Mathura Prasad alias Bhikka and Another vs State of U.P.

The present appeal stems from Sessions Trial No. 79 of 2007, wherein the accused persons namely Mathura Prasad and Dwarikadhish were tried by learned Additional Sessions Judge/F.T.C. II, Hathras for committing the murder of Satya Prakash Gautam. By the judgment and order dated 4.11.2008, the learned trial Judge convicted Appellants u/s 302/34, I.P.C. and awarded capital punishment to each of them. The Appellants were further convicted u/s 307/34, I.P.C. and were sentenced to suffer R.I. for 10 years and a fine of Rs. 10,000 each.

The author of the F.I.R. in the case is Sharad Gautam son of deceased Satya Prakash Gautam. The occurrence is dated 17.3.2006 and is stated to have occurred at 10 a.m. According to the allegations encapsulated in the F.I.R., the deceased was an advocate practicing in the Tehsil Court at Sadabad and on the day of occurrence, he had set out on cycle for Sadabad from his house situated in village Saidaria P.S. Sahpau district Hathras. He was accompanied by Krishna Kumar son of Niranjan Lal , who was also going on the cycle side by side the deceased. When the deceased reached a place where from bhatta of Bhagwan Das was approximately 250 metres, an unmarked Bolero Jeep came from the opposite direction, the occupants of which were the Appellants and out of them, one Basanta resident of village Saidaria who was driving the vehicle, rammed the Jeep into the cycle of the deceased and as a result, the deceased fell down on the ground. Thereafter, the accused persons it is alleged, emerged from the Jeep and assaulted the deceased on his head by means of lathi, danda and saria by propping his head in the hands and as a result, the head of the deceased was badly mauled. It is further alleged that Krishna Kumar who was accompanying the deceased, tried to rescue the deceased from further assault whereupon the accused persons namely, Mathura and Dwarikadheesh resorted to indiscriminate firing from their pistols which prevented him from proceeding further and therefore he retraced his steps and fled towards the village. It is further alleged that on way to village, he stumbled across the informant to whom, he narrated the incident. On being informed, the informant, it is further alleged, rushed to the scene of occurrence and saw the accused persons taking out cost from the body of the deceased and throwing it back on him. Thereafter, one of the accused Basanta took hold of the bag of the deceased. Upon seeing the crowd milling towards the place of occurrence, the accused persons escaped in the self same Jeep and while escaping the accused persons drove back the Jeep over the head of deceased twice. Attributing motive to the accused persons, it was alleged, the accused were persons of notorious antecedents and the deceased had made a complaint and had also filed a writ petition against them in the High Court.

On getting information, the S. O. Sompal Singh of police station, Sahpau rushed to the scene of occurrence and commenced investigation. The Investigating Officer recovered a country made pistol with cartridge struck in the barrel of the pistol from nearby pit and prepared memo Ex. Ka-2. The police also recovered twisted cycle and recovery memo Ex. A-3 was prepared. The police also recovered blood smeared and simple earth prepared Ex. Ka-4. The site plan Ex. Ka-5 was also prepared on the spot. The inquest of the body was done on the spot and inquest report Ex. Ka-8 was also prepared at the spot. The dead body was sealed and marked as Ex. Ka-9 and the same was sent for post mortem examination. Photo lash Ex. Ka-11 was also prepared on the spot.

The post mortem on the body was conducted by Dr. Arun Kumar which is Ex. Ka-6. Following ante mortem injuries were enumerated in the post mortem report.

Lacerated wound 15 cm. x 3.5 cm. x brain cavity deep on left side of post aspect of head.

Lacerated wound 7.5 cm. x 3 cm. x bone deep, 3 cm. anterior to injury No. (1).

Lacerated wound 6 cm. x 4.5 cm. x cavity deep on post aspect of right side of head.

Multiple contusion in area of 36 cm. x 12 cm. on post lateral aspect of right upper arm, elbow, forearm and wrist.

Multiple contusion in area of 30 cm. x 21 cm. on left side of back of chest size from 12 cm. x 30 cm. to 6 cm. x 3 cm.

