CASE DETAILS v. STATE OF UTTAR PRADESH

From the Judgment and Order dated 22.02.2017 of the High Court of Judicature at Allahabad in CCN No. 3520 of 2015 and RN No. 09 of 2015. With Criminal Appeal No. 1790 of 2017. Appearances: Anand Grover, Sr. Adv., Aarif Ali, Mohd. Irshad Hanif, Ms. Shreya Rastogi, Mujahid Ahmed, Mohd. Ehatsham Rao, Kailesh U. More, Khalid Azeez, Bhavesh Seth, Aditya P. Rath, Ms. Harini Raghupathy, Manish Kumar Vikkey, Ms. Sunita Sharma, Himanshu Mehra, Ms. Kanchan Jha, Advs. for the Appellant. Brijender Chahar, Sr. Adv., Vishwa Pal Singh, Dr. Vijendra Singh Mahndiyan, Mukesh Kumar, Bharpur Singh, Sandeep Kumar, Ashutosh Bhardwaj, Advs. for the Respondent. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT B. R. GAVAI, J.

These appeals challenge the judgment and order dated 22nd February 2017, passed by the Division Bench of the High Court of Judicature at Allahabad in Capital Case Nos. 3359 and 3520 of 2015 with Reference No. 9 of 2015 and Criminal Appeal No. 3519 of 2015, thereby dismissing the appeals fi led by appellant Madan and another accused Ishwar; whereas, it allowed in part, the appeal fi led by appellant Sudesh Pal. By the said judgment, the High Court confi rmed the judgment and order of conviction and sentence dated 31st July 2015 passed by the Court of Additional Sessions Judge, Court No. 3, Muzzaff arnagar (hereinafter referred to as “trial court”) in Sessions Case No. 09/2005 with Sessions Case No. 838 of 2005 and 10/2005, in respect of appellant – Madan, while 770 SUPREME COURT REPORTS [2023] 16 S.C.R. commuting the sentence of capital punishment to life imprisonment in respect of appellant – Sudesh Pal.

Shorn of details, the facts leading to the present appeals are as under:

2.1 The First Information Report (“FIR” for short) was lodged on a written report given by informant Lokendra (PW-1), on 14th October 2003 at P.S. Babri, District Muzzafarnagar, which was registered as Crime No. 197 of 2003, for off ences punishable under Sections 147, 148, 149, 302, 307, 323 and 452 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). The incident took place at 5.30 PM and the FIR came to be registered on the same day at 7.40 PM.

2.2 The report was recorded by one, Naresh Pal s/o Vijay Pal r/o village Barwala, District Baghpat on the oral report of Lokendra (PW- 1). According to the FIR, Smt. Vimla Devi, who was the mother of Ram Kishan, cousin of Lokendra (PW-1), was a candidate in the election for Gram Pradhan; whereas the wife of one Arshad was the opposing candidate. On the one hand, Lokendra (PW-1) supported the candidature of Vimla Devi; whereas, the family of appellant Madan and Ram Bhajan supported the candidature of the wife of Arshad. When Vimla Devi came to be elected as Gram Pradhan along with Lokendra (PW-1), who also came to be elected as a member of the Gram Panchayat, appellant Madan and his family members bore a grudge with Lokendra (PW-1) and others on account of the feeling of jealousy.

2.3 The FIR states that on 14th October 2003, at about 5.30 PM, when Satendra, the real brother of Lokendra (PW-1), his nephew Sunil s/o Chandrapal, cousin Ram Kishan s/o Narain Singh @ Lala, Sukhpal Singh (PW-2) s/o Lotan Singh and his father Jai Singh (PW-8) s/o Ganga Ram were going to the house of Up-Pradhan Rizwan s/o Irshad Khan (PW-7) for discussing problems of the village, and had reached the house of Rashid s/o Mustafa, appellant Madan along with Rajveer, Ram Bhajan, Ramveer, and Kanwar Pal who were the sons of Ishwar along with Ishwar himself, who was the brother-in-law (sala) of appellant Madan, also known as Pahalwan, appellant Sudesh Pal, who was the real brother-in-law (sadu) of appellant Madan along with Neetu, who was the nephew of appellant Madan, armed with licensed guns, rifl es and country-made pistols came from behind and MADAN v. STATE OF UTTAR PRADESH [B. R. GAVAI, J.] 771 started fi ring indiscriminately. As a result of the said fi ring, Satendra and Sunil fell down on ‘Khadanja’. When Masooq Ali s/o Abdul Gaff ur came out of his house upon hearing the sound of gunfi re, the accused persons shot fi re at him due to which he also fell down. Following which, Ram Kishan and Sukhpal Singh (PW-2) ran away to save their lives. Ram Kishan thereafter entered into the house of the Up-Pradhan Rizwan.

