Point of law: testimony of an inimical witness, cannot be rejected per se, the only caveat is that such testimony is to be examined with care and caution.

ORDER :

Pankaj Naqvi, J.

This criminal appeal is preferred against the judgment and order dated 6.10.1993, passed by the Addl. Sessions Judge, Gorakhpur, in S.T. No. 29/1993, convicting/sentencing the appellant under Sections 302 IPC for life.

1. The prosecution case is as under:

(A) P.W.-1, the informant alleged that there is an ongoing previous enmity with accused Kaushal Kumar Upadhyay of his village as a case under Section 307 IPC was instituted by him in 1988 against him and his brother-Rajesh Kumar Upadhyay in which after conviction, they were enlarged on bail by this Court, on account of which on 18.11.1991 at around 5 in the evening while his son Amar Nath Lallan (victim) was returning after watering the fields near the house of Ramgati Teli, accused Kaushal Kumar Upadhyay armed with pharsa and his brother Rajesh Kumar with a knife exhorting each other, assaulted the victim with deadly weapons who collapsed. The incident is reported to have been witnessed by P.W.-1 and his accompanying grandson Umesh Chand (P.W.-2) along with other co-villagers but the accused managed to escape. The accused are reported to have strong criminal antecedents who had unleashed terror in the village.

(B) On above allegations, an FIR came to be registered against the above named two accused as Case Crime No. 150/1991, under Section 302 IPC, P.S. Sikeriganj, Gorakhpur on 18.11.1991 at 19.15 hrs. with P.S. at a distance of 2 miles.

2. Accused Rajesh Kumar Upadhyay died during pendency of trial. The trial court convicted the appellant as above.

3. We heard Sri Sheshadri Trivedi, the learned Amicus and Sri A.N. Mulla, the learned A.G.A.

The learned Amicus raised the following arguments:

(i) The precise mode and manner of assault was neither indicated in the FIR nor under ul Section 161 Cr.P.C., was disclosed for the first time in the court by P.W.'s-1 & 2. No stab/punctured wound was alleged by P.W.-2. The injuries are not compatible with the oral account as injuries on the head could not be caused by a pharsa as they are only muscle deep.

(ii) Prosecution failed to explain injuries No. 5 & 6.

(iii) There is a substantial difference between the distance of the police station as indicated in the FIR with that of the inquest, i.e., at the time of the inquest, the FIR had not seen the light of the day, it was ante-timed.

(iv) The I.O. failed to give any date of despatch of the special report.

(v) There is strong previous enmity between the parties as P.W.-1, a retired Head Moharrir, has two sons, serving in the police department unsuccessfully targetted the appellant in a prior case under Section 307 IPC. Thus, false implication cannot be ruled out.

(vi) P.W.-1, the informant, neither disclosed the purpose of visiting the fields in the written report lodged by him nor under Section 161 Cr.P.C. The said purpose was disclosed for the first time before the court which being a material improvement on a crucial aspect, dents his presence as an eye witness.

(viii) P.W.'s-1 & 2 both admitted that the latter, a grandson of former was studying in Varanasi on the date of occurrence, thus, P.W.-2 could not be an eye-witness.

4. The learned A.G.A. countered the above submission by submitting that FIR is not expected to contain the minutest details of the occurrence as it is not an encyclopedia, prosecution case cannot be thrown out merely on the ground that the purpose of the visit so as to enable P.W.-1 to be an eye-witness, was disclosed for the first time in the court or some minor injuries do not tally with the oral account or witnesses were inimical, as the prosecution has successfully established the broad contours of the case.

5. P.W.-1 (grandfather) and P.W.-2 (grandson) claim to be eye-witnesses, involving the assault on the son of P.W.-1, who had been out since 9 in the morning along with Ram Prasad, a cultivator to irrigate his fields, near the house of one Ram Pyare while they were on way to the fields, a furlong away from the house of P.W.-1, accused started a