KHEMA @ KHEM CHANDRA ETC. VERSUS STATE OF UTTAR PRADESH

KHEMA @ KHEM CHANDRA ETC. VERSUS STATE OF UTTAR PRADESH 


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION 
CRIMINAL APPEAL NOS. 1200 ­ 1202  OF 2022
[Arising out of SLP(Criminal) Nos.8624­8626 of 2019]
KHEMA @ KHEM CHANDRA ETC.          ...APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH     ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. Leave granted.
2. These   appeals   challenge   the   judgment   and   order
dated 30th April 2019 passed by the High Court of Judicature
at Allahabad in Criminal Appeal Nos. 6961, 7260 and 6227
of   2006,   thereby   dismissing   the   appeals   filed   by   the
appellants and confirming the judgment and order dated 28th
September 2006 passed by the Additional Sessions Judge,
Court No.4, Mathura (hereinafter referred to as “trial court”)
1
in Sessions Trial Nos. 515 and 655 of 2002 convicting the
appellants for offences punishable under Section 302 read
with Section 149, Section 307 read with Section 149 and
Section 148 of the Indian Penal Code, 1860 (for short ‘IPC’)
and sentencing them to undergo imprisonment for life with a
fine of Rs. 5,000/­ each.
3. The prosecution case in brief is thus:
The marriage of two daughters of deceased Prakash
was to be solemnized on 1st May 2002.  On 27th April 2002 at
around 08.00 am, when deceased Prakash and his wife Kripa
were going to extend invitation to their relatives, near the
house of accused Deepi, all the accused persons who were
hiding   themselves   inside   the   house,   came   out   carrying
weapons.   Accused  Deepi and Kanhaiya were having  farsa
with them whereas accused Khema @ Khem Chandra was
having a club. Accused Jasram, Balveer and Mahaveer were
having country made pistols with them.  All of them started
assaulting deceased Prakash and threw him on the brick
road.  Inder (PW­2), brother of deceased Prakash, his sister
Omwati   and   wife   Kripa   came   forward   to   save   the   life   of
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deceased   Prakash.     However,   accused   persons   assaulted
them as well.   In the said assault, Inder (PW­2) suffered
gunshot injury.  On the basis of information given by Omveer
(PW­1),  brother  of   deceased  Prakash,  an   FIR  came  to   be
lodged on 27th April 2002 at 10.10 am.  On the basis of the
said FIR, a crime for the offences punishable under Sections
147, 148, 149, 307, 302 and 506 of the IPC came to be
registered against the accused persons. After completion of
investigation, a charge­sheet came to be filed in the trial
court.  Since the case was triable exclusively by the Sessions
Judge, it was committed to the learned Sessions Judge.  The
learned   Sessions   Judge   framed   the   charges   against   the
accused persons for the offences punishable under Sections
147, 148, 302 read with 149 and 307 read with 149 of the
IPC.  Charge was also framed against accused Balveer under
Section 25 of the Arms Act, 1959 (hereinafter referred to as
the “Arms Act”) and against accused Deepi under Section
4/25 of the Arms Act.   The accused persons pleaded not
guilty and claimed to be tried.  At the conclusion of the trial,
the trial court convicted the appellants as aforesaid.  Being
aggrieved thereby, the appellants had filed appeals before the
3
High Court, which were also dismissed, thereby confirming
the judgment and order of conviction and sentence passed by
the trial court.  Being aggrieved thereby, the appellants have
approached this Court.
4. We have heard Shri Rajul Bhargav, learned Senior
Counsel appearing on behalf of the appellants, Ms. Garima
Prashad, learned Additional Advocate General for the State
and Shri S.R. Singh, learned Senior Counsel appearing on
behalf of the first informant.
5. Shri Bhargav submitted that the trial court and the
High Court have grossly erred in convicting the appellants.
He   submitted   that   the   appellants   have   been   falsely
implicated in the case.  It is submitted that though Omveer
(PW­1) is projected as an eye witness, it is clear from his
testimony that he could not have witnessed the incident.  He
submitted that even the trial court has held that from the
deposition   of   Omveer   (PW­1),   it   is   clear   that   he   has   not
witnessed   the   incident.     He   further   submitted   that   Inder
(PW­2) who is said to be an injured witness, also appears to
be a planted witness.  It is submitted that from the evidence
4
of the prosecution  witnesses, there is serious doubt with
regard to the timing as to when Inder (PW­2) has sustained
injuries and as to when he was medically examined.   He
submitted   that   there   are   material   contradictions   and
inconsistencies   in   the   evidence   of   Inder   (PW­2)   and   Dr.
