JUDGMENT : Anil Kumar-X, J. 1. Heard Ms. Seema Pandey, learned Amicus Curiae for the appellants and Shri Amit Sinha, learned AGA for the State. 2. This criminal appeal has been preferred by the appellants Ravindra, Rishipal, Satendra and Brij Bhushan against the judgment dated 30.1.1984 passed in Sessions Trial No.257 of 1981 (State vs. Ravindra and Ors.). Appellants Ravindra and Rishipal were convicted and sentenced to six months' R.I. each under Section 147 IPC, two years R.I. under Section 201 IPC and imprisonment for life under Section 302/149 IPC. Appellants Satendra and Brij Bhushan were convicted and sentenced to one year's R.I. under Section 148 IPC, two years' R.I. under Section 201 IPC and imprisonment for life under Section 302/149 IPC. Sentences were made to run concurrently. 3. During pendency of this appeal, appellants Rishipal, Satendra and Brij Bhushan died. Accordingly, appeal filed by them was declared abated on 4.7.2025. 4. Prosecution story in nutshell is that Pitam Singh (PW-1) lodged a complaint (Ex. Ka-1) before Police Station-Kotwali, District Muzaffarnagar on 27.2.1981 wherein he stated that his son Harendra Kumar, student of Class XII (Science), aged about 18 years left his house on a Hero Cycle to Civil Lines, North at about 6:15 pm on 26.2.1981 for obtaining herbarium sheets from market but he did not return by the midnight. Informant started searching for him but could not trace him. He came to know on 27.2.1981 at about 6:00 am that dead body of a boy was lying near Kutcherry Post Office. When he reached there, he found that dead body was of Harendra Kumar and bleeding from his nose was present. On the said complaint, an FIR (Ex. Ka-15), being Case Crime No.164/1981, was lodged at 7:10 am on 27.2.1981 against unknown persons. Investigation was handed over to SI Om Prakash Tomar (PW-10) on the same date. Dead body of Harendra was recovered behind the Post Office of Kutcherry. Blood stained and plain soil (Ex. Ka-17) were collected from place of occurrence. Inquest (Ex. Ka-2) was conducted and dead body was sent for postmortem. After the postmortem, postmortem report (Ex. Ka-10) was prepared by Dr. S.C. Gupta (PW-4). During investigation on 27.2.1981, Investigating Officer came to know from Virendra that in the evening at about 7:00 pm, Harendra along with other accused Ravindra, Satendra, Rishipal, Santerpal, Brij Bhushan and other 2-3 boys were talking with each other. After the postmortem, postmortem report (Ex. Ka-10) was prepared by Dr. S.C. Gupta (PW-4). During investigation on 27.2.1981, Investigating Officer came to know from Virendra that in the evening at about 7:00 pm, Harendra along with other accused Ravindra, Satendra, Rishipal, Santerpal, Brij Bhushan and other 2-3 boys were talking with each other. On next day, Investigating Officer was informed by police informer that one Mahadev, who also resides in the same rented house where deceased was residing, can give the details of the alleged offence. Thereafter, Investigating Officer recorded the statement of Mahadev (Madho) who told him that on the day of occurrence, he along with his brother had left for their village but other students namely Anil, Krishan Pal, Satendra and Vijendra, who were also tenants of the same house told him that after he returned, that Ravindra, Satendra, Rishipal and Brij Bhushan had came in the rented room of Mahadev and later on killed him. They also told that the aforesaid accused persons also carried away the dead body after wrapping it in a quilt. 5. Thereafter, Investigating Officer recorded statements of Anil and Krishan Pal. Statements of Satendra, Krishan Pal and Anil Kumar were also recorded under Section 164 Cr.P.C. PW-10 SI Om Prakash Tomar arrested four accused persons and illegal knife (Ex. Ka-11), blood stained knife (Ex. Ka- 12) and bicycle of deceased was recovered from them. Relying upon statements made by Anil, Krishan Pal and Satendra Pal and from the recoveries made, charge-sheet against accused persons Ravindra, Satendra, Rishipal, Brij Bhushan and Santerpal was submitted by Investigating Officer under Section 302 and 120 IPC. Charge-sheet under Section 4/25 Arms Act was also submitted against accused Satendra. 6. Charges against Ravindra, Rishipal, Santerpal and Naresh were framed under Section 147, 302 read with Sections 149 and 201 of IPC. Charges against Satendra and Brij Bhushan were framed under Sections 148, 149, and 201 IPC. Accused denied the charges and claimed for trial. 