Multiple contusion in area of 30 cm. x 9 cm. on post lateral aspect of left elbow forearm extending upto upper arm.

Multiple abrasions in area of 33 cm. x 27 cm. on front of both side chest and abdomen.

Lacerated wound 6 cm. x 2 cm. x bone deep on front of mid area of right leg underlying bone fracture.

Abrasion 6 cm. x 4.5 cm. on medial aspect of right knee.

After completing investigation, charge-sheet was laid before the Court. It would appear from the record that accused Nanha and Dhola surrendered in the Court at Etah in connection with offence under Sections 435 and 504, I.P.C. Accused Dwarikadheesh, Mathura and Raju were arrested from New Delhi in connection with offence under Sections 399 and 402, I.P.C. However, Basanta continued to escape from police dragnet and hence the Court committed the case of all the accused persons excepting Basanta to the Sessions Court.

The accused in their statements recorded u/s 313, Cr. P.C. denied the incriminating evidence appearing against them. They pleaded that they have been falsely enmeshed in the case and they claimed to be innocent. However, they did not adduce any evidence in their support. Accused Dhola alias Dharmendra stated in his defence that he was the brother of accused Nanha and Nanha had tied nuptial knot with a girl who was closely related to Satya Prakash Gautam deceased and on this count they were falsely nominated in the case. Accused Raju stated in his defence that he was falsely implicated at the behest of the one Surendra as father of Surendra and brother-in-law of accused Raju were horn-locked in criminal litigation and case u/s 307, I.P.C. was pending against the father of Surendra. Accused Mathura stated in defence that one Praveen Kumar Gautam had instituted case against Anil and Krishna Kumar for forging a Will and at the instance of Anil and Krishna Kumar, his father and Dwarikadheesh were falsely roped in with the false case of murder. Dwarikadheesh accused also denied his involvement and pleaded alibi stating that he had gone to Allahabad to serve summons on Inspector Ramji Mishra under the orders of S.S.P., Mathura.

The prosecution in order to substantiate its case, examined P.W. 1 Sharad Gautam who is informant of the case and son of deceased, P.W. 2 Bani Shah son of Laxman Shah, P.W. 3 Sompal Singh P.W. 4 Dr. Arun Kumar who was posted at District Mahila Hospital, Muzaffarnagar, P.W. 5 Suresh Singh, II Investigating Officer, P.W. 6 Constable Rajveer, P.W. 7 S.I. Vijai Pal Singh.

The trial court on appraisal of the entire evidence on record held Mathura Prasad and Dwarikadheesh, guilty and convicted them u/s 302/34 and also u/s 307/34, I.P.C. However, the learned Sessions Judge gave verdict acquitting accused Raju, Nanha alias Devendra and Dhola alias Dharmendra by giving them benefit of doubt.

Feeling aggrieved by the judgment and order the Appellants preferred this appeal in this Court.

We have heard Sri Gopal Chaturvedi, senior advocate assisted by Ajatshatru Pandey, advocate appearing for the Appellants and also Sri D. R. Chaudhary, learned A.G.A. at prolix length and perused the materials on record.

The learned Counsel appearing on behalf of the Appellants canvassed that the evidence produced in this case is not sufficient and convincing to warrant the conviction of the Appellants. He also canvassed that the ocular testimony could not be accepted as he, being the son of the deceased, was interested witness. It is also contended that the entire prosecution case hinges on ocular account of solitary witness and further that Krishna Kumar who is said to be accompanying the deceased at the time of occurrence, did not come forward to depose. It is also canvassed that the P.W. 2 also did not support of the prosecution case in entirety and therefore, he was excoriated as hostile and was extensively cross-examined. It is also canvassed that the witness in his deposition has given a concocted version which casts severe doubts about truthfulness of the prosecution case. The learned Counsel also canvassed that the evidence appearing on record against the Appellants is verbatim version which was taken into consideration by the trial court with regard to the acquittal of co-accused and therefore, the case of the Appellants cannot be decided on any other scale and should have been treated at par for giving benefits of doubt to the Appellants as it was considered for the acquittal. It was lastly argued that there is no reliable evidence brought on record to prove that the Appellants shared common intention to murder the deceased and in the absence of such evidence, the Appellants could not be convicted for offence punishable u/s 302 read with Section 34, I.P.C. Per contra, learned A.G.A. has canvassed for the correctness of the view taken by the trial Judge.

