceeded towards the chaupal. While
deposing in court she has attempted to change the
place of occurrence by stating that she was
assaulted in the sahan of her house and Hukam
Chand was assaulted just outside her house.
Counsel for the State has shown to us the site plan
from which it appears that the place where Hukam
Chand is alleged to have been assaulted is only
three steps from the main door of the house of the
informant. Counsel for the appellants submitted
that this has been done deliberately, because the
material on record does disclose that a different

40
CRLA No. - 2089 of 2023
occurrence took place near the chaupal in which
the son of the informant namely Dharamvir, was
also involved. However, with a view to prevent the
emergence of truth the prosecution has shifted the
place of occurrence and also not examined
Dharamvir, son of the informant, who was also
involved in that incident. What is apparent,
however, is that PW 1 has sought to shift the place
of occurrence where Hukam Chand is said to have
been assaulted. Though, according to her, she
was assaulted inside the house in the sahan and
some blood had dropped in the sahan, and her
clothes had also got bloodstained, the
investigating officer has categorically stated that
he did not find blood at any place either at the
alleged place of occurrence or in the sahan or on
the clothes of the informant. Moreover, this
witness named only three accused persons in the
FIR. Later she added the name of Prem Singh,
and in the course of deposition in court she also
implicated Raj Kumar. These facts lead us to hold
that she is not a wholly reliable witness on whom
the Court can place implicit reliance.
13. From the deposition of this witness it appears
that in the course of the investigation he had
stated that his father had been assaulted only by
Ishwar, and not by others. In the course of
deposition he sought to involve all the accused
persons. Having considered the evidence of this
witness in its entirety, we are satisfied that he is
also not a reliable witness on whom implicit
reliance can be placed and his credibility has
been sufficiently impeached in his cross-

41
CRLA No. - 2089 of 2023
examination. In fact so far as this witness is
concerned, he named Raj Kumar and Prem Singh
for the first time in the course of his deposition,
and it appears that he had not even mentioned
their names in the course of the investigation.
17. Having considered the evidence of the
eyewitnesses and in view of the fact that the
eyewitnesses tried to falsely implicate two other
persons namely Raj Kumar and Prem Singh,
whose acquittal was not challenged by the State,
we are not persuaded to place reliance upon any
one of the eyewitnesses for the reasons earlier
recorded. Other witnesses named in the FIR who
could have thrown some light on the occurrence
as it took place, have not been examined. One of
the injured persons, namely, Dharamvir has been
kept out deliberately, and was not examined at the
trial. There was a deliberate attempt on the part
of the informant PW 2 to keep him out of the
picture by not naming him in the FIR, though in
her supplementary statement she mentioned that
Prem Singh had assaulted her son Dharamvir
inside her house. So far as PW 1 is concerned, his
cross-examination reveals that he had a different
story to tell in the course of the investigation
involving only Ishwar. In these facts and
circumstances, we hold that neither of the two
eyewitnesses examined by the prosecution can be
relied upon. If their evidence is discarded, there is
no other evidence which can sustain the
conviction of the appellants. ”

