IMPORTANT POINT
Conviction cannot be based on evidence of an alleged eye witness which is not reliable and trustworthy.

Judgment

Uday Umesh Lalit, J.

1. These appeals by Special Leave arise out of judgment and order dated 24.04.2007 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.7911 of 2006 and Criminal Reference No.15 of 2006. While rejecting the Reference, the High Court allowed the Appeal and acquitted the respondents of the charges under Section 302 read with Section 34 IPC.

2. Pursuant to the statement of PW1 Roop Basant recorded by scribe Soran Lal at 12:45 p.m. on 24.02.2006, Crime No.23 was registered with Police Station Khurja Dehaat, Bulandshahar against the respondents. It was alleged that on that day Akash aged about 8 years, nephew of said PW1 was playing near Ambedkar Park. At about 10 a.m. respondent Subhadra took said Akash to her baithak, which was seen by villagers Mewa Ram and Vijay Pal. At that time three sons of said Subhadra, who along with Subhadra are respondents herein, were sitting in the Verandah. They went inside taking Akash along with them and did not come out for about half an hour. It was alleged that the respondents then came out with a “thaal” filled with articles of worship (pooja samagri) and went towards Chamunda Math for worship. Since Mewa Ram and Vijay Pal did not see Akash coming out, they suspected some foul play and soon after the respondents had left for Chamunda Math they went inside the baithak. As they entered, they saw dead body of Akash lying in a pool of blood with nostrils and ears cut. They raised hue and cry, which attracted number of villagers. When the villagers saw body of Akash, the situation took an ugly turn and there was complete chaos. The people then went to the Math and assaulted the respondents.

3. The police thereafter arrived in the village and Inquest Panchanama was conducted between 2:30 p.m. to 4:00 p.m. Around this time, the respondents were arrested at about 3:30 p.m. After the inquest, the body of Akash was sent for post mortem. PW7 Dr. Rajesh Kumar conducted post mortem at 4:30 p.m and found following ante mortem injuries on the body of said Akash :

1. An incised wound size 1cm X 0.5cm X muscle & cartilage deep present over pinna of right ear.

2. A contusion 5 cms X 3 cms present over right side of face just anterior to the right ear.

3. A braded contusions 5 cms X 3 cms present over left side of face 3 cms away from nose.

4. A contusion 4 cms X 3 cms present over left side of face 3 cms away from nose

5. An incised wound 1 cm X .5 cm X muscle & cartilage and muscle deep present over left side of nostril. 6 An incised wound 1 cm X .5 cm X muscle & cartilage deep present over right side of nostril.

7. An incised wound 1 cm X .5 cm X muscle deep present over tip of chin.

8. Multiple contusion in the area of 7cms X 5 cms over anterior & right side of neck at the level of Adam’s apple

9. Abraded contusion 4 cms x 4cms present over anterior aspect of neck over Adam’s apple and towards left side.

It was found that there was bleeding from the mouth and nostrils. As per PW7 Dr. Rajesh Kumar, the cause of death was asphyxia resulting from throttling. The witness stated that injury Nos.1, 5, 6 and 7 were possible by a sharp cutting weapon.

4. While the respondents were arrested, on personal search of accused Sanjay, blood stained dharati or sickle was recovered. Since the respondents were found to be having injuries, they were referred to PW3 Dr. A. Kumar, who found seventeen injuries on the body of respondent Sanjay, one injury on the body of respondent Satveer and four injuries on the person of respondent Subhadra. The injuries were fresh and in the opinion of the witness were possibly received around 11:15 a.m. on the same day. Investigating Officer prepared Site plan Ext.Ka-15 according to which baithak in question was about 12’ x 12’ with one door and an adjoining verandah in front and the baithak was bounded by a boundary wall. He recovered blood stained earth from the baithak and blood stained cemented portion from Chamunda Math, which blood was later found to b