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1 Criminal Appeal No. 6 of 2009 &


other connected appeals

A.F.R.
Reserved on 11.05.2016
Delivered on 26.05.2016

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

Appellant :- Ashok Singh @ Mintu Singh (Pintu)


Respondent :- State Of U.P.
Counsel for Appellant :- Nagendra Mohan,A.M.
Shukla,C B Pandey,Manish Kumar,Vivek Shrotria
Counsel for Respondent :- G.A.,B.K. Singh,K.K.
Singh,Maneesh Kumar Singh,Nishar Ahmed, R.P.Singh,
Ram Prakash Singh,Rishad Murzata,S C Shukla,Vaibhav
Kalia

along with

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

Appellant :- Om Prakash Tiwari


Respondent :- State Of U.P.
Counsel for Appellant :- Raghvendra Singh
Counsel for Respondent :- G.A.,K.K. Singh,Maneesh
Kumar Singh,Nisar Ahmed,Ram Prakash Singh,Rishad
Murtaza,S C Shukla,Vaibhav Kalia

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

Appellant :- Sunil Kumar Tiwari


Respondent :- State Of U.P.
Counsel for Appellant :- Raghvendra Singh,A.M.
Shukla, Akhilesh Chandra,Indrajeet Shukla,Nagendra
Mohan,Rakesh Pathak,Surya Kant Misra,Vivek Shrotria
Counsel for Respondent :- G.A.,B.K. Singh,K.K.
Singh, Maneesh Kumar Singh,Nisar Ahmed,Ram Prakash
Singh,Rishad Murtaza,Vaibhav Kalia

And

Case :- CRIMINAL APPEAL No. - 1781 of 2009

Appellant :- State Of U.P.


Respondent :- Sunil Kumar Tiwari
Counsel for Appellant :- Govt. Advocate
Counsel for Respondent :- Indrajeet Shukla
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Hon'ble Surendra Vikram Singh Rathore,J.


Hon'ble Anil Kumar Srivastava-II,J.

(Per Surendra Vikram Singh Rathore, J.)

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

judgment, hence these are being disposed of together.

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

convicted accused persons Ashok Singh alias Mintu

Singh (Pintu) and Shailesh Kumar alias Pappu Singh

while Criminal Appeal No. 8 of 2009 has been preferred

by Om Prakash Tiwari and Babu Ram Tiwari, Criminal

Appeal No. 81 of 2009 has been preferred by appellants

Sunil Kumar Tiwari, Prem Nath Dubey, Rudra nath

Dubey, Indra Nath Dubey, Santosh Singh, Ramji Tiwari

and Girjesh Singh and Criminal Appeal No. 1781 of

2009 has been preferred by the State challenging the

acquittal of accused persons under Section 302/149

I.P.C.

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

Indrajeet Shukla, learned counsels for the appellants,

Mr. Umesh Verma, learned A.G.A. for the State, Mr. I.B.

Singh, learned Senior Advocate and Mr. Manish Kumar

Singh, Advocate for the complainant and perused the

lower court record.

4. Under challenge in all the aforesaid appeals is the

judgment and order dated 17.12.2008 passed by


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learned Additional Sessions Judge, Fast Track Court No.

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

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

Nawabganj, District Gonda whereby all the appellants

were convicted and sentenced as under:-

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


rigorous imprisonment and also with fine of
Rs. 1,000/- each with default stipulation of
three months additional rigorous
imprisonment.
(ii) Under Section 148 I.P.C., two years
rigorous imprisonment and also with fine of
Rs. 2,000/- each with default stipulation of
six months additional rigorous
imprisonment.
(iii) Under Section 304 (I) read with
Section 149 I.P.C. with imprisonment for
life and also with fine of Rs. 10,000/- each
with default stipulation of two years
additional rigorous imprisonment.
(iv) Under Section 342 I.P.C., six months
rigorous imprisonment and also with fine of
Rs. 5,000/- each with default stipulation of
one year additional imprisonment.
However, all the accused persons were
acquitted of the charge under Section
325/149 I.P.C.
5. In brief the case of the prosecution was that

complainant Shiv Bux Singh, who happens to be the

father of deceased Chandreshwar Pratap Singh lodged


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

Nawabganj, District Gonda alleging therein that his

younger son Chandreshwar Pratap Singh was managing

the Taxi Stand Theka of Nawabganj. Janardan Prasad

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

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

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

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

persons known to him without any serial and without

token. This conduct was objected to by the deceased

Chandreshwar Pratap Singh due to which an altercation

took place on 31.7.2001 between Chandreshwar Pratap

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

altercation, Janardan Tiwari and his companions had

threatened the son of the complainant with dire

consequences. On 9.9.2001 Chandreshwar Pratap Singh

was coming from Gonda and was going towards

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

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

TATA 407 (minibus) was parked obliquely on the road

due to which the entire road was blocked. The driver of

the jeep of Chandreshwar Pratap Singh tried to take his

jeep by the side of the road due to which the speed of

jeep became very slow. In the meantime, all the

accused persons, namely Sunil Tiwari, Babu Ram Tiwari,


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Om Prakash Tiwari, Ramji Tiwari resident of

Majhanpurwa, Police Station Nawabganj Gird, Santosh

Kumar Singh, Ashok Singh resident of Ballipur, Pappu

Singh resident of Jalalpur, Girjesh Singh resident of

Ballipur, Prem Dubey, Indresh Dubey resident of Khirhi

Deeh, Police Station Wajeerganj armed with rifle, gun,

hockey, Danda, iron rod, pistol surrounded the jeep and

all the accused persons challenged Chandreshwar

Pratap Singh and pulled him out of jeep and started

beating him with hockey, Sonta, Danda, Sariya and with

the butt of rifle, gun and took him to the shop of

Janardan Tiwari and after closing the door of channel,

he was badly beaten by the appellants. In the

meantime, Ram Naresh Singh, Bhupendra Bux Singh,

Rakesh Tiwari, Abdul Aziz reached there and saw the

incident and immediately gave information of this

incident at his house to his son Vijay Pratap Singh. On

getting this information, his son Vijay Pratap Singh

along with some other persons reached on the spot and

found that Chandreshwar Pratap Singh was lying inside

the channel door. Vijay Pratap Singh took his brother to

Faizabad Hospital. The complainant also reached there,

where after giving primary treatment he was asked to

take him to Lucknow as his condition was serious. At

that time, Janardan Tiwari, who was P.R.O. of Health


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Minister was present in the hospital, therefore, under

his pressure, proper treatment was not ensured by the

doctors. The complainant took his son to Mayo Medical

Centre, Gomti Nagar, when his health improved a bit

then he came to the Police Station Nawabganj district

Gonda on 11.9.2001 and lodged the F.I.R. of this case.

6. On the basis of this report, case crime number 114-A of

2001 was registered and investigation proceeded, which

was entrusted to PW-11 S.I. Lal Mani. During

investigation of this case, as per prosecution story, on

14.9.2001 Lal Mani went to Mayo Hospital, Lucknow for

recording the statement of Chandreshwar Pratap Singh

and recorded his statement under Section 161 Cr.P.C.

Subsequently Chandreshawar Pratap Singh succumbed

to the injuries on 16.9.2001 thereafter the case was

converted under Section 302 I.P.C.

7. In this case, investigation was subsequently transferred

to CBCID and after completion of investigation, charge

sheet was filed against all the accused persons.

8. Chandreshwar Pratap Singh was initially medically

examined at District Hospital, Faizabad on the date of

incident at 1:55 p.m. and following injuries were noted

on his body:-

(i) Lacerated wound 5 cm x 1 cm x


muscle deep right side of forehead 3.5 cm
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above right eyebrow. Fresh bleeding.


