Surya Lal @ Shiv Lal Vs State of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

CRLA No. - 1201 of 2014

Surya Lal @Shiv Lal			…..Appellants(s)
	Versus
State of U.P.		….	.Respondents(s)
Counsel for Petitioners(s)	: Amjad Siddiqui, Mohemmed Amir Singh, Shreesh Shubham Gupta	Amul Naqvi, Kumar	Mani Tripathi, Piyush Kumar Mishra Alat,
Counsel for Respondent(s)	: Govt. Advocate
With	CRLA No. - 1359 of 2017
Chankau			…..Appellants(s)
	Versus
State of U.P.		….	.Respondents(s)
Counsel for Petitioners(s) Counsel for Respondent(s)	: Piyush Kumar Sing : Govt. Advocate	h

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Reserved on - 31.03.2025 Delivered on - 11.09.2025

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A.F.R.

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Court No. - 2

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HON’BLE MRS. SANGEETA CHANDRA, J. HON’BLE SHREE PRAKASH SINGH, J.

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(Delivered by Justice Sangeeta Chandra)

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1. Heard Sri Shreesh Kumar Mishra Atal, Advocate for the two appellants as Amicus appointed by the High Court and learned AGA for the State Respondents.

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2. These two criminal appeals have been filed against judgement and order dated 07.08.2014 passed by Additional Sessions Judge, Bahraich in Session Trial No. 49 of 2002, State of U.P. Vs. Surya Lal and Another

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2/-

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CRLA No. 1201 of 2014 connected with CRLA No. 1359 of 2017

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arising out of Case Crime No. 69 of 2001, Police Station, District Bahraich, where by the Trial Court has convicted and sentenced the appellants under Section 302/34 IPC for life imprisonment with fine of Rs.10,000/- in default of which for further imprisonment of one year, and under Section 353 IPC for two years imprisonment and under Section 201 IPC for three years, imprisonment and fine of Rs.5,000/- and additional imprisonment of six months in case of default in payment.

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3. Case Crime No. 69 of 2001 was initially registered in Police Station – Sujauli, Bahraich on 06.08.2001 at 06:10 AM against three accused, all residents of Ishwari Ganj Nepal, the informant did not reveal any names. He only indicated that one of them belonged to the family of Ramswaroop Tharu, the other was a relative of Purinder Tharu and the third one was an unidentified fellow. It was stated in the written report dated 06.08.2001 that on 04.08.2001 Forest Guard Jitendra and Watcher Kallu were returning from their duty in Beat no.2 of Katarniya Ghat Range. Near No Man’s Land Ishwari Ganj village, they found two boys reading a book. Forest Guard Jitendra questioned them and scolded them by saying that these people keep a watch on movement of Forest Guards by making an excuse of reading books, only to warn their accomplices who were indulging in illegal felling and selling of trees in the forest. The informant said that he, Nanmoon, was working as Forest Guard in Beat No.1 and on 05.08.2001 while returning from his Beat, he met Jitendra Lala Forest Guard and Kallu Watcher on the road also coming back to forest checkpost on their cycles. All three were then returning together when they were accosted by the accused, who were armed. They took them inside the jungle about two kilometres and then threatened and scolded Jitendra Lala for slapping them last evening. They forced him to take off his clothes and they tied his hands as well as there of Kallu Watcher and the informant. One of the accused then took Jitendra Lala aside and stabbed him repeatedly. Another accused then took Kallu Watcher aside and stabbed him to death, but let the informant go on his begging them to spare his life. He came back to his check post and told

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3/-

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CRLA No. 1201 of 2014 connected with CRLA No. 1359 of 2017

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Nathuram Forest Guard about it and then both of them crossed the river and reached the Forest Range Office where he told everything to Dy. Range Officer Sri Abdullah who then came to the Police Station to lodge FIR.

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4. The Investigating Officer did not try to find out the names of the accused till the night of 13.09.2001 when the three accused Surya Lal, Chankau and Harichanda and two others were arrested for illegally cutting down a tree. It was thereafter that weapons of assault were recovered and charge sheet was filed and the Sessions Trial commenced.

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5. Harichanda was declared juvenile by order of the Sessions Court on 24.07.2012. His case file was separated. Surya Lal and Chankau were tried and convicted.

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6. The Trial Court examined eleven prosecution witnesses. Three were officials belonging to the Forest Department, two were Medical Officers, and the rest were Policemen.

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7. P.W.1 and P.W.2, Nanmoon and Dashrath Forest Watchers, have been treated as witnesses of fact alongwith P.W.3, Abdullah the Deputy Forest Ranger, who had written the FIR. Dr. Ajay Kumar Tiwari, P.W.4 was the Doctor on duty when the victim Jitendra Singh Srivastava was brought in for treatment. Dr. M.R. Mallik P.W.6 and P.W.8 Dr. Saiyyad Ashraf Hussain were Medical Officers, who had conducted the postmortem of the two deceased Jitendra Srivastava Forest Guard and Kallu Watcher. P.W.5 M.Z. Khan was in-charge of Special Operation Group Team, P.W.7 was Constable Moharir, S.I. Digvijay Singh as P.W.9, S.I. Sreenivas Chaudhary as P.W.10. and S.O. Jitendra Kumar Kaushal as P.W.11 were the three Investigating Officers.

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8. Nanmoon, the first informant, stated that he was illiterate and therefore, he dictated the FIR to Abdullah Khan, the Deputy Ranger, who wrote it down on a piece of paper before it was submitted in Sujauli Thana on 06.08.2001 at 6:10 AM. Nanmoon P.W.1 stated that on

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4/-

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05.08.2001, while he was returning from his Beat No.2 Katarniya Ghat Range, he met Jitendra Lala Forest Guard and Kallu Watcher on the way as they were returning from Beat no.1. This was around 07:00 PM. When all of them were riding their bicycles towards their Check Posts they met three people on the way, two of them were carrying guns and the third had a knife. These three people caught hold of Jitendra Lala, Kallu and the informant Nanmoon and confronted Jitendra Lala saying that he had scolded them and slapped them last evening, that is on the evening of 04.08.2001, and he should not have done so. They pointed the gun in their hands towards the victims and they tied their hands with rope made of Baint (Rattan) and threw away their cycles, and then disrobed Jitendra Lala. Surya Lal took him aside and tried to shoot him down, but his gun malfunctioned, and he took out his knife and repeatedly attacked Jitendra Lala until he fell down. Surya Lal returned to the place where Kallu Watcher and Nanmoon were standing, and then Chankau took Kallu Watcher some distance away in the opposite direction and also attacked him repeatedly with his knife which resulted in instant death of Kallu Watcher. P.W.1, then stated that he begged the assailants to leave him, and they decided to untie his hands and left him and went their way towards the No Man’s Land. P.W.1 took his cycle and came to the check post where he told the story to Nathuram Forest Guard and they decided to inform the Range Office across the River. They took a steamer to cross the river and reached the Range Office where P.W.1 told his ordeal to Abdullah Khan, Deputy Ranger, who wrote it down and it was given to the S.H.O. Sujauli on 06.08.2001 in the morning.

