Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1180 OF 2004

State of U.P.       ... Appellant

Versus

Krishna Master & Ors.       ... Respondents

J U D G M E N T

J.M. Panchal, J.

1. The  State  of  Uttar  Pradesh  has  questioned  legality  of  

judgment dated April  12,  2002 rendered by Allahabad High  

Court in Criminal Appeal No.574 of 2001 by which judgment  

dated February 20, 2001 passed by the learned Special Judge  

(EC Act)/Additional District Judge, Farrukhabad in Sessions  

Trial No.17 of 1992 convicting the three respondents herein  

under Section 302 IPC and sentencing each of them to death

with  fine  of  Rs.10,000/-  in  default  RI  for  two  years  for  

commission of murder of six persons is reversed and they are  

acquitted.

2. The facts emerging from the  record of  the  case are  as  

under:  

The incident  in  question took place  on August  10/11,  

1991.  The first informant is one Jhabbulal.  He, as well as the  

respondents,  are  residents  of  Village  Lakhanpur,  District,  

Farrukhabad, Uttar Pradesh.  About one year before the date  

of  incident,  Sontara,  daughter  of  the  respondent  No.1  had  

eloped with Amar Singh, son of Jhabbulal.  On one day, Amar  

Singh was spotted in the village and on learning that Amar  

Singh  was  back  in  village,  the  respondents  had  made  an  

attempt to find him out to assault him and to take revenge.  

However, Ramwati, wife of Guljari, had learnt about the plans  

of respondents.  She was neighbour of Jhabbulal.   Therefore,  

she had given prior  intimation to  Amar Singh about  the  ill  

designs  of  respondents  to  assault  him.   Thereupon  Amar  

Singh had left the village and this is how his life was saved.  

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Later  on,  the  respondents  had  learnt  that  because  of  the  

intimation given by Ramwati, Amar Singh had left the village  

and he could not be targeted.  Since then, the respondents  

were bearing a grudge against Ramwati.  It may be mentioned  

that after 3-4 days Sontara and Amar Singh had returned to  

the village.  It is the prosecution case that at that time, Guljari  

Lal, husband of Ramwati had suggested the Respondent No. 1,  

in presence of first informant Jhabbulal to get his daughter  

married to the son of Jhabbulal.  Thereupon, respondent No.1  

had taken exception and told Guljari Lal not to play with the  

honour  of  his  family.   Because  of  the  suggestion  made  by  

Guljari Lal, the respondent No.1 was highly agitated and had  

animus against Guljari Lal and first informant, Jhabbulal.  

Some 10 to 15 days prior to the date of incident, Sontara  

had again eloped with Amar Singh.  Due to this reason the  

respondents had become restive and uneasy with the family of  

Jhabbu Lal and his neighbour Gulzari Lal.  The respondent  

No.1, Sri Krishna Master had gone to meet Jhabbulal and told  

Jhabbulal  that Sontara must come back to him by Sunday  

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failing which no one in the world would be able to save him  

and  family  of  Guljari.   Because  of  the  threat  given  by  

respondent No.1, Jhabbulal had gone to the residence of his  

relatives in search of his son and daughter of the respondent  

No.1, but he was unable to trace the missing boy and the girl.  

3. On August 10, 1991, Ram Sewak, announced while  

sitting on Chabutra of Ram Sewak that, at all costs, the girl  

Sontara should come back.  Otherwise, no one would be kept  

alive even for the name sake.  Sontara did not come back to  

the village.  In the midnight of August 10/11, 1991, at about  

12  hours,  the  respondent  No.1,  i.e.,  Shrikrishna,  the  

respondent No.2 Ram Sewak and the respondent No.3 Kishori  

carrying  country  made  pistols  in  their  hands  entered  the  

house of Guljarilal by jumping the southern wall of the house.  

After  entering  into  the  house  of  Guljari,  the  respondents  

started  firing  shots  indiscriminately.   Because  of  the  gun  

shots, Guljari, Ramwati, wife of Guljari, Rakesh, Umesh and  

Dharmendra sons of  Guljarilal,  were  injured.   PW2 (Madan  

Lal)  who was sleeping at the place of  incident,  got up after  

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hearing  gun  shots  and  hid  himself  under  the  cot.   He  

witnessed  the  whole  incident  from  there.   First  Informant  

Jhabbulal  and  his  wife  Lilawati,  on  seeing  this  ghastly  

incident,  left  their  house  and  while  making  hue  and  cry  

entered  the  house  of  Khemkaran.   The  respondents  after  

killing Guljari and his family made search for the complainant  

and his family members but they did not find them present in  

the house.  At that very time, Baburam, brother of the first  

informant,  who had entered his  shop out  of  fear,  was also  

dragged out by the respondents from the shop and shot dead.  

After resorting to indiscriminate firing, the respondents left the  

village and went towards the south by making two fires in the  

air.

At  the  time of  incident,  the  respondents  were carrying  

firearms and, therefore, no one dared to go near them.  In the  

incident, Umesh and Dharmendra who had received injuries  

were removed to hospital but later on they also succumbed to  

their injuries.  The written report relating to the incident was  

got  scribed  by  Jhabbulal  through  a  person  named  Radhey  

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Shyam and it  was submitted at  the  police  station at  about  

3.30 a.m. on 11.8.1991.  The Investigating Officer, Mr. Gajraj  

Singh  recorded  statements  of  those  who  were  found  to  be  

conversant with the facts of the case.  During the course of  

investigation,  he  took  into  possession  Ban  (the  thread  by  

which cot is woven), bed sheets etc. and prepared a memo.  He  

also picked up 315 bore bullet  lying near the dead body of  

Rakesh.  Similarly, bullets of 315 bore lying near the cot on  

which  Dharmendra  and Umesh slept  were  also  seized.   He  

inspected the place of incident and prepared the sketch.  The  

incriminating  articles  seized  were  sent  to  forensic  science  

laboratory for analysis.  He held inquest on the dead bodies  

and made  arrangements  for  sending  the  dead body of  four  

persons  to  hospital  for  post  mortem  examination.   On  

completion  of  investigation,  the  three  respondents  were  

charged  sheeted  in  the  court  of  learned  Chief  Judicial  

Magistrate,  Farrukhabad  for  commission  of  offences  

punishable  under  Section  302  read  with  34  IPC.   In  due  

course, the case was committed to Sessions Court for trial.

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The learned Additional Sessions Judge to whom the case  

was  made  over  for  trial  framed  charges  against  the  

respondents under Section 302 read with Section 34 of the  

Indian  Penal  Code  1860.   The  charge  was  read  over  and  

explained to them.  However, the respondents denied the same  

and claimed to be tried.   The prosecution,  therefore,  in all,  

examined  nine  witnesses  including  two  eye-witnesses  and  

produced documents to prove its case.  After the recording of  

evidence of prosecution witnesses was over, the respondents  

were explained by the learned Additional Sessions Judge, the  

circumstances appearing against them in the evidence of the  

witnesses and recorded their statements under Section 313 of  

the  Code  of  Criminal  Procedure,  1973.   In  their  further  

statements, case of each of the respondent was that he was  

falsely  implicated  in  the  case  and,  therefore,  should  be  

acquitted.

