Shiv Kumar

Planted Witnesses =Unreliability of fact witnesses and unnaturality of their conduct is sufficient to discard prosecution case-appeal allowed.= We are conscious of the fact that in cases of an eye witness account motive relegates into the background but that does not mean that even a proved unreliable and a planted witness be believed without scanning intrinsic worth of his depositions on the touch stone of improbabilities. When the presence of a witness is challenged on the ground that the whole case is cooked up and witnesses are got up to settle private scores then motive for false implication do assumes a bit of importance to judge the veracity and credibility of that witness. Judging from all the above angles we find informant PW1 is wholly an unreliable and untrustworthy witness on whom no implicit reliance can be placed. -Further, it is of significance that first informant PW1 had not sustained any injury during the incident which could have established his presence at the spot. It is still more bizarre that informant escaped unhurt, albeit, according to his own depositions assailants were in his look out to do away with him and not the deceased and he used to shield himself from them. It was testified by him in para 40 of his deposition that “All the three accused were my blood thirsty and I used to live shielding myself”. Had such a claim by the informant been true there was no earthly reason for the assailants to spare him and murder the deceased as he (informant) was in their closet sight without any hindrance. It is recollected that some of the murderers even carried bombs with them and consequently there was no difficulty for them to fatally assault the informant that too from a slapping distance. Presence of PW1 at the spot is further diminished because of the fact that he had not spotted PW2 at the time of the incident although PW2 claims himself to be witness of the incident and from para 13 of his cross examination it is well proved that he is a close relative of the informant Before we part away with this appeal we note that findings and observations recorded by the learned trial Judge in the impugned judgment are contrary to the evidences on record and are lopsided and does not indicate dispassionate analysis of entire material on record to fathom out the truth. To note a few of them the mentioning of fact at page 3 of the impugned judgment that “Vinod and Harendra assaulted with bomb which did not hit” is contrary to the evidence on record. It is the conspicuous case of the prosecution that both the aforesaid accused exploded bombs on the opposite side on the road and they never attempted to hit the deceased. Likewise the mentioning of fact that incident occurred due to political rivalry is also against evidence on record as there is no reliable evidence in that respect but for a single line ipse dixit of the informant in his cross examination. Similarly the finding at page 4 of the impugned judgment that ” Witness clearly states that except the three present in court accused, he had not seen anybody else committing the murder” is also contrary to the evidences on record as according to the informant Chhotai @ Jai Nath and Dablu Mani @ Vijai Pratap Mani had also participated in the crime and had fired shots. Going by the analogy drawn and slated by the learned trial Judge, even (A-2) and (A-3) did not participate in the murder. A perusal of findings at pages 4/5 of the impugned judgment not only indicates that it were oxymoron but also shows them to be perverse. Further, the evidences, which according to the trial Judge are insignificant are so glaringly damaging, noticeable and important that they could not have been ignored or brushed aside. As has been pointed out here in above no prudent person would have arrived at such a conclusion as has been arrived at by the learned trial Judge if he would have examined, sift and weighed evidences to separate grain from the chaff, which he never endeavoured. At page 5 learned trial Judge has himself mentioned that the bombs were not hurled aiming at the deceased but that does not make any difference as their “crime falls within the ambit of section 302/149 I.P.C. and charge for the same has also been framed” is again a perverse finding as no charge for hurling of bombs was framed and when only participation of three accused surfaced no unlawful assembly exited. Furthermore findings at page 6 of the impugned judgment regarding FIR and arrival of police personnel and non-disclosure of the names of the assailants to them by the witnesses is also incomprehensible and perverse findings being contrary even according to the opinion of the apex court as well. Ignoring criminal background of the deceased and defence version of him being shot dead in loneliness is yet another defect of significance in the impugned judgment. Furnishing a wholly unacceptable explanation regarding inconsistency between medical and ocular version against too settled expert view is yet again an error committed by the learned trial Judge. Other findings are also discredited by evidence on record. The residue of our discussion is that the prosecution has failed to bring home the charges against the appellants by leading cogent and reliable evidences and all the accused are entitled to the benefit of doubt. reported / pub. in http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do

HIGH COURT OF JUDICATURE AT ALLAHABAD  RESERVED A.F.R. CRIMINAL APPEAL NO. 3587 OF 2006 SUNIL PASI……………………………………………….APPELLANT VERSUS STATE OF U.P…………………………………………RESPONDENT. CONNECTED WITH CRIMINAL APPEAL NO.3573 OF 2006 VINOD AND ANOTHER………………………………APPELLANTS. VERSUS STATE OF U.P…………………………………………RESPONDENT. HON’BLE VINOD PRASAD J. HON’BLE SURENDRA SINGH J. (Delivered by Hon’ble Vinod Prasad J.) Three appellants herein Sunil Pasi (A-1), Vinod … Continue reading →