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


(xiv) Multiple contusion in an area of 30 cm
x 13 cm on right side of back starting from
the top of shoulder.
(xv) Multiple contusion in an area of 26 cm
x 18 cm on left side back starting from the
top of shoulder.
(xvi) Contusion 13 cm x 7 cm on the left
side of back 4 cm below injury no. (xv).
(xvii)Contusion 4 cm x 2 cm in the middle
of back.
In the opinion of doctor, injury nos. (ii),
(iii), (iv), (v), (vii) and (xiv) were kept
under observation and x-ray was advised.

All the injuries were caused by hard and blunt object

and were fresh in duration.

9. The deceased succumbed to the injuries on 16.9.2001

at 3:30 p.m. On the death of deceased, inquest

proceedings were conducted by the Inspector of Police

Station Gomti Nagar on the basis of death memo sent

by Mayo Hospital, Gomti Nagar and postmortem on the

body of the deceased was conducted on 16.9.2001 at

5:30 p.m. and following ante-mortem injuries were

found on his body:-

(i) Lacerated wound 3 cm long with three


stitches with right side forehead 3 cm
above right eyebrow.
(ii) Lacerated wound 10 cm long with
eight stitches on the top of head and 3 cm
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behind injury no. (i).


(iii) Lacerated wound 3 cm long with three
stitches on left side of head, 6cm above
and behind left ear.
(iv) Lacerated wound 4 cm long with three
stitches 2.5 cm above injury no. (iii).
(v) Contusion 8 cm x 4 cm on front of left
shoulder.
(vi) Stitched wound on middle dorsal
phalynx of right ring finger 4 cm long on
opening pus present in the middle inner
phalynx bone of ring finger fracture.
(vii) Contusion on dorsum of right hand 4
cm x 4 cm.
(viii) Partially healed multiple abrasions in
an area of 10 cm x 8 cm on middle dorsum
aspect of right forearm.
(ix) Multiple abrasions in an area of 12 cm
x 4 cm present on shin of left lower leg.
(x) Multiple healed abrasion (partially) in
an area of 8 cm x 6cm on shin of right leg.

In the opinion of the doctor, the cause of death was

septicemia as a result of ante-mortem injuries.

10. The appellants have pleaded a cross version in

their defence for which a F.I.R. was lodged on the date

of incident at 9:10 p.m. as Case Crime No. 114 of 2001

and investigation of the same was also entrusted to PW-

11 Lal Mani.

11. The defence of the appellants as comes up from


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the evidence of DW-1 and DW-2 was that one TATA 407

(a mini passenger bus) left the Taxi Stand for Gonda.

The said TATA 407 was chased by a jeep on which

deceased Chandreshwar Pratap Singh was present. The

said jeep overtook TATA 407 near cold-storage where it

was stopped by Chandreshwar Pratap Singh thereafter

he started abusing driver as he has taken the bus

without taking the token and without paying the tax. On

this the driver replied that he shall pay the tax after his

return from Gonda for both the sides but Chandreshwar

Pratap Singh asked him to take back the bus to the taxi

stand and started beating the driver. The passengers

sitting on the bus objected such act of Chandreshwar

Pratap Singh. Then Chandreshwar Pratap Singh started

abusing the passengers also. DW-2 was a passenger of

the bus and DW-1 was a person present there. In the

meantime, Om Prakash Tiwari, asked Chandreshwar

Pratap Singh why the passengers are being harassed

while driver is ready to pay tax. It annoyed

Chandreshwar Pratap Singh and he raided his jeep on

Om Prakash Tiwari due to which his leg was fractured

and jeep stopped in the pile of crushed stones (gitti)

and as it could not move and stopped there. Seeing

such activities of Chandreshwar Pratap Singh the

passengers sitting in the bus and other persons present


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there started beating Chandreshwar Pratap Singh. Om

Prakash Tiwari was also medically examined at District

Hospital, Faizabad on the same day at 1:45 a.m. and

following injuries were noted on his person:-

(i) Abrasion 2 cm x 1 cm on the bridge


of nose oozing present.
(ii) Contusion abraded 12 cm x 4 cm on
the mid chest just below the nipple, kept
under observation.
(iii) Abrasion 6 cm x 2 cm on the lower of
left side arm just below the elbow oozing
present.
(iv) Contusion 15 cm x 1 cm on the
middle of right thigh red in colour, kept
under observation.
(v) Abraded contusion on the right
patella oozing present.
(vi) Abraded contusion 2 cm x 2 cm on
left patella oozing.
Injury no. (ii) and (iv) were kept under observation. X-

ray was advised. The injuries were caused by hard and

blunt object and were fresh in duration.

12. At this stage, it is pertinent to mention here that

on the report lodged by Sunil Kumar Tiwari against

Chandreshwar Pratap Singh regarding the cross version

of this incident, police filed final report because of the

death of Chandreshwar Pratap Singh, who was sole

named accused in that case. However, police could not

trace out the two unnamed accused persons.


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Brief description of evidence recorded during trial

is as under:-

13. PW-1 Shiv Bux Singh is not a witness of this

incident. He has given evidence regarding earlier

incident that took place on 31.7.2001 as motive of this

offence.

PW-2 Ram Naresh Singh is an eyewitness. He has

supported the case of the prosecution. He is the first

cousin of the complainant and was a chance witness,

who as per his evidence reached place of occurrence by

coincidence. He is resident of a village situated at a

distance of about 6 -7 kilometers from place of

occurrence. He has also stated that in his presence

statement of Chandreshwar Pratap Singh was recorded

by Investigating Officer in Mayo Hospital at Lucknow.

PW-3 Vijay Pratap Singh, PW-2 Ram Naresh Singh

gave information to this witness at his house. When he

came along with PW-2 and other persons to the place of

occurrence then he saw that Chandreshwar Pratap

Singh was lying in an injured condition inside the

channel gate of appellant Sunil Kumar Tiwari and

appellants were beating him. On the alarm raised by

this witness appellants ran away. He has also stated

that in Mayo Hospital in his presence statement of his

brother was recorded by Investigating Officer.


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PW-4 Dr. Sunil Agarwal, Neuro Surgeon of Mayo

Hospital, who has proved the bed head ticket of

Chandreshwar Pratap Singh.

PW-5 Dr. Arvind Kumar Srivastava, who has

medically examined injured Chandreshwar Pratap Singh

at District Hospital Faizabad and also medically

examined appellant Om Prakash Tiwari, injured of the

cross case.

PW-6 Jagdish Yadav is a formal witness who has

prepared chik report and G.D. of this case.

PW-7 Dr. Sadanand has conducted postmortem on

the body of deceased, details of which has already been

mentioned earlier.

PW-8 Vishnu Pratap Singh is witness of the inquest

proceedings.

PW-9 Uday Pratap Singh is a witness of the previous

incident that took place on 31.7.2001, which is said to

be the motive to commit this offence. He also reached

at that time by chance.

PW-10 Ramesh Chandra Singh Yadav is

Investigating Officer of CBCID.

PW-11 S.I. Lal Mani is Investigating Officer of the civil

police, who has investigated both the cases till the

investigation was handed over to CBCID.

PW-12 S.I. Ram Iqbal Singh, the then S.O. Gomti


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Nagar, who has prepared inquest report on the body of

the deceased.

14. CW-1 Dr. Ramesh Chandra, the then surgeon of

District Hospital, Faizabad, who has treated injured

Chandreshwar Pratap Singh in District Hospital,

Faizabad and has also stated that since his condition

was serious, therefore, he was given first aid and was

referred to Lucknow.

CW-2 Shri Ram Lakhan Dubey, the owner of the jeep

on which deceased Chandreshwar Pratap Singh had

gone to the place of occurrence. During investigation

this jeep was taken into custody from the place of

occurrence. He has given evidence, though, hearsay,

but in favour of the defence.

DW-1 is Siya Ram Pande and DW-2 Vijay Bhan

Singh have stated the defence case as stated earlier.

DW-3 Markandey Pande has proved the medical

examination report of Vijay Pratap Singh dated

4.11.1999 as secondary evidence.