42
CRLA No. - 2089 of 2023
(xiv) What is more learned counsel for the appellants have submitted
that it had been the case of the prosecution especially of PW-1 and
PW-2 that after the incident had occurred the deceased was taken to
hospital in a Scorpio Car, however, the Scorpio Car was never made a
part of investigation and it was never shown that there was any blood
in the Scorpio Car and this also, as per the learned counsel for the
appellants, became a doubtful circumstance.
(xv) There was absolutely no motive and submitted that there might
have been a case of eye witness account but some element of motive
had to be looked into by the Courts.
(xvi) Medical evidence was against the ocular evidence.
(xvii) Entire incident was based on nothing else but falsehood as two
firearms, which were recovered on the pointing out of the accused
Govind Yadav and Suresh Yadav and the empty cartridges which had
fallen at the place of occurrence had not matched the firearms i.e.
country made pistol and country made revolver and it is clear from
the FSL report dated 2.8.2016.
(xviii) Relying upon the doctor’s version that apart from the fact that
PW-1 was not there and the place of incident was not determined,
even the time of the incident was doubtful as the post mortem report
showed that there was gas and faecal matter in the large intestine of
the deceased and the doctor has stated that this was possible only if
the deceased had taken food two hours before the incident. Therefore,
the incident had occurred either two hours after lunch or two hours
after dinner time. For this purpose learned counsel for the appellants
relied upon the statement of PW-1 at page 64 of the paper book,
which is as under. It had stated that the deceased was having an
empty stomach :
“ घ
 स चलन  घटन
स्थलत पहुचन त ो च
य यानी नास्ता पानी नहीं किये थेय यानी नास्ता पानी नहीं किये थे
नी नास्ता पानी नहीं किये थेन
स्त
प
नी नास्ता पानी नहीं किये थेनही नास्ता पानी नहीं किये थें किये थेकिय यानी नास्ता पानी नहीं किये थे थ
मौं  प पहुचन प भी नास्ता पानी नहीं किये थेऔ घटन
 पहल म भ
 ुछ खाये पीये नहीं थे।ख
य यानी नास्ता पानी नहीं किये थे पी नास्ता पानी नहीं किये थेय यानी नास्ता पानी नहीं किये थे नही नास्ता पानी नहीं किये थें किये थेथ। "

43
CRLA No. - 2089 of 2023
Thereafter, he relied upon the statement of doctor at page 135 of the
paper book, which is as under :
" आम
शय यानी नास्ता पानी नहीं किये थेी नास्ता पानी नहीं किये थेदश
अन्त स्तुय यानी नास्ता पानी नहीं किये थे औ गं किये थे% पस्टी नास्ता पानी नहीं किये थेफ्ल्य यानी नास्ता पानी नहीं किये थेूड मौजूद था छोटी आंत औरमौजूदथ
छ खाये पीये नहीं थे।ोटी नास्ता पानी नहीं किये थेआं किये थेतऔ
अपेंकिड मौजूद था छोटी आंत औरक्स ी नास्ता पानी नहीं किये थेकिस्थकितख
ली नास्ता पानी नहीं किये थे न
म.लथ
।बड़ी नास्ता पानी नहीं किये थेआं किये थेतमेंगैसऔ मलमौजूदथ
। ”
Contradictions in the statements of PW-1 and PW-3 definitely raises a
doubt in the mind with regard to the timing of the incident.
(xix) There were two live cartridges also recovered at the place of
occurrence by the Investigating Officer. Learned counsel submit that
under no situation live cartridges would have fallen down at the place
of incident when firing had been done actively by the pistols or
revolvers. Only to give credence to the story of the prosecution the
live cartridges were made to appear at the place of incident.
(xx) Even the samples of plain soil and bloodstained soil, which
were taken by the Investigating Officer were sent to the FSL and the
report had failed to establish that the place of occurrence was the
place where the soil had been picked from.
30. On the other hand, learned counsel for the informant and the
learned Additional Government Advocates submitted that :
(i) Though motive was not there in black and white but there was a
motive because apparently the accused side never liked the ownership
of the deceased wife of the plot in question. Still further, learned
counsel for the informant submitted that there was no delay in
sending the police report and thus no violation of the provisions of
Section 157 CrPC. The two days’ delay to send the report to the
Magistrate was because of there being intervening State Holidays.
Also they submitted that no prejudice could be pointed out. For this
purpose he relied upon a case in Ombir Singh vs. State of Uttar
Pradesh and another, (2020) 6 SCC 378, paragraph nos. 4 and 5 of
the said judgment:

