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2024 DIGILAW 254 (ALL)

Vinod Kumar v. State of U. P.

2024-01-24

ANISH KUMAR GUPTA, SIDDHARTHA VARMA

body2024
JUDGMENT : 1. Written Arguments submitted by learned counsel for the appellant be kept on record. 2. When on 2nd December, 1979, Virendra Kumar was shot dead, a First Information Report allegedly was got lodged on 02.12.1979 at 02:30 pm. The first informant was one Girish Kumar, the son of the deceased. In the First Information Report, it has been stated that the first informant was belonging to Mauja - Gandhaur P.S. - Chandpur, District - Bijnor. He has stated that in the year 1977 when the elder brother of his father one Sri Bhupendra Kumar was killed by Radheyshyam etc. then there were a case contested by Radhyshyam in which he was acquitted. Thereafter in the year 1978, Radheshyam himself was killed. For the murder of Radheyshyam, Virendra Kumar, the father of the First Informant, Harendra Kumar, Atul, Surendra Kumar and Dushyant, were named as accused and ever since then Radheyshaym’s brother Vinod Kumar and others were inimical to Virendra Kumar the father of the First Informant and they were always in the look out for taking revenge of the death of Radheyshaym. He has stated in the First Information Report that around 15 days prior to the incident, Narayan @ Madan resident of Meerapur, District – Muzaffarnagar and the Pradhan of the village Om Prakash had contacted the father of the first informant and had stated that the date in the case of the murder of Radheyshaym was approaching and insisted that a compromise could be entered into between the parties. The first informant specifically took the name of Vinod Kumar and said that the compromise could be entered into between Virendra Kumar and Vinod Kumar who was the brother of Radhey Shyam. It has further been stated that Vinod was a teacher in Shiv Inter College, Gajraula. Still further, it has been stated that Om Prakash had taken the first informant to Gajraula for a meeting with Vinod Kumar. There, he could not meet Vinod Kumar. Later Narayan and Om Prakash told him that on 2.12.1979 it was Sunday and they had to bring Virendra and, thereafter, a compromise could be entered into and, their matter with regard to the murder case vis-a-vis Radheyshyam would be settled between the parties. There, he could not meet Vinod Kumar. Later Narayan and Om Prakash told him that on 2.12.1979 it was Sunday and they had to bring Virendra and, thereafter, a compromise could be entered into and, their matter with regard to the murder case vis-a-vis Radheyshyam would be settled between the parties. When Girish, the first informant, told these happenings to his father Virendra, he did not agree with Girish and said that now the date with regard to the case of the murder of Radhey Shyam was approaching and that he was also busy with the business of crushing and therefore no meetng could take place. Thereafter, it has further been stated that on 2.12.1979 despite the fact that the father of first informant had not agreed to meet Vinod etc. for the purpose of conciliation, Om Prakash and Narayan reached the house of Virendra and he was taken from Gajraula to meet Vinod Kumar. The first informant has further stated that along with Om Prakash and Narayan, the first informant had also gone to meet Vinod. He has stated that along with Om Prakash and Narayan, Som Prakash son of Radhey Shyam residents of Bareilly and Subhash son of Roop Kishore resident of Bijnor had headed for Gajraula. Narayan had asked the first informant and all the other persons who had accompanied him to Gajraula to sit at the Almora Hotel, station road, Gajraula and, thereafter, he went away to call Vinod. It has been stated that while these persons were having tea, from the northern side, at around 2:00pm, Vinod armed with a gun and Narayan armed with a country made pistol approached the five of them, namely, Virendra, Girish, Om Prakash, Som Prakash and Subash. 3. Om Prakash instigated Vinod to kill Virendra and, thereafter, both of them i.e. Narayan and Vinod fired at Virendra, the father of the first informant, who fell down. Vinod and Narayan, thereafter ran away from the spot, but despite the fact that they were followed, they could not be apprehended. Upon unsuccessfully having tried to catch hold of the assailants, the first informant returned to the spot and over there he found that Om Prakash had also disappeared. He, therefore, stated that in a planned manner his father was brought to the place of the incident and was killed by Narayan, Vinod and Om Prakash. Upon unsuccessfully having tried to catch hold of the assailants, the first informant returned to the spot and over there he found that Om Prakash had also disappeared. He, therefore, stated that in a planned manner his father was brought to the place of the incident and was killed by Narayan, Vinod and Om Prakash. He had, thereafter, has stated that he left the dead body on the spot and had gone to the Police Station to get the first information report lodged. 