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Judgment
Heard Sri Pawan Kumar Mishra, learned AGA appearing for the appellant-State and Sri Gulam Mustafa, learned counsel appearing for the respondents.
The present Government Appeal has been preferred against the judgment and order dated 16.09.2000 passed by the Special Judge, SC/ST Act, Unnao in Sessions Trial No. 268 of 1999 arising out of Case Crime No. 141 of 1999, under Sections 302 of Indian Penal Code (hereinafter referred to as I.P.C.), whereby the accused-respondents have been acquitted.
The prosecution story in brief is that the, informant Natthi Lal, along with his brother-in-law Ram Lal and Ram Lal’s wife Smt. Chhedana, boarded an R.C. train from Kulha Railway Halt on May 12, 1999, traveling towards Unnao. As the train stopped at Bund-Hamirpur Halt, accused persons Shiv Lal (son of Ram Ratan) who had an old enmity with the informant's brother-in-law, Rajesh (son of Shiv Lal), Devi Prasad (brother-in-law of Shiv Lal), and Desh Raj alias Deena (brother-in-law of Shiv Lal) boarded the train compartment. Armed with country-made pistols, Shiv Lal and Devi Prasad fired at Ram Lal with the intent to kill him, while Rajesh and Deena threatened passengers at the door to prevent escape. Informant Nathi Lal and Smt. Chhedana hide under the seats out of fear. The incident was witnessed by other passengers in the compartment. The motive behind the crime was an old enmity between the informant's brother-in-law and Shiv Lal.
On the basis of written report (Ex. Ka-1) given by the informant Natthi Lal at G.R.P. Unnao Police Station, Chik Report (Ex. Ka-3) under Section 302 IPC and General Diary entry (Ex. Ka-4) were registered against the accused Shiv Lal, Rajesh, Devi Prasad, and Desh Raj.
Initially the investigation was undertaken by Station House Officer, G.R.P., Unnao, Shri R.K. Ojha, who recorded the informant's statement, inspected the crime scene, prepared the inquest report (Ex. Ka-2), photo lash (Ex. Ka-5), challan lash (Ex. Ka-6), letter to Head Constable (Ex. Ka-7), and sent the body for autopsy. The post-mortem was conducted, and report Ex. Ka-16 was submitted. The Investigating Officer recovered two empty 0.315 bore cartridges (Ex. Ka-9) and blood from the train compartment (Ex. Ka-10), prepared a site plan (Ex. Ka-11), and obtained the train guard's report (Ex. Ka-13).
Later, owing to jurisdictional issues regarding G.R.P. Unnao vs. Achalganj Police Station, the case was transferred and registered as Crime No. 141/99 at PS Achalganj, and the investigation was handed over to Station House Officer K.K. Yadav. Upon completing all formalities, a charge sheet (Ex. Ka-12) under Section 302 IPC was submitted to the court against accused Shiv Lal, Rajesh, Devi Prasad, and Desh Raj alias Deena.
After compliance of mandatory provision of Section 207 of Cr. P.C., the said case was committed to the Court of Session Judge from where it is made over to the Special Judge, (SC/ST Act) Unnao for trial, who framed the charges against accused Shiv Lal and Devi Prasad, and under Section 302 read with Section 34 of the IPC against accused Rajesh and Desh Raj alias Deena for which the accused persons denied and claimed to be tried.
In order to prove its case, the prosecution has adduced ocular evidence of nine witnesses P.W. 1: Nathi Lal (Informant), P.W. 2: Smt. Chhedana (Wife of the deceased), P.W. 3: Shailesh Kumar (Constable), P.W. 4: Ram Krishna Ojha (Sub-Inspector / First Investigating Officer), P.W. 5: Kaushal Kumar Yadav (Sub-Inspector / Second Investigating Officer), P.W. 6: Shri Ram Chaubey (Head Constable), P.W. 7: Dr. Satya Prakash (Autopsy Surgeon), P.W. 8: Chijjar Lal (Constable), P.W. 9: Shri Rameshwar Prasad (Train Guard)
In their statements recorded under Section 313 Cr.P.C., the accused persons denied the allegations of the prosecution and stated that the case was instituted against them out of rivalry and animosity. They asserted that the investigating officers filed a false charge sheet based on improper investigation and that the witnesses gave false testimonies due to enmity. They further stated that village factionalism and ongoing litigation between both families led to their false implication. No defence evidence was adduced by the accused persons.
Learned trial Court after hearing learned counsel for both the parties and appreciating the entire evidence oral as well as documentary, acquitted the accused persons of all charges.
Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal, the state has preferred the present appeal before this Court.
Submission of Learned A.G.A.
Learned A.G.A. appearing for the State submits that learned trial court did not consider the facts, evidences and circumstances in correct perspective and passed the impugned judgment and order of acquittal in a cursory and arbitrary manner, which is not consonance with the law. He further submits that sufficient evidence was adduced before the trial court to substantiate prosecution case and all the witnesses are intact who have not resiled from their earlier version, despite that, learned trial court misread their testimonies and committed mistake not to place reliance on the same. He next submits that PW-1 Natthilal is brother-in-law of the deceased, while PW-2 Smt Chhedana is a wife of the deceased, they accompanied the deceased when deceased boarded in the train. He next submits that at the time of alleged incident, both the witnesses PW-1 and PW-2 were present in the same compartment just diagonally below the seat where the deceased was seated and they witnessed the whole incident through their naked eye, so, their testimony cannot be discarded merely because they are relatives of the deceased. He further submits that there are no major discrepancies and inconsistencies in the testimony of the PW-1 and PW-2, merely on the ground of minor contradictions whole of their testimony cannot be thrown out, since they have disclosed the entire incident which they had seen at the time of occurrence.