15. After appreciating the evidence available on

record, the trial court has considered the evidence of

PW-2 and PW-3 wholly reliable and has also found the

statement of deceased recorded by PW-11 Lal Mani to

be wholly reliable as his dying declaration. The defence

theory was discarded by the trial court observing that


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when incident of this case had taken place at 11:00

a.m., in which Chandreshwar Pratap Singh had received

injuries then it was not possible subsequent thereto at

11:30 a.m. that he could have taken part in any

incident and on this ground the defence theory was

discarded. The trial court was of the view that offence

committed by the accused persons inter alia shall fall

under Section 304 (I) I.P.C., as no deadly weapon was

used and accordingly convicted the appellants, hence all

the aforesaid criminal appeals.

16. Very lengthy arguments were advanced in these

appeals from both the sides. On behalf of the appellants

Mr. Nagendra Mohan, Mr. Chandra Bhushan Pande and

Mr. Indrajeet Shukla have argued at length. The

substance of the argument raised on behalf of the

defence was that PW-2 Ram Naresh Singh was a chance

witness. His evidence clearly shows that he was not

even present at the place of occurrence. PW-3 Vijay

Pratap Singh claims himself to have come to the place

of occurrence on the information given by PW-2,

therefore, once the presence of PW-2 Ram Naresh Singh

is found to be doubtful then the presence of PW-3 Vijay

Pratap Singh also cannot be believed on the place of

occurrence. He has also argued that the trial court has

overlooked all the material inconsistencies in recording


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the statement of deceased under Section 161 Cr.P.C.,

and without considering all these aspects, has found the

same to be wholly reliable and has convicted the

appellants. Learned counsel for the appellants has

further submitted that the prosecution has not given

any explanation as to how Om Prakash Tiwari has

received injuries. Learned counsel for the appellants has

placed reliance on several pronouncements of Hon'ble

Apex Court, which shall be considered at the relevant

part of the judgment.

17. On behalf of the State, learned A.G.A. Mr. Umesh

Kumar Verma, and on behalf of complainant Mr. I.B.

Singh, learned Senior Advocate and Mr. Manish Kumar

Singh, Advocate have made their submissions.

18. Learned A.G.A. has submitted that the statement

under Section 161 Cr.P.C. of the deceased was

admissible under Section 32 of the Indian Evidence Act

as dying declaration. He has also argued that the

presence of TATA 407 was shown in the site plan of

Case Crime No. 114-A of 2001 and said site plan has

not been challenged in the cross examination, therefore

the presence of TATA 407 on the place of occurrence by

which the road was blocked, stands established. The

witnesses have fully supported the case of the

prosecution and the trial court has rightly appreciated


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the evidence available on record.

19. Mr. I.B. Singh, learned Senior Counsel has argued

on behalf of the complainant that the date, time and

place of occurrence has been admitted by some accused

persons themselves in the statement recorded under

Section 313 Cr.P.C. in reply to question number (1) and

the manner of assault has been stated by the

witnesses. Therefore, the trial court was right in

concluding that the appellants have caused this offence

and has rightly convicted them.

20. Mr. Manish Kumar Singh, Advocate has argued on

behalf of the complainant that offence committed by the

appellants would fall under Section 302 I.P.C. and not

under Section 304 (I) I.P.C., because the deceased was

given blows so mercilessly that they all had intentionally

caused injuries with the knowledge that the injuries

caused by them shall in all probability result into the

death of the deceased, so the offence committed by the

appellants would fall under Section 302 I.P.C. Apart

from it, he has also made submission regarding the

truthfulness of the prosecution witnesses and the

reliability of the dying declaration.

21. Keeping in view the rival submissions, the

evidence of the prosecution witnesses has to be

appreciated. In the instant case, admittedly there is no


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dispute to the fact situation that only two witnesses of

fact have been examined in support of the prosecution.

PW-2 Ram Naresh Singh, who is first cousin of the

complainant was resident of a village situated at a

distance of 6 - 7 kilometers from the place of

occurrence. He is the person who has given the

information, as per the case of the prosecution, to PW-3

Vijay Pratap Singh at his residence and thereafter PW-3

Vijay Pratap Singh came to the place of occurrence

along with some other persons and had taken

Chandreshwar Pratap Singh in injured condition to

District Hospital Faizabad on a jeep. It is true that

incident of this case has taken place on a road, so every

person who was a passerby may be a witness of this

incident. But such person must come with a reason for

his presence there.

22. In this case the prosecution has come with a motive

that on 31.7.2001, the incident of altercation had taken

place with Sunil Kumar Tiwari and others on one side

and the deceased Chandreshwar Pratap Singh on other

side. The reason for such incident was that Sunil Kumar

Tiwari, who happens to be the nephew of Janardan

Prasad Tiwari under his political influence used to run

the vehicles as Taxi without taking token from the taxi

stand and without paying the taxes. This act was


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objected to by Chandreshwar Pratap Singh on which this

quarrel took place wherein Chandreshwar Pratap Singh

was threatened by Sunil Kumar Tiwari and his

associates and because of that enmity, the offence has

been committed. Since the prosecution has come with

direct evidence and law is settled on the point that in

case of direct evidence, the motive pales into

significance. On this point, reference may be made to

the pronouncement of Hon'ble the Apex Court in the

case of Hon'ble the Apex Court in the case of Darbara

Singh Vs. State of Punjab reported in 2012 (10)

SCC 476, Sanjeev Vs. State of Haryana reported in

2015 4 SCC 387 and Birendra Das and another Vs.

State of Assam reported in 2013 12 SCC 236. In the

case of Darbara Singh (supra), Hon'ble the Apex

Court has observed in paragraph no. 15 and 16 as

under:-

“15. So far as the issue of motive is


concerned, it is a settled legal proposition
that motive has great significance in a case
involving circumstantial evidence, but
where direct evidence is available, which is
worth relying upon, motive loses its
significance. In the instant case, firstly,
there is nothing on record to reveal the
identity of the person who was convicted
for rape, there is also nothing to reveal the
status of his relationship with the Appellant
and further, there is nothing on record to
determine the identity of this girl or her
relationship to the co-accused Kashmir
Singh. More so, the conviction took place
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20 years prior to the incident. No


independent witness has been examined to
prove the factum that the Appellant was
not on talking terms with Kashmir Singh. In
a case where there is direct evidence of
witnesses which can be relied upon, the
absence of motive cannot be a ground to
reject the case. Under no circumstances,
can motive take the place of the direct
evidence available as proof, and in a case
like this, proof of motive is not relevant at
all.
16. Motive in criminal cases based solely
on the positive, clear, cogent and reliable
ocular testimony of witnesses is not at all
relevant. In such a fact-situation, the mere
absence of a strong motive to commit the
crime, cannot be of any assistance to the
accused. .........................”
(Underlined by us)

23. PW-1 complainant Shiv Bux Singh in his

examination in chief on this point has not stated that

any information of the incident dated 31.7.2001 was

given to the police but Head Moharir of the police

station PW-6 has stated that an application to this effect

was given at police station but the case was not

registered under the political pressure. PW-9 has also

given evidence on the point of motive but he was also a

chance witness. He has stated that by chance he had

gone to take petrol for his scooter and has witnessed

the incident dated 31.7.2001. Since we have already

observed that it is a case of direct evidence and motive

takes a back seat in cases of direct evidence, so we do

not find it necessary to deal with this point in detail.


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24. In order to appreciate the evidence of a witness

the first question that has to be considered by the court

is whether he was present at the place of occurrence, if

reply to this query is in affirmative then the next

question arises whether his evidence is reliable or not.

So we will first deal with the point whether he was

present at the place of occurrence.

25. Before proceeding further in the matter, we would

like to mention that it is settled principle of criminal law

that the prosecution must stand on its own legs and it

cannot take advantage of the weaknesses of defence.