The  learned  Judge  of  the  Trial  Court  discussed  the  

evidence of the witnesses in great detail  and found that the  

evidence  of  the  two  eye-witnesses  was  trustworthy,  cogent,  

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consistent and reliable.  On the basis of testimony of the two  

eye-witnesses, the Trial Court by judgment dated February 20,  

2001 convicted  each of  the  respondents  under  Section 302  

read with Section 34 IPC.  The respondents were thereafter  

heard by the learned Judge regarding sentence to be imposed  

on them for commission of offences punishable under Section  

302 read with Section 34 IPC.  After hearing the respondents,  

the learned Judge awarded capital punishment to each of the  

three respondents and fine of Rs.10,000/- in default RI for two  

years.   A  direction  was  given  not  to  execute  capital  

punishment until the same was confirmed by the High Court.  

It  was  also  directed  that  the  amount  of  fine  paid  by  the  

respondents, be given to Madan Lal who was PW2 and son of  

deceased  Guljari  as  compensation.   The  learned  Additional  

District  Judge,  Farrukhabad  under  a  reference  sent  the  

documents to the High Court for confirmation of the capital  

punishment imposed on the respondents.

4. Feeling  aggrieved,  the  respondents  preferred  Criminal  

Appeal No.574 of 2001.  The reference made by the trial court  

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for  confirmation  of  the  death  sentence  awarded  to  the  

respondents,  was  heard  along  with  the  appeal  filed  by  the  

respondents.   The High Court by the impugned judgment has  

acquitted the respondents and rejected the reference made by  

the trial court, for confirmation of the death sentence, giving  

rise to the instant appeal.

5. This Court has heard the learned counsel for the parties  

at length and in great detail.  This Court has also considered  

the documents forming part of the record.

6. The fact that each of the six deceased had died homicidal  

death is not disputed before this Court.  The said fact was also  

not disputed by any of the respondents before the High Court  

or the trial court.  From the evidence of two eye-witnesses as  

well  as  that  of  Dr.  S.K.  Gupta,  PW4,  who  had  conducted  

autopsy  on  the  dead  body  of  six  deceased  persons  and  on  

perusal  of  their  respective  post-mortem  notes,  there  is  no  

manner  of  doubt  that  the  six  deceased  persons  had  died  

homicidal  death  on  account  of  firearm  injuries.   The  said  

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finding recorded by the trial court and confirmed by the High  

Court, being eminently just, is hereby upheld.   

7. The  time  of  occurrence  is  also  not  disputed  by  the  

learned counsel of the respondents.  It is admitted before this  

Court  that  all  the  murders  were  committed  in  the  night  of  

August 10, 1991.  However, it was maintained by the learned  

counsel for the respondents that none of the respondents were  

assailants  and,  therefore,  acquittal  of  the  respondents  

recorded by the High Court  should not be lightly  interfered  

with by this Court.

8. Before appreciating evidence of the witnesses examined  

in the case, it would be instructive to refer to the criteria for  

appreciation of oral evidence.  While appreciating the evidence  

of a witness, the approach must be whether the evidence of  

witness read as a whole appears to have a ring of truth.  Once  

that impression is found, it is undoubtedly necessary for the  

Court to scrutinize the evidence more particularly keeping in  

view the deficiencies, drawbacks and infirmities pointed out in  

the evidence as a whole and evaluate them to find out whether  

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it is against the general tenor of the evidence and whether the  

earlier  evaluation of  the  evidence  is  shaken as  to  render  it  

unworthy of belief.   Minor discrepancies on trivial matters not  

touching  the  core  of  the  case,  hyper-technical  approach  by  

taking sentences torn out of context here or there from the  

evidence,  attaching  importance  to  some  technical  error  

committed by the investigating officer not going to the root of  

the  matter  would  not  ordinarily  permit  rejection  of  the  

evidence as a whole.   If  the court before whom the witness  

gives evidence had the opportunity to form the opinion about  

the  general  tenor  of  the  evidence  given by the  witness,  the  

appellate court which had not this benefit will have to attach  

due weight to the appreciation of evidence by the Trial Court  

and unless the reasons are weighty and formidable, it would  

not be proper for the appellate court to reject the evidence on  

the ground of variations or infirmities in the matter of trivial  

details.  Minor omissions in the police statements are never  

considered to be fatal.  The statements given by the witnesses  

before the Police are meant to be brief statements and could  

not  take  place  of  evidence  in  the  court.   Small/trivial  

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omissions  would  not  justify  a  finding  by  court  that  the  

witnesses concerned are liars.  The prosecution evidence may  

suffer from inconsistencies here and discrepancies there, but  

that is  a short-coming from which no criminal  case is  free.  

The main thing to be seen is whether those inconsistencies go  

to the root  of  the matter  or pertain to insignificant  aspects  

thereof.  In the former case, the defence may be justified in  

seeking advantage of incongruities obtaining in the evidence.  

In the latter, however, no such benefit may be available to it.  

In  the  deposition  of  witnesses,  there  are  always  normal  

discrepancies,  howsoever,  honest  and truthful  they may be.  

These discrepancies are due to normal errors of observation,  

normal errors of memory due to lapse of time, due to mental  

disposition, shock and horror at the time of occurrence and  

threat  to  the  life.   It  is  not  unoften  that  improvements  in  

earlier version are made at the trial in order to give a boost to  

the prosecution case albeit foolishly.  Therefore, it is the duty  

of the Court to separate falsehood from the truth.  In sifting  

the evidence, the Court has to attempt to separate the chaff  

from  the  grains  in  every  case  and  this  attempt  cannot  be  

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abandoned on the ground that the case is baffling unless the  

evidence is really so confusing or conflicting that the process  

cannot  reasonably  be  carried  out.   In  the  light  of  these  

principles,  this  Court  will  have  to  determine  whether  the  

evidence  of  eye-witnesses  examined  in  this  case  proves  the  

prosecution case.

9. From the impugned judgment,  it  becomes evident  that  

the High Court took into consideration the evidence tendered  

by PW1 Jhabbulal and PW2 Madan Lal.  The High Court, at  

the  very  outset  examined  the  evidence  adduced  by  the  

prosecution  with  regard  to  five  murders  committed  in  the  

house  of  Guljari  Lal  and  scanned  the  evidence  of  PW1,  

Jhabbulal.   After  noting  that  his  house  was  undisputedly  

situated to the north of house of Guljari  and that both the  

houses were separated by an intervening wall running East to  

West, the High Court analysed the evidence of PW1 Jhabbulal.  

The  High  Court  took  into  consideration  the  claim  of  PW1  

Jhabbulal that at the time of the incident, he was sleeping in  

the  courtyard  of  his  house  and  that  he  had  woken  up  on  

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hearing sounds of gun shots and was scared as a result of  

which he stood by the side of the wall of courtyard to save  

himself.  On scrutiny of this witness, the High Court came to  

the conclusion that on his own showing, it was not possible for  

PW1, Jhabbulal to have witnessed the incident which occurred  

inside the house of Guljari,  more particularly when the two  

houses were separated by a wall having height of more than  

that of a normal person.  The High Court thereafter proceeded  

to examine the  site  plan Exhibit-  Ka14 and concluded that  

when  the  investigating  officer  had  made  inspection  of  the  

scene of occurrence, PW1, Jhabbulal had claimed to have seen  

the incident through holes (mokhana) in the intervening wall,  

but  in  his  substantive  evidence  tendered  before  the  Court,  

Jhabbulal had not claimed to have seen the incident through  

the holes in the intervening walls.  Thereafter, the High Court  

again took notice of the statement made by PW1, Jhabbulal  

that he was standing by the side of the wall of courtyard and  

finally concluded that it was highly doubtful that Jhabbulal  

who was present inside his own house had seen the incident  

which occurred inside the house of Guljari.   