44
CRLA No. - 2089 of 2023
“ 4. There was undoubtedly a delay in
compliance with Section 157 of the Code, as
the FIR was received in the office of the Chief
Judicial Magistrate with a delay of 11 days.
Effect of delay in compliance with Section 157
of the Code and its legal impact on the trial
has been examined by this Court in Jafel
Biswas v. State of W.B. [Jafel Biswas v. State
of W.B., (2019) 12 SCC 560 : (2019) 4 SCC
(Cri) 455] after referring to the earlier case
laws, to elucidate as follows : (SCC pp. 565-
67, paras 18-21)
“18. In State of Rajasthan [State of Rajasthan
v. Daud Khan, (2016) 2 SCC 607 : (2016) 1
SCC (Cri) 793] in paras 27 and 28, this Court
has laid down as follows : (SCC pp. 620-21)
‘27. The delay in sending the special report
was also the subject of discussion in a recent
decision being Sheo Shankar Singh v. State of
U.P. [Sheo Shankar Singh v. State of U.P.,
(2013) 12 SCC 539 : (2014) 4 SCC (Cri) 390]
wherein it was held that before such a
contention is countenanced, the accused must
show prejudice having been caused by the
delayed dispatch of the FIR to the Magistrate.
It was held, relying upon several earlier
decisions as follows : (SCC pp. 549-50, paras
30-31)
“30. One other submission made on behalf of
the appellants was that in the absence of any
proof of forwarding the FIR copy to the
jurisdiction Magistrate, violation of Section

45
CRLA No. - 2089 of 2023
157 CrPC has crept in and thereby, the very
registration of the FIR becomes doubtful. The
said submission will have to be rejected,
inasmuch as the FIR placed before the Court
discloses that the same was reported at 4.00
p.m. on 13-6-1979 and was forwarded on the
very next day viz. 14-6-1979. Further, a
perusal of the impugned judgments of the
High Court [Sarvajit Singh v. State of U.P.,
2003 SCC OnLine All 1214 : (2004) 48 ACC
732] as well as of the trial court discloses that
no case of any prejudice was shown nor even
raised on behalf of the appellants based on
alleged violation of Section 157 CrPC. Time
and again, this Court has held that unless
serious prejudice was demonstrated to have
been suffered as against the accused, mere
delay in sending the FIR to the Magistrate by
itself will not have any deteriorating (sic)
effect on the case of the prosecution.
Therefore, the said submission made on behalf
of the appellants cannot be sustained.
31. In this context, we would like to refer to a
recent decision of this Court in Sandeep v.
State of U.P. [Sandeep v. State of U.P., (2012)
6 SCC 107 : (2012) 3 SCC (Cri) 18] wherein
the said position has been explained as under
in paras 62-63 : (SCC p. 132)
‘62. It was also feebly contended on behalf of
the appellants that the express report was not
forwarded to the Magistrate as stipulated
under Section 157 CrPC instantaneously.

46
CRLA No. - 2089 of 2023
According to the learned counsel FIR which
was initially registered on 17-11-2004 was
given a number on 19-11-2004 as FIR No. 116
of 2004 and it was altered on 20-11-2004 and
was forwarded only on 25-11-2004 to the
Magistrate. As far as the said contention is
concerned, we only wish to refer to the
reported decision of this Court in Pala Singh
v. State of Punjab [Pala Singh v. State of
Punjab, (1972) 2 SCC 640 : 1973 SCC (Cri)
55] wherein this Court has clearly held that
(SCC p. 645, para 8) where the FIR was
actually recorded without delay and the
investigation started on the basis of that FIR
and there is no other infirmity brought to the
notice of the court then, however improper or
objectionable the delay in receipt of the report
by the Magistrate concerned be, in the
absence of any prejudice to the accused it
cannot by itself justify the conclusion that the
investigation was tainted and the prosecution
insupportable.
63. Applying the above ratio in Pala Singh
[Pala Singh v. State of Punjab, (1972) 2 SCC
640 : 1973 SCC (Cri) 55] to the case on hand,
while pointing out the delay in the forwarding
of the FIR to the Magistrate, no prejudice was
said to have been caused to the appellants by
virtue of the said delay. As far as the
commencement of the investigation is
concerned, our earlier detailed discussion
discloses that there was no dearth in that
aspect. In such circumstances we do not find

