# Bhaggal & Anr v. State of U.P

- **Citation:** (2023) 7 ILRA 468
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-21
- **Case number:** Criminal Appeal No. 2049 of 2003
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhaggal-anr-v-state-of-u-p-50360
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 307 r/w 34 - Appeal against
conviction - Rigorous imprisonment - Indian
Evidence Act, 1872 - Section 145 - Code of
Criminal Procedure, 1973 - Sections 161,
313 - Benefit of doubt - According to
prosecution appellant no.1 had fired upon
P.W.1 due to previous enmity that his bua
had been taken away by his uncle - PW-1
admitted he was only 2-3 years old and
appellants would have 5-6 years old - No
FIR lodged earlier - Victim not mentioned
this incident as cause of present incident -
Informant has died, he could not be
examined and controverted, who St.d to IO
that one day before incident , altercation
took place between victim and accused and
victim was warned by accused for not
visiting village in future - Genesis of
commission of offence not established -
Direct evidence, no motive to be proved by
prosecution. (Para 27)

No firearm injury caused by appellant no. 2
to injured - All four accused persons fired
while leaving place of occurrence, no empty
cartridges found - No recovery of fire-arm
from appellant no. 2 - Both witnesses of fact
turned hostile and no evidence except
evidence of informant that appellant no. 1
fired upon him on exhortation of appellant
no. 2. (Para 28)

In FIR, four persons named as accused and
informant and victim St.d to IO that in
addition to appellants, other accused were
also present on spot and committed crime -
Some arrangements took place out of court,
therefore, PW-1 deposed except appellants,
rest two accused persons covered their
faces, he could not recognize them. (Para
29)

No active role except role of exhortation
mentioned against appellant no.2, not
corroborated by independent evidence, not
proved beyond reasonable doubt from
evidence available on record. (Para 31)

Appeal allowed. (E-13)

## Text

468 INDIAN LAW REPORTS ALLAHABAD SERIES

(vii) The appellant shall remain
present, before the trial court on the dates
fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
appellant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

35. The trial court is also directed to
expedite the trial of the aforesaid case by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.
----------
(2023) 7 ILRA 468
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.07.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 2049 of 2003

Bhaggal & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sanjay Pandey, Rajiv Raman Srivastava

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860 -
Section 307 r/w 34 - Appeal against
conviction - Rigorous imprisonment - Indian
Evidence Act, 1872 - Section 145 - Code of
Criminal Procedure, 1973 - Sections 161,
313 - Benefit of doubt - According to
prosecution appellant no.1 had fired upon
P.W.1 due to previous enmity that his bua
had been taken away by his uncle - PW-1
admitted he was only 2-3 years old and
appellants would have 5-6 years old - No
FIR lodged earlier - Victim not mentioned
this incident as cause of present incident -
Informant has died, he could not be
examined and controverted, who St.d to IO
that one day before incident , altercation
took place between victim and accused and
victim was warned by accused for not
visiting village in future - Genesis of
commission of offence not established -
Direct evidence, no motive to be proved by
prosecution. (Para 27)

No firearm injury caused by appellant no. 2
to injured - All four accused persons fired
while leaving place of occurrence, no empty
cartridges found - No recovery of fire-arm
from appellant no. 2 - Both witnesses of fact
turned hostile and no evidence except
evidence of informant that appellant no. 1
fired upon him on exhortation of appellant
no. 2. (Para 28)

In FIR, four persons named as accused and
informant and victim St.d to IO that in
addition to appellants, other accused were
also present on spot and committed crime -
Some arrangements took place out of court,
therefore, PW-1 deposed except appellants,
rest two accused persons covered their
faces, he could not recognize them. (Para
29)

No active role except role of exhortation
mentioned against appellant no.2, not
corroborated by independent evidence, not
proved beyond reasonable doubt from
evidence available on record. (Para 31)

Appeal allowed. (E-13)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard learned counsel for the
appellants, learned AGA for the State and
perused the record.

2. This appeal has been preferred
against the order of conviction and
7 All. Bhaggal & Anr. Vs. State of U.P.
469
sentencing dated 19.11.2003 passed by the
Additional Sessions Judge, Court No.6,
Sitapur in Sessions Trial No.689 of 1999
(State Vs. Ram Naresh and others) arising
out of Case Crime No.187 of 1997, under
Section 307 IPC, Police Station Ramkot,
District Sitapur convicting the appellants
Bhaggal and Ashok Kumar under Section
307 read with Section 34 IPC and
sentencing
to
undergo
rigorous
imprisonment of 10 years each and
Rs.5,000/- fine to each of the accused and
to
undergo
six
months
simple
imprisonment each in case of default of
payment of fine.