On this point reference may be made to the

pronouncement of Hon'ble the Apex Court in the case of

Suchand Pal Vs. Phani Pal reported in (2003) 11

SCC, 533 wherein Hon'ble Apex Court has held as

under:-

“It is an established position in law that the


prosecution can succeed by substantially
proving the version it alleges. It must stand
on its own legs and cannot take advantage
of the weakness in the defence case. The
court cannot on its own make out a new
case for the prosecution and convict the
accused on that basis. Only when a
conclusion is arrived at on the evidence and
the substratum of the case is not changed,
such a course is permissible.”

26. Now we come to the evidence of PW-2 Ram Naresh

Singh and first we shall examine it to ascertain whether

he was present at the scene of occurrence as claimed


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by him and if yes whether his evidence is reliable.

Hon'ble the Apex Court in the case of

Acharaparambath Pradeepan and another Vs.

State of Kerala reported in (2006) 13 SCC 643 has

considered the evidence of a chance witness and has

held in paragraph no. 32 as under:-

“32. Some caution is also required to be


exercised in case of chance witnesses. It
requires a close scrutiny of the evidence of
a chance witness.”

27. Admittedly PW-2 Ram Naresh Singh is the first cousin of

complainant Shiv Bux Singh and has been accused in

some criminal cases with complainant Shiv Bux Singh.

This fact has been admitted by this witness in his cross-

examination. Regarding his presence on the place of

occurrence, he has stated during trial that one day prior

to the incident, he had gone on motorcycle to Gonda to

the house of his uncle Ram Iqbal. He stayed there in the

night and in the following morning, he moved from

Gonda and went to Banbhusara village near

Dumariyadeeh where his daughter was married. While

he was coming back from the house of his daughter,

and reached at Gonda-Faizabad Road near cold-storage

then he saw a TATA 407 was parked there and

thereafter he claims to have witnessed the incident. On

this point, in cross-examination, he has stated that on


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8.9.2001, he had gone to the house of his uncle Ram

Iqbal in Gonda to talk with him about agriculture. He

himself had gone to his house. It was not pre-planned

visit nor he was called by his uncle on 8.9.2001. He had

gone alone on motorcycle and took about two hours to

reach Gonda from his house. The distance of Gonda

from his house was 40 km. Next day in the morning i.e.

on the date of incident, he left Gonda at about 9:00

a.m. or 9:15 a.m., he reached the house of Kali Prasad

Singh in village Banbhusara with whose son, his

daughter has been married. He has stated that at about

10:00 - 10:15 in the morning, he reached the village of

his daughter. He has admitted that his visit to the house

of his daughter was just coincidence and it was not a

pre-planned visit. He talked about the welfare of his

daughter and took tea and thereafter he left at 10:30

a.m. and reached the place of occurrence at about

11:00 a.m. Thus he took about half hour time in

covering the distance from the house of his daughter to

the place of incident. He has himself admitted that after

undertaking a drive on motorcycle of more than one

hour and fifteen minutes, he reached at about 10:15

a.m. to the house of his daughter and left about 10:30

a.m. while he had no other planned programme. The

question arise as to what was the hurry to this witness


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to stay at the house of his own daughter only for 15

minutes when he had gone to his daughter's house after

covering such a long distance. Virtually he is giving an

explanation simply to show that he was present at the

place of occurrence. All these statements that he went

to Gonda one day prior to this incident and on the date

of incident, he went to meet his daughter, does not find

place in his statement under Section 161 Cr.P.C. His

statement under Section 161 Cr.P.C. was first recorded

after about eight days of the incident by the civil police

and thereafter again by the CBCID. In both the

statements, he has stated that on the day of incident,

he had gone to Dumariyadeeh with his personal work

where-from he was coming back. He has stated that he

had told all these details to the Investigating Officer but

he could not furnish any reason as to why it was not

written by the Investigating Officer. On this point, PW-

11 Lal Mani, Investigating Officer has stated that Ram

Naresh Singh had told him that he had gone to

Dumariyadeeh on the date of incident and on that day,

he was coming back. Thus he has not stated during

investigation that he had gone to the house of his uncle

and from there to the house of his daughter and after

staying there only for 15 minutes, he left the village

Banbhusara and reached the place of incident at 11:00


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a.m. PW-10 Ramesh Chandra Singh Yadav, who is

Investigating Officer of CBCID has stated that he made

no effort to record the statement of Ram Iqbal, uncle of

the complainant. Thus, very contradictory statement

regarding the reason as to when he left his village and

where-from he reached the place of occurrence were

given by PW-2 Ram Naresh Singh. In our considered

opinion, it was obligatory on the prosecution to examine

Ram Iqbal where this witness claims to have stayed in

the night on 8.9.2001 and also Kali Prasad or his own

daughter to establish that on the date of incident or a

day prior thereto, this witness had come to their house.

Non-examination of these two witnesses regarding the

presence of this witness at the place of occurrence

create doubt. Admittedly the place of occurrence was

neither the normal place of his presence nor the place

of his vocation. So prosecution was supposed to

establish his presence. If prosecution fails to prove his

presence by link evidence then it will give rise to an

adverse inference against the prosecution. On this point

reference may be made to the pronouncement of

Hon'ble the Apex Court in the case of State of Uttar

Pradesh Vs. Satveer and others reported in (2015)

9 Supreme Court Cases 44 wherein in similar

circumstances, Hon'ble the Apex Court has observed in


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paragraph no. 13 as under:-

“13. We now proceed to examine the


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

of this witness at the scene of occurrence by link

evidence. Even otherwise he himself has given

contradictory statements about his presence during

investigation and during trial. There is yet another

reason which belies the presence of the two eye-

witnesses. As per admitted case of the prosecution

these two witnesses had taken the injured to District

Hospital Faizabad. It has come in evidence that parents

of Chandreshwar Pratap ingh reached Faizabad Hospital

subsequently. As per evidence none of these two eye-

witnesses admitted him in Hospital. He was admitted by

his mother. Normally in such circumstances, it is the

male member of the family who come forward and

woman, particularly in rural background, are kept away

from such responsibility. But in this case no male

member admitted Chandreshwar Pratap Singh in

Hospital. It also supports the defence theory that these

persons were not present and injured was taken to

hospital by his mother.

29. Thus we find that presence of this witness on the

place of occurrence for the reasons stated above to be

doubtful. Inspite of that we have examined the

reliability of his evidence. He has stated that at about

11:00 a.m., he reached near cold-storage. Road was


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blocked by TATA 407 so he stopped his motorcycle

there. Generally the practice of motorcyclist is that in

case there is any blockage on the road then inspite of

stopping there, they take out their motorcycle from any

other side even driving through Kachcha Road. Bare

perusal of the site plan shows that there were open

area on both the sides of the road. So there was

absolutely no occasion for this witness to stop his

motorcycle and to wait for the arrival of Chandreshwar

Pratap Singh. Neither he was aware of the fact that

Chandreshwar Pratap Singh shall come to the place of

occurrence nor Chandreshwar Pratap Singh was having

any information that he was present at the place of

occurrence. He has fairly conceded in his cross-

examination that his arrival at the place of occurrence

was just a coincidence. All the accused persons were

known to this witness but he has not stated as to what

weapon was possessed by each accused. On this point,

when he was questioned during cross-examination then

he has stated that he was not aware as to what weapon

was possessed by each accused. He has also not stated

as to how many persons were sitting in the jeep. He has

expressed his ignorance totally about the cross case and

the injuries sustained by appellant Om Prakash Tiwari.