4. Investigation, thereafter, ensued. Panchayatnama was got prepared and in the Panchayatnama, it had been stated that it commenced at 3:00PM on 2.12.1979 in the presence of 5 witnesses, namely, Trilok Singh s/o Ram Singh, Dev Singh son of Ram Singh, Mangal Singh son of Khushal Singh, Jaipal Singh s/o Dayaram and Mahendra Singh s/o Phool Singh. The first three witnesses had given out as residents of Almora Hotel, Station Road, Gajraula, while Jaipal Singh son of Dayaram Singh were a resident of Salempur, Police Station – Gajraula and Mahendra Singh son of Phool Singh had been described as resident of Mandi, Ghanaura, Bahraich. Thereafter, from the spot, the Investigating Officer kept in his custody, three articles found there, namely, one pair of shoes, a pair of socks and a coat which was blood stained. These were worn by the deceased. The recovery memo was exhibited as exhibit – Ka.11. Also the plain soil and blood stained soil were taken from the spot and a recovery memo was prepared and exhibited as Exhibit -ka.13. The recovery memo of empty cartridges was also prepared and exhibited as Exhibit – ka 14. 5. From the record, we find that the post-mortem, thereafter, was conducted on 3.12.1979 at 3:30pm. The investigation after having been completed, a police report was submitted before the Magistrate who took cognizance on 15.1.1980 and forwarded the same before the Sessions Judge for trial on 1.9.1980. Charges were framed against Vinod Kumar & Narayan @ Madan under Section 302 IPC and against Om Prakash, the charges was framed under Section 302/34 IPC. When they denied the charges, trial commenced. From the side of the prosecution 7 witnesses appeared. 6. P.W. - 1 was the first informant Girish Kumar; P.W. - 2 was Som Prakash son of Radhey Shyam; P.W. - 3 was Dr. When they denied the charges, trial commenced. From the side of the prosecution 7 witnesses appeared. 6. P.W. - 1 was the first informant Girish Kumar; P.W. - 2 was Som Prakash son of Radhey Shyam; P.W. - 3 was Dr. Naveen Chandra; P.W. - 4 was Dev Singh; P.W. - 5 was Suresh Chandra; P.W. - 6 was Subhash and Chandra Pal who was the Investigating Officer was produced as P.W. - 7. 7. The trial when was concluded, the 7th Additional Sessions Judge on 5.3.1986 acquitted Narayan but convicted Vinod Kumar under Section 302-IPC and Om Prakash under Section 302/34 IPC and sentenced them to life imprisonment. Aggrieved thereof, the two accused, namely, Vinod Kumar and Om Prakash filed the instant Criminal Appeal. 8. It has been stated that the appellant no. 2, Om Prakash, died during the pendency of the Appeal and, therefore, the Appeal against the appellant no. 2, Om Prakash, abated on 2.5.2019. The appellant Vinod too had died but this Court by the order dated 2.5.2019 permitted the wife of the appellant Vinod Kumar, namely, Smt. Sushma Sharma, under Section 394(2) Cr.P.C. to continue the Appeal. 9. P.W. - 1 in his statement-in-chief has proved the first information report and he has reiterated the facts as were mentioned in the first information report. He has tried to establish the place of incident i.e. the Almora Hotel and has narrated the facts as had, according to him, taken place. The P.W. - 1 in the cross-examination has stated that he had not mentioned this fact in his first information report that Om Prakash was with Radhey Shyam in the election of Pradhan. He has stated that in the murder of Radhey Shyam his father was wrongly implicated. He has further stated that Ramesh had got the first information report lodged with regard to the murder of Radhey Shyam against his father Virendra. He has stated that because of the implication of his father in the case, his father had to suffer a lot and he had also to remain in jail for quite sometime and had to contest the case. He has very categorically stated that Vinod Kumar was neither the first informant in the murder case of Radhey Shyam and nor was he a witness in it. He has very categorically stated that Vinod Kumar was neither the first informant in the murder case of Radhey Shyam and nor was he a witness in it. He has further stated that at the time, when the murder of Radhey Shyam had taken place, Girish Kumar, the first informant was studying in Kanpur. He has also stated very categorically that in the talks which were initiated for settling the murder case with regard to Radhey Shyam around 15 days prior to the incident, the other accused in Radheyshyam murder case, namely, Surendra, Harendra and Atul had not participated and that on the date of incident also they had not come. He has also stated that nobody had brought to the fore that, in a murder case, no compromise could take place. He has stated that on the date of the incident, the father of the first informant and others, namely, Om Prakash, Narayan, Subhash and Som Prakash had started from Gandhaur which was his village. Subhash and Som Prakash, he has also stated, were not related to either of the parties. Narayan, he submits, also was not having any relation with any of the parties. He has stated that he had also accompanied the others alongwith his father. They had started from Gandhaur at around at around 9:45 AM on 2nd December, 1979 and had a mind to come back on the same night. 