Holding

The High Court's acquittal was justified because material omissions and unreliable identification evidence rendered the prosecution case untenable.

Summary

The State of Uttar Pradesh appealed the Allahabad High Court's acquittal of Ashok Dixit and Chaman Lal, who had been convicted by a Sessions Court for murder (IPC s.302), attempt to murder (IPC s.307) and illegal possession of arms (Arms Act s.25). The prosecution relied on eyewitnesses, a child witness, ballistic and medical evidence, but the High Court held that the FIR could not be used as corroboration, the child witness's testimony was uncorroborated, and key identifications were unreliable. The Supreme Court examined material omissions such as the non‑examination of a material injured witness, the lack of a proper identification parade for one accused, and inconsistencies in police testimony and forensic reports. It concluded that these omissions were fatal to the prosecution and that the child’s identification could not be trusted without corroboration. Consequently, the Court upheld the High Court’s judgment and dismissed the State’s appeal.

Issues considered

Whether the material omissions in the prosecution case render the evidence insufficient to sustain conviction.
Whether the testimony of a nine‑year‑old child witness is reliable without corroboration.
Whether the identification of the accused by witnesses, absent a proper identification parade, is admissible.
Whether the non‑examination of a material injured witness defeats the prosecution.
Whether inconsistencies in police and forensic evidence create reasonable doubt.

Legislation cited

Subjects

murderattempt to murderidentification evidencechild witnessmaterial omissionacquittalforensic evidencepolice conduct

Judgment

STATE OF U.P. A
v.
ASHOK DIXIT AND ANR.

FEBRCARY 16, 2000

[GT, NA.~AVATI AND S.N. PHL'KAN, JJ.J B

Indian Penal Code, 1860-Sections 302, 307-Arms Acr:-Section
25-f'rosecution for offences-Material omissions-Eye witnesses not reli-
able-Acquittal, held, sustainable.
c
The respondents-accused were convicted for offences u/s. 302 and
307 Indian Penal Code and Section 25 of the Arms Act by the Sessions
Court but acquitted by the High Court. This appeal by the State was filed
against the judgment and order of acquittal passed by the High Court.

The prosecution case was that on hearir..g sound of gun coming from D
the house of deceased, his brother, PW 1, proceeded to the house of
deceased, along with his two sons where he met two police officers PW 7
and PW 15 and some persons of the locality; that they saw accused
tumbling down the staircase where three accused were apprehended by the
two police officers. Two deceased, husband and wife were found lying in a E
pool of blood in the house and PW 3 and PW 2, daughter and maternal
uncle of deceased were found in injured condition. FIR was lodged by PW
1 on the basis of statement of injured witness M.

High Court acquitted the accused holding that the f<'IR could not be
accepted as corroborJting piece of evidence of the statement of PW 1 as F
injured M l'VllS not exucined and PW 3 being a child witness was not held
reliable. In this appeal ugainst acquittal the question ruised for deter:nina·
tion was whether the High Court was justified in acquitting the accused
respondents.

Dismissing the appeal, this Court
G

HELD : 1.1. There were material omissions which were fatal for the
prosecution. PW 2 stated that accused A was related and regular visitor
to the house of deceased but accused-C was not know to him earlier. There
was no identification by PW 2 of accused A. There was no test identification H
855
856 SUPREM <:COURT REPORTS [2CGQ] 1 S.C.R.
A parade regarding accused C and for the first time PW 2 identified him in
the court but this identification cannot be accepted. (859-H; 860-A]

1.2. PW 3 was a child witness and at the time of occurrence she was
aged nine and a half years old. Law is well settled that evidence of a chil4
witness must be evaluated carefully as a child may be swayed by what
B others tell him and as an easy prey to tutoring. Wisdom requires that
evidence of a child witness must find adequate corroboration before it is
relied on. In the instant case, the occurrence tool• place on 8.8.82 but her
statement u/s. 161 Cr.P.C. was recorded on 10.8.82 though after the occur-
rence she was residing with her uncle which was at a stone's throw from
C the house of deceased. The High Court was of the view that considering
her age at the time of occurrence PW-3 might have been sleeping. This
cannot be said to be impossible. PW-3 also had deposed that accused-A
was known to her family and ased to visit their house but accused C was
not know to this witness. She identified both the accused in this Court. At
the time of occurrence there was no electricity, therefore, it is difficult to
D accept that she being aged nine and a half years old could have identified
accused C during the occurrence. From the evidence of PW-3, it was
revealed that she came out from beneath a cot. This fact would support
the contention that she might not have seen the occurence. It will be risky
to accept the evidence of PW3 for the purpose of identification as her
E evidence is uncorroborated. (860-8-G]
Panchhi and Ors. v. State of U.P, (1998] 7 SCC 177, relied on.

