# Bhaggoo and Ors. (In Jail) v. State

- **Citation:** (2019) 1 ILRA 271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-06
- **Bench:** Bala Krishna Narayana, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhaggoo-and-ors-in-jail-v-state-44449
- **Pages:** 13

## Headnote

A. Minor discrepancies in evidence of
eyewitnesses-Minor
discrepancies
in
evidence sof eye-witnesses who have
given convincing and reliable evidence
with regard to details and manner of
272 INDIAN LAW REPORTS ALLAHABAD SERIES
assault will not affect their evidentiary
value. (Para 20)

B. Motive - Submission that there was no
strong motive for the accused-appellants
to commit the offence rejected for the
reason that it is well settled that where
direct evidence is worthy of credence -
motive does not carry much weight. (Para
26 and 27)

C. Section 134 of The Evidence Act 1872-Non
examination of wife of the first informant,
mentioned as a witness in the F.I.R, by the
prosecution in the trial. Held - Prosecution is
not obliged to adduce witnesses mentioned
in the F.I.R or in the charge-sheet in view of
section 134 of the Evidence Act. Law is well
settled that the Court can and may act on
the testimony of a single witness provided
the witness is wholly reliable but if there are
doubts about the testimony, the Court will
insist on corroboration. It is the quality and
not quantity that is material. (Para 33,
34,35,36,37,38)

D.
Contradictions,
discrepancies
and
variations in the case of prosecution-All the
witnesses supported the prosecution case
and despite lengthy cross-examinations, no
adverse material could be brought on
record to disbelieve their statements or
render their statements doubtful. Held-
Where
the
omissions
amount
to
a
contradiction, creating a serious doubt
about truthfulness of the witness and other
witnesses
also
make
material
improvements in their testimony, such
evidence cannot be safe to rely upon.
However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not effect the core of the prosecution case,
should not be made a ground on which the
evidence can be rejected in its entirety.
(Para 39,40,41,42,43and 44)

Both appeals dismissed.

Case law discussed/relied upon: -

## Text

_Characters 0–39,631 of 43,599. This is a partial read: ask again with offset=39631 for what follows._

1 All. Sanjeev Kumar Singh Vs. State of U.P.
271
Prevention of Atrocities Act. In the present
case, unamended Section 3(2)(v) of the
SC/ST Prevention of Atrocities Act is
applicable as the occurrence was of 09.12.09.
From the unamended provisions of Section
3(2) (v) of the SC/ST Prevention of Atrocities
Act, it is clear that the statute laid stress on the
intention of the accused in committing such
offence in order to belittle the person as he/she
belongs to Scheduled Caste or Scheduled
Tribe community. The evidence and material
on record does not show that the appellants
have committed murder of the deceased on
the ground that she belonged to Scheduled
Caste or that she was raped on the ground of
her caste. Section 3(2)(v) of the SC/ST
(Prevention of Atrocities) Act can be pressed
into service only if it is proved that the rape
and murder has been committed on the
ground that deceased belonged to Scheduled
Caste community. In the absence of evidence
proving intention of the appellants in
committing the offence upon the victim only
because she belongs to Scheduled Caste
community, the conviction of the accusedappellant under Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act can not sustain.
In view of these facts, the conviction and
sentence of both the appellants under Section
3(2)(v) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 is in not accordance with law and
thus, the same is liable to be set aside.

29. In view of aforesaid, we are of
the considered opinion that conviction of
the appellant-accused Jagta and Sunder
u/s 302 IPC is based on evidence and the
trial court was justified in convicting the
appellants of these charges and same is
upheld accordingly. The sentence under
Section
302
IPC
is
also
upheld.
Conviction of appellant Jagta under
Section 376(D) IPC is altered to under
Section 376 IPC and he is sentenced to
imprisonment for life and fine of Rs.
10,000/-. In default of payment of fine
appellant
shall
undergo
one
year
imprisonment. Conviction and sentence of
both the appellants/accused under Section
3(2)(v) of the Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act is set aside. Conviction
and sentence of appellant-accused Sunder
u/s 376 IPC is also set aside. Both the
appellants are stated in jail, they shall
serve out the remaing sentence.