When the evidence of this witness is considered in the


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light of statement of PW-3 then it is clear that the

information about the incident was given by this witness

to PW-3 Vijay Pratap Singh. He has assigned specific

weapon in the hands of each accused. But as stated

earlier, this witness himself was not aware of the fact of

the weapons possessed by each accused. A general

statement was made by him on this point. Once he

himself was not aware of the weapon of each accused

persons then he was not in a position to tell the said

fact to PW-3 Vijay Pratap Singh. PW-3 Vijay Pratap

Singh has also expressed his ignorance about the cross

case and has also not disclosed the name of jeep driver

and cleaner on which Chandreshwar Pratap Singh

reached the place of occurrence. PW-3 Vijay Pratap

Singh has stated that it was Ram Naresh who told him

about the incident, the name of the persons who

stopped the jeep and have beaten Chandreshwar Pratap

Singh along with their weapons but this statement of

PW-3 Vijay Pratap Singh is contrary to the statement

given by PW-2 Ram Naresh as he has expressed his

ignorance regarding the weapon possessed by each

individual accused. Even in the dying declaration of the

deceased weapons of each accused were not disclosed

by him, though he has narrated names, parentage and

residence of all the accused persons. How complainant


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mentioned this detail in F.I.R. is best known to him only.

Submission of learned counsel for the appellants has

substance that deliberately these two witnesses have

concealed the name of jeep driver and cleaner because

they were the best witness of the incident and

prosecution has deliberately withheld them and has

produced planted witnesses.

30. Admittedly in this case prosecution has itself

proved the injuries sustained by Om Prakash Tiwari as

Ex. Ka-7. According to the evidence of PW-5 Dr. Arvind

Kumar Srivastava, appellant Om Prakash Tiwari was

examined about ten minutes prior to the examination of

deceased Chandreshwar Pratap Singh at about 1:45

a.m., and these injuries were found on his person,

which were caused by hard and blunt object and it has

come in evidence that his right leg was fractured. All the

witnesses of fact produced by prosecution were given

an opportunity on behalf of the defence to explain the

injuries sustained by appellant Om Prakash Tiwari but

all the witnesses of fact produced by prosecution have

expressed their total ignorance about the existence of

any cross-case and about the injuries sustained by Om

Prakash Tiwari. None of them disclosed the name of the

driver, cleaner or any other occupant of the jeep.

31. Submission of learned counsel for the appellants


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was that non-examination of the injuries of accused Om

Prakash Tiwari gives rise to the only inference that the

prosecution is suppressing the genuineness of the case

and is not coming with clean hands.

32. On this point, reliance has been placed on the

pronouncement of Hon'ble the Apex Court in the case of

Balwan Singh Vs. State of Haryana reported in

(2005) 11 SCC 245 wherein Hon'ble the Apex Court in

paragraph no. 12 has held as under:-

“12. The question then arises whether the


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


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

Reliance has also been placed on the pronouncement of

Hon'ble the Apex Court in the case of Ganesh Dutt Vs.

State of Uttarakhand reported in (2014) 12 SCC

389 in which Hon'ble the Apex Court has held in

paragraph no. 21:-

“21. The eye-witnesses who deny the


presence of injuries on the person of the
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accused are lying on most material point,


and therefore, their evidence is unreliable.
It assumes much greater importance where
the evidence consists of interested or
inimical witnesses. In the present case
admittedly there was enmity between the
accused family and the deceased family and
PWs 1 to 3 are interested as well as inimical
witnesses and their denial of injuries on the
person of accused, makes their evidence
unreliable.”

Reliance has also been placed on the pronouncement of

Hon'ble the Apex Court in the case of Vijay Narain

Mishra Vs. State of U.P. reported in (2013) 83 ACC

444 wherein a Division Bench of this Court in paragraph

no. 30 has observed as under:-

“30. ..................... Thus, on an overall


examination of facts and circumstances,
the out come which can be safely arrived at
is that the prosecution has not been able to
establish the guilt of the appellant beyond
all reasonable doubt and has suppressed
the real genesis of the incident. Its
witnesses have not deposed real truth and
has concealed very significant aspect of
accused injuries, which makes them
untrustworthy witnesses. FIR is imbibed
with an element of concoction and hence
looses its authenticity and corroborative
value and consequently for all these
reasons all the accused appellants are
entitled to acquittal.”

33. In the facts of this case also only related chance

witness could be produced. PW-2 Ram Naresh Singh

was also accused with complainant in some cases and

he admits that he reached the place of occurrence by

coincidence. He has also not explained the injuries


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sustained by appellant Om Prakash Tiwari. Identity of

most natural witness, the driver and cleaner of jeep has

been concealed.

34. Thus, in this case, non-explanation of injuries of

Om Prakash Tiwari further makes the evidence of this

witness to be unreliable.

35. In the instant case, both the parties have made

allegations against each other regarding abuse of their

influence. The complainant side says that Janardan

Prasad Tiwari was PRO of the then Health Minister Sri

Ramapati Shashtri and under his influence proper

treatment at District Hospital Faizabad was deliberately

not given to Chandreshwar Pratap Singh by the hospital

authorities. On the contrary, the appellants have stated

that Yash Pal Singh, the then DGP was in close contact

with the complainant side. He had come to attend the

marriage of his daughter, therefore, the police was

deliberately siding the complainant side. Because of

such conduct of the police, the appellants made a

request for transfer of the investigation, so that the

case may be fairly investigated. We do not find it

appropriate or the least necessary to indulge into the

political or any other influence as alleged by both the

parties against each other. But we consider it

appropriate to confine ourselves to the material


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available on record and to decide the case only on the

basis of the evidence led by the parties during trial.

36. Learned counsel for the appellants during course of

argument has drawn the attention of this Court towards

the evidence of CW-2 Shri Ram Lakhan Dubey, who was

the owner of the jeep and has stated in his cross-

examination by the accused that in between 9:00-

10:00 a.m., Chandreshwar Pratap Singh came to his

jeep and asked the key of the jeep from his driver and

told him that he will chase a vehicle. The driver of the

jeep declined to give him the key of the jeep. But he

forcibly snatched the key of the jeep and went on the

said jeep. It is true that this statement of the witness is

hearsay as he himself has admitted that on the date of

incident he was in Delhi. When he came back from Delhi

then he got his jeep released from the court. He has

also disclosed the name of the driver of the jeep but it

is really strange to note that the police made absolutely

no effort to work out the name of the driver or owner of

the jeep. The prosecution in this case has tried to

conceal the name of owner and driver of the jeep on

which Chandreshwar Pratap Singh went to the place of

occurrence. Reason behind it is apparent that either

they apprehended that their story shall not be

supported by these persons or they were apprehending


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that in case they disclose the name of driver of the jeep

then he shall be made an accused in the cross case and

both these inferences adversely affect the case of the

prosecution. CW-2 Ram Lakhan Dubey has also stated

that at the time of incident, his brother was present in

Katara Nawabganj along with (PW-3) Vijay Pratap

Singh. This statement of the witness has not been

challenged. No cross-examination on behalf of the

prosecution was made to this witness. Virtually the

statement given by this witness in his cross-

examination remains unchallenged. His jeep was found

at the place of occurrence and the same was taken into

custody by the police in damaged condition. The jeep

was found entangled in pile of crushed stone pieces

(Gitti), which was shown in the site plan of this case

also. It is really strange to note that inspite of taking

the jeep into police custody, the police says that he

could not work out the name of the driver and owner of

the jeep. So the evidence of this witness was

detrimental to the case of the prosecution.

37. Once PW-2 Ram Naresh Singh fails to satisfy the

court on the point of reason for his presence at the

place of occurrence, which admittedly was coincidence

then this fact makes his evidence unworthy of credence.

The presence of PW-2 Ram Naresh Singh at the place of


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occurrence would adversely affect the evidence of PW-3

Vijay Pratap Singh as he was brought by PW-2 at the

place of occurrence and found Chandreshwar Pratap

Singh lying inside the channel gate. Thus evidence of

both these witnesses was not reliable. No effort was

made by prosecution to examine any independent

witness though some were named in F.I.R.

38. Since we have already concluded that the evidence

of PW-2 Ram Naresh Singh and PW-3 Vijay Pratap Singh

was not reliable for the reason stated above, therefore,

the only evidence that remains to connect the

appellants with the instant offence would be the

evidence of dying declaration of the deceased.

39. Learned counsel for the parties have laid great

emphasis on this point and have stated that the dying

declaration by itself, even if the evidence of two

witnesses is not found to be wholly reliable, was

sufficient to convict the appellants.