1.3. Deceased, a doctor was allegedly, called by M and M was found
in the injured condition in the up-~tairs by PW 1 and PW 2 and was also
F taken to the hospital along with others. This material witness was not
examined and no explanation had been given for his non-examination. This
was fatal for the prosecution. (860-H)

1.4. No record had been produced to show that two police officers
G were near the place of occurrence. After arrest police officers did not go
upstairs where four persons were lying injured. This behaviour of two
police officers is contrary to the natural human conduct, therefore, it is
difficult to believe their presence at the place of occurrence. (861-D-Fl

1.5. Medical evidence did not support the evidence of the witnesses.
H According to the medical report of accused B, injuries on him were bleeding
STA1F. v. ASH OK DIXIT [PHU KAN, J.] 857

but police did not find blood on the floor. According to the doctor, due to A
injuries caused to accused B, he might have suffered paralysis and he could
not have moved 5-6 steps after falling down. However, according to prosecu-
tion witness accused 8 came down by their stair case to the ground floor fell
down, got up and after going 5·6 steps, again fell down. [867-G-HJ

1.6. PW 7 was examined as ballistic expert. According to him metallic B
Bullets recovered from the bodies of two deceased were not fired from
pistols recovered from the possession of accused- respondents. Moreover,
there were gun shot injuries on accused 8. PW 2 and M were also injured.
(862-8]
1.7. No explanation is forthcoming from the side of prosecution of C
the above discrepancies, therefore, it is held that the occurrence did not
take place as alleged by prosecution. [862-C]

CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. 238-39 of 1989.
D
From the Judgment and Order dated 16.8.88 of the Allahabad High
Court in Cd.A. '.'lo. 2742, 2743 and 2338 of 1988.

K.N. Nagpal, A.S. Pundir, Akhil Kaushik, Ms. Rachna Joshi and D.
Bhandari for the Appellant.
E
> A.O. Giri, (NP), K.T.S. Tulsi, Vijay Kumar, K.K. Mohan and B.S.
Chauhan for the Respondents.

The Judgment of the Court was delivered by

PHUKAN, J. This appeal by the State is directed against the judg· F
ment and order dated 16.8.1988 passed by the High Court of Allahabad in
Criminal Appeal Nos. 2742, 2743 and 2338 of 1984 arising out of Sessions
Trial No. 202 of 1982. The Learned Additional Sessions Judge, Agra in the
above Sessions Cast: convicted accused - respondents · Ashok Dixit and
Chaman Lal under Sections 302 and 307 !PC and Section 25 of tht: Arms G
Act and sectiont:d them accordingly. Two st:parate appt:als were filed
before the High Court by th.: respondt:nts- accused and one appeal by the
State for enhanct:mt:nt of the st:ntence. The High Court dismissed the
appeal fi!t:d by tht: State and allowed tht: appeals filed by the respondents-
accust:d and acquitted them of their chargt:s. H
858 SL'PRl.ME COt:RT REPORTS [2000] 1 S.C.R.
A On 8.8.1982, at about 9.00 p.m., on hearing sound of gun shot coming
from the house of deceased - Dr. Dubt.:y, his brother · Bhagat Dayal Dubey
- P.W. l, proceeded to the house of deceased Dr. Dubey, alongwith his
two sons. In the house of the d~ceased, he met two police officers • Vijai
Bahadur Singh · P.W. 7, Station House Officers of Police Station Civil
B Lines, District Etawah, Sub-Inspector of Police - Uma Shanker Yadav, Raj
Narain Singh - P.W. 15 - Compounder of deceased Dr. Dubey, Shri S.K
Gupta - Advocate and one or two other persons of the locality. The house
was dark as there was no electricity and two police officers took position
behind the varendah of the house and P W. 1 alongwith his two sons stood
C near the grill of the western varendah. They heard shots from the first floor
of the house where deceased Dr. Dubey, his wife deceased Manorama
Dubey, her daughter Kumari Ritu - P.W. 3 and Umesh Chand Mishra -
P.W. 2 - maternal uncle of deceased Manorama Dubey were residing. At
the time, they saw accused Brijendra K:imar tumbling down the staircase
D to the ground fluor followed by present two accused - respondents Ashok
and Chaman Lal, and three accused wne apprehended by the two police
officers, P.W. 7 and Sub-Insptictor - Uma Shankar Dubty. Electricity was
restored when the accused were apprehended. P.W. l with his two sons
went upstairs and found deceased Dr. Dubey lying in a pool of blood near
E the dining table. Deceased Manorama Dubey was lying in a pool uf blood
on the dewan by the side of the wall of the drawing room and Munnu Singh
was lying in the mjured condition. PW-2 was also found in injured condi- •
tion. They were taken to the hospital by PW-1 and one Pandey a tenant on
the first floor where Dr. Dubey was n:s1ding. Dr. Dubey and his wifo were
F found dead. P.W. 2 and Munni:. Singh were medically examined and given
treatment.