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10. This  Court  finds  that  the  abovestated  reasons are  the  

only reasons specified by the High Court to disbelieve the eye-

witness account given by PW1, Jhabbulal.  In order to find out  

whether the reasons assigned by the High Court to disbelieve  

the episode of five murders narrated by witness Jhabbulal, are  

sound,  this  Court  has  undertaken  the  exercise  of  going  

through the entire  testimony of  witness  Jhabbulal  recorded  

before the Trial Court.  As far as the incident which had taken  

place in the house of Guljari is concerned, it was mentioned  

therein that  at  about  12 O’clock,  in the  night,  Master  Shri  

Krishna holding ponia gun and Ram Sewak as well as Kishori  

holding  country-made  pistols  tresspassed  into  the  house  of  

Guljari after jumping over southern side wall of the house of  

Gulzari  and committed murder of  Guljari,  his wife  Ramwati  

and son Rakesh by firing gun shots.  He also mentioned in his  

testimony that because of the firing of gun-shots Umesh and  

Dharmendra  who  were  sons  of  Gulzari  were  injured.  

According to him, on witnessing the said incident, he with his  

wife  Leelawati  left  his  home  and  went  into  the  house  of  

Khemkaran rasing hue and cry.  It was further mentioned by  

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the witness that the respondents had tried to trace his family  

and they had gone inside the shop of his brother Baburam  

and gunned him down after  dragging  him out  of  the  shop.  

What was claimed by this witness was that the incident was  

also witnessed by Sarla Devi, daughter of Guljari, Rakesh and  

Madan  Lal,  sons  of  Guljari  and  his  brothers  Mohanlal,  

Rajaram and Kailash who were sons of Jiwan.  It was asserted  

by  him  that  he  had  witnessed  the  incident  in  the  light  of  

electric bulb.  It was frankly admitted by him that no one had  

dared  to  go  near  to  the  respondents  because  they  were  

carrying with fire arms.

It was further asserted by him that after the respondents  

had left  the place opposite  the shop of  his brother,  he had  

gone near his injured brother who was alive and had tried to  

learn  from  Baburam  as  to  who  had  assaulted  him  and  

thereupon  his  brother  had  informed  him  that  Shrikrishna  

(respondent No.1), Ram Sewak (Respondent No.2) and Kishori  

(Respondent No. 3) had assaulted him with fire arms.  It  is  

also mentioned by him that at his instance, FIR was reduced  

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into writing by Radhey Shyam as dictated by him and that he  

had filed the same at the police station.  The record of the case  

shows that this witness was cross-examined at great length.  

He was subjected to grueling cross-examination which runs  

into  31  pages.   The  first  and  firm  impression  which  one  

gathers on reading the testimony of this witness is that he is a  

rustic witness.  A rustic witness, who is subjected to fatiguing,  

taxing  and  tiring  cross-examination  for  days  together,  is  

bound  to  get  confused  and  make  some  inconsistent  

statements.  Some discrepancies are bound to take place if a  

witness  is  cross-examined  at  length  for  days  together.  

Therefore, the discrepancies noticed in the evidence of a rustic  

witness who is subjected to grueling cross-examination should  

not be blown out of proportion.  To do so is to ignore hard  

realities  of  village  life  and  give  undeserved  benefit  to  the  

accused  who  have  perpetrated  heinous  crime.   The  basic  

principle of appreciation of evidence of a rustic witness who is  

not educated and comes from a poor strata of society is that  

the  evidence  of  such a witness  should be  appreciated  as  a  

whole.   The  rustic  witness  as  compared  to  an  educated  

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witness is not expected to remember every small detail of the  

incident and the manner in which the incident had happened  

more particularly when his evidence is recorded after a lapse  

of  time.   Further,  a  witness  is  bound to  face  shock of  the  

untimely  death  of  his  near  relative(s).  Therefore,  the  court  

must keep in mind all these relevant factors while appreciating  

evidence  of  a  rustic  witness.   When  the  respondents  were  

firing from their respective fire arms, the High Court should  

not have expected PW1 Jhabbulal  to mention description of  

the whole episode which had happened in a few minutes.  The  

rustic witnesses cannot be expected to have an exact sense of  

time and so cannot be expected to lay down with precision the  

chain of events.  In the instant case, this Court is of the firm  

opinion  that  the  High  Court  gravely  erred in  not  accepting  

evidence of PW1, Jhabbulal.  Jhabbulal being a rustic witness  

is not expected to always have an alert mind and so have an  

idea of direction, area and distance with precision from which  

he had witnessed the incident.  It is well to notice that in his  

examination  in  chief,  Jhabbulal  never  claimed that  he  was  

standing by the side of the wall of courtyard nor it was claimed  

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by him that he had witnessed the incident through mokhana,  

i.e. holes in the intervening walls.  Though the witness was  

cross-examined  for  days  together,  he  was  never  confronted  

with his statement recorded under Section 161 of the Code of  

Criminal Procedure wherein he had allegedly stated before the  

Police Officer that he had witnessed the incident through holes  

in  the  intervening  wall.   The  witness  having  not  been  

confronted with his earlier police statement wherein he had  

reportedly stated that he had seen the incident through the  

holes in the intervening wall, this Court fails to understand as  

to  how the  said  statement  allegedly  made before  the  police  

during the investigation could have been pressed into service  

by the High Court to reject the substantive evidence of this  

witness tendered before the Court wherein it was specifically  

asserted  that  while  in  his  house,  he  had  witnessed  the  

incident of  killing of five members of Guljari’s family by the  

respondents  by  firing  gun  shots.   The  prosecution  has  

satisfactorily  established  that  Baburam who was  brother  of  

Jhabbulal, PW1, had lost his life because of gun shots fired at  

him.  The suggestion made by the defence to the witness that  

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he was making a false claim that Baburam was alive and that  

on  enquiry  by  him,  Baburam  had  told  him  that  the  

respondents  had  assaulted  him  with  fire  arms,  as  he  was  

tutored by the police outside the court room was emphatically  

denied by him.   It is interesting to note that to confuse this  

witness he was cross-examined for days together on the point  

as to where and in which direction houses of Kailash, Rajaram  

Subedar,  Darbari  etc.  were  situated.   Such  an  attempt  by  

defence lawyer can hardly be approved.  On re-appreciation of  

evidence of Jhabbulal, this Court finds that he has not made  

major improvements in his testimony before the Court and the  

so-called discrepancies which are blown out of proportion by  

the High Court are minor in nature and do not relate to the  

substratum of the prosecution story.  To say the least,  this  

Court  finds  that  the  approach  of  the  High  Court  in  

appreciating  evidence  of  PW1  Jhabbulal  who  was  a  rustic  

witness  is  not  only  contrary  to  the  well  settled  principles  

governing appreciation of evidence of a rustic witness but is  

perverse.   At  this  stage,  it  would  be  well  to  recall  to  the  

memory the weighty observations made by this Court as early  

20

as in the year 1988 relating to appreciation of evidence and  

the duties expected of a Judge presiding over a criminal trial.  