40. Learned A.G.A. has drawn the attention of this

Court towards the pronouncement of Hon'ble the Apex

Court in the case of Sri Bhagwan Vs. State of Uttar

Pradesh reported in (2013) 12 SCC 137 and has

drawn our attention towards paragraph no. 24 of the

said judgment, which reads as under:-

“24. As far as the implication of 162 (2) of


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Code of Criminal Procedure is concerned,


as a proposition of law, unlike the excepted
circumstances under which 161 statement
could be relied upon, as rightly contended
by learned senior Counsel for the
Respondent, once the said statement
though recorded Under Section 161 Code
of Criminal Procedure assumes the
character of dying declaration falling within
the four corners of Section 32 (1) of
Evidence Act, then whatever credence that
would apply to a declaration governed by
Section 32 (1) should automatically
deemed to apply in all force to such a
statement though was once recorded
Under Section 161 Code of Criminal
Procedure. The above statement of law
would result in a position that a purported
recorded statement Under Section 161 of a
victim having regard to the subsequent
event of the death of the person making
the statement who was a victim would
enable the prosecuting authority to rely
upon the said statement having regard to
the nature and content of the said
statement as one of dying declaration as
deeming it and falling Under Section 32 (1)
of Evidence Act and thereby commend all
the credence that would be applicable to a
dying declaration recorded and claimed as
such.”

41. There is no dispute to the legal position that

statement of a person recorded by the Investigating

Officer regarding cause of his death is admissible in

evidence under Section 32 of the Indian Evidence Act as

his dying declaration after the death of such person.

42. Learned counsel for the appellants have not

challenged that it was not a dying declaration. But their

submission is that it was virtually a fabricated document

and was prepared subsequently by PW-11 Lal Mani,


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Investigating Officer of the civil police. The submission

is that the prosecution itself was aware of the fact that

the evidence of the two witnesses was very weak type

of evidence as most natural and independent witnesses

were withheld, therefore, both these witnesses have

started saying before the Court during trial for the first

time that in their presence the statement of

Chandreshwar Pratap Singh was recorded by the

Investigating Officer. Learned counsel for the appellants

have also challenged that photostat copy of dying

declaration has been filed and it is not clear from the

record whether the original was before the court at the

time when it was proved. We do not consider it

necessary to indulge into this controversy because

during trial, no objection was raised on behalf of the

appellants that such a photo copy was not admissible in

evidence. So we will consider it on merits. According to

the prosecution case, this dying declaration was

recorded by PW-11 Lal Mani at Mayo Hospital, Gomti

Nagar, Lucknow. Admittedly he has not taken any

consent from the attending doctor whether his

statement can be recorded nor there is any such

mention in the bed head ticket that any statement of

this patient was recorded by the police. Cross-

examination of PW-11 Lal Mani shows that he left


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Gonda for Lucknow on 14.9.2001 and recorded the

statement of Chandreshwar Pratap Singh in Lucknow

but he expressed his inability to disclose the time at

which such statement was recorded. He has also

admitted that serial number of the case diary and

volume number of the case diary in which this

statement was recorded was not clear. He has fairly

admitted that on that day, he had taken a different case

diary. Thus it means the statement was recorded by this

witness neither in the case diary of case crime no. 114

of 2001 or 114-A of 2001. When he was questioned

during cross-examination as to how, he used third case

diary for recording the statement of Chandreshwar

Pratap Singh then he could not reply this question and

kept mum. He has admitted that he came back from

Lucknow on 17.9.2001. He has also admitted that in the

G.D. of the police station, his movement has not been

recorded in connection with the investigation of Case

Crime No. 114-A of 2001 on 14.9.2001. It is really

strange to note that a police officer, who is investigating

a serious offence, which has taken place in the heart of

city, without any movement for the said purpose

without the case diary of that case went to the hospital

to record statement. He does not remember the time at

which he recorded the statement of the injured.


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Admittedly such statement was recorded without

seeking any permission from the doctor or without

obtaining the fitness certificate from the doctor. We do

not find the requirement of the certificate of the doctor

to be very necessary because the statement was not

recorded as dying declaration where Regulation 115 of

the U.P. Police Regulation may apply. But inspite of that

recording of such statement on third case diary

definitely creates doubt and makes the defence theory

probable that under undue enthusiasm PW-11 Lal Mani

has fabricated this dying declaration. Since dying

declaration came into existence, therefore, PW-2 Ram

Naresh Singh and PW-3 Vijay Pratap Singh started

saying that they were present in the hospital at the time

when statement of Chandreshwar Pratap Singh was

recorded. But when we examined the evidence of PW-

11 Lal Mani himself on this point, who has recorded the

statement of these two witnesses then we found that

PW-11 Lal Mani has stated that PW-2 Ram Naresh Singh

told him that he got the information yesterday that

Chandreshwar Pratap Singh, who was under treatment

in Mayo Hospital, Lucknow, has expired. He has not told

him that during his treatment, he was present there

while PW-2 Ram Naresh Singh has stated that he went

with Chandreshwar Pratap Singh to Faizabad hospital


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and there-from to Mayo Hospital, Lucknow and

remained there upto 12.9.2001 and came back to

Gonda and again went to Mayo Hospital on 14.9.2001.

But no such statement was given by him to PW-11 Lam

Mani. On the contrary, PW-11 Lal Mani, Investigating

Officer of the civil police has stated that PW-2 Ram

Naresh Singh told him that he got the information of

this death. This fact was not disclosed by the witness to

the Investigating Officer and for the first time, PW-2

Ram Naresh Singh and PW-3 Vijay Pratap Singh have

come with a case that in their presence, statement of

Chandreshwar Pratap Singh was recorded by PW-11 Lal

Mani. So such a statement before the court for the first

time by PW-2 Ram Naresh Singh and PW-3 Vijay Pratap

Singh comes within the purview of an improvement that

cannot be relied upon keeping in view the

pronouncement of Hon'ble the Apex Court in the case of

Yudhishtir Vs. State of Madhya Pradesh reported in

1971 (3) SCC 436 wherein Hon'ble the Apex Court has

held that if any fact is not disclosed in the F.I.R. or

during investigation and for the first time, it is stated

during trial, then the said statement would amount to

an improvement and cannot be relied upon. Hon'ble the

Apex Court has considered this point in paragraph no.

24 of the said judgment, which reads as under:-


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


these omissions, pointed out above, are not
minor, but they are omissions of a very
substantial nature, which affect the truth of
the evidence given before the Court. On the
earliest occasion, these witnesses have
omitted to refer to the decisive role stated
to have been played by the appellants in
the commission of murder. Therefore, the
statement before the Court implicating
appellants must, in the circumstances, be
considered to be an improvement. ”

43. On the point of dying declaration of deceased, PW-

10 Ramesh Chandra Singh, Investigating Officer of

CBCID, who has taken up the investigation after the

death of Chandreshwar Pratap Singh has recorded the

statement of PW-1 Shiv Bux Singh and PW-3 Vijay

Pratap Singh. According to the prosecution version, PW-

1 Shiv Bux Singh came to Gonda and lodged F.I.R. on

11.9.2001 and thereafter he went to Lucknow and

remained in the hospital. PW-3 Vijay Pratap Singh has

stated that he remained in the hospital, PW-2 Ram

Naresh Singh has also stated during trial that in his

presence statement of deceased Chandreshwar Pratap

Singh was recorded by the Investigating Officer. Similar

statement was given by PW-3 Vijay Bahadur Singh

during trial. But the statement on this point given by

PW-1 complainant Shiv Bux Singh and PW-3 Vijay

Pratap Singh are very very important and virtually the

said statements lead to the only conclusion that dying


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declaration of deceased Chandreshwar Pratap Singh is a

fabricated document and is brain child of initial

Investigating Officer of civil police namely, PW-11 Lal

Mani. PW-10 Ramesh Chandra Singh Yadav has proved

statement of PW-1 Shiv Bux Singh under Section 161

Cr.P.C. wherein he has told the Investigating Officer that

“ 9-9-2001 ls 16-9-2001 ds e/; fdlh mPpkf/kdkjh tSls MkDVj]

eftLVsªsV] iqfyl v/kh{kd] ,l0 vks0 ,l0 vkbZ0 vkfn us esjs iq= dk

c;ku vafdr ugha fd;k vkSj tuin xksaMk ds Fkkuk uokcxat dh iqfyl

HkrhZ ds e/; y[kuÅ ns[kus ;k c;ku vafdr djus ughsa vk;hA”.