2.4 It is further stated in the FIR that the accused persons thereafter entered the house of Up-Pradhan Rizwan and fi red shots at Ram Kishan, Rizwan and Rihan. They also fi red shots at Sukhpal Singh (PW-2). Ram Kishan, Sunil and Satendra died on the spot. When Mumtaz Khan (PW- 5) s/o Imtyaz reached at the place of incident, the accused persons fi red shots at him as well. The accused persons further assaulted Jai Singh (PW-8), father of Lokendra (PW-1) with the ‘butt’ of the gun who then ran away to save his life. Following which, when the villagers were taking Rizwan, Rihan, Masooq Ali, Sukhpal Singh (PW-2) and Mumtaz Khan (PW-5) to the hospital; Rizwan, Rihan and Masooq Ali succumbed to their injuries and died on the way and their bodies were accordingly kept in their houses. When the accused persons were fi ring at the place of the incident, Ram Pal s/o Salet, Sudhir (PW-11) s/o Mahendra, Anil (PW-3) s/o Chandrapal, Mahesh Pal (PW-4) s/o Prahlad, Harpal Singh (PW-10) s/o Dhara, Mahipal s/o Atal Singh along with other villagers reached and saw the said incident. Lokendra (PW-1) also reached the place of the incident and witnessed the incident with his own eyes and requested to register the report and take legal action.

2.5 The FIR was registered and the investigation was subsequently taken over on 14th October 2003 by Mr. Raghunandan Singh Bhadauria (PW- 24), who was the then Station House Offi cer (for short ‘SHO’). He recorded the statement of Lokendra (PW-1) and proceeded to the place of the incident in front of the house of Rashid s/o Mustafa where he found the dead bodies of Satendra, Jai Singh (PW-8) and Sunil in a pool of blood. The dead body of Masooq Ali s/o Abdul Gafoor was on the cot in his house. When he reached the house of Rizwan, where he found the dead bodies of Rizwan and Rihan s/o Irshad Khan (PW-7) lying on the cot, whereas the body of Ram Kishan s/o Narain Singh was found lying in a pool of blood in the veranda of the said house. Upon inspection of the place of the incident, Raghunandan Singh 772 SUPREME COURT REPORTS [2023] 16 S.C.R. Bhadauria (PW-24) found empty cartridges near the dead body which were taken into possession. Three empty cartridges of 12 bore 9 mm were found and taken into possession in the presence of witnesses Anil Kumar (PW-3) s/o Chandrapal Jat and Sri Dheer Singh s/o Prahlad Singh. The recovery memo (Ext. Ka – 2) was accordingly prepared and signed. He then took plain and blood-stained mud from the spot in the presence of the said witnesses. The recovery memo for the same was prepared and kept sealed in two separate containers (Ext. Ka-3). He also collected plain and blood-stained mud from where the bodies of Rizwan, Rihan and Ram Kishan were lying and a recovery memo (Ext. Ka – 6) was prepared to that eff ect. Further, empty cartridges of 12 bore 9 mm, 5 bullets along with another such bullet were recovered and taken into custody which were then sealed in the presence of the witnesses. However, Raghunandan Singh Bhadauria (PW-24) could not recover the blood-stained mud from the place where Masooq Ali, Rizwan and Rihan fell down and were subsequently taken to the hospital due to the movement of persons at the place of occurrence.