10. This witness has further tried to give credence to the story as was narrated in the first information report and has stated that on the date of incident he alongwith his father, Om Prakash, Narain, Subhash and Som Prakash started from Gandhaur, reached their sister’s house where they had taken food which was packed with them with tea which was prepared by their sister. Thereafter, it has been stated that they had got down from the bus at the bus stand which was situate near the place of incident. Upon a question being asked as to whether Virendra had travelled to the place of incident alone, he denied. He reiterated that the Roadways Bus Stand was 35 steps away from the Hotel. Thereafter, it has been stated that they had got down from the bus at the bus stand which was situate near the place of incident. Upon a question being asked as to whether Virendra had travelled to the place of incident alone, he denied. He reiterated that the Roadways Bus Stand was 35 steps away from the Hotel. He had stated that the Restaurant was a full fledged Restaurant and that the tables were laid from east-west and that the chairs were placed in such a manner that the occupants either faced the north or the south and that the occupants i.e. five persons who had reached the Hotel were sitting facing southwards and it has been stated that apart from the six persons i.e. the father and five others no one else was sitting there. Thereafter, he has tried to give the position as to in what manner the six occupants were sitting. He has stated that the Tehrir (report) was written while the informant was sitting at the Hotel on the paper which he had obtained from the Hotel itself. He has further stated that he reached the police station on a Rickshaw and that the police station was around one furlong away from the place of incident. He has specifically denied the fact that he was called later on at the spot and that he was not there at the time of incident at all. He has also stated that Virendra, before the incident, had smoked a Biri and the Biri must have fallen down at the place of incident. He has stated that the police had taken the dead body to the police station but he was not aware that how long the dead body was lying at the police station. However, he has stated that he had left the police station at 4 p.m. for his home. The first informant had stated that prior to the incident he was living in Kanpur but at the time when the incident had taken place he had returned to his village after completion of his educational course at Kanpur. He had then stated that he had done M.Sc. in the year 1978 and that he had returned to the village around 6 – 7 months prior to the death of his father. 11. He had then stated that he had done M.Sc. in the year 1978 and that he had returned to the village around 6 – 7 months prior to the death of his father. 11. P.W.-2 Som Prakash was the person who had allegedly accompanied Girish, Virendra, Om Prakash and Narain to the place of incident. In his deposition, he had stated that he had no knowledge about the incident and that in fact he did not know the three accused persons. He was thereafter declared hostile. 12. P.W.-3 Dr. Naveen Chand Pandey has proved the post mortem report. 13. P.W.-4 Dev Singh is allegedly the owner of the Hotel. He had stated that he was at the Hotel on the date and time of the incident. He did not recognize the deceased Virendra. He had stated that the incident actually occurred outside his Restaurant. He has also stated that he did not recognize the assailants. He has also stated that the Panchayatnama was not prepared in his presence and that his signature were obtained at the police station. He was declared hostile but was cross examined by the prosecution and he stood firm in his cross examination about what he had stated in his chief. However, in the cross examination done by defence counsel, he had stated that his shop was called Laxmi Mishthan Bhandhar. He has further stated that the person who had died had come from the side of Gajraula station and had come all alone and that he was not accompanied by anyone. 14. P.W.-5 is Suresh Chand, Constable and has deposed that he reached the place of incident at around 4.30p.m. on 2.12.1979 and that he had remained at the place of the Panchayatnama till the dead body was sealed and that thereafter he had taken the dead body on a vehicle of the Police to Moradabad. He has stated that the vehicle when had reached Rajjopur had developed certain defects and therefore he had reached Moradabad late. He has stated that the distance between Gajraula and Moradabad was of two hours and not of one hour. He has further stated that throughout the night he had stayed at Rajjopur in the vehicle. The defects in the machinery of the vehicle were rectified at around 8.00 a.m. and thereafter vehicle had proceeded from Rajjopur and reached Moradabad at around 10.00 a.m. on 3.12.1979. He has further stated that throughout the night he had stayed at Rajjopur in the vehicle. The defects in the machinery of the vehicle were rectified at around 8.00 a.m. and thereafter vehicle had proceeded from Rajjopur and reached Moradabad at around 10.00 a.m. on 3.12.1979. He has specifically stated that at the time of arrival, he had got his arrival recorded in the General Diary but he has specifically stated that he had not got recorded in the General Diary the fact that the vehicle had developed certain defects. 