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9. P.W.1 stated that there were two check posts near the No Man’s Land. On each there were employees of the Forest Department, who had their service guns/12 Bore guns given to them by the Government. P.W.1 was posted in Beat No.1 check post with Forest Guard Nathuram Tripathi and Watcher Ghasite. In the check post on Beat No.2 Forest Guard Jitendra Lala, and Watcher Kallu along with Dashrath Watcher were posted. Jitendra Lala had kept one more Watcher Dashrath also with him.

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5/-

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10. On a specific query being made, P.W.1 stated that while going to inspect their Beat, they do not carry any weapons. It is only when they received information with regard to illegal felling of trees that they take their guns along with them. All weapons in the check post are under the control of Forest Guard. Being Watchers only they cannot take any guns without the permission of the Forest Guard. Only when Forest Guard and Forest Rangers move on Inspection, they take their weapons along with them. P.W.1 also admitted that in No Man’s Land on the Indian side, there is a PAC outpost also with 20 persons posted. This PAC output also had facility of wireless at the time of the incident. The Forest Check Post is about 3 kms. away from the PAC outpost. Ishwari Ganj and Karmohini villages in Nepal are around 3 kms. away from No Man’s Land.

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11. P.W.1 in his cross-examination stated that he goes on Inspection every one or two weeks during which he meets wild animals and mafia and most of the times, the wild animals move away when he fires from his gun in the air. They used to fire guns in the air also when they came across forest mafia. P.W.1 further stated during his examination-in-chief that he had been working in the Forest Department for more than 20 years, but had not caught any person doing illegal felling and the only time he had been part of an operation for catching forest mafia was around one month after the incident, when S.H.O. and other Police persons had visited the Range Office at night on 13.09.2001 and were told by Nathu Ram Forest Guard about illegal felling being done near his Beat No.1. The Police personnel along with Forest Department officials in the Range Office at Katarnia Ghat, crossed the river in the dead of the night and reached the PAC outpost and took all persons from the PAC outpost also while laying ambush on persons illegally felling trees in the forest near Ishwari ganj. When they reached the spot at around 02:00 AM, the Police warned the mafia not to try to run away as they had been surrounded. Thereafter, five people were caught doing illegal felling, he recognised three of them as the assailants of Jitendra Lala and Kallu Watcher. It was then that P.W.1 came to know their names as Surya Lal,

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6/-

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Chankau and Harichanda. P.W.1 also stated that he was witness of the recovery made by the Police of cycles and clothes of the deceased and weapons of assault i.e. two knives that were buried in the soil.

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12. P.W.1 also stated that workers were often called by the Forest Department from Karmohini and Ishwari Ganj villages in Nepal and Dashrath Watcher had his second wife’s parents living in Karmohini Village Nepal. Dashrath Watcher had been working since 1986–87, in Katarnia Ghat and he used to regularly visit his wife’s village in Nepal. The Range Office has three Foresters, one Range Officer, one Deputy Ranger, one Forest Guard and four to five Watchers. The Range Office is equipped with firearms and as are all Forest Check posts where one Forest Guard and two Watchers are posted. All Watchers and Forest Guards/employees of the Forest Department are given training to how to use firearms. There is a wireless set available in the Range and one can talk to another Range on this wireless set. The D.F.O., Bahraich office also had a telephone connection.

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13. On repeated cross-examination P.W.1 stated that, although Forest Check Posts in all Beats have 12 bore rifles, and the Range Office also has guns, they are not being carried by Forest Guards and Forest Watchers on routine Beat inspections. P.W.1 admitted that he had only caught one Sadhu Tharu some four years ago, committing theft of forest produce. Sadhu Tharu belonged to Nepal Ganj. No Man’s Land is land between India and Nepal borders. Beat No.1 and Beat No.2 are inside the forest on the Indian side. The road between Beat No.1 and Beat No.2 is around 12 ft. wide and it leads to the Forest Check Post. P.W.1, along with Jitendra Lala and Kallu Watcher was stopped near Ghalghala Nala by three people/assailants. At that time, P.W.1, Jitendra Lala and Kallu Watcher had only Lathis/sticks in their hand, whereas the three assailants had two guns and a knife. Because of the gun barrel being pointed on Jitendra Lala’s face they stopped, and the three assailants tied their hands behind their backs and made them sit under a tree. Surya Lal then took

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7/-

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CRLA No. 1201 of 2014 connected with CRLA No. 1359 of 2017

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Jitendra Lala some 02 Km. away and then returned some 15 minutes later. Chankau thereafter took Kallu Watcher in the opposite direction and returned 15 minutes later.

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14. P.W.2 Dashrath in his examination-in-chief had stated that on 04.08.2001, he was accompanying Forest Guard, Jitendra Singh Srivastava and Kallu Watcher during their inspection in Beat No.2. They found two boys sitting in forest land near Ishwari Ganj Village and reading books. The Forest Guard Jitendra Lala had asked them why they were sitting there and scolded them and made them go away. On walking a few paces they met another Forest Watcher, who told them that these boys were helping in illegal felling by keeping a watch and raising a warning on approach of Forest Guards. On coming to know of this, Jitendra Lala had called the two boys back, who told their names as Surya Lal and Harichanda and they were questioned and slapped by Jitendra. The very next day, Jitendra Lala and Kallu Watcher were killed in the forest. P.W.2 also stated that he had been working in Beat No.2 Katarnia Ghat since 1988 and his wife’s name was Jayanti Devi and she belonged to Karmohini village, P.S. Rajapur Mandi, District Bardia in Nepal. Karmohini and Ishwari Ganj villages were situated next to No Man’s Land.

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15. P.W.2 denied any relation of his wife with the accused, who were also residents of Nepal. He also stated that his wife had not gone to her maternal home for nearly one year after the incident. P.W.2 however later during cross-examination denied having seen Jitendra Lala and Kallu Watcher scolding and slapping the accused Harichanda and Surya Lal on 04.08.2001. He denied the suggestion of Police having interrogated him with regard to the incident at any point of time.

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16. P.W.3 Abdullah Khan, Deputy Ranger, Katarnia Ghat Range, stated in his deposition that on 13.09.2010, the S.H.O. Sujauli Jitendra Kumar Kaushal along with Sub-Inspector Shreenivas Choudhary and Constables and S.O.G. In-charge M.Z. Khan along with other persons had reached

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8/-

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CRLA No. 1201 of 2014 connected with CRLA No. 1359 of 2017

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the Range Office on a jeep. They told Range Officer, Rajendra Prasad that secret information had been received regarding illegal felling taking place on the other side of the river. All persons from the Range Office then accompanied the Police and S.O.G. team to PAC outpost on the banks of the Gerua River and then reached the place where they could hear the noise of felling of trees. There were around thirty persons in the team by the time they reached the place. They surrounded the place and caught five persons along with their saws and axes and they disclosed their names as Surya Lal, Harichanda, Chankau, Haule and Hariram. Nanmoon Watcher identified three of them as those who had attacked and killed Jitendra Singh Srivastava Forest Guard and Kallu Watcher on 05.08.2001. The three accused admitted to their crime. They also expressed the willingness to show the place where they had hidden the cycles, clothes of the victims and their knives. At dawn, two independent witnesses, Ameere and Ghasite, were taken along with the accused near Ghalghala Nala where the accused took out the cycles of the victims and their clothes from the bushes,as well as two knives, that they had buried under the ground.