2.6 The Investigating Offi cer then recorded the statement of other witnesses after which he inspected the place of the incident and prepared the site plan. After panchayatnama of the dead bodies, the same were sent for post-mortem examination through Head Constable Surendra Singh, Head Constable Ram Kumar, Constable Yashpal and Constable Satya Prakash. After Raghunandan Singh Bhadauria (PW-24) was transferred, the investigation was taken over by Surajpal Singh (PW-23), SHO on 18th October 2003. He took steps to execute non-bailable warrants issued against the accused persons and also took steps to initiate proceedings under Sections 82-83 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”). After the copies of the post-mortem report were obtained, the same were noted and enclosed with the C.D. of the deceased Ram Kishan, Masooq Ali, Rizwan, Rihan, Satendra and Sunil. Statements of witnesses Sudhir (PW-11), Harpal Singh (PW-10), Mahesh Pal (PW-4), and Mahipal were recorded at village Butrada. Surajpal Singh (PW-23) also recorded the statements of Rashid Sachdev and Ram Mehar, who were the witnesses of the panchayatnama. During investigation, Surajpal Singh (PW-23) received information that one co-accused, who was involved along with the accused persons named in the FIR had died in the same incident and his body was taken away by the accused persons and the same was found and recovered MADAN v. STATE OF UTTAR PRADESH [B. R. GAVAI, J.] 773 from the jungle (agricultural fi eld) of village Pinana regarding which, Case Crime No. 799 of 2003 was registered at P.S. Kotwali, for off ences punishable under Sections 302 and 201 of IPC. Surajpal Singh (PW-23) thereafter recorded the statements of other witnesses and also raided the house of the accused persons.

2.7 Thereafter, investigation was transferred and taken over on 21st December 2003 by Inspector Adesh Kumar Sharma (PW-20), EOW, Meerut. Accused persons Ishwar and Kunwar Pal were taken in police remand. He then proceeded to the place of the incident along with police personnel for the recovery of weapon; whereupon, a country-made pistol and the gun used in the incident were recovered at the instance of accused persons Ishwar and Kanwar Pal. Further, one empty cartridge was found in the gun whereas one empty cartridge of 9 mm was found in the country-made pistol. Both the fi re-arms were in operating condition and the Recovery Memo for the gun and the country-made pistol were prepared and sealed in two separate clothes. Following which, panchayatnama was prepared by Sub-Inspector Surendra Singh (PW-16) with regards to the three deceased, namely, Masooq Ali, Rihan and Rizwan. Additionally, panchayatnama and inquest reports with regards to the deceased, namely, Ram Kishan, Satendra and Sunil were prepared by another Sub-Inspector.

2.8 Subsequently, the investigation was transferred and handed over to Bahadur Singh Chauhan, the then C.B.C.I.D. (PW-17) on 13th January 2004 by the orders of higher authority. Bahadur Singh Chauhan (PW-17) recorded the statement of Lokendra (PW-1), inspected the place of the incident and accordingly prepared a site plan. The statements of other witnesses were also recorded. Bahadur Singh Chauhan (PW-17) thereafter recorded the statements of earlier investigating offi cers in C.D.

2.9 Subsequently, the investigation was again transferred from C.B.C.I.D. to the civil police. After the chargesheet was submitted by Bahadur Singh Chauhan (PW-17) against appellant Madan along with other accused persons, namely, Kanwar Pal and Ishwar; the investigation was taken over by the then S.H.O. P.S. Babri, Siddh Narayan Yadav on 18th October 2004 who was examined as PW-19. Siddh Narayan Yadav (PW-19) submitted the chargesheet against appellant Sudesh Pal and another accused person who was absconding at the time. Siddh Narayan Yadav (PW-19) was 774 SUPREME COURT REPORTS [2023] 16 S.C.R. the fi fth IO of this case and he also submitted a chargesheet against accused Rajvir along with other accused persons.