11 prosecution witnesses were examined in support of prosecution story. PW-1 Pitam Singh, father of deceased has proved the contents of written report (Ex. Ka-1). He has identified clothes worn by the deceased at the time of occurrence and proved Exhibits 7 to 11. Apart from it, he has also proved the receipt (Ex. Ka-12) of bicycle he purchased for Harendra. 7. PW-1 Pitam Singh, father of deceased has proved the contents of written report (Ex. Ka-1). He has identified clothes worn by the deceased at the time of occurrence and proved Exhibits 7 to 11. Apart from it, he has also proved the receipt (Ex. Ka-12) of bicycle he purchased for Harendra. 7. PW-2 Satendra Pal has deposed that both deceased Harendra and accused persons were known to him. He was also a tenant in the house of Jile Singh. Madho and Vijendra were also tenants in the said house. He has further stated that on 26.2.1981 at about 7:45 pm, when he alongwith Krishan Pal and Anil Kumar was cooking food, 6 accused Ravindra, Satendra, Brij Bhushan, Rishipal, Naresh and Santerpal came alongwith Harendra who was holding a cycle. After half an hour, he heard voices coming from the room of Madho. When he along with Krishan Pal and Anil Kumar approached near the room of Madho, they saw from the space through door that Brij Bhushan and Satendra were holding knives and Ravindra and Rishipal were holding clubs. He has also stated that they saw the incident as room was lit with bulb. They were threatening Harendra and were asking him to open his Nara in order to satisfy their unnatural lust. Harendra was offering resistance. Then this witness opened the door and tried to forbade them from doing so. But he too was threatened by accused persons who asked him and his companions to return back or they will kill them. When this witness along with other 2 boys retreated to their room, they were locked inside as accused bolted their door from outside. 15 to 20 minutes afterwards, he saw that all 6 accused persons were carrying away Harendra who was put on a cot and his body was wrapped in a quilt. After about half an hour, they saw a man in the adjacent house and called him to open the bolt of their door. He informed this incident to Madho on next day and returned back to his village. Again he returned to Muzaffarnagar on the very next day and he was interrogated by the Sub Inspector. He has also stated that all the accused persons frequently visited the rented room of Madho. PW-3 Anil Kumar has also deposed the same facts as stated by PW-2 Satendra Pal. Again he returned to Muzaffarnagar on the very next day and he was interrogated by the Sub Inspector. He has also stated that all the accused persons frequently visited the rented room of Madho. PW-3 Anil Kumar has also deposed the same facts as stated by PW-2 Satendra Pal. Both witnesses have stated that Madho was not present in his room at the time of alleged incident. 8. PW-4 Dr. S.C. Gupta who has conducted postmortem has found following ante mortem injuries on body of deceased :- "1. Lacerated wound 3" x 1/2" x bone on right side skull 3" above the ear placed transversely. 2. Lacerated wound 1/4" x 1/10" x muscle on right side front of scalp on the hair line. 3. Contusion 1½ " x 1" on right pinna of ear. 4. Contusion 1" x 3/4" on left pinna of ear. 5. Lacerated wound 1½ " x 1/4" x bone on outer part of left eyebrow. 6. Lacerated wound ½" x 1/10" x muscle on left upper eyelid. 7. Lacerated wound ½" x 1/10" x bone on bridge of the nose with depressed fracture of the nasal bones. 8. Abraded contusion 2"x 1" on right forehead just lateral to bridge of the nose. 9. Lacerated wound 3/4" x 1/2" x bone on front of chin. 10. Abraded contusion 3" x 2" on left body of the mandible and area below it. 11. Abraded contusion 13" long encircling the neck all round. The breadth is 2 ½"on left side and 1/2" on right side. 12. Abrasion 1" x 1" on inner end of left collar bone. 13. Multiple abraded contusion in area of 6" x 3" on back of right hand with swelling. 14. Contusion 6" x 1" on outer aspect of right thigh. 15. Lacerated wound 1" x 1/4" x muscle on outer aspect of right thigh middle 1/3rd. 16. Contusion 4" x 2 ½ " on front and upper aspect of right knee. 17. Lacerated wound 1/4 " x ¼" x bone on front right leg upper third. 18. Contusion 4" x 1 ½ "on front of right leg. 19. Lacerated wound 1/4" x 1 /4" x muscle onfront of left leg middle 1/3. 20. Contusion 11" x 2" on front of left thigh upper 1/3. 21. Multiple contusions 7" x 3" on outer aspect of left thigh upper 1/3. 22. 18. Contusion 4" x 1 ½ "on front of right leg. 19. Lacerated wound 1/4" x 1 /4" x muscle onfront of left leg middle 1/3. 20. Contusion 11" x 2" on front of left thigh upper 1/3. 21. Multiple contusions 7" x 3" on outer aspect of left thigh upper 1/3. 