15. P.W. 6- Subhash is again the person who had accompanied Virendra, Girish, Om Prakash, Narayan and Som Prakash to Gajraula. He has stated that though he had known Virendra and Girish but at the time of incident he was not with them. He has also stated that he had not seen the assailants. This witness was also declared hostile but thereafter was cross-examined wherein he had denied all the statement which he had got recorded under section 161 Cr.P.C. 16. P.W. -7 Chandra Pal Singh, Inspector is the Investigating Officer of the case and he had stated that at the time of incident he was posted as Station Officer, Gajraula and that on 2.12.1979 Girish Kumar had reached the police station to lodge the first information report. He has proved the chik FIR. He had also stated that on the FIR being lodged he reached the place of incident and had taken the dead body in his custody and that he had deputed S.I. Surat Singh and other persons to search out the accused persons. He has further stated that the Panchayatnama was prepared in his presence and that he had also sealed the dead body and had handed it over to Constable Suresh Chandra for a post mortem examination. He has stated that he had prepared the site plan and had seized all the articles that were there in the recovery memos. He has stated that he had taken the statements of Girish Kumar, the informant, Dev Singh, Mohan Singh, Triloki and Mangal and that on the next day i.e. 3.12.1979 the statements of Som Prakash, Subhash were also taken and that the accused Narain and Om Prakash were being searched for. He has stated that on 13.12.1979 the accused Vinod had surrendered himself and on 29.12.1979 charge sheet was submitted before the court. He has stated that on 13.12.1979 the accused Vinod had surrendered himself and on 29.12.1979 charge sheet was submitted before the court. In his cross examination he stood firm to what he had stated earlier. However, when he was specifically asked about the overwriting which had taken place in the Panchayatnama with regard to the time when the proceedings of the Panchayatnama were initiated, he has stated that some ink had spread and therefore it appeared that there was some overwriting. He has denied that before writing 0 after 3, 14 was written. He has also denied the fact that before 3 was written some other digit or figure was written. When he was questioned about the Thana and district being filled in different ink he stated that the pen and the ink were the same but because of the fact that the ink in the pen was about to finish the shine in the alphabets was different. He had stated that it is wrong to say that the name, address and age of the deceased was written by a different pen and the police station and district were written by a different pen. He has also denied the fact that the crime number was written by a different pen. He has stated that he was not remembering that the first informant had shown his hands smeared with blood. After seeing the case diary he has stated that this fact was not reduced in writing in the G.D. He had specifically stated that the witnesses Som Dutt and Subhas had not met him on the place and date of the incident and that he had stated that these witnesses had given their statements in the police station on 3.12.1979. He has also denied the fact that the FIR was actually written on a date after 2.12.1979. He has denied the fact that the Chief Judicial Magistrate had passed any orders on the application which had been filed by Vinod Kumar and Narain which was for test identification parade. He has also stated that he had not got the test identification parade done as the accused in the FIR were named and that they were known to the witnesses from before. 17. He has also stated that he had not got the test identification parade done as the accused in the FIR were named and that they were known to the witnesses from before. 17. In the statements of the accused persons recorded under section 313 Cr.P.C. they have specifically denied having committed the crime and had stated that they were falsely implicated in the case due to old enmity. 18. Learned counsel for the appellant Sri Akhilesh Chandra Shukla has argued that the conviction of Vinod Kumar was wrongly done. In support of his argument, he has made the following submissions :- (i) The signature of the first informant Girish Kumar on the Tehrir (written report) is absolutely different from the signature he had made in the statement before the Court. For this purpose, learned counsel for the appellant showed to the Court the record. This record was also shown to the learned AGA. Evidently, even by naked eyes, one can make out that definitely there were signatures in two different styles and cannot, by any stretch of imagination, be said to be of the same person. (ii) Learned counsel for the appellant has stated that the panchayatnama, if is perused, then the time of commencement of the proceedings of panachayatnama had been stated to be 3.00 PM. It does not stand to reason that how when the incident had occurred at 2.00 PM the First Information Report could be lodged at 2.30 PM when the PW-5 had stated in his statement before the Court that he and P.W. - 7 had, in fact, reached the place of incident much later. He states that the place where the panchayatnama was being performed was around 1 kilometer away from the place of incident and, therefore, immediately on their reaching the spot, the panchayatnama proceedings could not have commenced. He has further, looking to the statement of PW-5, stated