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17. P.W.3 also stated that Forest Guards have 12 bore guns with them and Foresters and Rangers have rifles. All of them are trained to handle such arms. However, P.W.3 could not tell the number of rifles and guns available in Katarnia Ghat Range Office. He further stated that there was no four wheeler in the Range Office at the time of the incident and they had to walk to the river bank. The Range Office is around 1 Km. away from the banks of the river Gerua. They had crossed the river by using boats. Nathuram Tripathi, Forest Guard had told them about illegal felling of trees in the Range Office. After crossing the river, they walked for around one to one and a half kms before they reached the place where the felling was being done. On crossing the river Gerua, there is a 10 feet wide forest road constructed up to No Man’s Land on the border, which is used by people very often for coming to India and going to Nepal.

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P.W.3 admitted that before such raid on 13.09.2001, or even thereafter, no such raid was carried out in Katarnia Ghat Range to nab any forest mafia.

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18. During cross-examination, P.W.3 stated that on 05.08.2001, and 06.08.2001, he was posted in Katarnia Ghat Range Office, but he was on leave some two to three days earlier to the incident and returned on duty one or two days later. He also stated that there was a road between Beat No.1 and Beat No.2, which led to Rajapur in Nepal. Ishwari Ganj Village was half a kilometre from No Man’s Land, on Nepal border and was around 3 kms from the Forest Check Post. The team conducting the raid on 13.09.2001 had not been told about why they were going to Beat No.2. On reaching the place on foot where illegal felling was being carried out, they surrounded it and caught five persons of whom three were identified by Nanmoon Watcher as the ones who had attacked and killed Jitendra Lala and Kallu Watcher. These three were taken straightaway to the Police Station by the S.H.O. The other two persons, who were caught were taken to the Range Office as accused in forest offence. P.W.3 also stated that at the time of their arrest, no arrest memo was prepared by the Police.

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19. P.W.4 Dr. Ajay Kumar Tiwari was the Medical Officer on duty in District Hospital - Bahraich where Jitendra Singh Srivastava was admitted at 09:00 AM on 06.08.2001 in a serious condition. He died soon thereafter at 09:15 AM. The news regarding death of Jitendra Singh Srivastava was sent to the Police Station through a Ward Boy.

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20. P.W.5 M.Z. Khan Inspector, was In-charge of S.O.G. team he along with Jitendra Kumar Kaushal S.H.O. P.S. Sujauli had accompanied the Police and S.O.G. team to Katarnia Ghat Range Office, where they took Forest Guards and Forest Department Officials and reached the banks of River Gerua, which they crossed on a steamer to reach the other side. They found a PAC Check Post where there was one Subedar and four Constables. All of them then walked to the place where they found illegal felling being done. It was around 01:30 AM. He also stated the same

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10/-

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story regarding P.W.1, recognising three out of the five persons caught as those who had attacked and killed Jitendra Lala and Kallu Watcher. He gave the names of two independent witnesses as Amir Hasan S/o Ghasite and Munnawar Ali S/o Kalute residents of Katarnia Ghat who accompanied them in the morning, when the recovery of assault weapons and belongings of the deceased were made.

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21. While P.W.3, Abdullah Khan, Deputy Ranger, in his examination has stated that the S.O.G. team along with Police team had come to Katarnia Ghat Range office at around 9:00 PM on the night of 13.09.2001, the S.O.G. team In-charge P.W.5 M.Z. Khan stated that they had not gone to Katarnia Ghat Range Office. They had reached the banks of the Gerua River where they were met by the forest team led by Rajendra Srivastav Range Forest Officer, who told them regarding illegal felling. They then crossed the river together on the Forest Department steamer and reached the PAC outpost. The PAC Constables also joined them and a total of 29 to 30 people then walked stealthily to the place where the felling was taking place and surrounded the accused. They reached the place at around 01:30 AM in the morning. It is 2 kms. away from Ishwari Ganj Village on Nepal border. They could hear the accused talking and cutting down a tree from about a fifty to a hundred meters distance. He also stated that they remained in the forest with the accused after arrest for around four to five hours till dawn, and then the accused took them to the place where they had hidden the belongings of the deceased and the weapons of assault. After arrest, the accused were not taken to the Forest Range Office but to Sujauli Police Station at around 10:00 AM in the morning on 14.09.2001.

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22. P.W.6 Dr. M. R. Mallik had conducted the postmortem of Jitendra Singh Srivastava on 06.08.2001. There were six incised wounds two on the face and neck, one on the collar bone and two in the abdomen and one incised wound on the left hand. Such wounds were caused by sharp edged weapons. He also stated that Injury No.1 and Injury No.2 could

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11/-

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have been caused by a heavy sharp edged weapon like an axe/farsa or a Gandasa as they were deep and had cut through the bones as well.

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23. P.W.7 Head Constable Mohit Yadav was posted as Head Moharrir. He verified the chik FIR lodged at P.S. Sujauli at 06:10 AM on 06.08.2001. The G.D. entry was done by Sub-Inspector, Srinivas Chaudhary as he was In-charge of the Police Station at the time and the S.H.O. Digvijay Singh was on leave. After lodging of FIR, information was given on RT set to the higher officers. Special report to the Magistrate was sent at 06:15 AM on the same day. This witness has stated that Nanmoon P.W.1 and Abdullah Khan had both come to the Police Station on bicycles to lodge the FIR.

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24. P.W.8 Dr. Syed Ashraf Hussain stated that he was Medical Officer on duty on 07.08.2001 when the body of Kallu Watcher was brought in for postmortem by Constable Ram Ratan Yadav and Constable Mahant Yadav. The death had occurred around one and a half days ago. The body was covered with maggots. It had decomposed and the skin had left the bone and disintegrated at some places. There were six incised wounds all on the face, around the neck, upper part of the body, on the thorax and cutting through trachea, vertebral column, carotid artery, jugular vein and food pipe.

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25. P.W.8 was recalled for cross-examination, and he stated that the nature of the incised wounds on Kallu Watcher’s body were such that they might have been caused by Farsa, Gandasa or Kanta, a heavy sharp edged weapon and not by a knife as a knife may cause a punctured wound.