In order to appreciate the aforesaid rival contention of the learned Counsel for the parties, we propose to independently scrutinise the oral and documentary evidence appearing on record.

P.W. 1 is Sharad Gautam who is also informant of the case. He is son of the deceased. In his deposition, he stated that on the day of occurrence, his father set out for Courts at about 10 a.m. on a cycle and when he was accompanied by Krishna Kumar who was riding on a separate cycle and he was hardly 250 metres ahead of brick-kiln of Bhagwan Das, an unmarked Bolera Car came from opposite direction and rammed into the cycle and as a result his father fell down. The accused persons after fall of his father, came down from the car and assaulted his father on his head by means of saria, lathi, danda and hockey. Krishna Kumar, proceeds the deposition, tried to rescue the father from the clutches of the accused persons but accused Mathura and Dwarikadheesh started indiscriminate firing. It is deposed that at the time of occurrence, he had gone to Bamba pull for collecting flour and on way he saw Krishna Kumar running towards him who told him that Mathura and Dwarikadheesh were assaulting his father. He further deposed that from that place, the place of occurrence lay at a distance of about 400 metres. Upon hearing from him the incident of assault, the informant rushed to the place of occurrence while screaming for help and at that particular time, the accused persons were taking out coat from the body of his father and throwing it back upon him. It is further deposed that Basanta alias Girraj Kishore picked up hand bag of his father and seeing the crowd milling towards them, the accused persons started the vehicle and after driving the same back over his father twice, the accused persons escaped towards Sahpau. As regards motive, it is deposed that his father had made complaint against the accused persons and had also preferred a writ petition in the High Court and as such they had criminal propensities towards his father. It is further deposed that after his father had filed writ petition, the accused persons had also assaulted his father and consequently a criminal case u/s 307 was lodged against them.

In cross-examination, he conceded that one Arun of his village was done to death and in that case, he was arrayed as one of the accused. However, he stated that on the day of murder of aforesaid Arun, he was not present at the scene of occurrence. He also admitted that in that case, he had not yet surrendered in the Court nor obtained bail as yet. On further cross-examination, he stated that his father had left the house stating that he was going to Tahsil. However, he conceded that on that day the Tahsil was closed on account of holiday. However, he hastened to add that his father used to go to Tahsil daily irrespective whether it was closed on a particular day. He also stated that he collected blank paper from the school children and wrote down written report and rushed to police station which was situated at a distance of about 3 kms. from the place of occurrence. He also stated that it took 10 to 15 minutes for the police to depart from the police station and he came back to the place of occurrence on a motor cycle belonging to one Data Ram Gautam. He also stated that he had a talk with Krishna Kumar and Bani Shah at the time of writing written report. He also stated that he did not know Bani Shah from before the occurrence. He also stated that Krishna Kumar had left the cycle at the place of occurrence and rushed on foot to the village to give information and after the police had arrived, his cycle was found lying about 5 to 7 paces away from the place where the cycle of deceased was lying. He denied the suggestion that his father met with an accident with an unknown vehicle and it was a case of hit and run. He disowned knowledge that there was any case registered against his father and Krishna Kumar in the matter of fraudulent execution of Will deed the author of which was none else than the Appellant Mathura Prasad.