Learned A.G.A. further submits that when deceased along with PW-1 and PW-2 reached the platform for boarding at that time booking window was not open, therefore, they could not get railway ticket for journey to train, despite that they boarded into compartment. Therefore, without getting railway ticket their traveling in the train is not quite impossible and merely on that basis their presence at the scene of occurrence cannot be doubted. He further submits that accused persons Shiv Lal and Devi Prasad opened fire on deceased and other accused persons actively participated in the commission of crime. He further submits that the firearm injuries which were sustained by deceased on the vital part of his body is corroborated with the postmortem report. He further submits that if firearm which was used in the commission of the aforesaid offence could not be recovered or Investigating Officer had committed any default in the investigation, it does not adversely affect the core of the prosecution case as witnesses of the fact are fully reliable and there is no reason to implicate somebody other than actual assailants. He further submits that learned trial court has given much significance to the shortcomings and minor discrepancies, from which presence of the accused and inflicting injuries to the deceased by firearm could not be disbelieved. He also submitted that there was enmity between the deceased and assailant. A case was pending before the Court, therefore, accused persons had motive to commit the said offence.
On the above grounds, learned AGA submits, that the findings and observations given by the learned trial Court are perverse and reversal of the impugned judgment is highly probable since no other view except conviction is possible, therefore, impugned judgment is liable to be set aside and appeal deserves to be allowed and consequently accused persons/respondents are liable to be convicted and sentenced accordingly.
Learned A.G.A. to fortify his argument has placed reliance on the following judgments:-
i)Shivaji Sahabrao Bobade and another Vs. State of Maha-rashtra (1973) 2 SCC 793, wherein the Hon’ble Apex Court held that to establish the guilt of accused, evidence should be in the category of "must be" and not "maybe". It is also observed that Courts are not to judge the evidence of the rural witnesses by same standard of exactitude and consistency as that for urban witnesses. It is also observed that it is a discretion of the prose-cution in production of the witnesses and merely on the ground of non-production of the eye witnesses, adverse inference could not be drawn.”
ii) Baban Shankar Daphal and others Vs. The State of Ma-harashtra AIR 2025SC 599, wherein it is held that in criminal cases, the credibility of the witnesses, particularly those who are close relatives of the victim, is often scrutinized. However, be-ing a relative does not automatically render a witness “inter-ested” or biased. The term “interested” refers to witnesses who have a personal stake in the outcome, such as a desire for re-venge or to falsely implicate the accused due to enmity or per-sonal gain. A “related” witness, on the other hand, is someone who may be naturally present at the scene of the crime, and their testimony should not be dismissed simple because of their relationship to the victim. Courts must assess the reliability, consistency, and coherence of their statements rather than la-belling them as untrustworthy.
iii) Pruthiviraj Jayantibhai Vanol Vs. Dinesh Dayabhai Vala and others AIR 2021 SC 3532, wherein Hon’ble Apex Court observed that ocular evidence is considered the base evidence unless there are reasons to be doubt it. iv) Karulal and others Vs. State of Madhya Pradesh (2021) 13 SCC 391, wherein the Hon’ble Apex Court held that rela-tionship with deceased and previous enmity with accused by it-self cannot be taken as factors for doubting prosecution case, particularly when evidence of related eye witnesses are found reliable and supported by an unrelated witness and medical evi-dence.
v)Gangabhavani Vs. Rayapati Venkat Reddy and others MANU/SC/0897/2013, wherein Hon’ble Apex Court held that if the circumstances of the case reveal that witness was present on scene of occurrence and had witnessed crime then their de-position cannot be discarded merely on ground of being closely related to deceased.
vi) Mekala Sivaiah Vs. the State of Andhra Pradesh 2022 LiveLaw (SC) 604, wherein Hon’ble Apex Court held that the testimony of the witness cannot be discarded merely because of minor contradictions or omission.
vii) State of U.P. Vs. Naresh and others MANU/SC/ 0228/2011, wherein Hon’ble Apex Court held that evidence of injured witness is reliable unless grounds are shown for reject-ing evidence on basis of major contradictions and discrepancies therein. Further, minor contradictions or improvements on triv-ial matters are not ground for rejecting evidence in its entirety.
viii) Adalat Yadav Vs. The State of Bihar 2026 Live Law (SC) 415, wherein Hon’ble Apex Court held that non-examina-tion of independent witnesses does not compromise the prose-cution case, especially when societal realities show that com-mon persons naturally hesitate to get entangled in thorny legal matters out of fear.
ix) Om Pal and others Vs. State of U.P. AIR 2025SC 5300, wherein Hon’ble Apex Court held that it is settled that the tes-timony of an injured eye witness is accorded a special status in law, as being a stamped witness, his presence cannot be doubted. The testimony of an injured eye witness has its own relevancy as he has sustained injuries at the time and place of occurrence. Thus, the testimony of the injured eyewitness should be generally given due importance unless there are glar-ing contradictions. The Court also held that non-recovery of the weapons cannot be considered fatal to the case of prosecution, if there is a consistent medical and ocular evidence.
x)Ghanshyam Mandal Vs. The State of Bihar 2026 INSC 194, wherein Hon’ble Court Apex Court held that recovery of the weapons of assault are not the sine qua non for convicting an accused as the entire evidence on record is required to be taken into consideration.
xi) State of Karnataka Vs. K. Yarappa Reddy MANU/SC/ 0633/1999, wherein Hon’ble Court Apex Court held that crimi-nal Courts should not expect set reaction from any eye witness on seeing incident like murder-if five persons witness one inci-dent there could be five different types of reaction from each of them.
xii) Edakkandi Dineshan Alias P. Dineshan and others Vs. State of Kerala (2025) 3 SCC 273, wherein Hon’ble Apex Court held that faulty investigation or lapse on the part of the Investigating Officer does not automatically go in favor of the accused because such type of fault may be committed de-signedly or because of negligence.