that the PW-5-Suresh Chandra had actually reached the spot at 4.30 PM along with the Sub-Inspector Chandra Pal-PW-7. He has further, looking to the statement of PW-5, stated that the PW-5-Suresh Chandra had actually reached the spot at 4.30 PM along with the Sub-Inspector Chandra Pal-PW-7. Since, learned counsel for the appellant relied heavily upon the statement of PW-5, which is found at page 44 of the Paper-Book, same is being reproduced here as under :- (iii) Learned counsel for the appellant to prove the fact that the PW-1 Girish Kumar was not there at the spot has stated that had PW-1 been on the spot then he would definitely have been a witness of the panchayatnama. He has further stated that Trilok Singh, Dev Singh, Mangal Singh, Jaypal Singh and Mahendra Singh were absolute outsiders and they had stated in their statements that they had not even recognised the deceased person. Learned counsel, therefore, states that under such circumstances how the name of the deceased person was recorded in the panchayatnama was also not known. (iv) Learned counsel for the appellant has stated that the panchayatnama continued till 4.30 PM but the PW-1 had left the spot at 4.00 PM. Learned counsel relying upon the statement of PW-1, states that this becomes evident as per paragraph 31 the statement of PW-1 which is at page 30 of the Paper-Book. The statement relied upon by learned counsel for the appellant is reproduced here as under :- (v) Learned counsel for the appellant has stated that if the panchayatnama is seen and if the location which has been given of the dead body is seen then it is evident that the dead body was facing the northern direction but the PW-1 in his statement has stated that the dead body was facing the south. Since, learned counsel for the appellant has relied upon paragraph 23 of the statement of PW-1, the relevant portion of it, is being reproduced here as under :- (vi) Learned counsel for the appellant has stated that from the recovery of the empty cartridges, it can be made out that only one bullet was fired but there were in fact 4-5 injuries. (vii) Learned counsel for the appellant has stated that the details of the deceased were written in a different ink and the ink in which the police station and the district were written were very different. (vii) Learned counsel for the appellant has stated that the details of the deceased were written in a different ink and the ink in which the police station and the district were written were very different. This fact, he says, if is taken into consideration then it could mean that the name and the details of the deceased were filled in later after P.W.– 1 came on the spot. (viii) Learned counsel for the appellant has stated that the police after had submitted the charge sheet on 29.12.1979, the Magistrate had taken cognizance of the crime on 15.1.1980 and before that, on 21.12.1979, on the application of Vinod Kumar and Narayan which says that Girish Kumar did not recognize them, an order was passed that a test identification parade be done. He, however, submits that this test identification parade was never conducted. (ix) Learned counsel for the appellant has further stated that if the statement of Girish Kumar (P.W.-1) is perused, then also it becomes evident that he had never stated that he had recognized the accused Vinod Kumar and Narayan who were present in the Court i.e. to say that there was also no dock identification of the accused Vinod Kumar and Narayan. This non-recognition makes the case very doubtful and it gives credence to the fact that, in fact, the first informant was not present at the spot. (x) Learned counsel for the appellant has further submitted that if the First Information Report is perused, it becomes evident that the First Information Report has gone into such minute details the recording of which is highly unlikely. He submits that in fact Om Prakash and Narayan though had met Virendra, the appellant Vinod had never met the deceased or the informant. He, therefore, submits that the entire story was a concocted story. He submits that in fact at the time of incident, the PW-1 who had got the First Information Report lodged was never at the spot of the incident and that the First Information Report was a well thought out document and this was the reason, he states, that the post mortem was also conducted almost after 24 hours of the death and not immediately when the body was sent for post mortem at around 4.30 PM on 2.12.1979. He further submits that since the post mortem had to be conducted well within a reasonable time and the First Information Report was also not lodged by the time the post mortem was conducted, there was no mention of the case crime number in the post mortem report. (xi) Learned counsel for the appellant has stated that though the PW-2, PW-4 and PW-6 have been declared hostile, they are important witnesses and that what had been stated by them could not be just thrown out. Learned counsel for the appellant relying upon a decision of the Supreme Court in the case of Rabindra Kumar Dey vs. State of Orissa reported in AIR 1977 SC 170 has submitted that simply because a witness is declared hostile by a party which had called him would not make him an unreasonable witness so as to exclude his evidence from consideration altogether. Since, learned