22. Lacerated wound 1/2" x 1/4" x muscle in space between left thumb and index finger. 23. Contusion 3" x 2" on inner side of left forearm lower 1/3. 24. Contusion 10"x 6" on front, top, beck and outer aspect of left shoulder with swelling. 25. Multiple abraded contusions in an area 8" x 4" on beck of right shoulder and right scapular region. 26. Multiple abraded contusion in an area of 8" x 5" On left scapular region. 27. Contusion 4" x 2" on right gluted region." PW-4 has stated that the deceased died due to shock and haemorrhage as a result of ante mortem injuries. 9. PW-5 Jile Singh was owner of the house where PW-2 Satendra and PW-3 Anil Kumar were tenants. He has stated that he had not rented any room to Madho. He has also stated that Dinesh s/o Daya Ram was also residing as a tenant in his room. PW-6 Ravindra Kumar has proved recovery of illegal knife (Ex. Ka-11), recovery of blood stained knife (Ex. Ka-12), recovery of blood stained quilt cover (Ex. Ka-13), and recovery memo of bicycle (Ex. Ka-14). PW-7 Head Constable Tayyab Hussain has proved chik report (Ex. Ka-15), PW-8 Constable Damber Singh has stated that sealed dead body was handed over to him by SI which was produced by him before the doctor for autopsy. PW-9 Iqbal Singh @ Dharam Pal was declared hostile. SI Om Prakash (PW-10) has given details of investigation and has proved Ex. Ka- 17, Ex. Ka-5 and Ka-6, site plan (Ex. Ka-18), inquest memo (Ex. Ka-2), Statement of Iqbal Singh (Ex. Ka-20), recoveries of knives (mat. Ex. Ka-2 & 3) and other connected documents/materials collected during investigation. PW-11 Mohd. Feyyaz who was the other investigating officer has also given statement before court. Statement of accused persons were recorded under Section 313 Cr.P.C. They have shown ignorance about alleged offence and have also denied their role. They have stated that he was falsely implicated by S.H.O. Om Prakash Tomar and Constable Om Pal due to enmity. False recoveries of knives etc. Statement of accused persons were recorded under Section 313 Cr.P.C. They have shown ignorance about alleged offence and have also denied their role. They have stated that he was falsely implicated by S.H.O. Om Prakash Tomar and Constable Om Pal due to enmity. False recoveries of knives etc. were made from them. 10. Upon the completion of the trial when the court of Special Additional District Judge, Muzaffar Nagar, by its judgement and order dated 30.1.1984 convicted Ravindra and Rishi Pal for the offences punishable under Sections 147, 201 and 302/149 and Satendra Brij Bhusan for the offences punishable under Sections 148, 201 and 302/149 IPC, the instant Appeal was filed. It may be stated that the accused Santer Pal and Naresh were acquitted of the charges levelled against them. 11. Upon being held guilty the accused persons were sentenced with life imprisonment under Sections 302 read with Section 149 IPC. 12. The convicted appellants Ravindra, Rishipal, Satendra and Brij Bhusan filed the instant Criminal Appeal No. 319 of 1981. During the pendency of the Appeal, the appellants Rishipal, Satendra and Brij Bhusan died. The appeal vis-a-vis them, therefore, abated. Vis-a-vis the appellant - Ravindra the appeal was argued by Ms. Seema Pandey learned amicus curiae. 13. Learned counsel for the appellant made the following submissions:- I. The eye-witness account of P.W.-2 Satendra Pal and P.W.-3 Anil Kumar was absolutely unbelievable. In their statements they had mentioned that they had heard the accused asking the deceased to open his Nada so that they could commit the act of sodomy. However, from the evidence on record, specially from that of the Investigating Officer, it becomes clear that, in fact, the deceased was not wearing any Payjama but was wearing a bell bottom which does not have a Nada but in fact had buttons. He submits further that the presence of the two eye witnesses could not be established as their entire conduct was unbelievable. They had stated that when they had seen through the chink of the door of Madhav's room, six accused persons were intending to commit the act of sodomy with the deceased, yet they had dared to enter the room. He submits further that the presence of the two eye witnesses could not be established as their entire conduct was unbelievable. They had stated that when they had seen through the chink of the door of Madhav's room, six accused persons were intending to commit the act of sodomy with the deceased, yet they had dared to enter the room. Two of the accused, namely, Brij Bhusan and Satendra were having knives in their hands while Ravindra and Rishi Pal were having sticks in their hands and they were intimidating the deceased to open his Nada so that they could commit the act of sodomy. Learned counsel for the appellant submitted that if the accused were so heavily armed when they were seen by the P.W.