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26. P.W.9 Digvijai Singh Sub-Inspector was In-charge, Sujauli Police Station at the time of the incident, but he had gone on leave, and therefore, the investigation was initially carried out by S.I. Sreenivas Chaudhary. He took over investigation with effect from 09.08.2001. He was transferred out of Sujauli Police Station on 19.08.2001.

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27. P.W. 10 Sreenivas Chaudhary took up investigation on 06.08.2001. He stated that he had accompanied Forest Department employees to the place of the incident and recovered the dead body of Kallu Watcher and conducted inquest. He also took blood stained soil and plain soil from where he had found the dead body of Kallu Watcher and made a site plan of the scene of crime. He also took blood stained soil and plain soil from the place where Jitendra Srivastava the injured had been lying, on the pointing out of Forest employees. However, he did not find Jitendra Srivastava at the scene of crime and he did not try to find out the whereabouts of Jitendra Srivastava, who perhaps was taken to the hospital by forest employees. He also did not collect any papers about the inquest and postmortem conducted on the body of Jitendra Srivastava. He handed over the investigation to Digvijai Singh on his return from leave on 09.08.2001.

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28. P.W.10 stated the same story with regard to accompanying the SOG team and Forest Department Team and PAC personnel to the forest, where they discovered five persons illegally trying to cut a sheesham tree. It took the Police, the SOG Team, the Forest Officials and PAC personnel 5 to 6 hours to reach the place where illegal felling was being done. They reached the place at around 01:30 AM and surrounded the persons cutting the tree and caught five of them.

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29. P.W.10 also admitted that he made no efforts to go to Ishwari Ganj Village to find out about the relatives of Ramswaroop Tharu and Purinder Tharu, whose mention had been made in the FIR by the first informant. He was in charge of the investigation only for three days. He, however, accompanied the Police Team that went on 13.09.2001 to Katarnia Ghat and found five persons, who were illegally cutting trees with their equipment. P.W. 10 stated that they had started in the evening of 13.09.2001 and reached the Range Office at around 09:00 to 10:00 PM from where they walked to the place where Nathuram Tripathi, Forest Guard had stated illegal felling to be taking place. P.W. 10 also stated that

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the Forest Department had made some noting with regard to recovery of axe and saw from the five people they had caught on the night of 13.09.2001. They reached the Forest Department Check Post at around 03:00 AM in the morning of 14.09.2001 and reached the Police Station at around 10:00 AM. Three of the accused, who had admitted their involvement in killing Jitendra Srivastava and Kallu Watcher, were taken to the Police lockup . The remaining two were handed over to the Forest Department employees to initiate proceedings against them for forest offence.

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30. P.W.11 Jitendra Kumar Kaushal S.H.O. had taken over the investigation after Digvijai Singh on 26.08.2001. The Case Diary contained the statements of almost all witnesses. However, on 30.08.2001, D.W.11 recorded additional statements of the first informant, P.W.1 and of Dashrath P.W.2. He also recorded statements of Smt. Jayanti Devi and her husband Bhukali. He accompanied the Police Team along with SOG Team and Forest and PAC personnel on 13.09.2001 in the raid which led to arrest of three accused along with two others who were charged with forest offence later on for illegally felling trees in the reserved forest. P.W.11 stated the same story regarding the incident of 05.08.2001, and of 13.09.2001 as told by other prosecution witnesses. The recovery/arrest memo was dictated by P.W.11 and noted down by P.W. 10. The site plan of the place of arrest of the accused on 13.09.2001 was drawn up by P.W.11. He had also noted the statements of the accused, and of S.I. M. Z. Khan In-charge of SOG team, constables accompanying them, Range Forest Officer Rajendra Kumar and Deputy Range Officer Abdullah Khan on 14.09.2001 and 15.09.2001.

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31. Charge sheet was submitted by P.W.11 on 07.10.2001 in the Trial Court. The two knives recovered as the weapons of assault was sent by him along with other material evidence to the Forensic Science Laboratory on 01.03.2002.

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32. During cross examination by the counsel for defence, P.W. 11 admitted that the names of the three accused were revealed to him by Nanmoon and Dashrath and his wife, when he had recorded their additional statements on taking over the investigation. He, however, made no correspondence with his superiors to enable him to go to Ishwari Ganj and Karmohini villages in Nepal from where the accused had reportedly come. He did not make any effort to track the accused to their villages. It was only by chance that on 13.09.2001, while conducting inspection on Indo-Nepal Border along with SOG team, he came to know of illegal felling in Katarnia Ghat Beat No. 1 and then caught the three accused along with two others.

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33. After conclusion of the evidence of prosecution, the statement of the accused was recorded under Section 313 of the Cr.P.C. wherein they denied all the evidence produced by the prosecution and claimed that they had been falsely implicated and that they were not present on the spot.

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34. The defence Advocate had argued before the Trial Court that since the forest mafia had killed two Departmental officials there was huge public pressure and also from the authorities on them to somehow solve the case and the accused being innocent Nepali citizens had been called from their Village and locked up at the Police Station and the raid which took place on 13.09.2001 did not actually happen.

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35. The learned Amicus Curie for the appellants has submitted that the Trial Court has committed a manifest illegality in appreciating the evidence available on record and has recorded a finding of conviction on the basis of surmises and conjectures. All the witnesses were official witnesses, who were interested in seeing conviction of accused as there was great pressure from the authorities to solve the case. Therefore, the Trial Court has committed an illegality in accepting their evidence as truthful.

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36. It was further argued by the learned counsel for the appellants that as per the opinion of the Medical Officer, who conducted the postmortem of the deceased, the injuries were such as would have been caused by a heavy sharp edged weapon, like a Pharsa, Gandasa or Kanta and it was doubtful that the injuries were caused by simple knives which though have sharp edges were too light to have caused such deep wounds. The Trial Court has not considered this aspect of the matter in a correct perspective.

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37. It has also been argued by the learned Amicus that independent witnesses were shown to be present on the spot when recovery memo was prepared of the clothing and other belongings of the deceased and the weapons of assault. However, they have not been produced before the Trial Court. It has further been submitted that the FIR of the case has been lodged ante-timed and in fact nobody had seen the incident and only with the purpose of solving a blind case of murder, the departmental officials have implicated the appellants. There are material contradictions and embellishments in the evidence of the prosecution witnesses and the Trial Court has failed to notice such discrepancies and relied on evidence of such untrustworthy witnesses. The appellants are entitled to be acquitted.

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38. The learned counsel for the appellants argued that P.W.1 at different places has given different statements. Initially, he had stated that two of the assailants, who stopped them were carrying guns and one was carrying an iron road. At another place, he has stated that two were carrying guns and one was carrying a knife. Also at one place, P.W.1 stated that PAC outpost was 03 Km. away, it had a wireless set and armed Constables on duty. However, at another place he stated that there was no PAC outpost near the place where the accused had stopped and attacked them. P.W.1 did not initially say in his deposition that after reaching check post of Beat No.1 and narrating the incident to Nathuram Tripathi, they went to the Range Office. In the Range Office there were several

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persons including the Ranger, Rajendra Kumar and Deputy Ranger Abdullah. Besides Foresters, Forest Guard, and Forest Watchers, but none of them attempted to inform the Police or send information to the adjacent Range’s Office through wireless set which was functioning. He also did not say that the employees at the Range Office had initially gone to the place where Jitendra Lala had been attacked. Kallu watcher was found dead while Jitendra Lala was found in a serious condition and was taken to hospital on the night of 05.08.2001.