Submissions of learned counsel for the respondents
Learned counsel for the respondents submits that learned trial court passed the impugned judgment after considering the entire facts, evidence and circumstance in its entirety, which is in consonance with law. He further submits that the prosecution has adduced only two witnesses of fact, who are relatives of the deceased and their testimony is not clinching and convincing and they are not the sterling witness. He further submits that PW-1 Natthi Lal and PW-2 Smt Chhedana in fact are not eye witness. After the alleged incident they have been impostered as eye witness and their testimony does not inspire confidence. He further submits that the conduct of the PW-1 and PW-2 shown in their statements are not natural inasmuch as neither they raised any alarm to attract the attention of any passenger nor they informed the Railway Officials who were on duty in the same train. He further submits that there are major discrepancies in their statements and their statements are contradictory to each other. He further submits that both witnesses PW-1 and PW-2 have stated that they were traveling in the train, but from their possession no ticket was recovered and false explanation in this regard has been given. He further submits that the alleged incident is said to have occurred in a crowded compartment, but except the deceased, no other passenger including PW-1 and PW-2, who are the relatives of the deceased, have sustained any type of injury. He further submits that from the prosecution, it is stated that 0.315 bore arm was used in the commission of crime, but no projectile of the cartridge was found in the compartment, while fire arm injury, which hit in the chest of the deceased, exited from outside of the back. He further submits that the recovery of the alleged weapon, which is stated to be used in the commission of crime, has not been recovered from the possession or on the pointing out of the accused persons. He next submits that except PW-1 and PW-2, no independent witness has been examined by the prosecution to substantiate its case. He further submits that due to old enmity with regard to land, accused respondents have been falsely implicated. He also submitted that in fact no one had witnessed the occurrence. At the time of occurrence, none was present. He further submits that learned trial court has taken all the circumstances into consideration and after thoroughly scrutinizing the testimony of the witnesses found that presence of the PW-1 and PW-2 at the scene of occurrence is doubtful and on the basis of other attending circumstances also, learned trial court found that prosecution has miserably failed to prove its case against accused respondents beyond reasonable doubt, hence they have been acquitted and there is no illegality or perversity in the observation and findings given by the trial Court and the present appeal is devoids of merit and is liable to be dismissed.
To fortify his argument learned counsel for the respondents relied upon the judgment of the Hon’ble Apex Court in the case of Tulasareddi v. State of Karnataka, 2026 SCC OnLine SC 89, wherein Hon’ble Apex Court held that appellate court's interference with an acquittal must be based on compelling reasons such as patent perversity or misreading of evidence and not merely because another view is possible.
We have heard the learned AGA for the State and learned counsel for the respondents and perused the material available on record.
On the basis of contentions and submissions raised by the learned counsel for the parties, following point is formulated to determine this present appeal:
whether trial court's observations and findings in acquitting the accused respondent are erroneous and perverse which is liable to be set aside.
Before proceeding further, it would be appropriate to take note of law on the appeal against acquittal.
In the case of Bannareddy and others vs. State of Karnataka and others, (2018) 5 SCC 790, in paragraph 10, the Hon'ble Apex Court has considered the power and jurisdiction of the High Court while interfering in an appeal against acquittal and in paragraph 26 it has been held that "the High Court should not have reappreciated the evidence in its entirety, especially when there existed no grave infirmity in the findings of the trial Court. There exists no justification behind setting aside the order of acquittal passed by the trial Court, especially when the prosecution case suffers from several contradictions and infirmities"
In Jayamma vs. State of Karnataka, 2021 (6) SCC 213, the Hon'ble Supreme Court has been pleased to explain the limitations of exercise of power of scrutiny by the High Court in an appeal against against an order of acquittal passed by a Trial Court in the following words:
"The power of scrutiny exercisable by the High Court under Section 378, CrPC should not be routinely invoked where the view formed by the trial court was a ''possible view'. The judgment of the trial court cannot be set aside merely because the High Court finds its own view more probable, save where the judgment of the trial court suffers from perversity or the conclusions drawn by it were impossible if there was a correct reading and analysis of the evidence on record. To say it differently, unless the High Court finds that there is complete misreading of the material evidence which has led to miscarriage of justice, the view taken by the trial court which can also possibly be a correct view, need not be interfered with. This self-restraint doctrine, of course, does not denude the High Court of its powers to re-appreciate the evidence, including in an appeal against acquittal and arrive at a different firm finding of fact."