3. During the pendency of appeal,
appellant no.1, Bhaggal has died and the
appeal in respect of appellant no.1, Bhaggal
has been abated. Thus, the appeal survives
only in respect of appellant no.2, Ashok
Kumar.

4. In brief, facts of the case are that
the informant Chandra Bhushan lodged an
FIR on 17.08.1997 that the informant, his
son Ram Gopal and Kalicharan alongwith
Rakesh of his village had gone to purchase
a buffalo. After seeing the buffalo of Devi
Sahai Shukla when they were coming back
and reached near the house of Gokaran
Prasad Shukla at Village Arthana, Bhaggal,
Ram Naresh, Anand and Ashok residents of
village Arthana armed with country-made
pistol reached and exhorted to kill them in
revenge. Hearing this, Bhaggal fired upon
his son from the country-made pistol with
the intention to kill him which hit Ram
Gopal and he fell down. After hearing hue
and cries, the accused persons ran away
towards their houses while firing from their
country-made pistols. Several persons of
the village have seen the occurrence and
FIR was lodged.

5. Ram Gopal was medically
examined by Dr. Ashok Agrawal, three
firearm pellet injuries were found on the
lower chest and upper abdomen and on left
arm of the injured collar abrasion was also
present. There was fresh bleeding from the
wounds. Blackening and tattooing were not
present.

6. After lodging the FIR, PW-7,
investigating officer (IO) SI Umakant
Upadhyay started investigation, recorded
the statements, collected the oral and
documentary evidences and submitted the
charge sheet Ex.Ka-7 and Ex.Ka-8.

7. Following witnesses have been
produced to prove the prosecution case:-

1
PW-1
Ram Gopal
2
PW-2
Kali Charan
3
PW-3
Sarvesh Kumar
4
PW-4
HC Rajaram
5
PW-5
Dr.
AK
Nigam,
Radiologist
6
PW-6
Umashankar, SI
7
PW-7
Umakant Upadhyay, SI
8
PW-8
AK
Srivastava,
Radiologist

8. Following documentary evidences
had been produced by the prosecution:-

1
Ex.Ka-1
Written Complaint
2
Ex.Ka-2
Chik FIR
3
Ex.Ka-3
Copy GD
4
Ex.Ka-4
Injury Report
5
Ex.Ka-5
470 INDIAN LAW REPORTS ALLAHABAD SERIES
6
Ex.Ka-6
Site Plan
7
Ex.Ka-7-8
Charge Sheet
8
Ex.Ka-9
X-Ray Report
9
M.Exs.1-2
X-Ray Plates

9. Statements of the accused persons
have been recorded under Section 313
CrPC in which they denied the allegations,
evidence and charge. Accused Bhaggal
stated that since he had testified himself
against the informant, hence he has been
falsely implicated. Accused Ram Naresh
stated that he was the relative of Bhaggal,
hence he has been falsely implicated.
Accused Ashok stated that he was the real
brother of Bhaggal, hence he has been
falsely implicated.

10. In this case four accused were
named in the FIR but only accused Bhaggal
and Ashok have been convicted and
sentenced. Rest two accused persons Ram
Naresh and Anand have been exonerated
and no appeal/revision has been filed by the
State or the informant against the judgment
and order of acquittal in favour of these
two accused persons.

11. In this case PW-2, Kali Charan
and PW-3, Sarvesh Kumar have completely
not supported the prosecution version,
hence this case is based only on the direct
evidence of Ram Gopal, PW-1, the sole
injured. The informant Chandra Bhushan
had died before the examination of the
witnesses, hence he could not be examined.

12. In brief, the evidences of the
witnesses are reproduced herein below:-

13.
(I)
The
informant,
Chandra
Bhushan has not been examined. PW-2,
Kalicharan has deposed in his crossexamination that informant had been killed
after this incident. It was not in the
evidence that as to who killed the
informant. Therefore, he could not be
examined as eye-witness.