-2 and his two friends, namely, Anil Kumar and Kishan Pal then either they would have assaulted them and would have tried to do away with them or they would have themselves run away. For the accused to just drive away, the three eye-witnesses who had seen them committing the crime was very unlikely. Furthermore, it was still more unlikely that they would just lock them in the neighbouring room by putting a latch from outside. 14. Learned counsel for the appellant further stated that the presence of the eyewitnesses also became unbelievable when they had stated that they had got the latch unlocked after the accused persons along with the deceased had gone away from the site by calling an unknown person in the neighborhood. Learned counsel submits that in the event the person who had been called had opened the latch for the eye witnesses to come out of the room then the first thing they would have done upon having seen such a serious offence being committed that they would have gone to the police to report the matter. Learned counsel further states that the eye witness accounts still further became unreliable as, though Satendra and Anil came to the witness box, Kishan Pal who was also staying in the same room never appeared in the Box. Learned counsel for the appellant submitted that even Madhav in whose room the incident had happened and Vijendra who was living in the neighbouring room never came in the witness box. II. Learned counsel for the appellant submitted that even Madhav in whose room the incident had happened and Vijendra who was living in the neighbouring room never came in the witness box. II. The case of the prosecution further gets falsified inasmuch as the P.W.-1 had nowhere stated that he had seen six persons, namely, Ravindra, Satendra, Rishi Pal, Brij Bhusan, Naresh and Santer pal committing the crime. In the statements under Sections 161 Cr.P.C. and 164 Cr.P.C., he had only stated that he had seen the accused Ravindra, Rishipal Satendra and Brij Bhusan. However, before the court he had taken the names of two more persons, namely, Santer Pal and Naresh. Learned counsel submits that how Santer Pal and Naresh were connected with the crime was not known at all to the prosecution. He submits that on this account also the testimony of the eye-witnesses of the P.W.-2 and P.W.-3 becomes unbelievable. III. Learned counsel for the appellant further states that the recovery under Section 27 of the Evidence Act was not done as per the law. In this regard, learned counsel for the appellant relied upon two judgements of the Supreme Court in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh reported in AIR 2022 SC 5273 and in Subramanya vs. State of Karnataka reported in AIR 2022 SC 5110 . No statements of the accused before the recovery was recorded in the presence of two independent witnesses. IV. Learned counsel for the appellant states that there was no injury of a sharp edged weapon but the recovery had mentioned that knives with blood on them were recovered. Thus recovery also becomes absolutely unbelievable. V. The entire case of the prosecution was that the six accused persons had taken the deceased to commit the offence of sodomy but nowhere on the body of the deceased any sign of unnatural sex was to be found. VI. The dead body of the deceased was found in the plots on the southern side of the kutchery and post office. But the incident allegedly had taken place some distance away from the place where the dead body was discovered but no evidence was led as to whether there was blood in the room of Madhav where the incident allegedly took place. VII. There was no blood at all found at the alleged place of occurrence namely the room of Madhav. But the incident allegedly had taken place some distance away from the place where the dead body was discovered but no evidence was led as to whether there was blood in the room of Madhav where the incident allegedly took place. VII. There was no blood at all found at the alleged place of occurrence namely the room of Madhav. If the incident had taken place in the room, the blood would have been found there. VIII. Even the testimony of Jile Singh did not inspire confidence as he was not even aware if Madhav was a tenant in his house. 14. Learned AGA Sri Amit Sinha opposed the Appeal and submitted that P.W.-2 and P.W.