In a judgment of this Court in Virendra Singh vs. State of UP and others, 2022 (3) ADJ 354 DB, the law on the issue involved has been considered. For ready reference, paragraphs 10, 11 and 12 are quoted as under:
"10.In the case of Babu vs. State of Kerala (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179, the Hon'ble Apex Court has observed that while dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Paragraphs 12 to 19 of the aforesaid judgment are quoted as under:-
"12.This court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more, the probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. AIR 1974 SC 2165; Shambhoo Missir & Anr. v. State of Bihar AIR 1991 SC 315; Shailendra Pratap & Anr. v. State of U.P. AIR 2003 SC 1104; Narendra Singh v. State of M.P. (2004) 10 SCC 699; Budh Singh & Ors. v. State of U.P. AIR 2006 SC 2500; State of U.P. v. Ramveer Singh AIR 2007 SC 3075; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors. AIR 2008 SC 2066; Arulvelu & Anr. Vs. State (2009) 10 SCC 206; Perla Somasekhara Reddy & Ors. v. State of A.P. (2009) 16 SCC 98; and Ram Singh alias Chhaju v. State of Himachal Pradesh (2010) 2 SCC 445).
13.In Sheo Swarup and Ors. King Emperor AIR 1934 PC 227, the Privy Council observed as under:
"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.…"
14.The aforesaid principle of law has consistently been followed by this Court. (See: Tulsiram Kanu v. The State AIR 1954 SC 1; Balbir Singh v. State of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Khedu Mohton & Ors. v. State of Bihar AIR 1970 SC 66; Sambasivan and Ors. State of Kerala (1998) 5 SCC 412; Bhagwan Singh and Ors. v. State of M.P. (2002) 4 SCC 85; and State of Goa v. Sanjay Thakran and Anr. (2007) 3 SCC 755).
15.In Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under:
"(1)An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
(2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3)Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5)If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16.In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450, this Court re-iterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17.In State of Rajasthan v. Naresh @ Ram Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that an "order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18.In State of Uttar Pradesh v. Banne alias Baijnath & Ors. (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances includes:
i)The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court's conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v)This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. A similar view has been reiterated by this Court in Dhanapal v. State by Public Prosecutor, Madras (2009) 10 SCC 401.
19.Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
11.Hon'ble Apex Court in the case of Ramesh Babulal Doshi vs. State of Gujarat (1996) 9 SCC 225 : 1996 SCC (Cri) 972 has observed that while deciding appeal against acquittal, the High Court has to first record its conclusion on the question whether the approach of the trial court dealing with the evidence was patently illegal or conclusion arrived by it is wholly untenable which alone will justify interference in an order of acquittal.
12.The aforesaid judgments were taken note of with approval by Supreme Court in the case of Anwar Ali and another vs. State of Himachal Pradesh (2020) 10 SCC 166, Nagabhushan vs. State of Karnataka (2021) 5 SCC 222, and Babu (supra) in Achhar Singh vs. State of Himachal Pradesh (2021) 5 SCC 543."
Similar view has been reiterated by Hon'ble Apex Court in Rajesh Prasad vs. State of Bihar and another, (2022) 3 SCC 471.
In the case of Tulasareddi v. State of Karnataka (supra) Hon’ble Apex Court referring to the cases of Ramesh Vs. State of Uttrakhand 2020 (20) SCC 522, Kalyan Vs. State of U.P. 2002 SCC (Cri) 780, State of U.P. Vs. Hari Lal, 1998 SCC Online All 1216, Basappa Vs. State of Karnataka (2014) 5 SCC 154, Bhim Singh Vs. State of Haryana (2002) 10 SCC 461, Kallu Vs. State of M.P. (2006) 10 SCC 313, Ganpat Vs. State of Haryana (2010) 12 SCC 59, the following principles have been laid down for the Appellate Court while dealing with the appeals against an order of acquittal:
“(a)whether the judgment of acquittal suffers from patent perversity;
(b)whether the judgment is based on misreading/omission to consider the material evidence on record;
(c)an order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.’
(d)the appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
(e)if the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
(f)the appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
Discussion, Reasons and Conclusion thereof
Keeping in mind the law laid down in above cases, on perusal of record it reveals that the death of the deceased took place on 12.05.1999. The dead body of the deceased was brought by the GRP Constable Rajendra Ram Gupta and Prem Sagar to the District Hospital, Unnao. On 13.05.1999 PW-7 Dr Satya Prakash had conducted the autopsy of the dead body of the deceased Ram Lal at 1:00 PM, which is as follows:
External Examination:
The body was of average build. Rigor mortis had passed from the upper limbs but was still present in the lower limbs. One bullet was recovered from under the shirt outside the body.
Anti-Mortem Injuries:
Firearm wound of entry: 2 cm x 1 cm x cavity deep on the left side of the chest, 6 cmbelow the nipple; blackening and tattooing present; direction upward and right.
Firearm wound of entry: 4 cm x 3 cm x cavity deep on the right eye; blackening and tattooing present; direction backwards.
Firearm wound of entry: 3 cm x 3 cm x cavity deep on the left eye; blackening and tattooing present; direction backward.
Firearm wound of exit: 2 cm x 2 cm on the back of the skull.
Internal Examination:
Frontal, parietal, and occipital bones were fractured. Lacerated one bullet was recovered from the brain.
One bullet and one metallic piece was recovered from the right side of the chest wall.
Semi-digested food was found in the stomach. Gases and fecal materials were present in the large intestine. The liver, gall bladder, spleen, and kidneys were pale.
Cause of Death:
The cause of death was opined to be hemorrhage and shock due to anti-mortem injuries and duration of the death was one day old.
On being cross-examined, he has stated that there may be difference of six hours on both sides with regard to death of the deceased. He has categorically stated that hemorrhage and shock had occurred due to injury caused by gunshot.