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39. During the course of cross examination of other prosecution witnesses, it has come out that after P.W.1 disclosed about the incident at the Range Office, the Ranger and Dy. Ranger along with some fifteen to twenty people had reached the place of incident by crossing the river on a steamer. It has also come out that P.W.1 did not accompany the Deputy Ranger to the Police Station- Sujauli for lodging of the FIR. The Police Station was only half an hour away from the Range Office by jeep. After the lodging of the FIR, the police had kept P.W.1 and P.W.2 Dashrath Forest Watcher and Bhukali Forest Watcher for fifteen to twenty days in the Police lock up and interrogated him as they did not believe their story. P.W.1 also stated that he did not know the names of the accused till the time of their arrest on 13.09.2001, when they themselves told their names to the Police and S.O.G. team, who had caught them however in his additional statement to S.O. Jitendra Kumar Kaushal, the third Investigating Officer, he had indeed told the names of the accused.

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40. It has been argued by learned counsel for the appellants that it is difficult to believe that three well built Forest Guards and Forest Watchers were stopped on the main road to Nepal Ganj, which is quite a busy road, by three young men and killed with no witnesses, except P.W.1 to have seen the incident.

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41. It has also been argued that the motive that has been disclosed by the official witness P.W.1 is hearsay and P.W.2, Dashrath Watcher is too weak a motive for the accused to kill the victims and it may also be

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tainted by personal enmity as Dashrath and Bhukhali Forest Watchers, who were accompanying the team that caught the accused, were both residents of Nepal and Bhukali’s wife belonged to the same village from where the accused hailed.

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42. The Trial Court has glossed over several discrepancies and contradictions in the prosecution story. It has been stated in the prosecution story as narrated in the Trial Court judgement that on 13.09.2001, Jitendra Kumar Kaushal, Station House Officer, along with one Constable and one Sub-Inspector Sreenivas Chaudhary accompanied the Special Operations Group headed by Sub-Inspector, M.Z. Khan and other Constables went on Govt. jeeps to conduct inspection on Nepal border, and after conducting such inspection reached Katarnia Ghat Range Office, Nathuram Tripathi Forest Guard told them about illegal felling of trees in his Beat near Gerua River. In the Forest Range Office at Katarnia Ghat, they met the Ranger - Rajendra Kumar, Deputy Ranger - Abdullah Khan, Foresters, Forest Guards, and Forest Watchers, who then accompanied them to the place near Gerua River, where trees were being illegally felt. On reaching the banks of Gerua River, they also took along personnel manning PAC outpost, and reached the spot as shown by Nathuram Tripathi Forest Guard. They quietly surrounded the place where a tree was being felled at around 01:30 AM and caught five persons along with axes and saws used for cutting trees. These five persons revealed their names as Surya Lal, Harichanda, Chankau, Haule, all residents of Ishwari Ganj and Hariram Tharu resident of Soli Thana, Rajapur in Nepal. On lighting the torch Nanmoon the informant told them that of the five, three i.e. Surya Lal, Chankau and Harichanda were the same persons who had killed Jitendra Munshi and Kallu Watcher in his presence on 05.08.2001.

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43. In the Recovery Report/arrest dated 13.09.2001, it has been mentioned that after the three accused were identified by P.W.19, they themselves told the Police team that they had killed Jitendra Lala and Kallu Watcher because they had insulted and beaten them up the previous

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evening without any fault. They also expressed a willingness to show the place where they had hidden the cycles and the clothes of the deceased and the knives they had used for assaulting the victims. When it was dawn, they had taken the accused with them, who took out the cycles and the clothes of the victims and dug out the knives used in the assault from the ground. Both the knives had around seven to eight inches long blades. One had a wooden handle the other had a metal handle. The accused confessed of having first asked the victims to take off their clothes, then tied their hands behind their backs and then had killed him with the knives which had been recovered. The knives and clothes were sealed in separate bundles to be sent to the forensic lab for examination, the Recovery Memo was prepared on the spot, it was read out to the accused and their thumb impressions taken on it. The other two persons Haule S/o Ram Charan and Hariram S/o Dude Tharu were also arrested and handed over to Rajendra Prasad Range Officer Katarnia Ghat for being separately prosecuted for forest offence.

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44. Learned AGA on the other hand has submitted that the Trial Court has not committed any illegality in appreciating the evidence available on record and has relied on the evidence of witnesses of fact, who, according to him appear to be trustworthy and reliable. It has further been submitted that the evidence of eyewitness of the incident has been supported by medical evidence and thus it was proved beyond reasonable doubt before the Trial Court that the accused persons have committed the murder of the deceased by stabbing them with knives, and there is no perversity in the judgement of the Trial Court, which would warrant interference in this appeal by the High Court.

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45. Having heard the learned counsel for the appellants and having gone through the statements of the prosecution witnesses, we examined the judgement of the Trial Court carefully. The Trial Court has placed reliance upon the testimony of Nanmoon, the Forest Watcher, who is stated to be an eyewitness.

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46 . In Vadivelu Thevar Vs. State of Madras AIR 1957 Supreme Court 614, the Supreme Court had observed the contention that in a case of murder the Court should insist upon plurality of witnesses is much too broadly stated. The well recognised Maxim is that “evidence has to be weighed and not counted”. Our legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. Vadivelu Thevar’s case was referred to with approval in Jagdish Prasad Vs. State of Madhya Pradesh AIR 1994 Supreme Court 1251 , where it was held that as a general rule, the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness.

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47 . This Court finds it difficult to believe P.W.1 as according to him the accused were reckless enough to have stopped them on a busy road leading to Nepal border in the late evening at around 06:00 PM and then taking them to a secluded spot in the forest and then stabbing two of his companions only because one had scolded and slapped them a day earlier. If the accused were indeed so vengeful and reckless they would have killed Nanmoon also and left no eyewitness at all. It is difficult to believe that P.W.1 was let off only on his begging them to leave him.

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48. Also, Nanmoon in his statement does not reveal that he along with others of the Forest Range had gone in the morning of 06.08.2001 to the scene of crime and brought Jitendra Lala in a serious condition to the District Hospital Bahraich for treatment and while going to the forest had lodged FIR at 06:10 AM by giving the written report to the Station House Officer at Police Station Sujauli.