P.W. 2 is Bani Shah. He is a resident of village Bayau P.S. Jalesar district Etah. On the day of occurrence, he deposed that at about 10 a.m. when he was on way to brick kiln of Bhagwan Das, he saw a black coloured Bolero ramming into the cycle of deceased and as a result, the deceased fell down. Thereafter, he saw accused persons assaulting the deceased by means of saria, lathi, danda and hockey upon which the deceased raised alarm. Thereafter, he saw the accused persons driving the said vehicle backward and running it over the deceased. He also saw the accused persons taking away the hand bag/attachee of the accused. It is also deposed that accused Mathura Prasad and Dwarika also fired on the spot. He also deposed that the fire was made after the accused had run over the vehicle on the deceased. Thereafter, he improved upon his statement stating that the fire was made before driving the vehicle over the deceased. He also deposed that knots of people had collected and thereafter the accused persons escaped towards Sahpau. He also deposed that when he reached the scene of occurrence, the deceased had already succumbed to injuries. He also deposed that one more person was accompanying the deceased on a separate cycle and further that the son of the deceased had also arrived at the scene of occurrence. In cross-examination, he conceded that he did not know the accused persons from before the occurrence by their names or faces. This witness did not support the prosecution case and therefore, he was declared hostile and was extensively cross-examined by the prosecution.

He was recalled for cross-examination on 3.10.2007. In cross-examination, he stated that he could not tell the father''s names of the accused ; that the accused persons were not known to him and that the names of accused were disclosed to him by Sharad Gautam P.W. 1. He further stated that he had seen the occurrence and also saw black coloured Bolero Jeep hitting the cycle and further that the aforesaid vehicle after hitting the cycle, sped away. He further stated that he had seen the vehicle and also the driver of the vehicle and that there were other persons seated in the Jeep but he could not recognize any one of them. He further stated that he could not recognize the driver of the vehicle as the Jeep had sped away after hitting the cycle. On being reminded of his statement made on 21.8.2007 in which he had stated that the accused persons had assaulted the deceased and that the Jeep ran over the accused repeatedly, the witness stated that the aforesaid statement was given on being primed by P.W. 1 Sharad Gautam and others. He also explained that he had given his earlier statement at the dictate of the Government counsel. As stated supra, this witness was declared hostile and was extensively cross-examined.

P.W. 3 is Sompal Singh. At the time of occurrence he was posted as S.S.I. at the police station Sahpau and he took over the investigation of the case in Case Crime No. 140 of 2006. After due formalities, he rushed to the place of occurrence. The inquest of the dead body was prepared by S.I. Vijai Pal Singh on his instruction. He collected blood smeared and simple earth and prepared memo Ex. Ka-4 and also took into custody the twisted cycle and country made pistol. The recovery memo Ex. Ka-2 was prepared by S.I. Vijai Pal Singh on his dictation. The twisted cycle was also marked as Ex. Ka-3. The site plan was marked as Ex. Ka-5. In cross-examination, he clarified that there was a police post near the place of occurrence but the same was not manned. He also deposed that he had reached the place of occurrence by his own means and further that the other police personnel were recalled from the college where they were assigned the duties of smooth conduct of examination. He also stated that the inquest was prepared by S.I. Vijai Pal Singh at his dictation. He conceded that sections of offences were not mentioned on the first page of inquest report but the same were mentioned at page No. 2. He also stated that in the inquest report, the names of accused are also not mentioned. He then explained that names of accused are not required to be mentioned in the inquest report. He further stated that the inquest report commenced at 11.30 a.m. and lasted upto 2 p,m. He also stated that he cannot recall by what means the dead body was sent for post mortem examination. He also stated that the raiding party had used private vehicle as there was only one Jeep in the police station which was then not available. He further stated that the place could not be marked in the site plan from where the cycle was recovered. He denied the suggestion that informant Sharad Gautam had come at the place of occurrence at 3 p.m. However, he conceded that in the site plan, the place from where the informant had gained entry is not ear-marked. He hastened to add that he also did not mark the place from where the other witnesses had witnessed the occurrence. He denied the suggestion that the entire formalities were completed at the police station and that in the recovery memo, country made pistol 315 bore was overwritten as country made pistol 303 bore. On being queried in the cross-examination, the witness stated that the informant had not named any other person except Krishna Kumar. He also stated that he could not record the statement of informant at the police station out of his solicitude for reaching the place of occurrence. He also stated that at the place of occurrence, he did not record the statement of any other witness except the informant. He also stated that it was not told by the informant that at the time of occurrence he had gone to Bomba Pull to collect flour. He denied that any other person came forward claiming himself to be eye-witness in the course of investigation. He also stated that he was also not told by the informant that the informant saw the crowd and also Krishna Kumar running towards him. He also denied that the informant disclosed to him that he had taken blank paper from the school children to scribe report nor indicated to him the place where he met Krishna Kumar. He also admitted that any other person disclosed the name of the accused persons to him at the time when he was present at the place of occurrence. He also admitted in his cross-examination that the informant did not disclose to him the details about criminal case u/s 307, I.P.C. He also admitted that none of the persons present at the brick-kiln spoke about the occurrence occurring in the manner as spoken to by the informant.