14.(II) Injured Ram Gopal has been
examined as PW-1 who deposed that when
he was coming back after seeing buffalo of
Devi Sahai Shukla and reached near the
house of Gokaran Prasad, accused Bhaggal,
Ashok and two other unknown persons
covering their faces armed with countrymade pistol came before them; Ashok
exhorted on which Bhaggal fired upon him
which hit in his left arm pit with the
intention to kill him. The report was lodged
by father of this witness. This witness
recognized the signature of his father on the
written complaint Ex.Ka-1 and proved it. In
cross-examination
this
witness
has
disclosed old enmity with Bhaggal that
sister of Bhikhari who was father of the
accused Bhaggal had been kidnapped by
his uncle Badkau for which they had
enmity with each other. According to this
witness, there was no enmity with regard to
election. He has further deposed that at
the time of such abduction of bua of the
accused Bhaggal and Ashok they both
were about 5-6 years old. He denied that
Ram Naresh and Anand were the persons
who had covered their faces at the time of
occurrence. This witness had admitted
that he was accused in a case under
Section 307 IPC and Section 25 Arms
Act. He expressed ignorance as to
whether accused Bhaggal was a witness
in the case under Section 25 of the Arms
Act or not. This witness could not
remember the day and time of the
incident. This witness denied that he was
fired from the distance of 16 steps.
According to this witness, the shot would
have been fired 2-3 steps away.
7 All. Bhaggal & Anr. Vs. State of U.P.
471

15. It is noteworthy that no
blackening, tattooing, charring or scorching
were found on the fire-arm wounds though
collar abrasion was present. Though this
witness and his father late Chandra
Bhushan had stated to the IO that rest two
accused persons were Ram Naresh and
Anand. This witness has further deposed
that due to fire holes had been made upon
shirt and blood had also been fallen on the
shirt. This witness denied the statement
given to the IO that rest two accused
persons were Ram Naresh and Anand and
they were present on the spot without
covering their faces. According to him IO
had not taken the blood stained clothes.
This witness denied that one day before he
had met with Bhaggal and others and an
altercation had taken place while in the
statement under Section 161 CrPC. The
informant Chandra Bhushan had stated that
one day before this incident an altercation
had taken place between his injured son
Ram Gopal and accused Bhaggal.

16. (III) PW-2, Kalicharan has not
supported the prosecution version and has
been declared hostile. This witness has
accepted in cross-examination on behalf of
the accused that the informant Chandra
Bhushan had been killed after this incident.
There are several criminal cases against the
injured Ram Gopal.

17. (IV) PW-3, Sarvesh has also not
supported the prosecution version and has
been declared hostile.

18. (VI) PW-4, HCP Rajaram Yadav
has deposed about the preparation of chik
FIR Ex.Ka-2 and kaymi GD.

19. (VII) PW-5, Dr. AK Nigam,
Radiologist had medically examined the
injured PW-1, Ram Gopal and found three
fire-arm pellet injuries on the left lower
part of the chest and upper part of the
stomach of the injured in an area of 20cm x
16cm which were almost muscle-deep.
PW-2 had one pellet muscle-deep wound
0.3cm. 0.3cm on the front of the upper left
arm 5cm above from the elbow. PW-3 had
two pellet muscle-deep injuries wound
0.3cm. 0.3cm on the upper part in front of
upper part left forearm. Collar abrasion was
present but no fresh blood, blackening or
tattooing were present. This witness proved
the injury report Ex.Ka-4 and opined that
injury no.1 was on the vital part of the
body. This witness could not state the
distance from which these injuries would
have been caused.

20. (VIII) PW-6, SI Uma Shankar had
conducted the investigation. He deposed
that he has copied the chik FIR, statement
of writer and the informant, inspected the
place of occurrence and prepared map
Ex.Ka-5, proved the document Ex.Ka-5,
searched the accused persons. Copied the
injury report and the fact regarding
surrender by the accused Bhaggal and
Ashok
in
the
court
thereafter
the
investigation had been transferred to SIS,
Sitapur by the order of SP, Sitapur. In
cross-examination
this
witness
has
admitted that he neither inspected the
clothes of the victim nor took it in his
possession. Therefore, he cannot say the
position of hole in the clothes. According to
him, witness Gokaran Prasad resident of
Village Arthana had confirmed the incident.
Though he was not an eye-witness.