Anoop Kumar (PW­6).  
6. The learned Senior Counsel further submitted that
the so­called recoveries at the instance of appellants are also
false and could not have been relied upon.   The learned
Senior   Counsel   submitted   that   the   prosecution   has   not
examined Vijay Singh, brother of the deceased, who was the
first to inform the incident to the Police Station Shergarh on
telephone.  It is submitted that the station diary entry on the
basis of telephonic information given by Vijay Singh has also
not been brought on record by the prosecution. It is therefore
submitted that the prosecution has tried to suppress the real
genesis of the incident.  It is further submitted that though
Kripa and Omwati, wife and sister of the deceased are said to
have received injuries, they have not been examined.   It is
further submitted that though independent witnesses were
5
available, the prosecution has failed to examine them and as
such, an adverse inference is required to be drawn against
the   prosecution.   The   learned   Senior   Counsel   therefore
submitted that the judgment and order passed by the trial
court   and   maintained   by   the   High   Court   is   liable   to   be
quashed and set aside.  
7. Ms. Prashad submitted that merely because Omveer
(PW­1)   and   Inder   (PW­2)   are  relatives  of   the   deceased,  it
cannot be a ground for discarding their testimonies.   It is
submitted   that   both   of   them   have   undergone   crossexamination and nothing damaging could be elicited in their
cross­examination.   She further submitted that the ocular
testimonies   of   Omveer   (PW­1)   and   Inder   (PW­2)   are   duly
corroborated by the recovery of incriminating material on the
memorandum under Section 27 of the Evidence Act, 1872
(hereinafter referred to as the “Evidence Act”).  The learned
Senior Counsel therefore submitted that no interference is
warranted in the concurrent orders passed by the trial court
and the High Court.
6
8. Shri Singh, learned Senior Counsel submitted that
Inder (PW­2) is an injured witness.  He therefore submitted
that in view of the law laid down by this Court in the case of
Jarnail   Singh   and   Others   v.   State   of   Punjab1
,   the
testimony   of   the   injured   witness   will   have   a   special
evidentiary status.   He also relies on the judgment of this
Court in the case of  Abdul   Sayeed   v.   State   of  Madhya
Pradesh2
 to further buttress his submission.
9. Shri Singh further submitted that the findings of the
trial   court   as   well   as   the   High   Court   are   based   upon
appreciation of evidence.  He submitted that this Court will
not   normally   enter   into   re­appraisement   or   review   of   the
evidence unless the decision of the High Court is vitiated by
error of law or procedure.  He relies on the judgment of this
Court in the case of Smt. Dalbir Kaur and Others v. State
of Punjab3
10. A perusal of the judgment of the trial court as well as
the High Court would reveal that the conviction is based
1 (2009) 9 SCC 719
2 (2010) 10 SCC 259
3 (1976) 4 SCC 158
7
basically   on   the   testimonies   of   Omveer   (PW­1)   and   Inder
(PW­2).     The   Court   has   sought   corroboration   to   the
testimonies of these witnesses from the recoveries made on
the basis of memorandum of the accused under Section 27 of
the Evidence Act.  The trial court observed that the farsa was
seized   on   the   basis   of   identification   done   by   accused
Kanhaiya. The trial court further observed that the weapons
farsa and rifle were seized at the instance of accused Deepi
and Balveer.
11. To examine the correctness of these findings, we will
first assess the testimony of Omveer (PW­1) and Inder (PW­2).
Both these witnesses are brothers of deceased Prakash.  As
such, they would fall in the category of interested witnesses,
being related to the deceased.   However, their testimonies
cannot be discarded only on the ground that the witnesses
are interested witnesses.   The only requirement would be
that   the   evidence   of   such   witnesses   is   required   to   be
scrutinized with greater care and circumspection.
12. Omveer   (PW­1)   states   that   when   his   deceased
brother Prakash and Kripa (wife of Prakash) along with their
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sister   Omwati   were   going   to   extend   invitation   for   the
upcoming   marriage,   all   the   accused   persons   were   hiding
themselves   in   the   house   of   Deepi.     On   seeing   deceased
Prakash, all of them came out.  Accused Deepi and Kanhaiya
were armed with  farsa, accused Khema @ Khem Chandra
was armed with  lathi, accused Jasram and Mahaveer were
armed with country made pistols and accused Balveer was
having   a   rifle   and   they   assaulted   his   deceased   brother
Prakash.     He   states   that   the   blows   were   given   from   the
reverse side of the farsa.  He states that on hearing hue and
cry, he as well as other residents of the village reached at the
spot and saw the occurrence. There are many improvements
in the deposition of Omveer (PW­1).   It will be relevant to
refer to an excerpt from the cross­examination of Omveer
(PW­1):
“When the quarrel started, then I was inside my
house. I heard four­five rounds of firing. I came out
of the house after hearing the sound of firing and
after reaching the spot, then I found that Prakash
was lying dead.  When I reached at the spot, then
Inder   was   at   the   spot.   Inder   had   fallen   after
sustaining   the   injury.   He   was   not   fully
unconscious.”