In State of U.P. v. Anil singh, AIR 1988 SC 1998, it is observed  

as under :

“In  the  great  majority  of  cases,  the  prosecution version is rejected either for  want  of  corroboration  by  independent  witnesses, or for some falsehood stated or  embroidery added by witnesses. In some  cases,  the  entire  prosecution  case  is  doubted for not examining all  witnesses  to  the  occurrence.   The  indifferent  attitude of the public in the investigation  of  crimes  could  also  be  pointed.  The  public  are  generally  reluctant  to  come  forward to depose before the Court. It is,  therefore,  not  correct  to  reject  the  prosecution  version  only  on the  ground  that all witnesses to the occurrence have  not been examined. It is also not proper  to  reject  the  case  for  want  of  corroboration by independent witnesses if  the case made out is otherwise true and  acceptable.  With  regard  to  falsehood  stated  or  embellishments  added  by  the  prosecution  witnesses,  it  is  well  to  remember  that  there  is  a  tendency  amongst witnesses in our country to back  up a  good case  by  false  or  exaggerated  version.   It  is  also  experienced  that  invariably the witnesses add embroidery  to prosecution story, perhaps for the fear  of  being  disbelieved.  But  that  is  no  ground  to  throw  the  case  overboard,  if  

21

true,  in  the  main.  If  there  is  a  ring  of  truth in the main, the case should not be  rejected. It is the duty of the Court to cull  out  the  nuggets  of  truth  from  the  evidence unless there is reason to believe  that the inconsistencies or falsehood are  so glaring as utterly to destroy confidence  in  the  witnesses.  It  is  necessary  to  remember that a Judge does not preside  over a criminal trial merely to see that no  innocent man is punished. A Judge also  presides to see that a guilty man does not  escape. One is as important as the other.  Both are public duties which the Judge  has to perform.”

11.  There appears to be substance in the argument of the  

learned counsel for the State that the feeble and insubstantial  

reasons have been given to disbelieve the trustworthy evidence  

of eye-witness, Jhabbulal  as High Court had decided to give  

undeserved  benefit  of  doubt  to  the  respondents  and  had  

appreciated  the  evidence  of  PW1  Jhabbulal  to  find  out  

drawbacks and shortcomings in his evidence when,  in fact,  

there were none.

12. Coming to the appreciation of evidence of another eye-

witness, Madan Lal, this Court finds that the first fact kept in  

mind by the High Court was that at the time of occurrence,  

22

this  witness  was  aged  about  six  years  and  that  his  

examination in chief was recorded almost after ten years from  

the date of occurrence, because at the time of recording of his  

examination in chief before the Trial Court, he had mentioned  

his age to be 16 years.  It was highlighted by the High Court  

that in his examination in chief, it was claimed by this witness  

that he was sleeping on a cot along with his two brothers, i.e.,  

deceased  Umesh  and  deceased  Dharmendra  whereas  his  

mother  was  sleeping  on  another  cot  and  that  when  the  

accused had started firing he had slipped beneath the cot over  

which he was sleeping, but at another place it was stated  by  

him  that  he  was  sleeping  with  his  mother  and  had  taken  

shelter under the said cot and therefore, the witness was not  

consistent as to the place from where he had witnessed the  

incident.  The High Court adverted to the statement made by  

this  witness  that  his  elder  sister,  Sarla  and  elder  brother  

Rajesh  were  also  sleeping  under  the  Chhapper  but  had  

managed to run away and Sarla had concealed herself behind  

a heap of woods lying on the western side in the courtyard  

itself.   After  examining  site  plan Exhibit-  “ka”  14  the  High  

23

Court observed that in the site plan, place where Sarla had  

allegedly  taken  shelter  was  not  indicated  nor  any  heap  of  

woods was shown, and finally came to the conclusion that the  

witness  was  not  reliable.   The  High  Court  took  into  

consideration the statement made by this witness that when  

he had come out from beneath the cot, he had seen Sarla in  

the house and that many persons had assembled at his house  

after the occurrence but he was not able to identify them as he  

was a small child nor any of the persons  assembled near his  

house had asked him as to who were the assailants and what  

they had done and therefore the High Court deduced that this  

witness  was  not  present  in  the  house  at  the  time  of   the  

occurrence.   A  strange  reasoning  was  adopted  by  the  High  

Court to come to the conclusion that the witness was not a  

reliable one because he was a child of about six years of age at  

the time of occurrence. His statement in the trial court was  

recorded after a gap of about 10 years.   It is inconceivable  

that child of his understanding would recapitulate facts in his  

memory  witnessed  by  him  long  ago.   One  of  the  reasons  

assigned by the High Court to disbelieve this witness was that  

24

Rajesh and Smt. Sarla who were of matured age and were in a  

better position to depose about the incident were not produced  

before  the  Trial  Court  for  which no explanation whatsoever  

was  given  by  the  prosecution.   The  High  Court  readily  

accepted submission made by the counsel for the respondents  

that  Rajesh  and  Smt.  Sarla  were  not  produced  before  the  

Court  because obviously  they were not prepared to support  

the false story set up by PW1, Jhabbulal in the FIR which was  

lodged  by  him  against  the  respondents  on  account  of  his  

personal animosity.  The High Court also found weight in the  

submission advanced by the advocate for the respondents that  

had  these  witnesses  been produced  before  the  Court,  their  

evidence would have gone against the prosecution.  The High  

Court again took notice of the fact that according to witness  

Madan Lal he had taken shelter under the cot over which he  

was  sleeping  along  with  his  two  brothers  Umesh  and  

Dharmendra who were killed by the assailants in the incident  

and  concluded  that  it  was  ridiculous  to  believe  that  this  

witness who was younger than his two deceased brothers had  

taken shelter under the same cot without his presence being  

25

noticed by the assailants.  After noticing that Smt. Sarla and  

Rajesh  who were  elder  to  the  witness  Madan Lal  were  not  

alleged  to  have  sustained  any  injury,  the  High  Court  

proceeded to record a finding of fact that these three children  

were not present inside the house at the time of occurrence on  

the spacious plea that if Madan Lal, PW2, and Rajesh as well  

as Smt.  Sarla had been present,  they would not have been  

spared by the assailants and that the theory set up at the trial  

that  all  these  three  children  had  concealed  themselves  at  

different places is not only an improvement but does not find  

support  from  the  evidence  on  record  as  well  as  the  spot  

inspection made by the investigating officer.

13. The abovestated reasons are  the only grounds on  

which testimony of witness Madan Lal  is disbelieved by the  

High Court.   This  Court  fails  to  understand as to  on what  

principle and on which experience in real life, the High Court  

made a sweeping observation that it is inconceivable that  a  

child  of  Madan  Lal’s  understanding  would  be  able  to  

recapitulate facts in his memory witnessed by him long ago.  

26

There  is  no principle  of  law known to  this  Court  that  it  is  

inconceivable that a child of tender age would not be able to  

recapitulate facts in his memory witnessed by him long ago.  