P.W. 4 is Dr. Arun Kumar who conducted post mortem examination on the dead body of the deceased. The Doctor deposed that the deceased was aged about 45 years and the deceased may have breathed his last one day prior to post mortem examination. He proved the ante-mortem injuries embodied in the post mortem report. He deposed that the injuries could be caused by being hit by the Jeep and also by assault by means of danda, lathi, etc. In cross-examination he deposed that all the injuries could be possible by the accident involving vehicle. He also stated that the deceased had taken food 2 to 2-1/2 hours prior to his death. To a query, he stated that the injuries could not be possible if the vehicle is driven over back on the deceased. He also stated that looking to the elongated dimension of the injuries, it could not be possible that the same could have been caused by danda and saria. He also stated that if the dimension of the injuries are comparatively narrow, the same could be possible on being hit by a speeding vehicle.

P.W. 5 is Suresh Singh S.I. at the relevant time, he was posted at P.S. Sahpau. He deposed that he took over the investigation after the transfer of first Investigating Officer. He picked up the thread of investigation from where the earlier Investigating Officer had left the investigation. He also deposed that on 21.3.2006, he obtained N.B.W. from the court of C.J.M., on 23.3.2006 and 24.3.2006, he raided the place in search of the accused persons. On 27.3.2006, he obtained orders for proceeding u/s 83, Cr. P.C. on 28.3.2006, attachment was done of the properties of the accused. On 2.5.2006, accused Nanha and Dhola surrendered in the Court. On 19.4.2006, charge-sheet was submitted in the Court.

P.W. 6, is constable Rajvir Singh. He proved the chik report G. D. Entry Ka-7 which was prepared by C. C. Dharamvir. He stated that Constable Dharamvir was posted at the said police station and at present, being seriously ill, he was undergoing treatment at Delhi.

P.W. 7 is S.I. Vijai Pal Singh. At the relevant time he was posted at Sahpau police station. He deposed that he had gone with S.O. Sompal Singh and had prepared the inquest report at the dictation of Som Pal Singh, S.O. He also proved inquest report Ex. Ka-8, photo lash and chitthi majoorbi C.M.O. chllan lash Exs. Ka-10 and 9 and Ka-11. He also proved Ex. Ka-4 the stained and simple earth.

It would appear that only two ocular witnesses were enlisted by the prosecution out of which P.W. 2 was declared hostile The present case now hinges on the evidence of P.W. 1 Sharad Gautam son of the deceased.

P.W. 2 Bani Shah initially stated in the Court that he had seen black Bolero Jeep hitting the cycle of the deceased and thereafter some people came down and assaulted the deceased. He stated that he did not recognise the assailants and he had seen the accused persons for the first time in the Court. He also stated that Sharad had told the names of the accused persons to him. In cross-examination he stated that he had seen the Jeep hitting against the cycle and thereafter the same sped away. He did not recognize any of the persons sitting in the Jeep. He saw the driver, when the attention of this witness was drawn to his statement u/s 161, Cr. P.C. he stated that he had given that statement on being primed by the informant and other people. He denied to have seen the deceased being run over repeatedly by the Jeep. He also denied to have seen the accused persons opening fire. He also stated that he had given his earlier statement on being asked to give statement on dotted line by D.G.C. (Crl) and others. It would thus, transpire that this witness did not support the prosecution case and denied to have seen the occurrence in the manner as set up by the prosecution. It is in the above perspective that the prosecution stigmatized him hostile.