21. (IX) PW-7, SI Umakant Upadhyay,
second IO has deposed that he had recorded
the statement of Kalicharan, investigated
the case and again he became IO on
03.11.1997. After that he recorded the
statement of injured Ram Gopal and after
472 INDIAN LAW REPORTS ALLAHABAD SERIES
completing other formalities he submitted
charge sheet no.7 of 1997 Ex.Ka-7 against
the accused Bhaggal and Ashok under
Section 307 IPC. He had also submitted a
charge sheet no.7A of 1997 Ex.Ka-8
against the accused Ram Naresh and
Anand.

22. In cross-examination this witness
deposed that he had not recorded statement
of the informant. He had not taken clothes
of the injured. He admitted that what was
the cause of commission of the crime,
could not be ascertained. He further
deposed that injured Ram Gopal had named
accused Ram Naresh and Anand.

23. (X) PW-9, Dr. RK Srivastava,
Radiologist has deposed that he had done
X-Ray of the injured and had seen radio
opec shadow on all the three injuries. This
witness has proved the X-Ray report as
Ex.Ka-9 and has also proved X-Ray plates
as M.Exs.1, 2 and 3. In cross-examination
this witness has deposed that as per X-Ray
report, the radio opec shadow were not
fatal. Though the chest and stomach are the
vital part of the body.

24. After closure of the oral evidence
the statement of the witness, accused
persons were recorded under Section 313
CrPC in which accused Bhaggal (now
deceased) had denied the charges and
allegations and has stated that witness were
deposing on account of enmity. Since he
had given statement against Ram Gopal
therefore
he
was
falsely
implicated.
Accused Ashok has also denied the
allegations and has said that since he is the
real brother of the accused Bhaggal,
therefore,
he
has
also
been
falsely
implicated. Accused Ram Naresh has also
denied the charges and has stated that since
Bhaggal is his relative, sister of father of
the accused Bhaggal had been wedded to
his uncle, therefore, he has also been
falsely implicated on account of enmity.

25. Accused Anand Kumar has also
denied the charges and allegations and has
stated that he has been falsely implicated.

26. After closure of the prosecution
evidence argument were heard, accused
Ram Naresh and Anand were acquitted
from the charges under Section 307 read
with Section 34 IPC and accused Bhaggal
and Ashok were convicted under Section
307 read with Section 34 IPC and were
awarded ten years rigorous imprisonment
each with fine of Rs.5,000/- to each of the
accused with an alternative punishment in
case of default of payment of fine, they
shall
undergo
six
months
simple
imprisonment each.

27. In this case according to the
prosecution accused Bhaggal had fired
upon the injured on account of previous
enmity that his bua had been taken away by
uncle of the injured Ram Gopal. The victim
PW-1 has admitted that at that time he was
only about 2-3 years old and accused
Bhaggal and Ashok Kumar would have
been 5-6 years old. He has also deposed
that no FIR had been lodged in this regard.
The victim has also not mentioned this
incident as a cause of this incident. There is
no contradiction of injured PW-1 under
Section 145 of the Indian Evidence Act
regarding an incident which appears to
have occurred one day before this incident.
Since the informant has died, hence he
could not be examined and could not be
controverted under Section 145 of The
Indian Evidence Act who had stated to the
IO under Section 161 CrPC that one day
before the incident the victim had visited
Village Arthana where an altercation had
7 All. Bhaggal & Anr. Vs. State of U.P.
473
taken place between the victim and accused
Bhaggal and the victim was warned by the
accused Bhaggal for not visiting Village
Arthana in future. Thus so far as the
genesis of commission of this offence is
concerned, it could not be established.
Since it is a case of direct evidence,
therefore, no motive is required to be
proved by the prosecution. However, it has
been proved from the office report dated
06.02.2023 that accused Bhaggal has died
and the appeal remains only in respect of
accused Ashok Kumar.

28. It has been proved from the
evidence that no fire-arm injury has been
caused by the appellant Ashok Kumar to
the injured Ram Gopal. Though it has come
in evidence that all the four accused
persons had fired while leaving the place of
occurrence but no empty cartridges were
found on the spot. There is no recovery of
any fire-arm from the accused Ashok. It is
noteworthy that both the witnesses of fact
have turned hostile and have not supported
the prosecution version and there is no iota
of evidence except the evidence of
informant PW-1 that Bhaggal had fired
upon him on the exhortation of appellant
Ashok Kumar.