9
13. It will also be relevant to note that even Inder (PW­2)
has also admitted that Omveer (PW­1) was inside the house
when the incident occurred.  
14. Not only this, but the trial court itself has observed
in its judgment thus:
“It is explicit on perusal of testimony of said witness
in entirety that said witness was not present at the
spot since earlier, but he reached at the spot after
hearing the gunshots.  Therefore he did not see the
occurrence, but due to he having reached at the
spot after hearing the hue and cry, so the testimony
of   said   witness   is   significant   with   respect   to
presence of the accused at the spot and they had
been armed with the weapons as disclosed and that
having been given by them that in case anybody
would   get   the   first   information   lodged,   then   he
would be killed.”
15. It is thus clear that even the trial court has come to
a conclusion that Omveer (PW­1) could not have witnessed
the incident.
16. That leaves us with the testimony of Inder (PW­2).
No   doubt   that   Inder   (PW­2)   is   an   injured   witness   and
therefore, his testimony could not be brushed aside lightly.
The reliance placed by Shri Singh on the judgments of this
Court  in   the   cases  of  Jarnail   Singh  (supra)  and  Abdul
10
Sayeed  (supra) is  well merited. The fact that the witness
received  injuries  establishes  his presence  at the scene of
occurrence.     The   evidence   of   such   a   witness   cannot   be
rejected unless there are strong grounds for such rejection.
Inder   (PW­2)   has   given   detailed   narration   as   to   how   the
incident has occurred.   He has stated that accused Deepi
and   Kanhaiya   assaulted   with  farsa,   accused   Khema
assaulted   with  lathi  and   accused   Balveer,   Mahaveer   and
Jasram assaulted with the butts of their guns.   Accused
Balveer,   Mahaveer   and   Jasram   fired   simultaneously.     He
states that when Omwati lay on him to save him, accused
persons assaulted Omwati with stones and danda.
17. The   incident   had   occurred   on   27th  April   2002.
However, the statement of Inder (PW­2) was recorded under
Section   161   Cr.P.C.   on   21st  May   2002.     In   his   crossexamination, he admitted that the police did not interrogate
him on 30th  April 2002. Not only is there a long delay in
recording his statement but there are serious discrepancies
with regard to the medical examination of Inder (PW­2) as
well.  In the injury report (Ex.­P7), the time of examination is
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stated to be 10.20 pm.  From the evidence of Omveer (PW­1)
and Inder (PW­2), it is clear that after the incident occurred,
they had gone to Police Station Shergarh and they were in
the Police Station Shergarh from 10.00 am to 11.00 am.  In
his evidence, Inder (PW­2) has stated that he has reached the
hospital at 12.00 o’clock and that his medical check­up was
done during day time. In his examination­in­chief, Dr. Anoop
Kumar (PW­6) has stated that there was a possibility that the
injuries were inflicted at 08.00 am on 27th April 2002.  In his
cross­examination, he admits that in the report of medical
examination, he has mentioned the injuries as fresh meaning
thereby that such injuries had been inflicted within a period
of 2 hours to 6 hours.  He further admits that the medical
examination was done at 10.20 pm on 27th April 2022.  As
such, the injuries could be inflicted subsequent to 04.20 pm.
He has further admitted that there are no entries made with
respect   to   the   injuries   caused   to   Inder   (PW­2)   in   the
concerned register.  
18. It   is   pertinent   to   note   that   after   noticing   such
inconsistencies with regard to time of injuries sustained and
12
the time of medical examination of Inder (PW­2), Dr. Anoop
Kumar (PW­6) was recalled at the request of the Additional
District Government Pleader.  In his re­examination, he has
stated that due to some mistake, 10.20 pm was mentioned in
the medical examination report and actually, it was done on
27th  April   2002   at   10.20   am.     In   his   further   crossexamination, he has given contradictory answers.   He has
stated   that   he   had   never   done   duty   in   the   night   and
therefore, he could say that he had not done the medical
examination at 10.20 pm.  He has further admitted that the
duties are fixed on the basis of the roster and the duties are
not on a regular basis.  He has further admitted that they are
required to do the duties on shift basis.  It could thus clearly
be seen that there are serious discrepancies with regard to
the   time   of   injuries   sustained   and   the   time   of   medical
examination of Inder (PW­2).