A pistol and four live cartridges were recovered from the possession
of the accused Ashok and country made;; pistol and five live cartridges from
the possession of accused Chaman Lal and a country made pistol and two
G cartridges were recovered from accused Brijendra Kumar. The two police
officers did not go upstairs where the occurn:nce took place. They took
the accused persons to the police station. Police after investigation sub-
mitted charge sheet. The FIR · Exh. l was lodged by P.W. 1 on the basis
of statement of mjured Munnu Singh but he was not examined, therefore,
H the High Court was of the opinion that the FIR cannot be accepted as
STATEv. ASHOKDIXIT[PHVKAN,J.J 859

corroborating piece of evidence of the statement of P.W. 1. Accused A
Brijendra Kumar died.

We have heard Shri K.N. Nagpal, learned counsel for.the appellant
and Shri K.T.S. Tulsi, learned senior counsel for the accused - respondents.

Umesh Mishra - PW 2 uncle of the deceased - Manorama and Ritu B
- PW 3 daughter of deceased - Dr. Dubey were the eye witnesses. PW 2
used to live in the house of deceased - Dr. Dubey. According to PW 2
while he along with deceased - Dr. Dubey, his wife deceased - Manorama
and their daughter - Ritu PW 3 were sitting, Munnu Singh, compounder
of Dr. Dubey called Dr. Dubey and he went out. They heard gun shots C
stood up and after some time Dr. Dubey came and fell down near the
dining table. Dr. Dubey was followed by three assailants. One assailant
fired at deceased - Manorama. Accused - respondent Ashok fired at him
and also at deceased - Manorama. He got panicky, went to the verandah
and fell down and from there he heard the sound of firing. At that point
of time PW 1 and his two sons came up stairs and by that time electricity D
was restored. Both PW 1 and PW-2 went to the drawing room and they
found Dr. Dubey lying on the floor of the dining room and Manorama on
the dewan of the drawing room. Munnu Singh who was also injured came
in side and fell down. PW 3 came out from beneath a cot from the bed
room.
E
PW 2 has stated that accused-respondent Ashok was known to him
and Dr. Dubey and used to visit frequently the house of Dr. Dubey.
Accused - Chaman Lal was not known to him earlier. PW 2, Dr. Dubey,
Manorama and Munnu Singh were taken to the hospital by PW 1 with the
help of one Pandey through the ground floor. The accused person after F
being arrested wt:re kept in the ground floor. PW 2 did not mention in his
statement under Section 161 Cr.P.C. that accused - Ashok came along with
other two accused to the first floor and fired at him and Manorama and
also the fact that accused·Ashok and other two accused were in the ground
floor.
G
Thest: are material omissions. Therefore, wt: are of the opinion that
these omissions are fatal for the prosecution. More, particularly, when
accused-Ashok was related and regular visitor to the house of Dr. Dubey.
We, tht:n:fore, hold that there was no identification by PW 2 of accused-
Ashok. Regarding accused-Chaman Lal after the occurrence there was no H
860 SUPREME COURT REPORTS (2000] 1 S.C.R.
A test identification parade and for the first time PW 2 identified the ac-
cused-Chaman Lal in the court. This identification cannot be acceptt:d.

PW 3 was a child witm:ss and at the time of occurrence she was aged
9-1/2 years old. Occum:nce took place on 8.8.82 but ht:r statement under
Section 161 Cr.P.C. was recordt:d on 10.8.82 though after the occurrence
B she was residing with her uncle which was at a stont:'s throw from the house
of Dr. Dubey.

Law is wdl settled that evidence of a child witness must be evaluated
carefully as a child be swayed by what others tell him and as an easy prey
C to tutoring. Wisdom requires that evidt:nce of a child witness must find
adequate corroboration before it is relied on. (see : Panchhi and Ors. v.
State of U.P., (1998] 7 SCC 177.