This witness has claimed on oath before the Court that he had  

seen five members of his family being ruthlessly killed by the  

respondents by firing gun shots.  When a child of tender age  

witnesses  gruesome  murder  of  his  father,  mother,  brothers  

etc. he is not likely to forget the incident for his whole life and  

would certainly recapitulate facts in his memory when asked  

about the same at any point of time, notwithstanding the gap  

of about ten years between the incident and recording of his  

evidence.  This Court is of the firm opinion that it would be  

doing injustice to a child witness possessing sharp memory to  

say that it is inconceivable for him to recapitulate facts in his  

memory witnessed by him long ago.  A child of tender age is  

always receptive to abnormal events which take place in its life  

and would never forget those events for the rest of his life.  The  

child would be able to recapitulate correctly and exactly when  

asked  about  the  same  in  future.   Therefore,  the  spacious  

ground on which the  reliable  testimony of  PW2, Madan Lal  

27

came to be disbelieved can hardly be affirmed by this Court.  

One  of  the  reasons  given  by  the  High  Court  to  disbelieve  

testimony of witness Madan Lal is that Rajesh and Smt. Sarla  

who  were  of  mature  age  and  were  in  a  better  position  to  

depose about the incident were not produced before the Court.  

It  is nobody’s case that witness Madan lal was in charge of  

prosecution case.  The Public Prosecutor was in charge of  the  

case and it was for him to decide whether Rajesh and/or Smt.  

Sarla  should be examined or  not.   The evidence  of  witness  

Madan Lal, in no uncertain terms, discloses that his brother  

Rajesh and sister Smt. Sarla were ready to depose before the  

Court about the incident.  However, for non-production of his  

brother Rajesh and his sister Sarla before the Court, witness  

Madan  Lal  was  never  responsible.   He  had  not  taken  any  

decision for examining his brother Rajesh and Smt. Sarla.  It  

was the discretion and decision of the Public Prosecutor due to  

which his brother and sister were not examined as witnesses.  

At no stage of the trial, the defence had made a request to the  

Trial  Court  to  call  upon  the  Public  Prosecutor  to  examine  

Rajesh and Smt.  Sarla  as  witnesses.   It  is  the  case  of  the  

28

defence that Rajesh and Smt. Sarla had witnessed the incident  

and if they had been examined as witnesses, they would have  

deposed  against  the  prosecution  case  that  the  respondents  

were not responsible  for  murders of  five  family  members of  

Guljari  and  brother  of  the  first  informant.   In  such  

circumstances,  it  was  incumbent  upon  and  open  to  the  

defence  to  examine  Rajesh  and/or  Smt.  Sarla  as  defence  

witness.   No  prayer  was  made  by  the  defence  to  examine  

Rajesh and Smt. Sarla even as court witnesses.  Therefore, for  

non-examination of Rajesh and/or Smt. Sarla, witness Madan  

Lal could not have been blamed nor his evidence could have  

been brushed aside in a casual manner.  The acceptance of  

submission  made  by  the  counsel  for  the  respondents  that  

Rajesh and Smt. Sarla were not produced because they were  

not  prepared  to  support  the  false  story  set  up  by  PW1,  

Jhabbulal in his FIR against the respondents on account of  

his  personal  animosity,  is  not  understandable  at  all  and  

appears to be figment of imagination of the defence.  Nothing  

could  be  brought  on  record  or  elicited  from  the  cross-

examination of  either  PW1 Jhabbulal  or PW2 Madan Lal  to  

29

show that they were ready and willing to allow real culprits  

who  had  committed  heinous  crime  and  virtually  wiped  off  

family  of  Guljari  and  murdered  real  brother  of  the  first  

informant to go scot free and implicate the respondents falsely  

in such a serious case.

14. One  of  the  reasons  given  by  the  High  Court  for  

disbelieving testimony of PW2, Madan Lal is that the evidence  

indicated that a large number of villagers had gathered outside  

the door of Gulzari Lal’s house but not even one of them was  

examined to justify that PW2 Madan Lal was present in his  

house.   The  High  Court  has  further  held  that  presence  of  

witness Madan Lal in his house becomes doubtful because if  

he  had  been  present  inside  the  house  at  the  time  of  

occurrence,  his  presence  would  have  been  noticed  by  the  

assailants and he would not have been spared by them.  To  

say the least, these reasons are not tenable at all.  As noticed  

earlier, the case of witness Madan lal is that on hearing sound  

of gun shots, he had slipped beneath the cot and from there  

witnessed  the  whole  incident.   This  story  appears  to  be  

30

probable because the incident had taken place during night  

time in the house and therefore it was possible for the witness  

to slip beneath the cot without being noticed by the assailants.  

It is nobody’s case that the respondents, while killing Guljari  

and his family, had seen below the cot to find out whether any  

other member of Guljari’s family was alive or not.  Therefore,  

to  say  that  Madanlal  must  not  have  been  inside  the  room  

otherwise he would have been killed by the assailants is a far  

fitted reason which does not appeal to this Court.  It is true  

that it has come in evidence that a large number of villagers  

had gathered outside the door of Guljari Lal’s house.  But this  

Court  is  of  the  opinion  that  it  was  not  necessary  for  the  

prosecution to examine any of the witnesses to prove that he  

had seen PW2 Madan Lal in Madan Lal’s house.  PW2 Madan  

Lal himself is competent to state before the Court whether he  

was present in his  house  at  the  time of  incident.   Witness  

Madan Lal  has  given evidence  in  a  simple  manner  without  

making any noticeable improvements and/or embellishments  

and,  therefore,  it  was  not  necessary  for  the  court  to  seek  

corroboration to his assertion that he was in his house when  

31

the incident had taken place.  What is relevant to notice is  

that  the  court  cannot  forget  the  fact  that  at  the  time  of  

incident, PW2 Madan Lal was a tender aged child.  Normally, a  

child aged six years is not expected to be out of house at the  

dead of night and he is expected to be in the company of his  

parents.   Moreover,  the  testimony of  witness Lajveer Singh,  

PW3,  who  was  posted  at  Police  Station,  Kayamganj,  

Farrukhabad  shows  that  after  registration  of  offences,  ASI  

Gajraj Singh had recorded statements of those persons who  

were found to be conversant with the facts of the case and  

Gajraj Singh had also recorded statement of witness Madan  

Lal on August 11, 1991.  If witness Madan lal had not been  

present in his house at the time when the incident had taken  

place, his police statement would not have been recorded by  

ASI Gajraj Singh at all.  Thus, the reasons on which presence  

of  PW2,  Madan  Lal  is  doubted  is  against  the  weight  of  

evidence, human conduct and preponderance of probabilities.  

Further, at the time of incident, PW2, Madan Lal was of tender  

age and, therefore, incapable of nurturing any grudge against  

any of the respondents.  No evidence could be produced nor  

32

any suggestion was made to  witness  Madan Lal  during  his  

cross-examination  that  something  serious  had  happened  

between  the  date  of  incident  and  recording  of  evidence  of  

witness  Madan  Lal  in  court,  between  Madan  Lal  and  the  

respondents  that  Madan  Lal  was  out  to  implicate  the  

respondents falsely in such a serious case.   