29. It is worth mentioning that in the
FIR four persons have been named as
accused and the informant as well as the
victim have stated to the IO that in addition
to Bhaggal and Ashok, accused Anand and
Ram Naresh were also present on the spot
and committed the crime and fired on the
place of occurrence. It appears that some
arrangements took place out of the court,
therefore, the victim, PW-1 deposed that
except accused Bhaggal and Ashok Kumar
rest two accused persons had covered their
faces, therefore, he could not recognize
them.

30. According to the prosecution,
accused Ashok Kumar had an illegal firearm but no such fire-arm could be
recovered from his possession though the
recovery of such fire-arm is not condition
precedent to record a conviction under
Section 307 read with Section 34 IPC.

31. According to this Court, generally
in a day-light occurrence accused do not
want to establish their identity. If two
accused persons would have covered their
faces, similar facility was also available for
rest of the accused persons namely Bhaggal
and Ashok Kumar. PW-1 deposed that
Bhaggal has fired upon him with the
intention to kill him. According to this
witness Ashok Kumar had also fire-arm
and he had exhorted his brother Bhaggal to
kill him. If it was so and accused Ashok
Kumar would have been present on the
spot, he would also have fired upon the
victim to get a positive result. There is no
case of the prosecution that any fire-arm
injury made by appellant Ashok Kumar had
hit the victim. The accused Ashok Kumar
has been assigned only role of exhortation.
Since according to the prosecution and the
victim there was previous enmity between
the family of accused Bhaggal, Ashok and
the victim and the enmity is a double edged
weapon,
therefore,
there
is
also
a
possibility of false implication of other
accused persons in addition to the main
accused Bhaggal. According to this Court
since no active role or participation except
the role of exhortation has been mentioned
against the appellant Ashok Kumar which
has
not
been
corroborated
by
any
independent evidence as the independent
witnesses have been turned hostile, this
court is of the view that the role of
exhortation
assigned
to
the
accused
appellant Ashok Kumar has not been
474 INDIAN LAW REPORTS ALLAHABAD SERIES
proved beyond reasonable doubt from the
evidence available on record.

32. In the above circumstances, the
benefit of doubt must be given to the
surviving accused Ashok Kumar. According
to this Court, since there was enmity between
both the parties, therefore, in absence of any
corroboration from the independent witness it
would not be proper to upheld the conviction
and sentencing of the accused who had been
assigned only the role of exhortation. Thus,
the appeal is liable to be allowed and the
order of conviction and sentencing passed in
respect of the surviving appellant Ashok
Kumar is liable to be quashed.

33. The appeal is allowed with regard
to the accused appellant Ashok Kumar and
the order of conviction and sentencing
passed by the Additional Sessions JudgeIV, Sitapur is hereby set aside.

34. Let the bail bonds and personal
bond executed on behalf of accused
appellant Ashok Kumar are cancelled and
sureties are set free.

35. A copy of this order alongwith
lower court record be sent back to the court
concerned.
----------
(2023) 7 ILRA 474
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 4017 of 2016

Mritunjaya @ Tinku ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Satya Srivastava, Sri Deena Nath, Sri Manoj
Kumar

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304-B, 302/34, 323, 506
& 326 - Appeal against conviction - Dowry
Prohibition Act, 1961 - Section 3⁄4 - Dowry
death - Relevancy of dying deceleration -
Indian Evidence Act, 1872 - Section 106 -
Code of Criminal Procedure, 1973
-
Sections
161,
313
-
On
26.05.2012
husband of deceased and his family
members quarrelled with her for dowry
and threatened her - Informant along with
his son and brother-in-law went to meet
her, not permitted him to meet her and
again
demanded
dowry
-
Deceased
informed
his
father
about
cruelty
committed by her in-laws - On 12.6.2012
informant received information that she
burnt by her in-laws - Contention, neither
dowry demanded nor she was burnt to
death by them - Deceased herself got
burnt due to depression. (Para 2, 5)

Learned Trial Court did not consider dying
declaration,
relied
on
St.ments
of
witnesses of fact (P.Ws. 1 to 3), not
present on spot - She St.d that due to
quarrel with husband she was set ablazed
and not due to demand of dowry - Dying
declaration would prevail upon St.ments
of witnesses and evidence recorded by
I.O. (Para 9)

As per dying deceleration, deceased died
after three days of its recording
-
Remained alive for three days after
making dying declaration, truthfulness of
dying declaration proved - Fit mental
condition to make St.ment at relevant
time. (Para 17)

None of witnesses or authorities involved
in recording dying declaration had turned
hostile, supported prosecution - Dying
declaration was reliable, voluntarily made