47
CRLA No. - 2089 of 2023
any infirmity in the case of the prosecution on
that score. In fact the above decision was
subsequently followed in Sarwan Singh v.
State of Punjab [Sarwan Singh v. State of
Punjab, (1976) 4 SCC 369 : 1976 SCC (Cri)
646] , Anil Rai v. State of Bihar [Anil Rai v.
State of Bihar, (2001) 7 SCC 318 : 2001 SCC
(Cri) 1009] and Aqeel Ahmad v. State of U.P.
[Aqeel Ahmad v. State of U.P., (2008) 16 SCC
372 : (2010) 4 SCC (Cri) 11] ’ ”
28. It is no doubt true that one of the external
checks against ante-dating or ante-timing an
FIR is the time of its dispatch to the
Magistrate or its receipt by the Magistrate.
The dispatch of a copy of the FIR “forthwith”
ensures that there is no manipulation or
interpolation in the FIR. [Sudarshan v. State
of Maharashtra, (2014) 12 SCC 312 : (2014)
5 SCC (Cri) 94] If the prosecution is asked to
give an explanation for the delay in the
dispatch of a copy of the FIR, it ought to do
so. [Meharaj Singh v. State of U.P., (1994) 5
SCC 188 : 1994 SCC (Cri) 1391] However, if
the court is convinced of the prosecution
version's truthfulness and trustworthiness of
the witnesses, the absence of an explanation
may not be regarded as detrimental to the
prosecution case. It would depend on the facts
and circumstances of the case. [Rattiram v.
State of M.P., (2013) 12 SCC 316 : (2014) 1
SCC (Cri) 635] ’

48
CRLA No. - 2089 of 2023
19. The obligation is on the investigating
officer to communicate the report to the
Magistrate. The obligation cast on the
investigating officer is an obligation of a
public duty. But it has been held by this Court
that in the event the report is submitted with
delay or due to any lapse, the trial shall not
be affected. The delay in submitting the report
is always taken as a ground to challenge the
veracity of the FIR and the day and time of the
lodging of the FIR.
20. In cases where the date and time of the
lodging of the FIR is questioned, the report
becomes more relevant. But mere delay in
sending the report itself cannot lead to a
conclusion that the trial is vitiated or the
accused is entitled to be acquitted on this
ground.
21. This Court in Anjan Dasgupta v. State of
W.B. [Anjan Dasgupta v. State of W.B., (2017)
11 SCC 222 : (2017) 4 SCC (Cri) 280] (of
which one of us was a member, Hon'ble Ashok
Bhushan, J.) had considered Section 157
CrPC. In the above case also, the FIR was
dispatched with delay. Referring to an earlier
judgment [Rabindra Mahto v. State of
Jharkhand, (2006) 10 SCC 432 : (2006) 3
SCC (Cri) 592] of this Court, it was held that
in every case from the mere delay in sending
the FIR to the Magistrate, the Court would
not conclude that the FIR has been registered
much later in time than shown.

49
CRLA No. - 2089 of 2023
5. Therefore, delay in compliance with
Section 157 of the Code cannot, in itself, be a
good ground to acquit the appellant. Albeit,
this fact has to be considered when we
examine the credibility of the version of the
eyewitnesses; in this case, the testimonies of
Dinesh Singh (PW 1) and Mukesh Singh (PW
2). We must also keep in mind that there were
questions raised by the complainant and the
family members of the deceased as to the
manner in which the investigation was carried
by the first investigating officer and his team,
and therefore the investigation was
subsequently transferred to the Crime Branch
—Crime Investigation Department (“CB-
CID”, for short) on 1-8-1999. ”
(ii) Even if the FSL report had not made the empty cartridges
match with the bullet, which was found inside the body of the
deceased, it matters little because it was an eye witness account
which had initiated the prosecution and also it was a day light murder,
which could not have been doubted.
(iii) The call detail reports, which were being relied upon to show
that PW-1 and PW-2 were not present on the spot were of no avail, as
they were neither accompanied by the certificate under Section 65-B
of the Evidence Act, nor were they proved after exhibiting the
documents.
(iv) The incident had occurred on 8.8.2014 and the examination-in-
chief started on 17.8.2015 and thereafter there was cross-examination
also done and for almost 5 years the trial had continued. There was
every possibility that the witnesses i.e. PW-1 and PW-2 had become
confused and therefore, they had not given the correct position where
the incident had occurred. In this regard learned counsel for the