2.10 The post-mortem of deceased Ram Kishan was conducted by Dr. Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 12.50 PM. The injuries sustained by deceased Ram Kishan are thus:

1. Wound of fi rearm 4 cm X 1.5 cm in depth of the muscle in the right side off ace and aside of the nose. Around the wound there were tattooing in the area of 20 cm x 7 cm.

2. Wound of entering of 8 fi rearms 20 cm X 19 cm towards left side of chest which was in deep ranging from ½ cm X ½ cm from the surface of the chest. Around the wound no blacking and tattooing were present. One metal pellet was taken out from the cavity of the chest.

Wound of entering of fi rearm ½ cm X ½ cm X till the cavity of abdomen, towards left of abdomen and 1 cm above of tunica crest.

Wound of entering of fi rearms towards right side of the chest, 5 m away from the right side nipple. As per position of 2 hrs. 1.5 cm X 1 cm in deep in the cavity of the chest.

Wound of entering of fi rearm ½ cm X ½ cm in deep of cavity of the abdomen, around 5 cm away from the right side navel, in the position of 8 hrs.

Mark of bruises towards the opposite of chest in the area of 1.4 cm X 7 cm in right side of the chest.

Wound of exit of fi rearm in the area of 33 cm X 21 cm, towards back side of the chest and was in deep from 2 cm X 1.5 cm to 1cm X 1 cm in the cavity of the chest.

Wound of entering of fi rearm 1.5 cm X 1 cm in depth of the muscle, beneath knee on right forearm.

Wound of exit of fi rearm 3.5 cm to 3 cm in depth of the muscle in the mid of right side arm in the correspondence of injury No. 8 which is wound of entering of fi rearm. MADAN v. STATE OF UTTAR PRADESH [B. R. GAVAI, J.] 775

Wound of entering of fi rearm in depth of muscle from 1 cm X ½ cm, in the inner portion of left upper side arm but 5 cm beneath from armpit. Around the wound the tattooing was present.

Wound of exit of fi rearm in depth of the muscle 1 cm X 1.5 cm, corresponding the injury No. 10.

Brusted wound in the area of 1.5 cm X 6 cm to 2.5 cm X 1 cm deep in the muscle.

2.11 The post-mortem of deceased Masooq Ali was conducted by Dr. Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 1.30 PM. The injuries sustained by deceased Masooq Ali are thus:

1. Wound of entering of fi rearm measuring ½ cm X ½ cm deep in the cavity of the chest and 8 cm away from left side nipple in the position of 11.00 hrs.

2. Wound of exit of fi rearm measuring 2 cm X 1.5 cm in deep in the cavity of chest, towards right side of chest beneath 11 cm of armpit and 14 cm away from the nipple in the position of 9 hrs.

2.12 The post-mortem of deceased Rizwan was conducted by Dr. Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 1.45 PM. The injuries sustained by deceased Rizwan are thus:

1. Wound of entering of fi rearm in deep of cavity of chest measuring ½ cm X ½ cm towards left side of chest, 2 cm beneath the outer portion of clavicle.

2. Wound of entering of fi rearm in deep of cavity of chest measuring 1 cm X 1 cm in front of the left side of chest 4 cm away from left nipple in the position of 7.00 hrs.

3. Wound of exit of fi rearm 2 cm X 1.5 cm in deep of the cavity of the chest towards back side of the chest 3 cm away from the middle line in right side and 7 cm beneath the neck corresponding the injury No. 2.

2.13 The post-mortem of deceased Rihan was conducted by Dr. Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 2.10 PM. The injuries sustained by deceased Rihan are thus: 776 SUPREME COURT REPORTS [2023] 16 S.C.R.

1. Wound of entering of fi rearm 1.2 cm X 1.2 cm in deep of the bone, on upper side of the left shoulder. Around the wound tattooing was present. The bone beneath the injury was fractured.

2. Wound of exit of fi rearm 1 cm X 1 cm in deep of the cavity of the chest towards right side of the chest, 12 cm beneath of imprear angle of Scapula and 15 cm away from the middle line.