It is not the case of accused respondent that death of the deceased was not caused by the gunshot injury, as none of them have stated in their statement under section 313 of the CrPC that death of the deceased was caused in some other manner, while prosecution has adduced sufficient evidence to prove the factum that death of the deceased Ram Lal was caused by gunshot. Thus, it has been established that death of the deceased is neither accidental nor suicidal, but it is homicidal.
Now, it has to be seen as to whether accused- respondents are responsible for causing the death of the deceased and prosecution has proved their role as assigned in FIR by adducing cogent, clinching and convincing evidence.
For this purpose, we have to analyze the testimony of the witnesses of fact, who claim themselves to be eyewitnesses, who are PW-1 Natthilal and PW-2 Chhedana.
In the case of Balu Sudam Khalde and Another versus State of Maharashtra (2023) 13 SCC 365 Hon’ble Apex Court laid down the principles regarding appreciation of ocular evidence in criminal cases:
“Appreciation of oral evidence
25.The appreciation of ocular evidence is a hard task. There is no fixed or strait jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.”
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , Leela Ram v. State of Haryana and Tahsildar Singh v. State of U.P.]
XXX
27.In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.”
Similarly, in Lallu Manjhi v. State of Jharkhand ((2003) 2 SCC 401), the Apex Court held that the law of evidence does not require any particular number of witnesses to be examined in proof of given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely : (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories, there may be no difficulty in accepting or discarding the testimony of single witness. The difficulty arises in the third category of cases. In the third category, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (held in Vadivelu Thevar v. State of Madras (AIR 1957 SC 614).
In the case of Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 Hon’ble Apex Court held that
“22.In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”
In the case of Naresh versus State of Haryana, (2023) 10 SCC 134, Hon’ble Apex Court held that the evidence of eye-witness should be of very sterling quality and caliber and it should not only instil, confidence in the court to accept the same, but it should also be a version of such nature that can be accepted at its face value.
From the record, it transpires that PW-1 Natthi Lal has deposed that on 12-5-1999 he had boarded the train at Kulha station between 9-10 AM for Unnao. Deceased Ram Lal and his wife Smt. Chhedana also accompanied him and they also boarded the same train along with him. When train halted at Bandhpur station at about 11.00 AM then accused respondents Shiv Lal, Rajesh, Devi Prasad in Deshraj alias Deena also boarded the same compartment. He further stated that his brother-in-law (sala), was sitting in the upper berth while he and Smt. Chedana PW-2 were sitting in lower berth just diagonally to the berth of deceased Ramlal.
He further stated that accused respondents exhorted to kill the deceased and he should not be spared. Then accused respondents Shiv Lal triggered fire on Ramlal from below the berth, which hit in the chest of the deceased and resultantly the deceased fell down on the floor. Then accused respondent Devi Prasad also triggered fire in the eye of deceased and thereafter, accused respondent Shiv Lal again triggered fire which hit in the eye of the deceased. Resultantly, Ramlal succumbed on the spot.
He further stated that accused respondents Shiv Lal and Devi Prasad were having country made pistol, while remaining accused respondents Rajesh and Deshraj alias Deena were standing at the foot-board of the compartment, who were exhorting and they were also having country made pistol.
He further stated that when this incident was taking place, he and Smt. Chhedana PW 2 had seen the occurrence by concealing themselves below the lower berth. After killing the deceased accused persons fled away. Then he himself and Smt. Chhedana PW-2 came out and closely noticed that deceased has died inside the compartment. There were many passengers who had witnessed the incident, but due to fear, none of them were prepared to be witnesses of the incident. He further stated that inside the compartment, driver and guard of the said train appeared to know and see the actual incident. After a while, the train had started and reached Unnao railway station at about 12.00 PM, then he got tahreer scribed from a person named Sandeep Kumar, the said scriber explained the tahreer to him and thereafter he had put his signature on it, which has been proved by him as Exhibit Ka-1.
He further stated that he had given the written tahreer to Police Station GRP Unnao on the same day. Inquest of the dead body of deceased Ram Lal was prepared in his presence and he had also witnessed the inquest.
It is pertinent to mention that object of cross-examination of the witness is to find out the truth on record and to help the court in knowing the truth of the case, because, the cross-examination exposes bias, detects falsehood, and shows mental and moral condition of the witness and as to whether a witness is actuated by proper motive or actuated by enmity toward his adversaries.
In case in hand, cross-examination of the PW-1 Natthilal demonstrates that he was resident of Saidpur and deceased was his brother-in-law as he stated that between his parental house and in-law's house, there is a distance of two to two and half kos.
On the date of alleged incident, he was present at his in-laws house. Purpose to travel for Unnao by train has been stated that hand of Ramlal’s son was fractured, whose name is Prakash. So far the treatment of Prakash, they were traveling by train and Smt Chhedana also accompanied them. He also admitted that Prakash was under treatment in Lucknow. Since plaster was not complete, he was going to take advice of doctor at Unnao. He further stated that on the alleged date, the competitive examination of Ram Lal was scheduled, but he was unable to know the timing of competitive examination of Ram Lal, therefore, it was upon him that after taking advice from the doctor at Unnao, he had to return along with the child.
Thus from the testimony of this witness, it is evident that he had shown his presence at the time of scene of occurrence when he was going along with deceased to take the advice for the deceased’s son for treatment.