50
CRLA No. - 2089 of 2023
informant and the learned AGA have relied upon a decision of Apex
Court in Chandan v. State (NCT of Delhi), (2024) 6 SCC 799 , and
relied upon paragraph nos. 5 and 6 of the said decision, which are as
under :
“5. An FIR was registered on the date of incident
itself i.e. 28-5-1993, at Police Station, Kashmere
Gate, Delhi on the statement of PW 2, the
complainant, where she narrated the incident as
already stated above. The police after
investigation filed the charge-sheet against the
sole accused, Chandan, under Section 302IPC.
6. After committal of the case to the Sessions
Court, 18 witnesses were examined by the
prosecution. The star witness of the prosecution
was PW 2, who was the eyewitness. She was put
to a lengthy cross-examination by the defence but
nothing has come out which may discredit this
witness. This witness in her testimony narrates the
entire sequence of events as to how the accused
stabbed the deceased to death and how she
watched from a short distance the act being
committed before her, and how all this happened
in quick time.”
(v) Still further learned counsel for the informant submitted that
minor contradictions do not matter and placed reliance upon a case of
Supreme Court in Alauddin v. State of Assam, (2024) 12 SCC 224,
paragraph nos. 5, 6, 7, 8, 9 and 10 of the said judgment:
“5. Before we deal with the merits, something
must be stated about how the trial court
recorded the prosecution witnesses' cross-
examination in this case, especially when they

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were confronted with their prior statements.
The trial court did not follow the correct
procedure while recording the contradictions.
6. Under Section 161 of the Code of Criminal
Procedure, 1973 (for short “CrPC”), the
police have the power to record statements of
the witnesses during the investigation. Section
162CrPC deals with the use of such statements
in evidence.
7. Section 162 reads thus:
“162. Statements to police not to be signed:
Use of statements in evidence.—(1) No
statement made by any person to a police
officer in the course of an investigation under
this Chapter, shall, if reduced to writing, be
signed by the person making it; nor shall any
such statement or any record thereof, whether
in a police diary or otherwise, or any part of
such statement or record, be used for any
purpose, save as hereinafter provided, at any
inquiry or trial in respect of any offence under
investigation at the time when such statement
was made:
Provided that when any witness is called for
the prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with
the permission of the court, by the prosecution,
to contradict such witness in the manner
provided by Section 145 of the Indian Evidence

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Act, 1872 (1 of 1872); and when any part of
such statement is so used, any part thereof may
also be used in the re-examination of such
witness, but for the purpose only of explaining
any matter referred to in his cross-
examination.
(2) Nothing in this section shall be deemed to
apply to any statement falling within the
provisions of clause (1) of Section 32 of the
Indian Evidence Act, 1872 (1 of 1872), or to
affect the provisions of Section 27 of that Act.
Explanation.—An omission to state a fact or
circumstance in the statement referred to in
sub-section (1) may amount to contradiction if
the same appears to be significant and
otherwise relevant having regard to the context
in which such omission occurs and whether
any omission amounts to a contradiction in the
particular context shall be a question of fact.”
8. The basic principle incorporated in sub-
section (1) of Section 162 is that any statement
made by a person to a police officer in the
course of investigation, which is reduced in
writing, cannot be used for any purpose except
as provided in Section 162. The first exception
incorporated in sub-section (2) is of the
statements covered by clause (1) of Section 32
of the Evidence Act, 1872 (for short “the
Evidence Act”). Thus, what is provided in sub-
section (1) of Section 162 does not apply to a
dying declaration. The second exception to the
general rule provided in sub-section (1) of