2.14 The post-mortem of deceased Satendra was conducted by Dr. Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 2.30 PM. The injuries sustained by deceased Satendra are thus:

1. Wound of entering of fi rearm ½ cm X ½ cm in deep of the bone towards the back side of the right shoulder and 7 cm beneath the upper portion. The bone beneath the injury was fractured.

2. Wound of exit of fi rearm 1.5 cm X 1 cm corresponding the injury No. 1 and on outer portion of right side collarbone.

3. Wound of exit of fi rearm ½ cm X ½ cm in deep of cavity of chest, towards left side of chest and 7 cm beneath the left nipple in the position of 7.00 hrs.

4. Wound of exit of fi rearm 2 cm X 1 cm in deep of cavity of the chest towards back side of left side chest, 16 cm beneath the scapula corresponding the injury.

2.15 The post-mortem of deceased Sunil was conducted by Dr. Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 3.00 PM. The injuries sustained by deceased Sunil are thus:

1. Wound of entering of fi rearm 4 cm x 3 cm in the deep of the cavity of the chest towards left side of the chest and 11 cm away from nipple in the position of 11.00 hrs.

2. Second and third rib beneath the injury were fractured.

3. The small four metal pellet and a bending piece of plastic in cylindrical shape was taken out from the cavity of the chest.

2.16 After completing the investigation, chargesheet came to be submitted against the arrested accused persons along with absconding ones in the court of jurisdictional Magistrate. Since the case was exclusively triable MADAN v. STATE OF UTTAR PRADESH [B. R. GAVAI, J.] 777 by the Sessions Court, the same came to be committed to the Sessions Judge, Muzaff arnagar. Following which, charges were framed against appellants Madan and Sudesh Pal and other accused persons, namely, Kunwar Pal and Ishwar for off ences punishable under Sections 148 and 449, Section 302 read with Section 149, Section 307 read with Section 149, Section 323 read with Section 149 of IPC by the trial court; whereas, an additional charge for off ence punishable under Section 25 of the Arms Act, 1959 was framed against accused Ishwar.

2.17 Subsequently, accused Kunwar Pal absconded and the trial commenced against appellant Madan and co-accused Ishwar in Sessions Trial No. 09 of 2005, against appellant Sudesh Pal in Sessions Trial No. 838 of 2005 and against accused Ishwar in Sessions Trial No. 10 of 2005 for the charge under Section 25 of the Arms Act, 1959 arising out of Case Crime No. 204 of 2003. The accused persons denied the charges and pleaded to be tried.

2.18 The prosecution examined as many as 25 witnesses to prove the guilt of the accused persons. In the present case, three out of the six deceased persons, namely, Ram Kishan, Satendra and Sunil were related with Lokendra (PW-1) as his cousin, real brother, and nephew respectively. They were also related with Jai Singh (PW-8) and Anil (PW-3). The statements of the accused persons were recorded under Section 313 of Cr.P.C. wherein they denied the allegations against them and stated that they were not involved in the incident and were thus innocent. However, due to village election rivalry, they were being falsely implicated in this case but did not examine any witness in defence.

2.19 At the conclusion of trial, the trial court vide judgment dated 31st July 2015 held the accused persons guilty of committing the murder of six persons and accordingly convicted the appellants herein along with accused Ishwar for off ences punishable under Sections 148 and 449, Section 302 read with Section 149, Section 307 read with Section 149, Section 323 read with Section 149 of IPC, while accused Ishwar was also additionally convicted for the off ence punishable under Section 25 of the Arms Act, 1959. The trial court, observing the off ences committed by the appellants herein to have been falling in the ambit of the rarest of the rare case, imposed sentence of capital punishment to the appellants herein for the off ence punishable under 778 SUPREME COURT REPORTS [2023] 16 S.C.R. Section 302 read with Section 149 of IPC, while it sentenced accused Ishwar to imprisonment for life for the same. The trial court sentenced each of the three accused persons 3 years rigorous imprisonment under Section 148 of IPC; life imprisonment under Section 449 and Section 307 read with Section 149 of IPC and one year rigorous imprisonment under Section 323 read with Section 149 of IPC. The trial court further sentenced accused Ishwar to fi ve years rigorous imprisonment under Section 25 of the Arms Act.