The High Court was of the view that considering her age at time of
occurrence PW 3 might have been sleeping. This cannot be said to be
D impossible.

PW 3 also has deposed that accused-Ashok was known to her family
and used to visit their house but accused - Chaman Lal was not known to
this witness. She idcntifo::d with the accused in the court. At a time of
E occurrenct there was no electricity, thi;rtfore, it is difficult to accept that
she being aged 9-1/2 years old could have identified accused-Chaman Lal
during the occurrence. From the evidence of PW 1 and PW 2 we find that
when they went to the bed room, PW 3 came out from beneath a cot. This
fact would support the contention that she might not have seen the occur-
F rence.

We have already discarded the evidence of PW 2 on the point of
identification of the accused, therefore, it will be risky to accept the
evidence of PW 3 for the purpose of identification as her evidence is
uncorroborated.
G
Dr. Dubey was called by Munnu Singh. He was found in the injured
condition in the up stairs by PW 1 and PW 2 and was also taken to the
hospital along with others. This matenal witness was not examined and no
explanation has been given for his non-examination. This in our opinion is
H fatal for the prosecution.
STATE v. ASH OK DIXIT [PHlJKAN,J.] 861

According to Mr. Vijay Bahadur Singh- PW 7, Station House Officer A
of Civil Lines, Police Station, he along with sub-Inspector Uma Shanker
Yadav was on patrolling duty and when they were checking the out posts
of Civil Lines, Police Station, they heard sound of gun fire coming from
the house of Dr. Dubey at about 9.00 pm. and he along with sub-Inspector,
Yadav proceeded on the motorcycle to the house of Dr. Dubey where they B
met Satyendra Gupta, Advocate and Raj Narain Singh - PW 15. They also
saw PW I and his two sons. There was no electricity at that time and these
two police officers did not go inside the house but took position outside
the house. They heard the sound of gun fire coming from the first floor of
the house where deceased-Dr. Dubey was residing. Thereafter, they saw C
accused - Brijendra tumbling down the stair-case to the ground floor
followed by other two accused who were apprehended and arrested by
them. They recovered pistols and cartridges as stated above from them.

No record has bt:en produced to show that these two polict: officers
were near the plact: of occurrence at the outpost of Civil Lines, Police D
Station on patrol and Checking duty. This outpost is at the distance of
lC0-125 yards from the place of occurrence. After arrest police officers did
not go up stairs when: four persons wen: lying injured and according to
PW 15 ht: wanted to go up stairs but he was summoned by these police
offict:rs. These police officers saw PW 1 and his two sons going up stairs. E
PW 1 with the help of Pandey took deceased - Dr. Dubey, his wife -
deceased Manorama and injured Munnu Singh and PW 2 through the
ground floor to the hospital. If police officers were present at that time on
the ground floor their immediate reaction would have been to make proper
inquiries, go up stairs and see the place of occurrence but they did not do
F
so. This behavior of these two police officers is contrary to the natural
human conduct and it is difficult to believe their presence at the place of
O<jcurrence as deposed by PW 7.

Exhibit Ka 6 is the medical report of accused-Brijendra Kumar.
Injury Nos. 2 and 3 wi:re caused as a result of gun shots. All these injuries G
were bleeding but police did not find blood on the ground floor or on the
stair case. According to Dr. R.K. Choudhary - PW 5 due to the injuries
caused to accused-Brijendra, he might have suffered paralysis and he could
not have moved 5-6 steps after falling down. According to prosecution
witnesses accused-Brijendra came down by stair case to the ground floor H
862 SUPREME COURT REPORTS (2CC0] 1 S.C.R.
A fell down, got up and after going 5-6 steps fell down. Therefore, medical ....
evidence does not support the evidence of the witnesses.

Ramashram Pandey - PW 17 wa~ examined us ballistic expert. Ac-
cording to him metallic bullets-Exhibit EB-1 recovt:n:d from the body of
Dr. Dubey and Exhibit EB-2 recoven:d from the body of deceased -
B Manorama were not fired from the pistols recovered from the possession
of accused-respondents and Brijendra Kumar. Moreover, there were gun
shot injuries on accused Brijendra Kumar, PW 2 and Munnu Singh were
also injured.

No explanation is forthcoming from the side of prosecution for the
C above discrepancies, therefore, we hold that the occurrence did not take
place as alleged by the prosecution. We further hold that the High Court
has rightly acquitted the accused- respondents.

In result, the present appeal has no merits and accordingly it is
D dismissed.

R.A. Appeal dismissed.

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