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Section 162 is that the accused can use the
statement to contradict the witness in the
manner provided by Section 145 of the
Evidence Act. Even the prosecution can use the
statement to contradict a witness in the manner
provided in Section 145 of the Evidence Act
with the prior permission of the court. The
prosecution normally takes recourse to this
provision when its witness does not support the
prosecution case. There is one important
condition for using the prior statement for
contradiction. The condition is that the part of
the statement used for contradiction must be
duly proved.
9. When the two statements cannot stand
together, they become contradictory
statements. When a witness makes a statement
in his evidence before the court which is
inconsistent with what he has stated in his
statement recorded by the police, there is a
contradiction. When a prosecution witness
whose statement under Section 161(1) or
Section 164CrPC has been recorded states
factual aspects before the court which he has
not stated in his prior statement recorded
under Section 161(1) or Section 164CrPC, it is
said that there is an omission. There will be an
omission if the witness has omitted to state a
fact in his statement recorded by the police,
which he states before the court in his
evidence. The Explanation to Section 162CrPC
indicates that an omission may amount to a
contradiction when it is significant and

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relevant. Thus, every omission is not a
contradiction. It becomes a contradiction
provided it satisfies the test laid down in the
Explanation under Section 162. Therefore,
when an omission becomes a contradiction, the
procedure provided in the proviso to sub-
section (1) of Section 162 must be followed for
contradicting witnesses in the cross-
examination.
10. As stated in the proviso to sub-section (1)
of Section 162, the witness has to be
contradicted in the manner provided under
Section 145 of the Evidence Act. Section 145
reads thus:
“145. Cross-examination as to previous
statements in writing.—A witness may be
cross-examined as to previous statements made
by him in writing or reduced into writing, and
relevant to matters in question, without such
writing being shown to him, or being proved;
but, if it is intended to contradict him by the
writing, his attention must, before the writing
can be proved, be called to those parts of it
which are to be used for the purpose of
contradicting him.”
31. We have considered the rival submissions made by the learned
counsel for the parties and have gone through the entire record
including the impugned judgment and order and the case laws relied
upon by the parties carefully.
32. We find that the place of incident is definitely doubtful. PW-1
had stated that the incident had occurred inside the plot which was

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surrounded by a boundary wall and closed by a gate. However,
actually the incident had happened outside, as was stated by PW-2.
Also the PW-6, the Investigating Officer had stated that on the
pointing out of PW-1 he had prepared the site plan and he had found
that the incident had happened outside the boundary wall and the
gate. Empty cartridges, bullet etc. were found outside the boundary
wall. We also find that there was no contradiction in the statement of
PW-1 at various stages regarding the place of occurrence. PW-1 was
constantly consistent that the incident had happened inside the gate
whereas PW-2 was constantly consistent about the fact that the
incident had happened outside the boundary wall and the gate of the
plot. Thus, no confusion was there in the minds of PW-1 and PW-2.
We find that even the Investigating Officer had prepared the site plan
with the help of PW-1 and had stated that the incident had occurred
outside the gate, therefore, with some certainty we can say that the
place of incident definitely becomes doubtful. Also the firearm which
was recovered and the bullet which was recovered from inside the
dead body of the deceased and also the empty cartridges which were
found from the place of occurrence and the empty cartridge which
was found in the revolver all were sent to Forensic Science
Laboratory and the report which came from there showed that none of
the empty cartridges or the bullet etc. matched the two guns which
were recovered under Section 27 of the Evidence Act. We are
conscious of the fact that before the recovery had taken place, the
disclosure statement was not recorded and therefore, as per the
judgment of Apex Court in Subramanya vs. State of Karnataka
reported in (2023) 11 SCC 255 the recovery itself became bad in
law.
33. In the above conspectus and also while we consider the report
of the doctor which said that there was gas and faecal matter in the
large intestine making it evident that the deceased had taken food two
hours prior to the incident, it makes it evidently clear that the incident