15. One of the grounds mentioned by the High Court in  

the  impugned  judgment  for  disbelieving  the  case  of  the  

prosecution is that Rajesh who was brother of PW2, Madan Lal  

and Smt. Sarla who is sister of witness Madan Lal as well as  

few of those who had collected near the door of the house of  

Guljari after the incident were not examined as witnesses in  

this  case.   As  far  as  this  ground  is  concerned,  the  Court  

notices that Section 134 of the Indian Evidence Act specifically  

provides that no particular number of witnesses shall, in any  

case, be required for the proof of any fact.  It is well known  

principal  of  law that  reliance can be placed on the solitary  

statement of a witness if  the court comes to the conclusion  

that the said statement is the true and correct version of the  

33

case of the prosecution.  The courts are concerned with the  

merit and the statement of a particular witness and not at all  

concerned  with  the  number  of  witnesses  examined  by  the  

prosecution.  The time-honoured rule of appreciating evidence  

is  that  it  has to  be  weighed and not  counted.   The  law of  

evidence does not require any particular number of witnesses  

to be examined in proof of a given fact.  However, where, the  

court  finds that the  testimony of  solitary  witness is  neither  

wholly reliable nor wholly unreliable, it may, in given set of  

facts, seek corroboration but to disbelieve reliable testimony of  

a solitary witness on the ground that others have not been  

examined is to do complete injustice to the prosecution.  This  

Court, on re-appreciation of evidence, finds that the testimony  

of  witness  Madan  Lal  is  cogent,  consistent  and  reliable.  

Taking into consideration the manner in which witness Madan  

Lal  had testified before the Court and the fact that nothing  

could  be  elicited  in  his  lengthy  cross-examination  for  days  

together to impeach his credibility, this Court is of the view  

that his testimony is reliable and can be accepted without any  

reservations.   Therefore,  non-examination  of  his  brother  or  

34

sister  or  few  others  who  had  gathered  near  the  house  of  

deceased Guljari Lal after the incident is of no significance and  

does not affect credibility of testimony of the said witness.   

Cumulative effect of the above discussion is that the High  

Court was not justified in brushing aside testimony of PW2,  

Madan Lal while considering case of the prosecution against  

the respondents.  

Yet  another  ground  assigned  by  the  High  Court  for  

disbelieving  the  testimony  of  first  informant  Jhabbulal  and  

that of PW2 Madan Lal is that there was no electricity light in  

the  village  and,  therefore,  the  claim  made  by  both  the  

witnesses that they had witnessed the incident in the light of  

electricity  is  untrustworthy.   To  begin  with,  this  Court  

proposes  to  refer  to  the  First  Information  Report  lodged by  

witness Jhabbulal.  The said report was brought on the record  

as Exhibit Ka-1.  In the report, it is clearly mentioned that at  

the time of  occurrence of  the incident,  there  was electricity  

light at the place of incident and with the help of the said light,  

the first informant was able to witness the incident wherein  

35

five  members  of  deceased  Guljari’s  family  came  to  be  

murdered  by  the  respondents.   The  witness  Jhabbulal  has  

further stated that his brother Babu Ram, who was sleeping in  

his shop was dragged out from the shop by the respondents by  

breaking  open  the  door  of  the  shop  and  thereafter  was  

murdered by them by firing gun shots.  Regarding murder of  

Babu Ram also, it is mentioned in the First Information Report  

that  electric  bulb  was burning  at  his  house  at  the  time of  

occurrence  of  the  incident  and,  therefore,  he  was  able  to  

witness the murder of his brother Babu Ram.  PW2, Madan  

Lal has stated that his father, mother and three real brothers  

were murdered by the respondents by firing gun shots and  

had asserted that at the time of  the incident one bulb was  

burning on the main gate of his house whereas another bulb  

was burning on the thatched roof, i.e., near the place where  

the  deceased  had  slept  during  the  night  of  the  incident.  

Though  both  the  witnesses  were  cross-examined  at  great  

length  by  the  learned  counsel  for  the  defence,  nothing  

significant could be brought on record from which one can,  

with  certainty  deduce  that  there  was  no  light  of  electricity  

36

bulbs  at  the  place  of  the  incident.   Apart  from  what  is  

mentioned by the two eye-witnesses regarding sufficiency of  

electricity light in which they had witnessed the incident, the  

sketch  of  the  spot  prepared  by  the  Investigating  Officer  on  

August 11, 1991 in the presence of independent witnesses and  

produced as Exhibit Ka-14 shows that  point ‘L’ mentioned in  

the panchnama of place of occurrence, a bulb has been shown  

burning  at  the  main  gate  of  the  house  of  PW2 Madan Lal  

whereas  another  bulb  is  shown  burning  at  the  place  

mentioned  as  ‘AL’.   Thus,  assertion  made  by  the  two  eye-

witnesses that they were able to witness the incident because  

of  availability  of  sufficient electricity  light gets corroboration  

from  contemporaneous  document,  namely,  Exhibit  Ka-14.  

According to the High Court, the place pointed by PW2, Madan  

Lal where an electric bulb was hanging has not been shown in  

the  site  plan  and on the  contrary  it  has  been shown at  a  

different place.  Even if it is assumed that the place mentioned  

by  PW2,  Madan Lal  where  an electric  bulb  was hanging  is  

different  from  the  place  shown  in  the  site  plan,  the  fact  

remains  that  an  electric  bulb  was  hanging  at  the  place  of  

37

incident which is completely ignored by the High Court.  It is  

relevant to notice that PW2, during the course of recording of  

his  statement  before  the  Court  had mentioned that  he  had  

shown to the Investigating Officer the place where the bulb  

was hanging but he was not in a position to specify the reason  

as to why the place shown by him to the Investigating Officer  

was not mentioned in the site plan.  It may be mentioned that  

the  Investigating  Officer  ASI  Gajraj  Singh,  unfortunately,  

expired before the commencement of the trial and, therefore,  

another officer was examined who had taken a little part in the  

investigation.  Thus, the contradiction and/or omission in the  

statement of the witness recorded under Section 161 of the  

Criminal Procedure Code could not be brought on the record  

of the case.  In such circumstances, there was no reason for  

the High Court to disbelieve the claim made by PW2 Madan lal  

that he had shown to the Investigating Officer the place where  

the bulb was hanging.   Jhabbulal had stated in this evidence  

that Guljari had taken electric line illegally be putting a wire  

on the main line which proceeded to the tube well of Suresh  

Chand DW1.  The High Court  relied upon the testimony of  

38

Suresh Chand that no villager had taken electricity from his  

tube  well  line  and  thereafter  concluded  that  there  was  

complete  darkness  in  the  whole  village  on  account  of  

Amavasya of rainy season and, therefore, it was not possible  

for the two eye-witnesses to witness the incident.  It becomes  

absolutely  necessary  for  this  Court  to  scan the  evidence  of  

DW1.  DW1 in his evidence before the Court stated that he  

was having a tubewell in village Lakhanpur prior to the date of  

incident and that tubewell was being operated with the electric  

power.   It  was  also  mentioned  by  him  that  the  electricity  

connection was in running condition and that the electricity  

line passes through the village.  What is stated by the witness  

is that during the night of the incident, he was not present in  

his  village  Lakhanpur  but  had  gone  to  his  sister’s  house  

situated in another village and that he had come back to his  

village on the third day of  the date of  the incident.   If  this  

witness was not present on the date of incident, he was least  

competent to depose before the Court as to whether on the  

date of incident there was electricity light in the village or not.  