19. The version of Dr. Anoop Kumar (PW­6) that he had
examined Inder (PW­2) at 10.20 am itself is falsified by the
evidence of Omveer (PW­1) and Inder (PW­2).   According to
both of them, they were in the Police Station Shergarh from
13
10.00 am to 11.00 am and thereafter, Inder (PW­2) left for
Mathura.     Even   according   to   Inder   (PW­2),   he   reached
Mathura after 12.00 o’clock.   He stated that after reaching
the hospital, he was examined after about 2 hours.  As such,
even   if   the   version   of   Dr.   Anoop   Kumar   (PW­6)   in   reexamination that he had examined Inder (PW­2) at 10.20 am
is to be accepted, the same is totally inconsistent with the
testimony of Omveer (PW­1) and Inder (PW­2).  As such, the
possibility of some fabrication in the injury certificate cannot
be rejected.
20. We   are   conscious   that   on   the   ground   of   minor
inconsistencies,   the   evidence   of   Inder   (PW­2)   cannot   be
brushed aside.   However, it is to be noted that there are
material   improvements   in   his   evidence.     His   evidence
therefore is required to be scrutinized with greater caution
and   circumspection.     It  is   further   to   be  noted   that   even
according   to   the   prosecution,   there   is   previous   enmity
between the accused and the deceased.   As held by this
Court in the case of  Ramashish  Rai   v.  Jagdish   Singh4
,
previous enmity is a double­edged sword.  On one hand, it
4 (2005) 10 SCC 498
14
provides motive to the crime and on the other, there is a
possibility of false implication.
21. This   Court,   in   the   celebrated   case   of  Vadivelu
Thevar v. State of Madras5
, has observed thus:
“…….Hence, in our opinion, it is a sound and
well­established   rule   of   law   that   the   court   is
concerned   with   the   quality   and   not   with   the
quantity of the evidence necessary for proving or
disproving   a   fact.   Generally   speaking,   oral
testimony   in   this   context   may   be   classified   into
three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should
have no difficulty in coming to its conclusion either
way   —   it   may   convict   or   may   acquit   on   the
testimony of a single witness, if it is found to be
above   reproach   or   suspicion   of   interestedness,
incompetence   or   subornation.   In   the   second
category,   the   court   equally   has   no   difficulty   in
coming to its conclusion. It is in the third category
of cases, that the court has to be circumspect and
has to look for corroboration in material particulars
by reliable testimony, direct or circumstantial..……”
5 [1957] SCR 981
15
22. We find that the testimony of Inder (PW­2) would fall
under the 3rd  category i.e. his evidence can be said to be
“neither wholly reliable nor wholly unreliable”.   As such, it
will be necessary that there is  some  corroboration to his
ocular testimony.
23. The trial court had relied on the recoveries of the
weapons on the memorandum of the accused persons alleged
to have been used in the commission of crime.  Insofar as the
seizure at the instance of accused Kanhaiya is concerned, he
was arrested on 1st May 2002.  It is to be noted that there are
no independent panchas to the seizure memo.   Apart from
that, the memorandum statement of accused Kanhaiya, as is
required to be recorded under Section 27 of the Evidence Act,
has also not been brought on record.  
24. Insofar as the recoveries at the instance of accused
Deepi   and   Balveer   are   concerned,   the   said   accused   have
surrendered   in   court   on   7th  May   2002.   Inspector   Ashok
Kumar Singh, Investigating Officer (PW­7) has stated that on
8
th May 2002, a search for the weapons was made in Burji at
Kosi Road, but he could not recover any weapon.  However
16
on 17th  May 2002, the recoveries are alleged to have been
made at the instance of accused Deepi and Balveer.   Even
the seizure memo of the recovery in respect of these two
accused is not signed by any independent panch witness.  In
the case of these two accused, the memorandum recorded
under Section 27 of the Evidence Act is also not placed on
record.  As such, the said recoveries cannot be said to be free
from doubt.
25. It is further to be noted that immediately after the
incident, Vijay Singh, brother of deceased Prakash as well as
Omveer (PW­1) and Inder (PW­2), informed about the incident
to Police Station Shergarh on telephone which fact has come
on record in the evidence of Omveer (PW­1) and Inder (PW­2).