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49. P.W.1 also stated that wife of Dashrath Watcher belonged to Karmohini village in Nepal and Bhukali another Watcher belonged to the same village. P.W.1 also stated initially that at the time when the accused had stopped them on the way two were carrying guns and one had an iron rod. Later he changed the story and stated that two accused were carrying

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knives with which they stabbed the victims. Also, P.W.1 said he was not taken to the Police Station by Deputy Ranger Abdullah to lodge FIR but Constable Moharrir Mohit Yadav P.W.7 stated that both Abdullah and Informant had come on bicycles to the Police Station to lodge FIR. It is difficult to believe that Nanmoon and Abdullah had cycled their way to the Police Station on morning of 06.08.2001 as revealed by Mohit Yadav Constable Moharrir to lodge FIR with the Police and then went to rescue Jitendra Lala from the forest alone and the police did not accompany them

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50. P.W.1 also failed to state that after raid on 13.09.2001 night and catching the three accused they were taken along with two independent witnesses Ameere and Ghasite to the scene of crime to recover clothes and cycles of the deceased and the two knives used in killing the victims.

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51. Even if we take the statements of P.W.1 as believable and comprehensive, description of what happened on the night of 05.08.2001, P.W.1 has himself given two versions of the prosecution story. He has stated at one place that after stopping him and Jitendra Lala and Kallu Watcher on the road between Beat No.1 and Beat No.2, the accused had taken them to a secluded place in the forest and asked them to sit under a tree. Then they asked Jitendra Lala to take off his clothes and Kallu Watcher also to take of his clothes. They were stripped down to their underwear and their hands were tied behind their back with a rope made out of Rattan. Then one of them Surya Lal took Jitendra Lala aside and away from the sight of the others and returned alone some fifteen minutes later. On his return Chankau took Kallu Watcher away to the opposite side, and he also returned some 15 minutes later. It is evident from this version that P.W.1 had not clearly seen either Surya Lal or Chankau actually stabbing the victims to death.

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52. The testimony of P.W.2 has been discarded by the Trial Court on the ground that initially he had stated that he was accompanying the victims on 04.08.2001 and had witnessed Jitendra Lala scolding and

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slapping the accused, but later changed his stand and stated that he had no personal knowledge of the incident on 04.08.2001 which could be the motive for the accused to kill the victims the next day.

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53. While discussing the testimony of P.W.3, the Trial Court only referred to the raid conducted in the night of 13.09.2001 and catching of the accused alongside two other people, recovery of clothes, cycles of the deceased and the knives used by the accused to kill the victims. Abdullah, Deputy Ranger, P.W. 3 had also stated that he was on leave two days before the incident and returned from leave two days later to the Range Office. However, the Trial Court presumed that since there were residential quarters in Katarnia Ghat range, he may have been present in office to note down the story of attack as told by Nanmoon and then submitted the written report at Police Station Sujauli on 06.08.2001.

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54. P.W.3 had given names of independent witnesses as Ameere and Ghasite but P.W.7 M. Z. Khan had given their names as Amir Hasan S/o Ghasite and Munnawar Ali S/o Kalute. Also P.W.7 stated that he was called to Police Station Sujauli by Inspector in-charge Jitendra Kumar Kaushal and then a team of nearly forty persons had conducted the raid on the night of 13.9.2001 whereas other prosecution witnesses have given the number of personnel conducting such raid as 29-30 only.

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55. It is apparent that there is a marked discrepancy in the number of persons, who had allegedly gone for conducting the raid on 13.09.2001 in Beat No. 1 to catch hold of persons illegally felling of trees in the statements given in this regard by the official witnesses. The number of such persons arrange from 10 to 12 in the statement of P.W. 21 to 29-30 in the statement of P.W.10 to 40-45 in the statement of P.W.11.

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56. Also official witnesses have not stated clearly as to when they went to retrieve the victim Jitendra Lala from the forest after receiving news of the attack from P.W.1. It is apparent Jitendra Lala was brought to District Hospital at around 09:00 AM on 06.08.2001, but it is not clear as to who

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brought Jitendra Lala to the hospital. Inquest was conducted at around 11.45 A.M. and the body handed over to Constable Bhupendra Singh at 01:00 PM. The body reached the mortuary for post-mortem on 06.08.2001 at 03:00 PM.

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57. It is strange that no attempt was made by the Investigating Officer after taking additional statement of Dashrath, Nanmoon and Bhukali and deriving knowledge regarding names of the accused to approach the Nepal Police for handing over of the accused as they had committed an offence in India. The Investigating Officer also did not try to find out whether the accused were in fact relatives of Ramswaroop Tharu and Pulwinder Tharu as mentioned in the FIR lodged on 06.08.2001 by the first informant. There was no attempt by the Investigating Officer to conduct search operations to nab the accused until the incident on 13.10.2001, when it is alleged that after conducting a routine checking of Indo-Nepal Border, the Police personnel from Sujauli Police Station and SOG Team reached the Range Office at Katarnia Ghat and were told by one Forest Guard about the illegal felling taking place in his Beat No.1.

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58. It is also strange that the prosecution story has been repeated with great accuracy by all the official witnesses, who were part of the team that raided the forest at night on 13.09.2001 and caught the accused felling a sheesham tree. But there is discrepancy in the statements of P.W.5, P.W.11 and P.W.1 with regard to whether after catching the accused at around 1:30 AM on the night of 13/14.09.2001, the entire team waited in the forest till dawn or whether they returned to the Katarnia Ghat Range Office and then went into the forest again early next morning to recover the cycles and clothes of the deceased and the weapons of assault. No attempt has been made by the Trial Court to call the independent witnesses, Amir Hasan and Munnawar Ali, who had allegedly witnessed the recovery of the assault weapons and belongings of the deceased.

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59. The Constable Moharir Mohit Yadav had stated that Abdullah and Nanmoon had both come on bicycles in the morning at around 06:00 AM to the Police Station Sujauli to lodge FIR whereas Nanmoon stated that he stayed back in the Range Office and Abdullah did not take him along to Police Station for lodging FIR in the morning of 06.08.2001. Yet, P.W.1 Nanmoon, in his statement also said that written report was prepared by Abdullah, Deputy Ranger on the night of 05.08.2001 on dictation given by Nanmoon, who was illiterate, and the written report was handed over to the Police Station by them in the morning of 06.08.2001, while going to the forest to retrieve the injured victims. It is also curious that the body of Jitendra Lala was not covered with maggots when it was brought to the hospital in the morning of 06.08.2001, but the body of Kallu watcher, who was injured and died on 05.08.2001 and his body retrieved at 11:30 AM on 06.08.2001 was covered with maggots and the skin had disintegrated at some places when it was brought to the Hospital.

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60. It is also strange that despite having derived knowledge of the attack in the night of 5/6.08.2001, and Jitendra Lala, being most probably alive, no attempt was made by the persons posted at the Range Office to rescue Jitendra Lala from the forest in the night itself. The Forest Range Office had sufficient number of personnel guns and torches/ search lights. The PAC Check Post was near the border and they could have easily sought help from PAC personnel to retrieve Jitendra Lala, who was still alive. P.W.1 has stated that he could hear the Jitendra Lala groaning with pain at the time he was leaving the forest. He had stated that he had seen Kallu Watcher die instantly, but Jitendra Lala was still alive. Also, P.W.1 has stated during cross-examination that he had not caught any person illegally felling of trees in his more than twenty years of service as Watcher which included his service tenure after the incident and the Trial Court has dismissed such statement on the ground that it had no relation to the offence.