counsel for the appellant has relied upon paragraphs 10 and 12 of the judgment, the same are being reproduced here as under :- 10. Before proceeding further we might like to state the law on the subject at this stage. Section 154 of the Evidence Act is the only provision under which a party calling its own witnesses may claim permission of the Court to cross-examine them. The section runs thus: "The Court may, in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party." The section confers a judicial discretion on the Court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion. It is, however well settled that the discretion must be judiciously and properly exercised in the interests of justice. The law on the subject is well settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. One of the glaring instances in which this Court sustained the order of the Court in allowing cross-examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence. In Dahyabhai v. State of Gujarat, (1964) 7 SCR 361 at pp. 368, 369, 370: ( AIR 1964 SC 1563 at p. 1569) this Court made the following observations: "Section 154 does not in terms, or by necessary implication confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faith-fully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the Court cannot, during the course of his cross-examination, permit the person calling him as a witness to put questions to him which might be put in cross-examination by 'he adverse party." "Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder but before the Court they stated that the accused was insane and, therefore, he committed the murder." A perusal of the above observations will clearly indicate that the permission to cross-examine was upheld by this Court because the witnesses had categorically stated before the police that the accused had committed the murder but resiled from that statement and made out a new case in evidence before the Court that the accused was insane. Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention. 12. It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him as unreliable witness so as to exclude his evidence from consideration altogether. In Bhagwan Singh v. State of Haryna, (1976) 1 SCC 389 , 391-92: ( AIR 1976 SC 202 at p. 203), Bhagwati, J. speaking for this Court observed as follows: "The prosecution could have even avoided requesting for permission to cross-examine the witness under section 154 of the Evidence Act. But the fact that the Court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. But the fact that the Court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence." (Emphasis supplied) (xii) Learned counsel for the appellant very categorically states that if the statement of PW-2 is perused then it becomes evident that this witness who allegedly had accompanied the deceased and the First Informant at the place of incident, when had stated that he did not recognize the persons who were the accused in the case, then that statement could not be simply thrown out. The witness Som Prakash was much relied upon by the PW-1 and when he states certain facts then in conjunction with all the other facts, namely, that the panchayatnama had no witness known to the deceased; the panchayatnama had interpolations and the post mortem report had no case crime number, could not be simply thrown away. It had to be given some credence and the case had to be decided accordingly. Similarly, learned counsel for the appellant states that when the prosecution was throughout trying to base its case on the fact that the incident had occurred at Almora Hotel the owner of which was Dev Singh and when Dev Singh had himself stated that he did not recognize Vinod Kumar and that the panchayatnama was not written in his presence and that the signature of his was taken subsequently then the case of the prosecution becomes doubtful. This again in view of what had been argued by the learned counsel for the appellant, cannot be simply thrown out. He further submits that when the PW-4 Dev Singh had stated that he had noticed that the deceased (whose name was not known to him) had walked into his restaurant alone from the side of Gajraula Station then also his statement cannot be thrown out without considering its evidentiary value. He further submits that when the PW-4 Dev Singh had stated that he had noticed that the deceased (whose name was not known to him) had walked into his restaurant alone from the side of Gajraula Station then also his statement cannot be thrown out without considering its evidentiary value. (xiii) Learned counsel for the appellant has further stated that the evidence of PW-6 Subhash, who again was a much relied upon witness throughout by the PW-1 when had turned hostile could not be junked as he had stated that he knew Girish Kumar and Virendra Kumar but when he had refuted the claim of PW-1 that he had accompanied him, then that statement cannot be lightly ignored. Learned counsel for the appellant, therefore, has submitted that the fact that PW-1 was on the spot becomes doubtful. Learned counsel states that the fact that panchayatnama was prepared immediately at the time of incident also becomes doubtful. Still further, learned counsel for the appellant states that the presence of such persons who the PW-1 alleged were there at the time of incident, for the arguments which have been made earlier, also becomes doubtful. (xiv) Learned counsel for the appellant has submitted that the guilty could have been convicted even on the witness of a sole witness had it been reliable but in the instant case the evidence of even the sole witness i.e. P.W. - 1 was absolutely unreliable. He submits that the evidence of P.W. - 1 becomes unreliable also because of the fact that he had borne grudges for the past so many years. For this purposes, he relied upon a decision of the Supreme Court in Namdeo vs. State of Maharashtra reported in AIR 2007 SC (Supp) 100, and has submitted that the value of every piece of evidence had to be seen and evaluated individually. 