Similar statement was given by PW-3 Vijay Pratap

Singh. Such statements lead to the only conclusion that

by the time their statement was recorded by the

Investigating Officer of CBCID the said dying declaration

was not even in existence. When we examine the case

diary in the light of the aforesaid statements of these

two witnesses then we found that dying declaration of

the deceased was recorded on a different case diary.

Paper book number of the said case diary was 5262 and

it was recorded on pages no. 99-100 while the case

diary of this case was on book no. 27632 and it started

from page no. 42 after the statement of Chandreshwar

Pratap Singh, which was on different pages of a

different volume of case diary, again the old case diary

started from page no. 48. Page no. 47 of the case diary
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was not the part of the case diary of Case Crime No.

114-A of 2001.

44. All these circumstances were not the least

considered by the trial court and he found that the

dying declaration was wholly reliable. But keeping in

view the aforesaid circumstances we conclude that the

dying declaration was a fabricated document, which was

brain child of PW-11 Lal Mani. Therefore, no reliance

can be placed on such a dying declaration.

45. The trial court has discarded the cross-version only

by a single stroke, without appreciating the evidence,

that the incident of this case has taken place at 11:00

a.m., in which Chandreshwar Pratap Singh sustained

injuries then there was no question of his participation

in the incident at 11:30 a.m. as claimed by the accused

persons. We find that this approach of the trial court

was erroneous and was the result of improper

appreciation of evidence. There was absolutely nothing

on record to infer that two incident had taken place at

two different times. Deceased Chandreshwar Pratap

Singh and appellant Om Prakash Tiwari, both have

sustained injuries in one and the same incident. The

Investigating Officer of CBCID Ramesh Pratap Singh has

admitted in his cross examination that during

investigation, he could not get any evidence that Om


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Prakash Tiwari has sustained injuries at any place other

than the place of occurrence. Apart from it, the F.I.R. of

this case was lodged after two days and at that time,

the registration of the cross case against Chandreshwar

Pratap Singh and two other unknown persons must be

within the knowledge of the complainant side. So simply

because they had stated that the incident has taken

place at 11:00 a.m. would not mean that two incidents

at two different times had taken place rather it is only

cross-version of the same incident. It is really strange

to note that during investigation absolutely no effort

was made by the Investigating Officer to work out the

names of the unknown persons, who were occupants of

the jeep and were cited as accused in the said case.

While this fact could have been very easily ascertained

by the owner of the jeep, who has been examined in

this case as CW-1 and has disclosed the name of the

driver of his jeep. Admittedly the said jeep was taken

into police custody by the police in a damaged condition

and its head lights and front glass were also broken.

Therefore, we are of the view that approach of the trial

court to discard the defence theory out rightly without

examining its probability was not in accordance with

law. Law is settled on the point that prosecution is

obliged to prove its case beyond reasonable doubt and


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the defence is obliged only to show that his defence was

probable. On this point, reference may be made to the

pronouncement of Hon'ble the Apex Court in the case of

Shudhakar Vs. State of Madhya Pradesh reported in

(2012) 7 SCC 569 wherein Hon'ble the Apex Court has

held in paragraph no. 10 as under:-

“10. It is a settled principle of law that the


prosecution has to prove its case beyond
any reasonable doubt while the defence has
to prove its case on the touchstone of
preponderance and probabilities. Despite
such a concession, the accused has
miserably failed to satisfy the court by
proving his stand which itself was vague,
uncertain and, to some extent, even
contradictory.”

46. Learned A.G.A. has vehemently argued that

original defence papers, which have been proved during

trial, how those papers came on record, is a mystery.

But we do not consider it the least important to explore

this reason because not even a single question on the

point of admissibility of these documents was raised on

behalf of the prosecution during trial. On the contrary

injuries of appellant Om Prakash Tiwari were proved by

the prosecution itself.

47. Submission of learned A.G.A. was that since the

site plan of Case Crime No. 114-A of 2001 was not

challenged and PW-11 Lal Mani was asked only to prove

the site plan of Case Crime no. 114 of 2001. So the


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facts mentioned in the site plan of Case Crime No. 114-

A of 2001 stands admitted. Thus the fact that TATA 407

was parked on the road and with the aid of the same,

the road was blocked stands admitted. But we do not

find any substance in this argument. First reason is that

the Investigating Officer has nowhere mentioned that

when he reached the place of occurrence at that time

TATA 407, was parked on the road. During entire

investigation, said TATA 407 was not taken into custody.

So the presence of TATA 407 on the road has been

shown by the Investigating Officer as told by the person

on whose pointing out the site plan was prepared.

Therefore, the Investigating Officer himself was not a

witness of this fact mentioned in the site plan and to

this extent it was a hearsay evidence so far as

Investigating Officer is concerned. But in the site plan of

the cross-case, he has shown the existence of the jeep,

which was also recovered by the police in damaged

condition. Site plan of the cross-case has been proved

in defence. There is yet another very important ground

to exclude this submission of learned A.G.A. Even for

the sake of argument, we admit that simply because

the site plan has not been challenged so TATA 407 was

parked on the road becomes admitted fact but then we

will also have to conclude on the basis of un-


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controverted site plan that the witnesses were not

present at the scene of occurrence because the

Investigating Officer has not shown any place where-

from any witness has witnessed the incident in the site

plan of Case Crime No. 114-A of 2001. We are

conscious of the legal position that the evidence of the

witnesses recorded during trial is substantive evidence

and the case has to be decided on the basis of the

substantive evidence. The injuries sustained by Om

Prakash Tiwari in the cross-case is an admitted fact.

During trial, the prosecution itself has proved his injury

report. Appellant Om Prakash Tiwari was examined by

the same doctor, who has examined deceased

Chandreshwar Pratap Singh and the same witness has

proved the injury report of Om Prakash Tiwari as Ex.

Ka-7 however, the defence has also proved it as Ex.

Kha-4. So the injuries sustained by appellant Om

Prakash Tiwari is an admitted fact. Admittedly

absolutely no explanation has been furnished from the

side of prosecution explaining such injuries. It has come

in evidence that because of the injuries, his right leg

was fractured.

48. Mr. I.B. Singh, learned Senior counsel has

vehemently argued that in the statement of appellants

recorded under Section 313 Cr.P.C., date time and place


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has been admitted and the manner in which the incident

has taken place stands established by the evidence of

two eye-witnesses. So the prosecution has been

successful in proving its case beyond reasonable doubt.

49. We have gone through the statement of accused

persons some of the accused persons have replied the

question no. (1) as true wherein the time of incident

was mentioned as 11:00 a.m. In rural background, it is

very common that the persons inspite of telling the

exact time, tells the approximate time. Statement of the

accused has to be considered as a whole. Appellants in

reply to the question whether they also wants to say

anything have stated the manner in which the incident

has actually taken place according to them. According

to their statements some of the appellants have stated

that they are resident of a village situated at a distance

of 11 km. situated in a different police station. Law is

settled on the point that the prosecution must stand at

its own legs and it cannot take the benefit of weakness

of the defence. If the prosecution admits the statement

under Section 313 Cr.P.C. then it has to be considered

as a whole and it is not permissible under law to accept

only one part of his statement, which supports the

prosecution and to exclude the remaining part.