Krishna Kumar was named by P.W. 1 as the ocular witness of the assault on the deceased. He was said to be accompanying the deceased at the time of assault on him. He was also named in the F.I.R. by the P.W. 1 but for inexplicable reasons, he was not examined. No plausible explanation has come except that he might have feared for his life and had not come forward to depose for fear of reprisal from the accused persons.

It would thus transpire that the entire prosecution case hinges on the testimony of P.W. 1. Now the question that crops up for consideration whether he is reliable and the conviction can safely be based upon his testimony. Before delving into the question of the reliability of this witness, we feel called to deal with the submission which has been forcefully advanced across the bar that the ocular evidence is incongruous with the medical evidence on record.

Coming to the finding of the learned Sessions Judge, it must be noticed that the learned Sessions Judge held that a part of testimony of a hostile witness which is cogent and credible can be acted upon. This observation of learned Sessions Judge fits in with the settled position of law. The learned Sessions Judge has accepted that part of the statement of P.W. 2, Bani Shah that at the time of occurrence Krishna Kumar and Sharad Gautam P.W. 1 son of deceased had also reached the place of occurrence. Learned Sessions Judge has also held that the defence is to be blamed if witness Bani Shah had turned hostile. This reasoning of the learned Sessions Judge does not commend to us for acceptance and the same is not founded on any cogent reasons. In this connection, it is worth of notice that firstly the name of the P.W. 2 Bani Shah does not find mention in the first information report and secondly his statement u/s 161, Cr. P.C. was recorded on 20.3.2006. The deposition of P.W. 1 may also be referred to in which at one place, it is stated that Bani Shah had informed him about the occurrence. Therefore, there is no sequitor to the reasoning that the defence is to be blamed for Bani Shah turning hostile. Having considered the matter in all its remifications, we cannot resist the view that Bani Shah is a got up witness set up by the prosecution to prop up its failing case and subsequently, ostensibly twinged by his conscience, he did no support the prosecution case inasmuch as he has clearly stated in his statement that he gave initial version at the behest of public prosecutor. Quintessentially, it must be said that no reliance can be placed upon such testimony. This witness, it admitted, was closely associated once upon a time with the deceased as he and Hari Shanker, father of the deceased used to do wrestling together.

Now the question that crops up for consideration is whether the evidence of P.W. 1 can be categorized as reliable or unreliable in the above discussion.

In Vadivelu Thevar Vs. The State of Madras, the Apex Court had gone into this controversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable nor wholly unreliable. In the case of the first two categories this Court said that they pose little difficult but in the case of the third category of witnesses, corroboration would be required. The relevant portion is quoted as under: (AIR p. 619, para 11 and 12) "Hence, in our opinion, it is a sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.

In Vadivelu Thevar case (supra) was referred to with approval in the case of Jagdish Prasad and others Vs. State of Madhya Pradesh, The Apex Court held that as a general rule, the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872. But, if there are doubts about the testimony, the Courts will insist on corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent credible and trustworthy, or otherwise.

It is in the light of the above that we proceed to scrutinize the evidence as to which category the witness falls in. It would crystallize on scrutiny of the materials on record that the first information report and also in the statement given u/s 161, Cr. P.C. the P.W. 1 did not mention that he was going to collect flour. It is for the first time in Court that he gave currency to the story that he had gone to collect flour and at a distance of 400 metres from the place of occurrence, Krishna Kumar met him and informed him about the occurrence. This statement having been made for the first time in Court cannot be countenanced as it is intended to lend cogency to the prosecution case by explaining his presence at the place of occurrence.

