http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: ASHOK DIXIT AND ANR.

DATE OF JUDGMENT:       16/02/2000

BENCH: G.T.Nanavati, S.N.Phukan

JUDGMENT:

     PHUKAN, J

     This  appeal  by  the State is  directed  against  the judgment and order dated 16.08.1988 passed by the High Court of Allahabad in Criminal Appeal Nos.  2742, 2743 and 2338 of 1984  arising  out of Sessions Trial No.  202 of 1982.   The learned  Additional  Sessions  Judge,   Agra  in  the  above Sessions  Case convicted accused  respondents - Ashok Dixit and Chaman Lal under Sections 302 and 307 IPC and Section 25 of  the  Arms  Act  and  sentenced  them  accordingly.   Two separate  appeals  were filed before the High Court  by  the respondents-accused   and  one  appeal  by  the  State   for enhancement  of the sentence.  The High Court dismissed  the appeal  filed by the State and allowed the appeals filed  by the respondents-accused and acquitted them of their charges. On  8.8.1982,  at about 9.00 p.m., on hearing sound  of  gun shot  coming  from the house of deceased  Dr.   Dubey,  his brother  Bhagat Dayal Dubey  P.W.1, proceeded to the house of  deceased  Dr.   Dubey, alongwith his two sons.   In  the house  of  the deceased, he met two police officers   Vijai Bahadur  Singh    P.W.7, Station House  Officer  of  Police Station  Civil  Lines,  District  Etawah,  Sup-Inspector  of Police    Uma  Shanker Yadav, Raj Narain Singh   P.W.15 Compounder of deceased Dr.  Dube, Shri S.K.  Gupta- Advocate and one or two other persons of the locality.  The house was dark  as  there was no electricity and two  police  officers took  position  behind the varendah of the house  and  P.W.1 alongwith  his two sons stood near the grill of the  western varendah.   They  heard  shots from the first floor  of  the house  where deceased Dr.  Dubey, his wife deceased Manorama Dubey,  her  daughter  Kumari Ritu  P.W.3 and  Umesh  Chand Mishra   P.W.2  maternal uncle of deceased Manorama  Dubey were  residing.   At  the time, they saw  accused  Brijendra Kumar  tumbling  down  the  staircase to  the  ground  floor followed  by  present  two accused  respondents  Ashok  and Chaman  Lal,  and three accused were apprehended by the  two police  officers,  P.W.7  and Sub-Inspector    Uma  Shankar Dubey.   Electricity  was  restored when  the  accused  were apprehended.   P.W.1  with  his two sons went  upstairs  and found  deceased Dr.  Dubey lying in a pool of blood near the dining  table.  Deceased Manorama Dubey was lying in a  pool of blood on the dewan by the side of the wall of the drawing room  and  Munnu Singh was lying in the  injured  condition. PW-2  was also found in injured condition.  They were  taken to the hospital by PW-1 and one Pandey a tenant on the first floor  where  Dr.  Dubey was residing.  Dr.  Dubey  and  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

wife  were found dead.  P.W.2 and Munnu Singh were medically examined and given treatment.

     A  pistol and four live cartridges were recovered from the  possession of the accused Ashok and country made pistol and  five  live  cartridges from the possession  of  accused Chaman Lal and a country made pistol and two cartridges were recovered  from  accused  Brijendra Kumar.  The  two  police officers  did  not  go upstairs where  the  occurrence  took place.  They took the accused persons to the police station. Police  after investigation submitted charge sheet.  The FIR   Exh.1  was lodged by P.W.1 on the basis of  statement  of injured  Munnu Singh but he was not examined, therefore, the High  Court  was  of  the opinion that  the  FIR  cannot  be accepted as corroborating piece of evidence of the statement of P.W.1.  Accused Brijendra Kumar died.

     We  have heard Shri K.N.  Nagpal, learned counsel  for the appellant and Shri K.T.S.  Tulsi, learned senior counsel for the accused  respondents.

     Umesh Mishra  PW2 uncle of the deceased Manorama and Ritu    PW3 daughter of deceased  Dr.  Dubey were the  eye witnesses.  PW-2 used to live in the house of deceased  Dr. Dubey.  According to PW-2 while he along with deceased  Dr. Dubey  ,  his wife deceased  Manorama and their daughter Ritu-  PW3  were  sitting, Munnu Singh,  compounder  of  Dr. Dubey  called  Dr.  Dubey and he went out.  They  heard  gun shots  stood up and after some time Dr.  Dubey came and fell down  near  the  dining table.  Dr.  Dubey was  followed  by three  assailants.   One  assailant   fired  at  deceased Manorama.   Accused respondent Ashok fired at him and  also at  deceased    Manorama.   He got  panicky,  went  to  the verandah  and fell down and from there he heard the sound of firing.  At that point of time PW-1 and his two sons came up stairs and by that time electricity was restored.  Both PW-1 and  PW-2 went to the drawing room and they found Dr.  Dubey lying  on  the floor of the dining room and Manorama on  the dewan of the drawing room.  Munnu Singh who was also injured came  in  side and fell down.  PW-3 came out from beneath  a cot from the bed room.

     PW-2  has  stated  that accused-respondent  Ashok  was known to him and Dr.  Dubey and used to visit frequently the house  of Dr.  Dubey.  Accused  Chaman Lal was not known to him  earlier.   PW-2, Dr.  Dubey, Manorama and  Munnu  Singh were  taken  to  the hospital by PW-1 with the help  of  one Pandey  through the ground floor.  The accused persons after being  arrested were kept in the ground floor.  PW-2 did not mention  in  his  statement under Section  161  Cr.P.C  that accused    Ashok came along with other two accused  to  the first  floor and fired at him and Manorama and also the fact that  accused-Ashok and other two accused were in the ground floor.