-3 were giving eye witness accounts which could not be disbelieved lightly. He submitted that it mattered little that there was blood found on the edges of the knives which were recovered even if there was no injury of any sharp edged weapon on the body of the deceased. Learned AGA submitted that not always the accused could have reacted in the way the learned counsel for the appellant argued i.e. they would have definitely continued to commit the murder even when they were caught red hand. He also submitted that it mattered little if no blood was found at the place of incident. 15. Before embarking upon the discussions on evidence, it will be relevant to note that alleged incident which occurred on 26-2-1981 remained offscreen till dead body was recovered on next day and F.I.R was lodged against unknown by P.W.-1 Pitam Singh. Statement of three eye witnesses were recorded by I.O. on 28-02-81. All three witnesses were produced before Judicial Magistrate on 25-03-81 and their statements were recorded u/s 164 Cr.P.C. The prosecution asserts that the testimony of the witnesses is impeccable, and the appellants have failed to present any evidence to impeach them.Appellants contended that conduct of the witnesses, who left for their village on next day without disclosing the incident to anyone, and material inconsistencies in their statements, make them highly unreliable. Before delving into other evidence, it would be prudent to consider the testimony of eyewitnesses first. 16. It's important to note that only two eye witnesses, Satendra and Anil, were produced by the prosecution out of the three witnesses, namely Satendra ,Krishna Pal and Anil. Before delving into other evidence, it would be prudent to consider the testimony of eyewitnesses first. 16. It's important to note that only two eye witnesses, Satendra and Anil, were produced by the prosecution out of the three witnesses, namely Satendra ,Krishna Pal and Anil. When their statement was recorded under Section 164 Cr.P.C., both of them stated that they were residing in a rented room owned by Zile Singh. Madav,another tenant, was residing in adjacent room.On February 26, 1981, at approximately 7:45 pm, four boys—Ravindra, Satendra, Rishi Pal, and Brij Bhusan—arrived at Madav's room. They were accompanied by the deceased Harendra, who was holding his cycle.Said boys used to visit Madav's room frequently. They unlocked the door and entered Madav's room. At that time, witnesses were busy in cooking their food. They heard some noise of conversation coming from Madav's room. Five minutes later,they heard screams that I will not let do so. They came after hearing the screams and went to Madav's room. 17. They further stated that when they peeped from seam of door, they saw that Brij Bhusan and Satendra were wielding knives and Ravindra and Rishipal were beating Harendra with clubs . They were demanding from Harendra to open strings of his pyjamas to commit sodomy. Harendra was resisting and was crying for help. Braj Bhusan and Satendra were threatening to kill Harendra on knife point. Upon hearing screams, they reached there and entered into the room after getting it opened. However, all the accused pounced upon them and threatened to retreat. Satendra bolted their room from outside. Twenty minutes later, they saw all the accused carrying Harendra away wrapped in a quilt. An unknown person came there to see Madav and he opened their bolt after they asked for it. They didn't disclose the incident to anyone out of fear except Madav on next day.Another witness, P.W.-3 Anil, has provided a slightly different version of the events in his statement under Section 164 of the Cr.P.C. He stated that the door in Madav's room was locked, and its lock was broken by the accused persons. 18. During trial,P.W.-2 Satendra in examination in chief said that six persons came along with Harendra. 18. During trial,P.W.-2 Satendra in examination in chief said that six persons came along with Harendra. When he was confronted with his statement u/s 164 Cr.P.C.during cross examination , he admitted that he hadn't mentioned Santer Pal and Naresh's names to the Magistrate because they were merely strolling outside the room and were not involved in the incident. P.W.-3 Anil has made similar statement in his deposition on this point. P.W.-2 Satendra has stated u/s 164 Cr.P.C that lock of Madav room was opened by accused persons.Contrary to it,P.W.-3 Anil has stated u/s 164 Cr.P.C that it was forced open by accused.Both witnesses have stated u/ s 164 Cr.P.C that they got the door of room opened by accused persons and forbade them to do so. During cross-examination, P.W.