19. Learned AGA Sri Amit Sinha has, however, opposed the appeal and has submitted that all such evidence of the crime specially with regard to the presence of the witnesses; the ante-dating of the First Information Report; the fact that the panchayatnama was interpolated are subject matters which were looked into by the Trial Court and the Trial Court after having seen the relevancy and admissibility of evidence had concluded that the appellants were to be convicted and this Court therefore may while reassessing the evidence acquit the accused-appellant. He submits, therefore, that when the PW-2, PW-4 and PW-6 had turned hostile then definitely their statements could not be looked into and cannot be considered while deciding the case. 20. Having heard learned counsel for the appellant Sri Akhilesh Chandra Shukla and the learned AGA Sri Amit Sinha, we are of the view that the appeal deserves to be allowed. Learned counsel for the appellant has very successfully created a doubt in our minds with regard to the presence of PW-1 at the spot. The PW-1 in the First Information Report had come up with a case that he was accompanied by the deceased Virendra Kumar and four other persons. A perusal of the statements of PW-2 and PW-6 definitely shows that they were not in the know of the incident. PW-2 Som Prakash had stated that he did not even know the three accused persons. PW-4 had stated that even though he did not know the deceased Virendra Kumar, with regard to PW-1, he has stated that he was not at the place of incident. PW-4, who is the witness of the panchayatnama, and should have known about the deceased, as no one from the family was a witness in the panchayatnama, has stated in his statement that he had seen the deceased walk in to his restaurant and that too all alone. This falsifies the case of the PW-1 absolutely and demolishes the case as was taken by him in the First Information Report and, thereafter, also when he had led his evidence. 21. The statements and the discrepancies as had been pointed out by learned counsel for the appellant with regard to the interpolations in the panchayatnama coupled with the fact that no witness of the family was a witness in the panchayatnama have to be definitely noted in this judgment. The ink in which the names, age and sex of the deceased was written was an absolutely different ink from the one in which the names of the police station and the district were written. Further more, there is a definite interpolation with regard to the time when the panchayatnama proceedings were initiated. The ink in which the names, age and sex of the deceased was written was an absolutely different ink from the one in which the names of the police station and the district were written. Further more, there is a definite interpolation with regard to the time when the panchayatnama proceedings were initiated. The panchayatnama even by the interpolated time had started at 3.00 PM but the PW-5 Suresh Chandra and PW-7 Chandra Pal who ought to have been there at 3.00 PM, had stated in their statements that they had in fact reached the place of incident at 4.30 PM. This definitely raises a doubt in the mind of the Court as to whether the time at which the proceedings of the panchayatnama were initiated was interpolated. 22. Also, we are of the view that when the PW-1 had not identified the accused Vinod Kumar and Narayan in the Court (i.e. to say there was no dock identification) then the application which the accused Vinod Kumar and Narayan had made for a test identification parade gains importance. When the application was made on 21.12.1979, the Chief Judicial Magistrate had not taken cognizance of the case which was actually taken on 15.1.1980 and we find from the record that in fact the Chief Judicial Magistrate had also passed orders for the test identification parade. This identification having not taken place definitely renders the evidence of Girish Kumar absolutely worthless, inasmuch the accused Vinod Kumar and Narayan were throughout saying that Girish Kumar did not recognize them. If the P.W. - 1 Girish Kumar had never identified the alleged assailant Vinod Kumar then all evidence which he had led becomes absolutely worthless. 23. For the reasons stated above, the appeal succeeds and is allowed. The judgment and order dated 5.3.1986, so far as it concerns the appellant, Vinod Kumar is set aside and is quashed. The appellant Vinod Kumar who, as of today is dead, is acquitted of the charges which were levelled against him. 24. The appeal stands allowed so far as the appellant Vinod Kumar is concerned.