Now we switch over to next aspect and it is that the P.W. 1 did not name the P.W. 2 Bani Shah as a witness either in the F.I.R. or in his statement u/s 161, Cr. P.C. and he has for the first time been introduced in his statement before the Court that Bani Shah had informed him about the occurrence. It necessarily follows that he has introduced a false witness to prop up the failing prosecution case who subsequently turned hostile. Besides the above, his statement is replete with material contradictions about actual occurrence. To be precise, in the first information report, he mentioned that when he reached the place of occurrence he saw that all the accused persons were assaulting his father and that the Jeep was twice run over the deceased on the head and that the coat of the deceased was also taken out and thrown back upon him and that the accused persons had also taken away deceased''s bag and escaped in the Jeep by firing. In this connection, reference be made to first information report. In the first information report, he did not mention who had taken away the bag or who had taken out the coat from the body of the deceased. Again he did not mention in his statement u/s 161, Cr. P.C. as to who had taken out the coat and who had taken away his bag. In the Court, he assigned the role of taking away bag to Basant Lal for the first time. This witness has also made wild allegation about role of firing. Initially, he deposed that he heard two shots and subsequently improved upon his statement stating that in all total 10 shots were fired. However, he pleaded ignorance when he was called upon to clarify as to how many shots hit the deceased. We may also refer to the post mortem report in connection with this statement. The post mortem report does not mention any single fire arm injury. Initially, it would appear, the prosecution case is that Krishna Kumar was also fired upon by Mathura and Dwarika but Krishna Kumar is also not shown to have sustained any fire arm injury nor was he examined anywhere.

Having analytically examined the evidence on record, we now proceed to evaluate the evidence of P.W. 1 vis-�-vis the medical report. It is settled by catena of decisions that due weight must be given to opinion given by the doctor in the particular subject but it must be tested by the Court that it is consistent with probability. It must also be seen that it should not be bereft of logic or objectivity.

A scrutiny of the post-mortem report reveals that the deceased suffered in all nine injuries. Initially, the doctor in his statement stated that the injuries could be caused by hitting of Jeep and by a fall on the ground and also on account of assault by means of lathi, danda etc. On being queried in the cross-examination, he clarified that all the injuries could be possible on being hit by a speeding vehicle. He further clarified that the injuries could not be caused if the vehicle is reversed and is run over the deceased. He further clarified that looking to the wide dimension of the injuries, the same could not be caused by danda, sariya. He further stated in cross-examination clarifying that the injuries which are of small dimension, could be caused by hitting of speeding vehicle. If we look back into the deposition made by the P.W. 1 it is clearly stated that he was told by Krishna Kumar Black Bolero Jeep hit the cycle of the deceased and after the deceased had fallen down, the accused persons came down from the car and assaulted his father on his head by means of saria, lathi, danda and hockey. The above part of evidence is based on information furnished to him by Krishna Kumar. The aforesaid Krishna Kumar has inexplicably not come forward to depose. The P.W. 1 claimed to have seen the occurrence from the time when the accused persons were taking out coat from the body of the deceased. He also deposed that the accused persons thereafter drove the vehicle in reverse and ran it over the deceased twice. Thereafter, it is further deposed, the accused persons escaped towards Sahpau. If the above statement is juxtaposed with the medical opinion and the statement of the Doctor, it would clearly transpire that the above statement is inconsistent and is in conflict with the medical opinion. The Doctor clearly opined that all the injuries could be possible by the accident involving vehicle. He also specifically stated that the injuries could not be possible if the vehicle is driven over back on the deceased. He also opined that it could not be possible that the same could have been caused by danda and saria. The Doctor also pointed out that looking to the narrow dimension of the injuries the same could be possible due to hitting by a speeding vehicle. In this connection the statement of Investigating Officer P.W. 5 may also be referred to qua the statement of P.W. 1. The Investigating Officer has specifically stated that he found the marks of U-turn of vehicle and there is no indicium of vehicle being reversed. This statement also belies the testimony of the P.W. 1 that the Jeep was moved in reverse gear and was run over the deceased. By this reckoning, the statement of P.W. 1 that he saw accused hitting deceased with saria and danda and further that the Jeep was run over the deceased in reverse, does not commend to us reliable an trustworthy.