-2 Satendra revealed he himself opened the door,doors of Madav's room were not bolted from inside but were left ajar. He said during cross examination that he had not stated before Magistrate that doors were bolted from inside.During cross-examination, P.W.-3 Anil admitted that he couldn't recall whether Madav's door was locked or not. He couldn't recall what he had said before the I.O or Magistrate regarding how the accused persons opened the lock.He also admitted that he couldn't recall his previous statement to the I.O. and Magistrate regarding the door's position. He has denied stating before Magistrate that they got the door opened by accused persons. 19. It seems from statements u/s Section 164 Cr.P.C. that deceased Harendra and other accused arrived at spot in a normal manner. Both witnesses have stated same fact during examination in chief. But during cross examination P.W.-2 Satendra stated that he and Krishna Pal were sitting in their room on a cot and saw from window that five accused were apprehending Harendra. Ravindra was holding Harendra's cycle. Harendra was silent. None had gagged his mouth. None of the accused was holding club or knife. Neither he nor Krishna Pal questioned the accused about there act of grabbing Harendra. On other hand, P.W.-3 Anil has stated during cross examination that none of accused had grabbed Harendra . 20. Both witnesses in their statements u/s 164 Cr.P.C have stated that accused were beating Harendra with clubs. But P.W.-2 Satendra has stated during examination in chief that accused were merely threatening Harendra. When confronted with this statement, he admitted to having made it. 20. Both witnesses in their statements u/s 164 Cr.P.C have stated that accused were beating Harendra with clubs. But P.W.-2 Satendra has stated during examination in chief that accused were merely threatening Harendra. When confronted with this statement, he admitted to having made it. Soon he clarified and said that Ravindra and Rishi Pal were beating with clubs. Both of them had stated under Section 164 that the accused bolted their doors from outside before they left spot.They got it opened from an unknown person who arrived there to meet Madav. Both had stated in their examination in chief that accused left the spot after twenty minutes and carried Harendra away in wrapped quilt. P.W.-2 Satendra in his deposition stated that after half an hour, he saw a person strolling on adjacent roof. He called him who unbolted their latch. P.W.-3 had stated in his deposition that a person was strolling on roof of Bhanwar Singh whom they called. He descended and came there and then he opened the latch. 21. As elaborated in the preceding paragraphs, it is evident that the statements of witnesses u/s164 Cr.P.C and their testimony are contradictory. They have stated U/s 164 Cr.P.C that only four accused persons came with deceased. But when they were examined in court,they added names of two more accused persons i.e. Santer Pal and Naresh. When both were confronted on this issue, they stated they had not disclosed their names earlier because latter named accused were only walking outside the room and were not involved in incident. P.W.-2 Satendra has stated in cross examination that he was stopped by these two accused when he was peeping through seam of door. If said testimony of P.W.-2 Satendra along with the role assigned to both accused is relied upon, it will indicate involvement of latter added accused persons. But reasons put forward by the witnesses for not disclosing their names earlier is unacceptable. 22. P.W.-2 Satendra has stated u/s 164 Cr.P.C that accused opened the lock of door, whereas P.W.-3 Anil stated that it was broken by them. But reasons put forward by the witnesses for not disclosing their names earlier is unacceptable. 22. P.W.-2 Satendra has stated u/s 164 Cr.P.C that accused opened the lock of door, whereas P.W.-3 Anil stated that it was broken by them. Even though P.W.-2 Satendra had said that Madav's room was locked,none of the witnesses have stated in their deposition about the mode of opening lock which reveals that neither they have corroborated nor contradicted their earlier statements u/s164 Cr.P.C. It is admitted fact that Madav was not present in his room where the alleged incident occurred.During cross examination P.W-3 Anil stated he had seen anybody opening the lock and he even doesn't remember whether door was locked or not. He didn't remember whether he had stated before I.O or U/s164 Cr.P.C that accused unlocked the door.In foregoing circumstances, it was imperative for prosecution to explain as how accused got access of the room. Whether they broke the lock or opened it? 23. Both witnesses had claimed in their earlier statements that they got the door opened by accused persons when they found them beating Harendra. However P.W.