2.20 Being aggrieved thereby, the accused persons preferred their respective appeals before the High Court with regards to the conviction and sentence awarded by the trial court. The High Court, by the impugned judgment, while commuting the sentence of appellant Sudesh Pal from capital punishment to imprisonment for life, dismissed the appeals fi led by appellant Madan and accused Ishwar and confi rmed their conviction and sentence awarded by the trial court. The High Court further confi rmed the Death Reference insofar as appellant Madan is concerned; whereas insofar as appellant Sudesh Pal is concerned, his appeal was partly allowed and the sentence of capital punishment imposed on him was converted to life imprisonment.

2.21 Being aggrieved thereby, the present appeals.

3. We have heard Shri Anand Grover, learned Senior Counsel appearing for appellant Madan in Criminal Appeal Nos. 1381-82 of 2017, Shri Manish Kumar Vikkey, learned counsel appearing for appellant Sudesh Pal in Criminal Appeal No. 1790 of 2017 and Shri Brijender Chahar, learned Senior Counsel appearing for respondent-State of Uttar Pradesh.

4. Shri Grover, learned Senior Counsel appearing for appellant Madan fi rstly, addressed us on merits of the matter. He submitted that the order of conviction as passed by the trial court and confi rmed by the High Court is not at all sustainable. He submitted that initially 11 witnesses were cited as eye witnesses. However, 7 of them have turned hostile. The prosecution case is therefore left with only 4 alleged eye witnesses i.e. Lokendra (PW- 1), Irshad Khan (PW-7), Harpal Singh (PW-10) and Sudhir (PW-11).

5. Shri Grover submitted that, from the testimony of Lokendra (PW- 1) itself, it can be seen that his presence at the scene of crime is doubtful. It is submitted that the evidence of this witness is contradictory to his MADAN v. STATE OF UTTAR PRADESH [B. R. GAVAI, J.] 779 original statement recorded under Section 161 Cr.P.C. There are substantial improvements in his evidence. Though in his statement recorded under Section 161 Cr.P.C., he stated that he was with a group of people, but in cross-examination he admitted that he was not walking along with the group, but was behind them by around 10 yards from the cross roads (towards the north) when the group of people reached Rashid’s house. He submitted that Lokendra (PW-1) admitted that he could not clearly see the place of incident or the group of people from where he was standing. He further submitted that the said witness has admitted that on hearing the sound of fi ring, he ran further northwards from the cross-roads from Rashid’s house and could not see the site.

6. Shri Grover submitted that there are also substantial contradictions in the testimony of Lokendra (PW-1) which casts doubt with regard to his presence at Rizwan’s house. He submitted that, in the chief-examination, this witness has stated that on witnessing the shooting at Rashid’s house, he ran towards Rizwan and Rihan’s house and took cover there and witnessed the incident at Rizwan’s house. However, in cross-examination, he contrarily stated that on hearing the sounds of fi ring, he ran further northwards from the cross-roads and stayed there for 15-20 minutes. From the evidence of Jai Singh (PW-8) and Sukhpal Singh (PW-2), father and uncle of Lokendra (PW-1) respectively, it is clear that Lokendra (PW-1) was not present at the place of incident. Even in the case registered by Lokendra (PW-1), he does not show himself to be an eye witness. It is submitted that there are contradictions in his testimony about the authorship of Tehrir.

7. Shri Grover submitted that if Lokendra (PW-1) had really accompanied the group, then certainly he would also have received some injuries. The learned Senior Counsel, relying on the judgments of this Court in the cases of Jaikam Khan v. State of Uttar Pradesh1 and Khema @ Khem Chandra v. State of Uttar Pradesh2, submitted that the testimony of this witness, being totally contradictory, cannot be relied upon for convicting the appellant Madan. 1 2 (2021) 13 SCC 716 2022 SCC OnLine SC 991 780 SUPREME COURT REPORTS [2023] 16 S.C.R.