Neither Vijay has been examined nor has the station diary
entry with regard to the said telephonic message been placed
on   record.     Though   Inder   (PW­2)   has   admitted   that   the
incident   was   witnessed   by   Parmal,   Rajveer   and   other
residents,   none   of   them   was   examined.   As   such,   the
possibility of the prosecution not bringing on record the real
genesis of the incident cannot be ruled out.
17
26. Shri Singh has strongly relied on the judgment of
this   Court   in   the   case   of  Smt.   Dalbir   Kaur  (supra)   in
support of the submission that in view of the concurrent
findings   of   fact,   this   Court   should   not   re­appreciate   the
evidence.  No doubt that the reliance placed by Shri Singh on
the judgment of this Court in the case of Smt. Dalbir Kaur
(supra) is well merited.  However, it is to be noted that this
Court, in a catena of cases, has held that though in cases of
concurrent   findings   of   fact   this   Court   will   not   ordinarily
interfere   with   the   said   findings,   in   exceptional
circumstances, this Court is empowered to  do  so.  If this
Court finds that the appreciation of evidence and findings is
vitiated by any error of law or procedure or found contrary to
the   principles   of   natural   justice,   errors   of   record   and
misreading of the evidence, or where the conclusions of the
High Court are manifestly perverse, this Court would not be
powerless to reappreciate the evidence.     Reliance in this
respect could be placed on the judgments of this Court in the
cases   of  Himachal   Pradesh   Administration v. Shri  Om
Prakash6
, Arunachalam v. P.S.R.   Sadhanantham and
6 (1972) 1 SCC 249
18
Another7
, Mithilesh Kumari and Another v. Prem Behari
Khare8
,  State   of   U.P. v. Babul   Nath9
,   and  Pattakkal
Kunhikoya (Dead)   By   LRs.   v. Thoopiyakkal   Koya and
Another10
.
27. Recently,   this   Court   in   the   case   of  Ashoksinh
Jayendrasinh   v.   State   of   Gujarat11  had   also   held   that
when   the   High   Court   has   failed   to   appreciate   the   oral
evidence, this Court would certainly be entitled to appreciate
the evidence in correct perspective.   In the said case also,
this Court, finding that the conviction was recorded after
ignoring   the   vital   evidence,   has   set   aside   the   order   of
conviction and acquitted the accused.  
28. In the present case, we notice that the trial court as
and the High Court have failed to take into consideration the
vital discrepancies and inconsistencies in the evidence of the
prosecution witnesses.
29. From   the   perusal   of   the   evidence   as   well   as   the
findings of the trial court itself, it is clear that Omveer (PW­1)
7 (1979) 2 SCC 297
8 (1989) 2 SCC 95
9 (1994) 6 SCC 29
10 (2000) 2 SCC 185
11 (2019) 6 SCC 535
19
cannot be said to be an eye witness.  Though, Inder (PW­2) is
an injured eye witness, there are serious discrepancies and
inconsistencies with regard to time of the injuries sustained
and time at which he was medically examined.   Dr. Anoop
Kumar (PW­6), in his evidence, has changed his stance on
several occasions. His testimony is totally contrary to that of
Omveer (PW­1) and Inder (PW­2). As held by us, it will not be
safe to base the conviction on the sole testimony of Inder
(PW­2) though he is an injured witness. The corroboration
sought by the prosecution with regard to alleged recoveries of
the weapons used in the crime is also not free from doubt.
Neither   the   station   diary   entry   with   regard   to   telephonic
intimation given by Vijay Singh at 9.05 am has been brought
on   record   nor   has   Vijay   Singh   been   examined.   Though
independent witnesses were available, the prosecution has
failed to examine them.  We therefore find that this is a case
wherein the appellants are entitled for benefit of doubt.
30. In the result, we pass the following order:
(i) The appeals are allowed;
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(ii) The judgment and order dated 30th April 2019 passed
by   the   High   Court   of   Judicature   at   Allahabad   in
Criminal Appeal Nos. 6961, 7260 and 6227 of 2006
and the judgment and order dated 28th  September
2006 passed by the trial court in Sessions Trial Nos.
515 and 655 of 2002 are quashed and set aside; and
(iii) The   appellants   are   acquitted   of   all   the   charges
charged with.  Deepi, who has been enlarged on bail,
shall have his bail bonds cancelled, while the rest of
the accused are directed to be set at liberty forthwith,
if not required in any other case.
31. Pending application(s), if any, including application
for bail, shall stand disposed of in the above terms.
…..….......................J.
[B.R. GAVAI]
…….................................................J.       
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
AUGUST 10, 2022.
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