Now another circumstance which reveals from his statement that for travel by train he did not obtain the railway ticket, as he had stated that when he had reached at platform, ticket window was closed, therefore, they could not take the train ticket. On the said day the train arrived at 10.10 A.M. at the platform. He further stated that inside the compartment 10 to 5 persons were sitting. He himself seated on the right side while deceased Ram Lal be seated to left, while PW-2 Chhedana also seated besides him. He further stated that Ram Lal was sitting on upper berth. Train had halted at Bund Hamirpur for one hour. He admitted that when accused respondents entered into the compartment, then he had not seen that they were having country made pistols, but when they exhorted, then he saw the country-made pistol in their hands. All the accused persons were having weapons in their hands, but this witness and PW-2 Smt Chhedana could not raise alarm.
He further stated that first fire was opened by accused respondent Shiv Lal. At that time he was at a distance of two feet from Shiv Lal but he had shifted his head one feet towards Ram Lal and then he triggered fire.
He further stated that second fire was triggered by Devi Prasad from very close range and third fire was again triggered by Shiv Lal. Remaining accused did not open fire. They only exhorted from door steps and after 1 to 2 minutes, all the accused persons fled away.
With regard to his and deceased’s wife conduct, he has stated that they did not raise any alarm and they did not cry but they saw entire incident after concealing themselves beneath the lower berth. He had stated that he did not inform to police when accused persons fled away. He went near Ram Lal and he saw that Ram Lal was lying on the floor. Driver and Guard also arrived on the spot.
He further stated that after the incident, the train had started at 11:30 AM and reached Unnao after noon. He has also stated that he got scribed the written tahreer from one Sandeep Kumar. Thus, the whole testimony of this witness indicates that he was real relative of the deceased and the deceased’s wife was also present along with him and the son of the deceased was also there, but none of them cried or attracted or sought help from any of the passengers or any other person, rather even they hid beneath the lower berth. This conduct of the witness is highly improbable. Although it is true that at the time of incident, every person reacts in his own manner, but this witness, who is the real brother-in-law of the deceased, neither sought help nor he made any resistance, nor intimated any railway employees, who were on duty in the train. This is not the statement of this witness that after the incident, when accused persons had fled away, then he approached to the train Guard or train Driver to inform them about the incident, but it appears that he was stood still till the arrival of train Guard & train Driver who certainly had taken sometime to reach the compartment. One thing is also very surprising that when deceased’s son was under treatment at Lucknow, then why he was being taken for seeking treatment at Unnao. He had not specifically told the name of the doctor to whom deceased’s son Prakash had to be treated in Unnao.
Another glaring fact is that three fires have been triggered from two country made pistols, as per statement of this witness, but accused persons did not aim to assault the wife and this witness.
Although it is true that testimony of an eyewitness cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared in his testimony, but at the same time, with regard to reliability of the witness, the factor for having seen the incident and his presence on the spot must be proved.
From the testimony of this witness, as elaborated above, it emerges that from the very inception, he has given explanation with regard to presence of the in-laws' house, thereafter, travelling with deceased in the train and for boarding and not obtaining the railway ticket due to closure of the booking window. At the time of alleged incident, he has shown his presence at just diagonally lower berth, while deceased was stated to be sitting on upper berth, but during the whole of the incident, he did not make any effort to save his brother-in-law. This is also surprising that when suddenly accused persons entered into compartment and they started shouting at the deceased, then how it was possible for this witness to conceal himself with the deceased’s wife below the lower berth and this episode was also not noticed by the accused persons. It is also unnatural that any mother would firstly save herself without giving safety to her minor child. Therefore for these reasons, his presence on the spot is not found natural, as observed by the Trial Court.
Now, we move ahead to consider the testimony of PW-2 Smt. Chhedana who is the wife of the deceased Ram Lal. She has been examined as PW-2 and deposed that on 12-5-1999 she along with her husband and brother-in-law Natthi Lal had boarded the train from Kulha railway station halt for Unnao. When train arrived at Bund Hamirpur Halt at about 11.00 AM, then accused respondent Shivlal and his brother-in-law Devi Prasad and Deshraj alias Deena boarded the compartment. At that time, her deceased husband was sitting on upper berth, while she along with Natthi Lal was sitting in lower berth and she was having a six-month child in his hand and another child aged about six years was also accompanying her. She further stated that all four accused persons were having country-made pistols, who exhorted to kill the deceased. Then Shivlal triggered the fire on deceased, which hit him in his chest, resultantly he fell down on the floor. Then Shivlal triggered another fire in his eye and accused Devi Prasad also triggered fire in the eye of deceased, while remaining accused Rajesh and Deena were standing on the foot board. She further stated that when incident took place, she and Natthi Lal PW-1, hide themselves under the lower berth due to fear, but they saw the whole incident. She further stated that after killing the deceased, accused persons fled away. Then she and Natthi Lal went near the deceased and found that he had died. When the incident took place, there were many passengers inside the compartment. Driver and Guard of the train had also arrived. She further stated that when train reached the destination Unnao at about 12.00 PM, then Natthi Lal PW-1 got tehreer scribed from one Sandeep Kumar at the platform and gave it at police station GRP Unnao. She admitted that accused Shivlal is her deceased cousin. Prior to this incident, in the wake of July 1998, her deceased husband Ramlal had lodged FIR with regard to theft of “Chakki and speller against Shiv Lal, Rajesh, Devi Prasad, Deshraj @ Deena, Arun Kumar and Vijay Kumar and that case is pending before the Magistrate in Unnao. In that case the police had submitted Final Report, but deceased had raised objection, therefore, accused were summoned by the court, and due to this reason, accused were having a grudge against the deceased.
On being cross examined, she has stated that there is a civil litigation pending between her husband and accused persons. She has admitted that she is educated up to intermediate. Initially, she was running Anganwadi Center in her house, but presently she is living in her parental house.