50. Hon'ble the Apex Court in the case of Nagaraj Vs.


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State represented by Inspector of Police, Salem

Town, Tamil Nadu reported in 2015 (4) SCC 739 has

discussed the object of Section 313 Cr.P.C. and has held

in paragraph no. 15 as under:-

“15. In the context of this aspect of the


law it is been held by this Court in
Parsuram Pandey v. State of Bihar (2004)
13 SCC 189 that Section 313 Code of
Criminal Procedure is imperative to enable
an accused to explain away any
incriminating circumstances proved by the
prosecution. It is intended to benefit the
accused, its corollary being to benefit the
Court in reaching its final conclusion; its
intention is not to nail the accused, but to
comply with the most salutary and
fundamental principle of natural justice i.e.
audi alteram partem, as explained in Arsaf
Ali v. State of Assam (2008) 16 SCC
328. .......................”

In the case of Nar Singh Vs. State of Haryana

reported in (2015) 1 SCC 496 Hon'ble the Apex Court

has considered the object of Section 313 Cr.P.C. and has

observed in paragraph no. 16 as under:-

“16. Undoubtedly, the importance of a


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


Procedure statement is raised in the
appellate court, then difficulty arises for the
prosecution as well as the accused. When
the trial court is required to act in
accordance with the mandatory provisions
of Section 313 Code of Criminal Procedure,
failure on the part of the trial court to
comply with the mandate of the law, in our
view, cannot automatically enure to the
benefit of the accused. Any omission on the
part of the Court to question the accused
on any incriminating circumstance would
not ipso facto vitiate the trial, unless some
material prejudice is shown to have been
caused to the accused. Insofar as non-
compliance of mandatory provisions of
Section 313 Code of Criminal Procedure, it
is an error essentially committed by the
learned Sessions Judge. Since justice
suffers in the hands of the Court, the same
has to be corrected or rectified in the
appeal.”
In the case of Jitendra Kumar Vs. State of Haryana

reported in (2012) 6 SCC 204, Hon'ble the Apex Court

has again occasioned to this consider this aspect and

has observed in paragraph no. 73 as under:-

“73. The proposition of law advanced by


the counsel for the Appellants cannot be
disputed. The fact of the matter remains
that statement of Ratti Ram under Section
313 Code of Criminal Procedure is part of
the judicial record and could be used
against Ratti Ram for convicting him, if the
prosecution had proved its case in
accordance with law. .............”

In the case of Balaji Gunthu Dhule Vs. State of

Maharashtra reported in (2012) 11 SCC 685 wherein

Hon'ble the Apex Court in paragraph no. 7 has observed

as under:-
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“7. This Court in Manu Sao v. State of


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

51. Thus in view of the aforementioned legal position,

it is clear that the statements given by the accused

persons can be used for the purpose of appreciation of

evidence and can also be used for corroboration of the

prosecution evidence. But the burden of the prosecution


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to prove its case beyond reasonable doubt is not

reduced to any extent.

52. In the facts of the instant case, though it is

admitted that some of the accused persons have

admitted the first question put to them under Section

313 Cr.P.C. wherein the time of alleged incident as

11:00 a.m. was mentioned. But as discussed earlier,

only one incident has taken place and the Investigating

Officer has categorically stated that he got no evidence

that Om Prakash Tiwari received injuries at any other

place. Thus simply because the accused persons have

stated in their statements under Section 313 Cr.P.C.

that incident has taken place at about 11:00 a.m., then

the same cannot be taken to be their confession of the

offence because in the last reply, they have also

furnished the manner in which the incident has taken

place. So in the facts of the instant case, keeping in

view the aforementioned legal position, conviction of

the appellants cannot be based only on the basis that in

reply to the question no. (1), some of the appellants

have admitted the time of incident as 11:00 a.m.

Admittedly the place of occurrence of both the offences

was one and the same. There is absolutely no evidence

to infer that two different incidents at two different


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places had taken place. Virtually there are two different

versions of the same incident. F.I.R. of this case was

lodged after about two days of the registration of the

cross-case. So possibility that deliberately time of

incident was changed in the F.I.R. cannot be ruled out.

53. Law is settled on the point that if the prosecution

succeeds in proving its case only then the probability of

the defence theory is to be considered. Though in this

case we are of the view that the prosecution has not

been successful in proving its case beyond reasonable

doubt but inspite of that, we consider it appropriate, in

the peculiar facts of this case, to examine the

probability of the defence theory. According to the

admitted case of the prosecution, deceased

Chandreshwar Pratap Singh was coming on jeep, which

was driven by some other person and cleaner and

others were also present in the jeep but the prosecution

has utterly failed to disclose the identity of those

persons and to our opinion it has deliberately withheld

the name of these persons, who were occupants in the

jeep along with Chandreshwar Pratap Singh under the

apprehension that true facts may not come to light and

chance witnesses were introduced. On the contrary, the

purpose for which deceased Chandreshwar Pratap Singh

was coming, has also not been explained neither during


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investigation nor during trial. Not even a single person

of the vicinity has come to say that any road was

blocked by TATA 407. The incident has taken place on

the main road which goes from Gonda to town

Nawabganj and if the road was blocked then the traffic

must have stopped and there must have been several

vehicles parked on both the sides of the road but no

such statement has come forward in evidence of any of

the eye-witness. The prosecution story with which the

prosecution has come forward does not explain the

injuries of appellant Om Prakash Tiwari. On the

contrary, when we examine the defence theory then the

only conclusion that can be derived was that it was

most probable version of the story. Admittedly there

was dispute of plying the minibus without paying the

taxes and without taking token. As per the evidence of

defence witness, TATA 407 was chased and it was at

some distance stopped by deceased Chandreshwar

Pratap Singh after chasing it on a jeep and because of

the misbehaviour of Chandreshwar Pratap Singh with

the driver and with the public sitting on TATA 407

(minibus) on his insistence to take the jeep back to taxi

stand and not to accept the request of the driver of the

TATA 407 that he will make the payment of both the

sides after coming to the taxi stand and on the


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interference of appellant Om Prakash Tiwari, the jeep

was raided on him, which was recovered from the same

place as claimed in the defence version. The public

assembled there, because of this misbehaviour of

deceased Chandreshwar Pratap Singh, has beaten him

due to which he sustained injuries. Thus the defence

theory finds corroboration by the fact that a damaged

jeep was recovered by the police and Om Prakash Tiwari

sustained injuries. The purpose for which deceased

Chandreshwar Pratap Singh came to the place of

occurrence also stands established by the defence

theory while on the contrary neither the purpose for

which deceased Chandreshwar Pratap Singh came to

the place of occurrence nor the purpose as to why his

jeep was damaged and how Om Prakash Tiwari

sustained injuries remains absolutely unexplained by

the prosecution evidence. Thus in our considered

opinion, the defence theory was more probable and

accordingly we are of the considered view that the

prosecution has utterly failed to prove its case beyond

reasonable doubt. The aforementioned appeals

preferred by appellants challenging the conviction

deserve to be allowed, consequently the State appeal

deserves to be dismissed.

54. In view of the discussion made above, all the


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aforesaid criminal appeals preferred by convicted

appellants deserve to be allowed and are hereby

allowed. The judgment and order dated 17.12.2008

passed by learned Additional Sessions Judge, Fast Track

Court No. 2, Gonda in Sessions Trial No. 177 of 2004

arising out of Case Crime No.114-A of 2001, Police

Station Nawabganj, District Gonda is hereby set aside.

They are acquitted of the charges levelled against them.

The accused appellants are on bail. They need not to

surrender. Their bail bonds are cancelled and sureties

discharged.

55. Criminal Appeal No. 1781 of 2009 preferred

by the State is hereby dismissed.

56. Office is directed to certify this order to the court

concerned forthwith to ensure compliance and also to

send back the lower court record.

Order Date :-26.5.2016 (Anil Kumar Srivastava-II, J.) (S.V.S. Rathore, J.)
Virendra