8. Shri Grover further submitted that Irshad Khan (PW-7) is the father of deceased Rizwan and Rihan, who were allegedly shot at their own house. He submitted that there are material contradictions in the evidence of Irshad Khan (PW-7) also. It is submitted that, in his statement recorded under Section 161 Cr.P.C., Irshad Khan (PW-7) stated that he was present on the roof of the adjoining house and not inside the room in his house and hence, could not have witnessed the incident at his house. It is submitted that these contradictions have been put to him in cross-examination. It is submitted that non-examination of Mehmoona Begum, mother of deceased Rizwan and Rihan, who was present at the place of incident, also casts doubt about the presence of Irshad Khan (PW-7) at the place of incident. He submitted that if Irshad Khan (PW-7) was really present at the place of incident, then there was no reason as to why he did not receive any injury. The learned Senior Counsel submitted that the presence of this witness is not supported from his deposition given in Tehrir. It is submitted that the conduct of Irshad Khan (PW-7) in not informing the police about the incident also casts doubt about his presence.

9. Shri Grover submitted that the presence of Harpal Singh (PW- 10) at the place of incident is also doubtful. In his deposition, Harpal Singh (PW-10) has stated that he was at the village main road, 4-5 steps ahead of the victims at Rashid’s house. On hearing the sound of fi ring, he allegedly hid near Amanullah’s house at the time of incident. However, in his statement recorded under Section 161 Cr.P.C., he has stated that at the time of incident, he was near the private school rickshaw stand which was about 600 metres away from the place of incident. The learned Senior Counsel submitted that a perusal of the spot map would show that the private school is not near the place of incident. The learned Senior Counsel submitted that further the evidence of this witness is not corroborated by the injured witness or other eye witnesses including Sudhir (PW-11). It is further submitted that there are material contradictions with regard to time of incident in the deposition of the said witness and as such, the testimony of this witness is not credible.

10. Insofar as Lokendra (PW-1) is concerned, Shri Grover submitted that the testimony of the said witness suff ers from material omissions with regard to involvement of appellant Madan in the incident. In his statement MADAN v. STATE OF UTTAR PRADESH [B. R. GAVAI, J.] 781 recorded under Section 161 Cr.P.C., Lokendra (PW-1) had stated that there were 2-3 unknown people involved in the crime. Further in his testimony, there were material omissions in this regard. In his testimony, Lokendra (PW-1) vaguely mentioned that the appellant Madan and his family members were involved in the crime. However, he has not given any details with regard to the same.

11. Shri Grover further submitted that there is improvement in the evidence of Sudhir (PW-11) with regard to the cause of his presence at the place of incident. In his statement recorded under Section 161 Cr.P.C., Sudhir (PW-11) did not give any reason for his presence at the place of incident. It was for the fi rst time in court that he deposed about being in the locality in search of labourers to work in his fi eld. He submitted that there are serious lapses in the prosecution case inasmuch as though Sudhir (PW-11) is alleged to have accompanied Lokendra (PW-1) to Police Station Babri to register the Tehrir, he did not permit Sudhir (PW-11) to go inside the police station while registering the Tehrir. He submitted that such a conduct is not consistent with human nature. The learned Senior counsel therefore submitted that Sudhir (PW-11) would fall in the category of a chance witness and the testimony of such a witness cannot be relied upon without there being corroboration from any independent testimony. The learned Senior Counsel relies on the judgments of this Court in the cases of Acharaparambath Pradeepan and Another v. State of Kerala3 and Harjinder Singh alias Bhola v. State of Punjab4.

12. Shri Grover further submitted that there are material contradictions regarding the place where deceased Masooq Ali was shot. According to Lokendra (PW-1) and Harpal Singh (PW-10), Masooq Ali was shot and killed in front of his own house. However, this version is not supported by the testimony of Irshad Khan (PW-7).

Shri Grover submitted that all the aforesaid witnesses are related to the deceased and they or their relatives held posts in the village panchayat. He submitted that Lokendra (PW-1) is the brother of deceased Satendra, son of injured Jai Singh (PW-8) and cousin of deceased Ram Kishan. Sudhir 3 4