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61. P.W.1 had also stated that there was a twelve feet wide road on which vehicles could move easily in between Beat No.1 and Beat No.2, and this road led straight to the Forest Check Post, but it is strange that at the time they were stopped by the accused on this road near Ghalghala Nala, no other person traveling on the road saw them being stopped. The Trial Court observed that since the incident took place at around 09:00 to 10:00 PM at night, there was very little likelihood that other members of the public were traveling on the same road. But this Court has noticed that P.W.1 had stated clearly that when he was returning from his duty of inspecting the forest in Beat No.1 at around 07:00 PM, he had met Jitendra Lala and Kallu also returning from the duty in Beat No.2 in the evening. It is not clear as to how the Trial Court has come to the conclusion that the incident took place around 09:00 to 10:00 PM at night.

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62. No medico legal examination of P.W.1 had taken place yet the Trial Court believed the statement made by P.W.1 that he had also been beaten up by the accused and he had injuries on his face. No such injuries were reported by P.W.1 while telling the story of attack on Jitendra Lala and Kallu watcher to the scribe of the written report.

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63. During cross-examination of Dashrath, it had also come out that he and his wife also lived in Nepal in the neighbouring Karmohini Village while the accused belonged to Ishwari Ganj. Dashrath had also stated that he and Bhukali along with Nanmoon had been kept in Police lock up and tortured so that they would reveal the names of the accused, but they did not tell the names of the accused although they knew that they belonged to the family of Ramswaroop Tharu and Purinder Tharu.

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64. The Trial Court has taken the testimony of P.W.1 to be wholly reliable whereas from the statement of P.W.1 it is evident that he has changed his stand often during his cross examination.

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65. The Trial Court has treated P.W.3 Abdullah, Deputy Ranger as a wholly reliable witness, however, Abdullah himself had stated that he

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was on leave two to three days before the incident which happened in the night of 05.08.2001 and he returned to the Range Office around two days later.

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66. P.W.4 Dr Ajay Kumar Tiwari Medical Officer on duty in District Hospital, Bahraich on the morning of 06.08.2001 had stated that Jitendra Lala was brought in at around 09:00 AM in a serious condition and he died fifteen minutes later. However, no question was put to this Witness regarding, who brought Jitendra Lala to the hospital at 09:00 AM.

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67. P.W.5 M. Z. Khan had stated that he was in-charge of SOG Team and he accompanied Jitendra Kumar Kaushal of Police Station Sujauli to Indo-Nepal Border near Bhardia and Fakir Puri Villages and when they reached Katarnia Ghat, the Forest Guard Nathuram told them that some illegal felling was being done in the forest on the other side of Gerua river. The Forest Range Officer, Rajendra Kumar, along with other Forest Department employees and PAC Force at the Check Post accompanied the Police and SOG Team inside the forest on foot and at around 01:30 AM, they had found five persons cutting down a sheesham tree. P.W.5 also stated that the accused readily confessed to having killed Jitendra Lala forest guard and Kallu Watcher because they had scolded and slapped them the previous night.

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68. P.W.5 stated that they came along with the five persons to the Range Office and next morning they along with two independent witnesses, Amir Hasan S/o Ghasite and Munnawar Ali S/o Kalute and the accused went again into the forest to recover the clothing and cycles of the victims and the weapons of assault.

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69. The Trial Court has treated P.W.5 M. Z. Khan as wholly reliable on the ground that P.W.5 had no personal enmity with the accused to falsely implicate them in the crime, but his testimony varies from that of P.W.1 and P.W.11.

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70. The Trial Court has also glossed over the testimony of Dr. M. R. Malik P.W.6, who had conducted the postmortem on Jitendra Lala’s body. Dr. M. R. Malik had stated that the nature of injuries on the body were such as they could have been caused by a heavy sharp edged weapon like a Pharsa or a Gandassa or a Kanta. However, the Trial Court did not analyse the nature of injuries, which were so deep as to cut through the bone, reach wind pipe, the food pipe and carotid artery, and then find out whether such injuries could have been caused by knives, such as those recovered allegedly from the accused with blades only around seven to eight inches long.

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71. The Trial Court while dealing with the testimony of P.W.9, SubInspector, Digvijay Singh, who was the Investigating Officer, who took over investigation from Sub-Inspector Sreenivas Chaudhary on 09.08.2001 failed to consider that no attempt was made by the second Investigating Officer to nab the accused, and in fact, he was removed from the case and transferred out because of his failure to do so.

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72. P.W.11, Jitendra Kumar Kaushal had been handed over the investigation and he had taken charge only on 26.08.2001 and in the night of 13.09.2001, he was so fortunate as to have received information regarding illegal felling being carried out near Gerua River, and caught the accused.

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73. While dealing with the testimony of P.W.10, the Trial Court has noted that he left for the scene of crime immediately on receiving information in the morning of 06.08.2001 and reached the scene of crime around 5 hours later, because it had started raining. P.W.10 only testified about finding the body of Kallu Watcher around 3 kms. away from No Man’s Land and 4 kms. away from the banks of the river. He started inquest on Kallu Watcher’s body, at around 11:00 AM. The Trial Court failed to notice that if Kallu Watcher’s body was retrieved in the morning of 06.08.2001 at around 11:00 AM and brought to hospital for postmortem, it is not clear as to how the postmortem was done the next

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day when the doctor had found the body covered with maggots and the skin disintegrated at many places.

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74. Sub-Inspector, Sreenivas Chaudhary P.W.10 had also stated that he had not made any attempt to find out the whereabouts of Jitendra Lala. He did not go to the hospital where Jitendra Lala was admitted and later died. He did not visit the mortuary to conduct inquest on his body, it is not clear from the testimony of any of the official witnesses as to who in fact retrieved Jitendra Lala from the forest and admitted him to hospital and who conducted the inquest on his body, although from the inquest report, it is clear that the inquest was done in the hospital in presence of the Additional City Magistrate as he had countersigned the same. It is not clear as to how then Jitendra Lala was retrieved and brought to the hospital on the morning of 06.08.2001 at around 09:00 AM as testified by P.W.4 Dr Ajay Kumar Tiwari Medical Officer on duty. The Trial Court failed to notice that in the statements given by official witnesses, it had come out that Jitendra Kumar Kaushal had been posted as in-charge at Police Station Sujauli on 12.09.2001, but he has stated at one place that he took over investigation on 26.08.2001. He had taken the additional statements of Nanmoon Watcher and Dashrath Watcher and his wife and Bhukali Watcher and he had come to know the names of the accused during the course of taking the additional statements.