The next aspect which forces itself upon our attention is that co-accused have been acquitted by the learned Sessions Judge giving them benefit of doubt qua the fact that the evidence appearing on the record against the Appellants was verbatim version which was taken into consideration by the trial court with regard to acquittal of co-accused. From a perusal of the judgment of the learned Sessions Judge, it would crystallize that the learned Sessions Judge did not rely upon the testimony of P.W. 1 so far as co-accused Raju Nanha and Dhola are concerned. To be precise, learned Sessions Judge has held that P.W. 1 Sharad Gautam named them on the basis of information given by Krishna Kumar. We have scrutinized the testimony of P.W. 1 all over again and we find that P.W. 1 specifically assigned role of assault on other three acquitted accused also. Looking into the judgment of the learned Sessions Judge it would transpire that the learned Sessions Judge wrongly culled out from the statement of P.W. 1 that the aforesaid witness in his statement has alluded to accused Mathura and Dwarika only. The interpretation given by the learned Sessions Judge has no leg to stand inasmuch as in examination-in-chief the witness clearly stated that the accused persons seeing him and the public charging towards them and hearing their exhortation, retreated into the Jeep and escaped after running over the Jeep twice in reverse gear on his father. He also stated in his examination-in-chief referring to the accused that "today accused Mathura, Dwarika and Nanha, Dhola and Raju are present in Court and that the accused Basanta is still absconding and prize has been declared on his head." He also stated that accused persons are hardened criminal. This statement is a pointer that he referred to all the accused persons. In the cross-examination, he also stated that accused persons took out coat from the body of his father and threw it back over him and his bag was also taken away by Basanta and thereafter they retreated into the Jeep alongwith other accused persons and they ran over the Jeep on the head of his father twice in reverse gear. Another aspect of his statement is also worthy of consideration. He also stated that when he reached the place of occurrence, the black Bolero Jeep was standing facing Mahare ; that the said Jeep was driven back and thereafter it was reversed and it was run over the head of the deceased. He denied that any unknown vehicle had escaped from the place of occurrence after hitting his father. He pleaded ignorance whether other accused Nahne, Dhola and Mathura and other accused were inter se on good terms or were on inimical terms. He further stated that he saw that all the accused persons committed murder of his father. He denied the suggestion that he had nominated accused Raju Dhola and Nahna on account of factional dispute. It is also worth noticing that in his statement he admitted that he had improved upon several facets of the case after legal consultation. He also admitted he was also being assisted by private counsel besides the public prosecutor.

It is also worth noticing here that offending jeep was never recovered and it could not be established that the aforesaid jeep belonged to or owned by any of the accused persons.

The Apex Court in Sadhu Ram and Another Vs. The State of Rajasthan, has held:

It is no doubt true that the conviction of an accused can be based solely on the testimony of a solitary witness. However, in such a case, the Court must be satisfied that implicit reliance can be placed on the testimony of such a witness and that his testimony is so free of blemish that it can be acted upon without insisting upon corroboration. The testimony of the witness must be one, which inspires confidence and leaves no doubt in the mind of the Court about the truthfulness of the witness...

In the conspectus of facts of this case and in the light of the observation of Apex Court in the case of Sadhu Ram (supra), we converge to the conclusion that the ocular account of P.W. 1 stands falsified by the medical evidence on vital points. Further, the version of P.W. 1 with regard to the vital fact that he saw the accused persons assaulting the deceased and further running the Jeep over the head of the deceased twice seem inherently improbable and intrinsically incredible. The version we must say could not be accepted qua the medical report which clearly enumerates that the injuries could be caused to the deceased upon his being hit by the vehicle and it does not appear to be probable that the same could be caused by running over the vehicle on the head of the deceased as spoken to by P.W. 1 and also that the injuries could not be caused by assault by means of saria and danda as also claimed by the witness. The testimony of P.W. 1 with respect to other co-accused who have been acquitted, has not been relied upon by the trial court. Besides, we have no hesitation to say that the witness is a partisan, interested and chance witness. It is also borne out from the above discussion that he has explained his presence for the first time in Court. Hence, no probative value can be attracted to his testimony. The quintessence of above discussion is that the facts and circumstances and also medical report on record do not erringly point to the guilt of the Appellants.

In the above conspectus, we allow this appeal. The judgment and order dated 4.11.2008, passed by Additional Sessions Judge/F.T.C. II, Hathras in S.T. No. 79 of 2007 is set aside. The Appellants are acquitted of the charges. They are in jail. They shall be released forthwith unless wanted in any other case.

Reference No. 16 of 2009 is also rejected in terms of the above discussion.