A specific question as to whether on the fateful night electricity  

39

was taken illegally by putting Katiya to his wire was put to this  

witness.   This  witness  was not  able  to  answer  this  specific  

query naturally because he had admitted that on the date of  

incident he was not present in the village.  The Trial  Court  

rightly observed that it was not concerned with the question  

whether  the  electric  power  was  being  consumed  by  the  

villagers  legally  or  illegally  and  that  the  Court  was  only  

concerned with the question whether there was sufficient light  

on  the  date  of  incident  to  enable  the  witnesses  to  see  the  

incident.  The High Court has misread the evidence of DW1  

Suresh Chand as well as that of PW2 Madan Lal, wherein it  

was asserted by him that he had also taken illegal electricity  

connection and was consuming the same through the bulbs  

which according to him were burning on the date of incident.  

Thus the reliable evidence of PW1 and PW2 cannot be brushed  

aside on the ground that Investigating Officer had not taken  

into possession the bulbs hanging on the place of  incident.  

Thus, the High Court was not justified in holding that there  

was no electric power in the whole village and that there was  

complete darkness on account of  Amavasya of rainy season  

40

due to which it was impossible for the eye-witnesses to witness  

the incident.  Further, the visibility capacity of urban people is  

not the standard to be applied to the villagers.  PW2 Madan  

Lal has stated that the respondents had brought with them  

torches but as light of electricity was available in the house,  

torches were not put on. Thus, according to PW2 Madan Lal  

the respondents had in the light of electric bulb recognized the  

deceased persons and had fired gun shots on them.  Further,  

if  light  available  was  sufficient  for  the  accused  persons  to  

identify their targets for firing shots, there is no reason why  

the witnesses would not be able to identify the respondents as  

the assailants.   The statement of PW1 Jhabbulal that Guljari  

had taken electric line illegally by putting a wire on the main  

line which proceeded to the tube well was disbelieved by the  

High Court on the ground that the Investigating Officer had  

not mentioned either in the site plan or in the inspection note  

that electric line had been taken in an unauthorized manner  

from the main line which proceeded to the tube-well of Suresh  

Chand.  It is common experience of one and all that site plan  

or  panchnama  of  place  of  incident  is  being  prepared  to  

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indicate the state of things found at the place of incident.  In  

site plan, Investigating Officer is not supposed to note whether  

electric  line had been taken in  an unauthorized manner  or  

not.  That is not the purpose for which site plan is prepared in  

a  criminal  case.   Thus,  without  sufficient  reason  the  High  

Court  disbelieved  the  claim  made  by  PW1  Jhabbulal  that  

deceased Guljari had taken electric line illegally by putting a  

wire on the main line.  On the facts and in the circumstances  

of  the  case  emerging  from the  record,  this  Court  is  of  the  

opinion that the High Court was not justified in coming to the  

conclusion  that  there  was  complete  darkness  in  the  whole  

village and, therefore, it was not possible for the eye-witnesses  

to see the incident.

The  High  Court  has  further  held  that  motive  alleged  

against  deceased  Guljari  was  developed  for  the  first  time  

during trial by witness Jhabbulal and there was no motive for  

the respondents to commit  the murders of  as many as five  

persons of the family of Gulzari Lal.  A conjoint and purposeful  

reading of FIR with the reliable testimony of PW1 Jhabbulal  

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and  that  of  PW2  Madan  Lal  makes  it  very  clear  that  the  

respondents  were  agitated and angry  when the daughter  of  

respondent  No.1  had  eloped  with  the  son  of  the  first  

informant.  The evidence on record further shows that during  

the  time  of  first  elopement,  on  one  day  son  of  the  first  

informant, i.e., Amar Singh, was spotted in the village and on  

learning about the fact that son of the first informant was seen  

in the village, the respondents were prepared to take revenge  

to  what  is  known  as  to  maintain  honour  of  the  family.  

However, the fact that Amar Singh was likely to be assaulted  

by the respondents had become known to wife of Guljari who  

had fore-warned Amar Singh and Amar Singh had, therefore,  

left the village to save his life.  The evidence also indicates that  

the fact that Amar Singh had left the village all of a sudden  

because  of  information  conveyed  by  wife  of  the  deceased  

Gulzari  that  respondents  were  to  assault  him was  later  on  

learnt  by  the  respondents  and,  therefore,  the  respondents  

were  bearing  a  grudge  against  wife  of  Gulzari  and  against  

Gulzari.  The record further shows that when the daughter of  

the respondent No.1 had returned to the village, Guljari in the  

43

presence of the first informant had made a suggestion to the  

respondent No.1 that he should get his daughter married with  

the son of the first informant upon which the respondent No.1  

had taken an offence and asked Gulzari not to play with the  

honour  of  his  family.   This  Court  is  of  the  opinion  that  

sufficient  evidence  has  been  led  by  the  prosecution  to  

establish motive which prompted the respondents to kill five  

members of family of deceased Guljari.  What weighed with the  

High  Court  in  disbelieving  the  motive  suggested  by  the  

prosecution  was  the  fact  that  in  the  FIR  lodged  by  PW1  

Jhabbulal, it was not stated that because wife of Gulzari had  

forewarned Amar Singh about impending assault on him by  

the  respondents,  the  respondents  were  not  able  to  take  

revenge against Amar Singh and that Gulzari had suggested to  

the respondent No.1 to get his daughter married with son of  

PW1.  The High Court held that such story was developed for  

the  first  time  during  trial  by  witness  Jhabbulal  who  was  

admittedly on inimical terms with the respondents.  As far as  

this aspect is concerned, this Court notices that the FIR need  

not be an encyclopedia of all the facts and circumstances on  

44

which the prosecution relies.  The main purpose of the FIR is  

to  enable  a  police  officer  to  satisfy  himself  as  to  whether  

commission of cognizable offences is indicated so that further  

investigation can be undertaken by him.  The purpose of the  

FIR is to set the criminal law in motion and it is not customary  

to mention every minute detail of the prosecution case in the  

FIR.  FIR is never treated as a substantive piece of evidence  

and has a limited use, i.e., it can be used for the corroborating  

or contradicting the maker of it.  Law requires FIR to contain  

basic  prosecution  case  and  not  minute  details.   The  law  

developed  on  the  subject  is  that  even if  an accused  is  not  

named in the FIR he can be held guilty if prosecution leads  

reliable  and  satisfactory  evidence  which  proves  his  

participation in crime.  Similarly, the witnesses whose names  

are not mentioned in the FIR but examined during the course  

of trial can be relied upon for the purpose of basing conviction  

against  the  accused.   Non-mentioning of  motive  in  the  FIR  

cannot  be  regarded  as  omission  to  state  important  and  

material fact.  As a principle, it has been ruled by this Court  

that omission to give details in the FIR as to manner in which  

45

weapon  was  used  by  accused  is  not  material  omission  

amounting to contradiction.  Further, this is a case wherein  

FIR was filed by a rustic man and, therefore, non-mentioning  

of motive in the FIR cannot be attached much importance.   In  

Superintendent of Police, CBI & Ors. vs. Tapan Kumar Singh,  

AIR 2003 SC 4140, it has been held by this Court that mere  

absence  of  indication  about  source  of  light  in  the  FIR  for  

identifying assailants does not, in any way, affect prosecution  

version.  The FIR is not the last words in the prosecution case  

and  in  some  cases  detailed  FIR  could  be  a  ground  for  

suspicion.  What is relevant to find out is whether the FIR was  

lodged promptly and whether it is actuated by mala fides.  The  

record  of  this  case  indicates  that  FIR  regarding  gruesome  

murder  of  six  persons  was  filed  promptly  and  without  any  

avoidable delay and, therefore, false implication of any of the  

respondents in such a grievous case stands ruled out.  There  

is  nothing  on  the  record  to  show  that  FIR  was  result  of  

deliberation by the first informant with other persons.  As the  

FIR  was  lodged  promptly,  the  informant,  i.e.,  Jhabbulal’s  

evidence containing minor variations not affecting substratum  

46

of  prosecution story cannot be discarded on the ground that  

motive  which  prompted  the  respondents  to  kill  six  persons  

was not mentioned in the FIR.  Further, it is well settled that  

the  prosecution  is  not  supposed  to  prove  motive  when  

prosecution  relies  on  direct  evidence,  i.e.,  evidence  of  eye-

witnesses.  In this case, the prosecution has examined first  

informant as PW1 who has lost his brother in the incident as  

well as PW2 Madan Lal who lost five members of his family.  