-2 Satendra had stated during cross examination that door was left ajar and he himself opened it.On other hand, P.W-3 Anil during cross examination stated he had not stated u/s 164 Cr.P.C that they entered room after getting the door opened. Witnesses had earlier stated that the deceased and accused arrived at the spot in a normal manner. However, during cross- examination, P.W.-2 Satendra revealed that the deceased Harendra was brought there in confinement by the accused persons. It's strange that none of the witnesses intervened at that stage but they did so when they heard screams from inside the room of Madav. Both witnesses have stated that the stranger from the neighbourhood's roof arrived at the spot to meet Madav and opened their door, as per Section 164 Cr.P.C. However, they have contradicted this in their depositions, claiming that he arrived there after being called by them.It is trite that Statement under Section 164, Cr. P.C. is not a substantive piece of evidence but can be used for the purpose of contradiction or corroboration as provided under Section 145 of the Evidence Act. P.C. is not a substantive piece of evidence but can be used for the purpose of contradiction or corroboration as provided under Section 145 of the Evidence Act. The purpose of contradiction between evidence of a witness before the court and the statement recorded under section 164 of the Code is primarily to shake credit of the witness and to put the court on guard to scrutinize the evidence with great care. In this case ,bare comparison of statements made by witnesses u/s164 Cr.P.C and their deposition before court reflects that they are not consistent even on single point. There is no plausible explanation as to why names accused Santer Pal and Naresh were disclosed for first time during trial. Witnesses are not firm on any point like whether door of Madav was opened by the accused or lock was broken. Similarly they have made contradictory claims about the manner in which deceased Harendra and accused reached the spot. There statements under Section 164 Cr.P.C reflects that all arrived there in normal manner. Contrary to it, P.W.-2 Satendra has also stated that deceased was brought there in confinement. P.W.-2 Satendra had stated during examination in chief that accused were only threatening deceased which is entirely different from the prosecution story. Similarly both witnesses claimed in their earlier statements that they got the room opened when they heard screams. But they stated in their deposition that the door was left ajar. Like wise, they stated u/s 164 Cr.P.C, that a stranger from has himself came and opened their door,whereas they stated during deposition that they called him . 24. Minor and immaterial inconsistencies and/or discrepancies shall not harm the case of the prosecution. But if testimony of prosecution witnesses is in variance with his earlier statements,particularly statements made under Section 164 Cr.P.C, his testimony comes under cloud of suspicion. Testimony of either witness is not firm on manner of occurrence. 25. Every criminal act, especially those committed against the human body, involves preceding facts that occurred shortly before the act, along with the actual commission of the offence. Similarly, some acts occur shortly after the occurrence of the offence. It is expected that witnesses will be consistent in their testimony when they unfold aforesaid events. It is evident that both witnesses have made improvements in their testimony on each count. Similarly, some acts occur shortly after the occurrence of the offence. It is expected that witnesses will be consistent in their testimony when they unfold aforesaid events. It is evident that both witnesses have made improvements in their testimony on each count. Such improvements can not be brushed aside by terming them as minor contradictions. These improvements are material improvements. Similarly, admission by witnesses that they did not inform about the incident to any one except Madav is strange and unnatural. Both had admitted in cross examination that they got information about recovery of dead body on next day at about 11:00AM when they were going to their college. Even P.W-2 Satendra has stated that he left for his village on next day. Both witnesses have stated that they did not inform the incident out of fear. Said explanation is unnatural and unsatisfactory. Hon'ble Supreme Court in Chanan Singh vs. State of Haryana , 1971 SC 1554 held in paragraph 13 that the conduct of witnesses in keeping away from the place of occurrence even though he was not chased or threatened and yet remained silent and did not report the incident even to the relatives of either of the two deceased person was abnormal behaviour. Similarly, Hon'ble Supreme Court in State of Orissa vs. Mr. Brahmananda Nanda AIR 1976 SC 2488 held that if a witness says that incident was not disclosed out of fear cannot be believe unless accused persons are known gangster or a confirmed criminal about whom people would be afraid. 