She further deposed that on the alleged date of occurrence deceased husband had to appear for scheduled examination of the ITI. She also stated that she along with her children and her brother-in-law were sitting in a row, while deceased Ramlal was sitting in upper berth which was in the gap of 2 to 3 seats. The compartment was full of passengers.
She also clarified that all the berths were full, therefore, deceased Ram Lal had to sit in the upper berth which was near the middle door of the compartment. She also stated that when train halted, suddenly accused persons rushed into the compartment and all the accused persons were having firearms in hand, but she did not raise any alarm at that time. She further stated that accused Shiv Lal triggered the first fire after extending his hand. Second fire was triggered by accused Devi Prasad from the corridor, but none of the other passengers sustained any injury. She also stated that after the accused persons fled, she went near the deceased, but she did not cry on the deceased body. She denied this suggestion that she was not present at the spot.
From the testimony of the above witness, it reveals that as per her statement, she along with her children, husband and her relative Natthi Lal PW-1 had boarded the train on the fateful day and when train halted at station Bund Hamirpur, accused persons entered inside the compartment and fired upon deceased from the firearm weapons.
Now the question arises that when compartment was so crowded and there was no space for sitting so much so that the deceased had to sit on the upper berth. In this scenario as to how it was possible for the witnesses PW-2 and PW-1 to hide themselves under the lower berth as it is a common experience that lower seat of the train of general compartment is so low that it is not easy for a person to hide under the seat. However, in this case, two persons PW-1 and PW-2 hid themselves under the seat. It is also very surprising that four accused persons were assaulting the deceased, but none of them had assaulted the wife and children of the deceased. Also after fleeing of the accused persons, it is not understood as to how PW-1 and PW-2 could easily come out from under the seat yet they did not sound any alarm to attract the attention of passengers. Also, even after noticing that the deceased has died, she did not intimate to Guard and Driver of the same train.
It is not the statement of this witness that she had called the driver and Guard. It is not a case that due to fear she could not made any effort to seek the help of anybody, therefore, conduct of this witness is also very surprising that at a time when her husband was shot by firearm, she kept silent. She did not even cry, when she saw that her husband succumbed due to sustaining firearm injuries.
In this regard, to test the veracity of this witness, we next consider the statement of train Guard, who is examined as PW-9. He deposed that on 12.5.1999 he had started passenger train Raebareli to Kanpur. In that train he was deployed on duty as a guard. The train halted in the Bund Hamirpur at about 10:59. At the time the driver blew whistle for starting the train, train passengers started to shout that one person has been killed by someone. Upon hearing, he rushed towards the compartment where he saw a dead body of a person lying on the floor. He made effort to contact Station Master Unnao and GRP Unnao and Deputy Controller Lucknow, but could not succeed. Thereafter train started from Bund Hamirpur at about 11:35 and reached Unnao. After reaching Unnao, he had given a written report to Station Master with regard to the incident.
On cross-examination, he had stated that he is guard in railway for 11 years. His train duty is from Rai Bareilly to Kanpur and Kanpur to Rai Bareilly. He further stated that on the fateful day, the incident occurred in the compartment, which was 4th in number from Engine and his compartment was 8th in number from Engine.
He also stated that train had started at about 5:30 AM, but at Bund Hamirpur, it has become late and arrived at 10:59 A.M. from where he had started at 11:00 AM. He had clarified that he went inside the compartment, where incident had taken place and that bogie number was NR 11172 GS and train had arrived at Unnao 12:24 P.M.. He stated that the Investigating Officer did not record his statement.
Thus from his statement, it transpires that he had heard the hue and cry of the passengers, who were crying that someone had been killed inside the compartment, but he had not stated that either PW-1 or PW-2 had contacted him or told him about the alleged incident. Even when he reached inside the compartment where deceased’s dead body was lying on the floor, PW-1 and PW-2 did not tell him about the occurrence. Thus from the evidence, it does not reveal that when he reached near the dead body, then PW1 and 2 were also present, who had identified the deceased.
It is also relevant to mention that this witness had stated that passengers were crying that someone had killed the deceased. It was not statement of the passengers that two or four persons had killed the deceased or four persons were involved in the killing of deceased.
It is also notable that as per statement of PW-1 and PW-2 accused Shiv Lal triggered one fire on the chest and another fire in the eye of the deceased, while co-accused Devi Prasad fired on the eye of the deceased, meaning thereby three fires had been triggered while as per recovery memo Exhibit Ka-9 only two empty cartridges of 0.315 bore have been found near the deceased’s dead body.
PW-3 Constable Shailesh Kumar has given evidence to the effect that he had lodged chick FIR Exhibit Ka-3 on the basis of written report Exhibit Ka-1 submitted by informant Natthilal at 12:30 P.M. in police station GRP.
Another witness Sub-Inspector Ram Krishna Ojha PW-4, who had been entrusted initial investigation had deposed that he had prepared the inquest report of the dead body of the deceased, which is Exhibit Ka-2. From the scene of occurrence, where dead body of the deceased was lying, two empty cartridges of 0.315 bore were also lying there. He collected all the articles and prepared the memo. He also deposed that where dead body was lying, blood was scattered on the floor. He had taken into his custody and prepared the memo Exhibit Ka-10 and also prepared the site plan which is Exhibit Ka-11. He further stated that since the incident had happened when the train was not moving, but was halted, but as per GRP, the case was transferred to police station Achalganj for further investigation, as in a train which is not moving, the civil police has jurisdiction. He has stated that he had prepared the Case Diary Parcha No.1 on 12.05.1999 at about 1:00 PM. At that time nobody was present in the train, therefore, he could not record the statement of any passengers. He has recorded the statement of complainant at railway station Unnao and at the same time, he has recorded the statement of Guard, Rameshwar Prasad. Thus, from testimony of this witness also it emerges that at the alleged place of occurrence only two empty cartridges were found, although, blood was scattered on the floor.