Their evidence is found to be trustworthy and unimpeachable.  

As observed earlier, their evidence does not suffer from major  

contradiction  and/or  improvements  nor  noticeable  

embellishment have been made by them.  As the prosecution  

has led acceptable eye-witnesses account of the incident, this  

Court  is of the firm opinion that failure to establish motive  

would not entitle the respondents to claim acquittal.   

16. There is yet another evidence in form of oral dying  

declaration which implicates the respondents in the murder of  

six  persons  i.e.  oral  dying  declaration  made  by  deceased  

Baburam  before  his  brother  Jhabbulal.   The  High  Court  

47

committed  serious  error  in  disbelieving  the  oral  dying  

declration made by deceased Baburam before his real brother  

Jhabbulal (PW1) implicating the respondents as his assailants.  

The reasons given by the High Court for disbelieving oral dying  

declaration  was  that  it  was  not  mentioned  by  witness  

Jhabbulal either in his FIR or in his statement recorded under  

Section 161 of Cr.P.C.   As observed earlier FIR need not be an  

encyclopedia  of  minute  details  of  the  incident  nor  it  is  

necessary  to  mention  therein  the  evidence  on  which  

prosecution proposes to rely at the trial.  The basic purpose of  

filing FIR is to set the criminal law into motion and not to state  

all the minute details therein.  It is relevant to notice that six  

brutal  and gruesome murders had taken place wherein  fire  

arms were used.  The hard reality of life is that the persons  

who has lost kith and kin in horrific incident is likely to suffer  

great  shock  and  therefore  law  would  not  expect  him  to  

mention minutest details either in his FIR or statement under  

Section 161.  The question before the Court is whether the  

assertion made by the witness that soon after the incident he  

had gone to the place where his injured brother was lying and  

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on  enquiry  by  him,  his  brother  had  told  him  that  the  

respondents  were  his  assailants,  inspires  confidence  of  the  

Court.  Reading the evidence of the witness as a whole, this  

Court points that it has ring of truth in it.  There is nothing  

improbable if  a brother  approaches his injured brother and  

tries to know from him as to how he had received the injuries  

nor it is improbable that an enquiry being made the injured  

brother  would  not  give  reply/information  sought  from him.  

The assertion by witness Jhabbulal that after the incident was  

over he had gone near his injured brother and tried to know as  

to who were his assailants, whereupon his injured brother had  

replied that the appellants had caused injuries to him, could  

not be effectively challenged during cross-examination of the  

witness nor it could be brought on record that because of the  

nature of the injuries received by Baburam he would not have  

survived even for few minutes and must have died immediately  

on the receipt of the injuries.     

17. The net result of the above discussion is that the  

High Court has acquitted respondents who were charged for  

49

commission of six murders in a casual and slipshod manner.  

The approach of the High Court in appreciating the evidence is  

not only contrary to the well settled principles of appreciation  

of evidence but quite contrary to ground realities of life.  The  

High  Court  has  recorded  reasons  for  acquittal  of  the  

respondents  which  are  not  borne  out  from  the  record  and  

quite contrary to the evidences adduced by the reliable eye-

witnesses.  The High Court was not justified in upsetting well  

reasoned conviction of the respondents recorded by the Trial  

Court which after observing demeanour of the eye-witnesses  

had placed reliance on their testimony.  The High Court has  

not  taken  into  consideration  the  full  text  of  the  evidence  

adduced by the witnesses and picked up sentences here and  

there  from  the  testimony  of  the  witnesses  to  come  to  a  

particular  purpose.   For  example,  the  High  Court  has  not  

taken into consideration the whole testimony of DW1 before  

coming to the conclusion that there was complete darkness in  

the village which prevented the eye-witnesses from witnessing  

the incident.  The general impression this Court has gathered  

is that appreciation of evidence by the High Court is cursory  

50

and has done injustice to the prosecution.   

18. On the facts and in the circumstances of the case,  

this Court is of the firm opinion that it is firmly established by  

the  prosecution  that  respondents  are  persons  who  had  

committed six murders on August 10/11, 1991 and, therefore,  

liable to be convicted under Section 302 read with Section 34  

IPC.

19. This Court  has heard the learned counsel  for  the  

parties regarding sentence to be imposed on each respondent  

for  having committed offence punishable  under Section 302  

read with Section 34 IPC.  This Court notices that the Trial  

Court  had  sentenced  all  the  three  respondents  to  capital  

punishment.   There  is  no manner  of  doubt  that  killing  six  

persons and wiping almost the whole family on flimsy ground  

of honour saving of the family would fall within the rarest of  

rare case evolved by  this Court and, therefore, the Trial Court  

was perfectly justified in imposing capital punishment on the  

respondents.   However,  this  Court  also  notices  that  the  

incident  had  roughly  taken  place  before  20  years,  i.e.,  on  

51

August 10/11, 1991.  Further, the High Court had acquitted  

the respondents by judgment dated April 12, 2002.  After April  

12,  2002  till  this  date,  nothing  adverse  against  any  of  the  

respondents  is  reported  to  this  Court.   To  sentence  the  

respondents  to  death after  their  acquittal  in  the  year  2002  

would not be justified on the facts and in the circumstances of  

the case.  Therefore, this Court is of the opinion that interest  

of  justice  would  be  served  if  each  of  the  respondent  is  

sentenced  to  RI  for  life  and  a  fine  of  Rs.25,000/-  each  in  

default RI for two years for commission of offence punishable  

under Section 302 read with Section 34 IPC.

20. For the foregoing reasons, the appeal succeeds.  The  

judgment dated April 12, 2002 rendered by the High Court of  

Judicature at Allahabad in Criminal  appeal  No.574 of 2001  

acquitting the respondents of the offences punishable under  

Section 302 read with Section 34 IPC is hereby set aside.  The  

judgment of the Trial Court convicting each of the respondents  

under Section 302 read with Section 34 IPC is hereby restored  

and each respondent is accordingly convicted under Section  

52

302 read with Section 34 IPC.  For the commission of offence  

punishable under Section 302 read with Section 34 IPC, each  

respondent is sentenced to RI for life and fine of Rs.25,000/-  

each, in default, RI for two years.  Out of the amount of fine, if  

paid, a sum of Rs.50,000/- be paid to PW2, Madan Lal,  as  

compensation in view of the provisions of Section 357 of the  

Code.  The appeal accordingly stands disposed of.

……………………….J. [Harjit Singh Bedi]

……………………….J. [J.M. Panchal]

New Delhi; August 03, 2010.

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