     These  are  material omissions.  Therefore, we are  of the  opinion  that  these  omissions   are  fatal  for   the prosecution.   More,  particularly, when  accused-Ashok  was related and regular visitor to the house of Dr.  Dubey.  We, therefore,  hold that there was no identification by PW-2 of accused-  Ashok.   Regarding  accused-Chaman Lal  after  the occurrence  there was no test identification parade and  for the  first  time PW-2 identified the accused- Chaman Lal  in the  court.   This identification cannot be accepted.   PW-3 was  a  child witness and at the time of occurrence she  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

aged  9 ½ years old.  Occurrence took place on 08.08.82         but her  statement  under Section 161 Cr.P.C.  was  recorded  on 10.08.82  though after the occurrence she was residing  with her uncle which was at a stones throw from the house of Dr. Dubey.

     Law  is well settled that evidence of a child  witness must be evaluated carefully as a child may be swayed by what others  tell  him and as an easy prey to  tutoring.   Wisdom requires that evidence of a child witness must find adequate corroboration  before  it is relied on.  [see  Panchhi  and Ors.  Vs.  State of U.P.  1998 (7) SCC 177].

     The  High  Court was of the view that considering  her age at the time of occurrence PW-3 might have been sleeping. This cannot be said to be impossible.  PW-3 also has deposed that accused-Ashok was known to her family and used to visit their  house but accused  Chaman Lal was not known to  this witness.   She identified both the accused in the court.  At a time of occurrence there was no electricity, therefore, it is  difficult  to accept that she being aged 9 ½  years         old could   have  identified  accused-Chaman   Lal  during   the occurrence.  From the evidence of PW-1 and PW-2 we find that when they went to the bed room, PW-3 came out from beneath a cot.   This fact would support the contention that she might not have seen the occurrence.  We have already discarded the evidence  of  PW-2  on the point of  identification  of  the accused,  therefore, it will be risky to accept the evidence of PW-3 for the purpose of identification as her evidence is uncorroborated.   Dr.  Dubey was called by Munnu Singh.   He was  found in the injured condition in the up stairs by PW-1 and  PW-2  and  was also taken to the  hospital  along  with others.   This  material  witness was not  examined  and  no explanation has been given for his non-examination.  This in our opinion is fatal for the prosecution.

     According  to Mr.  Vijay Bahadur Singh PW-7,  Station House  Officer of Civil Lines, Police Station, he along with sub-Inspector  Uma Shanker Yadav was on patrolling duty  and when they were checking the out posts of Civil Lines, Police Station,  they heard sound of gun fire coming from the house of  Dr.   Dubey  at  about  9.00   p.m  and  he  along  with sub-Inspector,  Yadav  proceeded  on the motorcycle  to  the house of Dr.  Dubey where they met Satyendra Gupta, Advocate and  Raj  Narain Singh  PW-15.  They also saw PW-1 and  his two  sons.  There was no electricity at that time and  these two  police  officers did not go inside the house  but  took position  outside  the house.  They heard the sound  of  gun fire  coming  from  the  first  floor  of  the  house  where deceased-Dr.   Dubey  was  residing.  Thereafter,  they  saw accused    Brijendra Kumar tumbling down the stair-case  to the  ground  floor  followed by other two accused  who  were apprehended  and  arrested by them.  They recovered  pistols and cartridges as stated above from them.

     No  record  has been produced to show that  these  two police  officers  were near the place of occurrence  at  the outpost  of  Civil  Lines,  Police  Station  on  patrol  and checking  duty.  This outpost is at the distance of 100- 125 yards  from  the place of occurrence.  After  arrest  police officers  did not go up stairs where four persons were lying injured and according to PW-15 he wanted to go up stairs but he  was  summoned  by these police officers.   These  police officers  saw  PW-1 and his two sons going up stairs.   PW-1 with the help of Pandey took deceased  Dr.  Dubey, his wife

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

deceased Manorama and injured Munnu Singh and PW-2 through the  ground floor to the hospital.  If police officers  were present  at  that time on the ground floor  their  immediate reaction  would  have been to make proper inquiries,  go  up stairs  and see the place of occurrence but they did not  do so.   This behavior of these two police officers is contrary to  the natural human conduct and it is difficult to believe their  presence  at  the place of occurrence as  deposed  by PW-7.

     Exhibit    Ka-6    is    the    medical   report    of accused-Brijendra  Kumar.  Injury Nos.  2 and 3 were  caused as  a result of gun shots.  All these injuries were bleeding but  police did not find blood on the ground floor or on the stair  case.  According to Dr.  R.K.  Choudhary  PW5 due to the  injuries  caused  to accused-Brijendra, he  might  have suffered  paralysis  and he could not have moved  5-6  steps after  falling  down.   According to  prosecution  witnesses accused-Brijendra  came  down  by stair case to  the  ground floor fell down, got up and after going 5-6 steps fell down. Therefore, medical evidence does not support the evidence of the witnesses.

     Ramashram  Pandey    PW17 was examined  as  ballistic expert.   According  to him metallic bullets-  Exhibit  EB-1 recovered  from  the  body of Dr.  Dubey  and  Exhibit  EB-2 recovered  from  the  body of deceased  Manorama  were  not fired  from  the  pistols recovered from the  possession  of accused-respondents  and  Brijendra Kumar.  Moreover,  there were gun shot injuries on accused Brijendra Kumar.  PW-2 and Munnu   Singh   were  also   injured.   No  explanation   is forthcoming  from  the  side of prosecution  for  the  above discrepancies,  therefore,  we hold that the occurrence  did not  take  place as alleged by the prosecution.  We  further hold  that  the  High  Court   has  rightly  acquitted   the accused-respondents.   In result, the present appeal has  no merits and accordingly it is dismissed.