After transferring the investigation to Police Station Achalganj, the investigation was entrusted to SI Kaushal Kumar Yadav PW-5 who deposed that he had recorded the statement of accused Devi Prasad, Shivlal, Deshraj, Rajesh, Smt. Chhedana, and other eyewitnesses, Prabhu Suryabhan and Dhanau. In his cross-examination, he also reiterated that he had recorded the statement of the witnesses Dhanau and Prabhu Suryabhan. Thus, it also reveals that statements of two independent persons were recorded during the investigation, but prosecution did not produce them during trial and no explanation has been given in this regard. SriRam Chaubey, PW-6, who had entered the incident into GD number 31 on 15.05.1999 had stated that he had sent the special report to the superior officer with regard to the incident.
It is also notable that the oral evidence of Constable PW-8, who proved the FIR No. 60/98, which was lodged on 12.07.1998 by deceased Ram Lal against Shiv Lal, Rajesh, Devi Prasad, Desh Raj, Arun, and others with regard to theft of Tractor, but from the testimony of this witness, it does not reveal that accused-respondents against whom FIR under Section 378 of the IPC had been lodged, had also committed the murder of the deceased, though enmity among the parties is established, since it has also been admitted by the accused person in the statement under Section 313 of CrPC. But it is not a sole parameter to decide the culpability of the accused persons.
Upon marshalling of the facts and after scrutinizing the testimony of the witnesses, following circumstances emerged out:
In the case in hand, deceased, his wife and brother-in-law along with two children had travelled in railway train, but none of them had obtained railway ticket;
ii) As per statement of PW-1 Natthilal, treatment of the deceased’s son was going on at Lucknow, then as to why he was being taken to Unnao for treatment.
iii) As per testimony of PW-1 and PW-2, the compartment which they boarded was full of passengers and too crowded, as deceased had to sit on upper berth, while PW-1, PW- 2 and two minor children could sit in lower berth. However, at the time of incident, PW-1 and PW- 2, claimed that they hid themselves under the lower berth from where they saw the incident, but with regard to the safety of children, they did not utter a single word and as to what recourse they adopted to save them.
iv) as per statement of PW-1 and PW- 2, accused persons Shiv Lal and Devi Prasad, triggered fire on the deceased, but PW-1 and PW- 2 did not raise any alarm. Even after fleeing of the accused persons, they did not seek any help of any person and they did not even intimate the Driver and Guard of the train.
Upon hearing hue and cry, Guard and Driver visited the compartment where the dead body of deceased was lying. At that time also wife of the deceased (PW-2) and brother-in-law of the deceased (PW-1) did not make any complaint with regard to assault made by accused persons.
vi) It is highly ridiculous that all of a sudden accused persons entered inside the compartment and fired on deceased, yet it was easy for PW-1 and PW-2 to hide themselves under the lower birth and the accused persons did not even assault them during this episode.
vii) As per FIR, after the incident they had changed the compartment and hid to save themselves. It is not believable that when the husband of PW-2 has been brutally murdered, and accused persons fled away from the compartment then she along with her brother-in-law had changed the compartment and hid themselves and did not raise any alarm to attract the attention of the passengers.
viii) According to PW-1, PW-2, three shots have been fired by the accused persons Shiv Lal and Devi Prasad, while the Investigating Officer had found only two empty cartridges.
ix) The Investigating office did not make any effort to recover the alleged weapon, and no FSL report was obtained.
According to Investigating Officer Sri Kaushal Kumar Yadav PW-5, during investigation he had recorded the statement of two eyewitnesses, namely Prabhu Suryabhan and Dhanau, but none of them have been examined. As per the statement of Rameshwar Prasad PW-9, train passengers made hue and cry by shouting that someone had killed the deceased. The passengers did not tell that two or four assailants had killed the deceased. None of the signs of the firearm projection was found in the compartment.
Thus, when we consider all the facts and circumstances and evidence in a totality, then we find that presence of the PW-1 and PW-2 has become doubtful at the scene of occurrence, and it also transpires that they were not eyewitness, rather after noticing the deceased injury, they made themselves as if they had witnessed the incident or they were present at the time of occurrence.
In view of the law laid down in the above cited rulings, on close scrutiny we find that both the witnesses are not of a sterling quality and as their evidence is not cogent, convincing and clinching, so reliance cannot be placed on their testimony. Learned trial court categorically considered each and every contention raised before him. Learned trial Court elaborately has given observations and findings in this regard. In such view of the matter, we, therefore, find that the trial Court has taken possible view of the matter on appreciation of entire evidence on record, which cannot be substituted by this Court taking a different view as per the law discussed above.
In view of the above discussion, we do not find any manifest error and perversity in the impugned judgment passed by the trial Court with regard to acquittal of the respondents for the charge levelled against them. Therefore, it does not warrant any interference. It is affirmed. Consequently, the instant appeal lacks merit and is liable to be dismissed.
Accordingly, this criminal appeal is dismissed.
The record of trial Court be sent back. The Section shall comply immediately.