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75. The Trial Court has tried to fill in the gaps in the testimony of all the witnesses through conjectures and surmises and assumptions, which cannot take the place of evidence. Suspicion, however, great cannot take the place of evidence and bring home the guilt to the accused.

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76. The Trial Court has brushed aside the argument of the defence that there was no strong motive for the accused to kill Jitendra Lala and Kallu Watcher as according to the Trial Court, Nanmoon, the only eyewitness. Further, where there is an eyewitness account available motive becomes irrelevant.

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77. This Court has noticed the timeline as described by P.W.1 also does not match the prosecution story. P.W.1 initially stated that he was returning from Beat inspection at around 07:00 PM when he met Jitendra Lala and Kallu Watcher on his way and all three were returning to the Beat Check Post from the main road, which leads to Nepal Ganj, when they were stopped by the three accused. The three accused disrobed Jitendra Lala and Kallu. They did not, however, ask P.W.1 to take off his clothes also. He was also not tied up with rope. He was left alone with Harichanda keeping watch, while other two were taken in two different directions and attacked with knife. The accused came back and then allowed P.W.1 to go free and also allowed him to take his cycle. Being residents of Nepal, they could have taken the cycles belonging to the two victims with them. They did not also take the knives which they had used to injure the deceased with them to Nepal. They calmly untied the hands of P.W.1, only threatened him not to disclose the incident to anyone, let him ride his bicycle to the Forest Check Post, and did not try to abscond or stay away in Nepal for sufficient amount of time for all traces of the incident to have disappeared/get buried in the Forest under growth, but returned within one month to again do illegal felling at night when they were caught by the police, PAC and Forest Officials.

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78. If the incident had happened at around 09:00 to 10:00 PM on 05.08.2001 and the body of Kallu Watcher was retrieved the next morning at around 11:30 AM, and inquest performed the same day did not reveal presence of any maggots on his body, when his postmortem was conducted on 07.08.2001 in the morning, then how his body was full of maggots and the skin disintegrated at some places, as was reported by the medical officer conducting the postmortem.

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79. In the forensic examination report blood stains on clothes worn by the deceased were found to be of human origin, but on other specimens like knives allegedly used by the two accused for attacking the victims, the blood stains had disintegrated, and their origin could not be

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determined. It may be because the clothing and the knives were recovered in the morning on 14.09.2001 and sent to the Forensic Science Laboratory some five months later.

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80. Also, the recovery/arrest memo at page 15 of the paper book on which reliance has been placed by the prosecution, appears to be doubtful. No independent witnesses have been examined to prove the contents of the recovery memo. Only the official witnesses have been relied upon and such official witnesses have also not been able to give a foolproof account of how the deceased were murdered.

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81. As per the prosecution story, two knives and clothes were recovered from the site where the police and SOG Team and forest officials had been taken by the accused at on on 14.09.2001. However, such specimens of clothing and weapons of assault were sent to the forensic science laboratory in the first week of March 2002, almost five months later. The forensic science laboratory’s report, therefore, found the blood disintegrated and it could not also give a definite opinion regarding it being of human origin. There was no question of matching of blood group of the victims. Hence, in view of the law settled by the Hon’ble Supreme Court in the case of Sonvir @ Somvir Vs. State NCT of Delhi (2018) 8 SCC 24 , the weapons of assault allegedly recovered on 14.09.2001 at the behest of the accused and allegedly used in the commission of the crime cannot be taken as pieces of incriminating evidence against them.

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82. Also, in view of the observations made by the Supreme Court in the case of Prakash Vs. State of Karnataka (2014) 12 SCC 133 regarding recovery of blood stained clothes of the victims identified by P.W.1, it cannot be said that since such clothes were blood stained and the blood in them was found of human origin, they could be said to belong to either of the victim. No serological comparison of the blood stains with that of the blood group of the victims was conducted.

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83. Also, it is quite questionable as to how P.W.1 could recognise the accused Surya Lal, Chankau and Harichanda as the ones who had killed the victims as it is not the case of the prosecution that P.W.1 or any other victim was carrying a torch at the time of them being stopped by the three accused on their way while returning from duty. It is the prosecution story that P.W.1 and the two victims were taken by the accused inside the dense forest. We should not forget that they were stopped on 06.08.2001 at around 07:00 PM on the road between Beat No.1 and Beat No.2, and then taken inside the dense forest where no one could see them. On the Indo-Nepal Border in a reserve forest like Katarnia Ghat, there is hardly any source of light and during the monsoons in the month of August poor visibility owing to darkness at the scene of crime cannot be ruled out.

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84. The Hon’ble Supreme Court in Sujit Biswas Vs. State of Assam (2013) 12 SCC 406 in paragraphs 13 and 14 has held as under:–

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“13. suspicion, however great it may be, cannot take the place of proof, and there is a large difference between something that “maybe” proved, and something that “will be proved”. In a criminal trial, suspicion, no matter how strong, cannot and must not be permitted to take the place of proof. This is for the reason that the mental distance between “may be“ and “must be“ is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent, and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the Court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of passionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial, or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (vide Hanumant Govind Nargundkar Vs. State of M.P. AIR 1952 Supreme Court 343, State Vs. Mahendra

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Singh Dahiya (2011) 3 SCC 109 ; and Ramesh Harijan Vs. State of UP (2012) 5 SCC 777 . 14. In Kali Ram Vs. State of Himachal Pradesh (1973) 2 SCC 808 , this Court observed as under: ( SCC page 820, Para 25)

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“25. Another golden thread, which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted….”

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85. In view of the observations made here in above with regard to the acceptability of the evidence, and investigation being defective, if primacy is given to such prosecution story based on negligent investigation, the faith and confidence of the people would be shaken, not only in the law enforcing agency, but also in the administration of justice.

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86. Consequently, the appeals deserve to be allowed and are allowed . The judgement and order dated 07.08.2014 is set aside . The appellants appear to be in jail, therefore it is directed that the appellants shall be released from prison forthwith. However, they shall file personal bonds along with two sureties of Rs.25,000/- each before the Trial Court within 30 days from today, as provided under section 437A of the Code of Criminal Procedure. (Now, Section 481 of the BNSS).

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87. A Copy of this order along with the record of the Trial Court, be immediately sent to the Trial Court for compliance.

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88. Sri Shreesh Kumar Mishra Atal, learned Amicus has very sincerely assisted this Court and we appreciate the effort put in by him. He is directed to be paid Rs.22,000/- as consolidated honorarium/fees for both the appeals allowed by us today.

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(Shree Prakash Singh, J.)(Mrs. Sangeeta Chandra, J.)

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September 11, 2025

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Darpan Sharma

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Digitally signed by :- DARPAN SHARMA High Court of Judicature at Allahabad, Lucknow Bench

Surya Lal @ Shiv Lal v. State of U.P.

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Surya Lal @ Shiv Lal v. State of U.P.

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