26. Apart from that, statements recorded under Section 164 Cr.P.C were made a month after the incident.Such a long delay in recording the statements of the witnesses speaks much. Hon'ble Supreme Court in Firoz Khan Akbarkhan vs. The State of Maharashtra , 2025 LiveLaw (SC) 349 has held," No doubt that Court has laid down that an inordinate delay in recording witness statements can prove to be fatal for the prosecution, as pointed out by three learned Judges in Ganesh Bhavan Patel v State of Maharashtra , (1978) 4 SCC 371 …" it further held that," Thus, stricto sensu, delay in recording witness statements, moreso when the said delay is explained, will not aid an accused. Of course, no hard-and- fast principle in this regard ought to be or can be laid down, as delay, if any, in recording statements will have to be examined by the Court concerned in conjunction with the peculiar facts of the case before it. Our reading of the above shall apply on all fours to delays in the context of Section 164 of the Code." Here witnesses were accessible to I.O and he also recorded their testimony u/s 161 Cr.P.C. But neither the testimony of witnesses nor of I.O has come forward with any explanation from which inference as to cause of delay can be deduced. Such a long delay in recording the statement of witnesses speaks much. 27. From the foregoing circumstances, it is difficult to hold that alleged occurrence was witnessed by these witnesses. The manner in which investigation was carried out also casts serious doubts. Blood stained soil was collected from the place where dead body was recovered. Recovery of blood stained quilt cover was also made. But I.O has not found blood stains on place of occurrence. It is difficult to assume that no blood stain was found at the spot even when so much of blood has oozed in the occurrence. Similarly alleged cycle said to in possession of deceased Harendra was recovered on pointing of accused Braj Bhushan. Ravindra and Anang Pal were made recovery witnesses. Said cycle Mat. Ex-1 was produced before court and was identified by Ravindra and Anang Pal. Father of deceased, PW-1 Pitam Singh, was available on the next day when FIR was lodged by him and he was the best person to identify the said cycle. But identification of the said cycle by aforesaid witnesses itself makes the recovery doubtful. Blood stained knife was also recovered from two accused Ravindra and Satendra. This recovery itself is strange as P.W.-4 Dr S.C. Gupta has stated that all injuries were caused by batons. Testimony of eye-witnesses which does not inspire confidence, coupled with recoveries that contradict substantial evidence rather than corroborating it, cannot be relied upon for convicting appellants. Prosecution has miserably failed to prove its case beyond reasonable doubt. 28. Under such circumstances, we are of the definite opinion that the appeal deserves to be allowed . Testimony of eye-witnesses which does not inspire confidence, coupled with recoveries that contradict substantial evidence rather than corroborating it, cannot be relied upon for convicting appellants. Prosecution has miserably failed to prove its case beyond reasonable doubt. 28. Under such circumstances, we are of the definite opinion that the appeal deserves to be allowed . In this view of the matter, the judgement and order dated 30.1.1984 passed by the Special District Judge, Muzaffar Nagar is quashed and the appeal is allowed . The appellant no. 1 is acquitted of the charges who alone is now alive. The appellant no.1 is already on bail. Sureties and bail bonds are discharged. Further directed to furnish bail bond in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two month from today. 29. The learned Amicus Curiae, Ms. Seema Pandey, be paid a fee of Rs. 15,000/-. The Registrar General to oversee the payment. 30. The Trial Court's record be remitted back along with copy of this judgment. 31. Compliance report be submitted to this Court at the earliest. Office is directed to keep the compliance report on record.