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might have happened at a time which was not in accordance with the
time given by the prosecution. Coupled with the time not tallying
after considering the statements of the PW-1 and PW-2, we have
already found that the PW-1 and PW-2 were at variance with regard
to the place of incident. These two factors definitely make the case of
prosecution extremely doubtful.
34. Still further as per the judgment in Tukesh Singh case (supra)
we are of the view that so far as the accused persons are concerned,
specially Rajan Yadav, they all ought to have been identified in the
Court and in the absence of dock identification the trial itself becomes
vulnerable and had to result in acquittal. We are also of the view that
when Rajan Yadav was not named in the FIR and subsequently his
name erupted then there was a doubt as to whether he was there at all.
Thus, we are definitely of the view that he should have been
identified by a test identification parade. Be that as it may, even if the
test identification parade had not been done at least dock
identification should have been conducted at the time of the trial.
35. So far as the prosecution case with regard to the reliance of call
detail reports is concerned, we do find that call details were not
accompanied by any certificate under Section 65-B of the Evidence
Act and also the call detail report was not subjected to proof and no
evidence was led in this regard and also it was never exhibited. Thus,
reliance on it would not be justified.
36. Further, from the entire reading of the evidence, we are of the
view that the FIR might not have been ante-timed. The cuttings on the
inquest report and the delay in sending the police report were not
such lapses in the prosecution case that we would be led to conclude
that the FIR was ante timed.
37. Concluding, we find that the place of incident becomes
doubtful; presence of PW-1 and PW-2 and other persons from the

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informant’s side becomes doubtful; the timing of the incident also
becomes doubtful and so far as Babludhar Dubey is concerned, we
are of the view that definitely, if all the testimonies of the defence
witnesses are taken into account, the irresistible conclusion would be
that he was not there at the site. His alibi was definitely an issue
which had to be considered and if it was found that Babludhar Dubey
was not there then the FIR version from the very beginning becomes
nothing else but a bundle of lies. Also, when the Trial Court acquitted
Babludhar Dubey under Section 396 IPC it gives us reason to believe
that the prosecution had concocted the story with regard to his taking
away the licensed gun of the deceased.
38. Also the recovery of firearm was not in accordance with law
and also since the firearm did not match the empty cartridges and the
bullet etc. we are of the considered view that the case taken by the
prosecution under the Arms Act was also nothing else but a
concocted story to help the main case.
39. Hence, upon careful analysis and consideration of the settled
legal position in the backdrop of the facts and circumstances of the
present case, we are of the opinion that the conclusion taken by the
Trial Court in the impugned judgment and order is not in accordance
with law and the evidence available on record. Thus, this Court is of
the considered view that the prosecution has not been able to establish
the guilt of the accused appellants beyond reasonable doubt.
Therefore, the Court is inclined to grant benefit of doubt to the
accused appellants on the ground of rule of caution.
40. In view of the above discussions, we are of the opinion that the
prosecution has failed to establish the guilt of the accused appellants
for the alleged offences punishable under Sections 147, 148, 307/149.
302/149, 504 of IPC and under Section 3/25 Arms Act beyond
reasonable doubt and to the satisfaction of the judicial conscience of
the Court. So, the impugned judgment and order of conviction and
sentence dated 13/17.2.2023, which has been sought to be assailed,

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calls for and deserves, interference. The criminal appeals are liable to
be allowed.
41. Accordingly, criminal appeals are allowed and the conviction
and sentence imposed upon the accused appellants is set-aside as the
accused appellants are found not guilty for the aforesaid offences.
They are honourably acquitted of all the charges framed against them.
Accused appellants Govind Yadav, Suresh Yadav, Rinku @ Rajiv
Yadav, Monu Yadav, Rajan Yadav are on bail and accused appellant
Babludhar Dubey @ Vishnudhar Dubey is on short term bail on
medical ground. They need not surrender and their bail bonds are
cancelled and sureties are discharged.
42. Copy of this order be also placed on the records of Criminal
Appeal Nos. 2855 of 2023, 2861 of 2023, 2088 of 2023 and 2519 of
2023.
42. Office is directed to communicate this order to the court
concerned forthwith for compliance and also to send back the trial
court record.
43. Pending application, if any, stands disposed of.
(Jai Krishna Upadhyay,J.) (Siddhartha Varma,J.)
May 26, 2026
safi
Digitally signed by :-
MAHBOOB SAFI
High Court of Judicature at Allahabad