30. Both the Appeals are partly
allowed in above terms.

31. A copy of this order along with
lower court record be sent to court
concerned
forthwith
for
necessary
compliance.
---------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ALI ZAMIN, J.

CRIMINAL APPEAL No. 871 OF 1986

Bhaggoo and Ors. ...Appellants (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri G.P. Dikshit, Sri Rakesh Kumar Singh,
Sri Tripurari Pal, Sri R.P.S. Chauhan.

Counsel for the Opposite Party:
D.G.A.

A. Minor discrepancies in evidence of
eyewitnesses-Minor
discrepancies
in
evidence sof eye-witnesses who have
given convincing and reliable evidence
with regard to details and manner of
272 INDIAN LAW REPORTS ALLAHABAD SERIES
assault will not affect their evidentiary
value. (Para 20)

B. Motive - Submission that there was no
strong motive for the accused-appellants
to commit the offence rejected for the
reason that it is well settled that where
direct evidence is worthy of credence -
motive does not carry much weight. (Para
26 and 27)

C. Section 134 of The Evidence Act 1872-Non
examination of wife of the first informant,
mentioned as a witness in the F.I.R, by the
prosecution in the trial. Held - Prosecution is
not obliged to adduce witnesses mentioned
in the F.I.R or in the charge-sheet in view of
section 134 of the Evidence Act. Law is well
settled that the Court can and may act on
the testimony of a single witness provided
the witness is wholly reliable but if there are
doubts about the testimony, the Court will
insist on corroboration. It is the quality and
not quantity that is material. (Para 33,
34,35,36,37,38)

D.
Contradictions,
discrepancies
and
variations in the case of prosecution-All the
witnesses supported the prosecution case
and despite lengthy cross-examinations, no
adverse material could be brought on
record to disbelieve their statements or
render their statements doubtful. Held-
Where
the
omissions
amount
to
a
contradiction, creating a serious doubt
about truthfulness of the witness and other
witnesses
also
make
material
improvements in their testimony, such
evidence cannot be safe to rely upon.
However,
minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not effect the core of the prosecution case,
should not be made a ground on which the
evidence can be rejected in its entirety.
(Para 39,40,41,42,43and 44)

Both appeals dismissed.

Case law discussed/relied upon: -
1. (2012) 3 SCC 196, Lokesh Shivakumar v.
State of Karnataka

2. AIR, 1953, SC 364, Dalip Singh v. State of
Punjab

3. (2010) 7 SCC 759, Dharnidhar v. State of
Punjab

4. 2013 (15) SCC 298, Ganga Bhawani v.
Rayapati Venkat Reddy &Ors.

5. (2007) 14 SCC 150, Namdeo v. State of
Maharashtra

6. AIR 2008 SC 1381, Kunju @ Balachandran
v. State of Tamil Nadu.

7. (2004) 12 SCC 229, Yakub Ismailbhai Patel
v. State of Gujarat.

8. (2002) 9 SCC 537, State of Haryana v.
Inder Singh and Others.

9. (2012) 4 SCC 124, Sampath Kumar v.
Inspector of Police, Krishnagiri.

10. Criminal Appeals Nos. 473-474 of 2019
decided on 12.03.2019,

11.Sachin Kumar Singraha v. State of Madhya
Pradesh.

12. Criminal Appeal No. 56 of 2018, Smt.
Shamim v. State of NCT of Delhi decided on
19.09.2018.

13. AIR 2009 SC 152 State Represented by
Inspector of Police V. Saravanan &Anr.

14. AIR 2009 SC 331, Arumugam v. State.

15. (2009) 11 SCC 334, Mahendra Pratap
Singh v. State of Uttar Pradesh.

16. JT 2010 (12) SC 287, Dr. Sunil Kumar
Sambhudayal Gupta &Ors. V. State of Maharashtra.

17. (2014) 7 SCC 323, Sumer Singh v.
Surajbhan Singh &Ors.

18. (1990) 4 SCC 731, Sham Sunder v. Puran.
1 All. Sanjeev Kumar Singh Vs. State of U.P.
273
19. (2005)5 SCC 554, M.P v. Saleem.

20. (1996) 2 SCC 175, Ravji v. State of
Rajasthan. (E-3)

(Delivered by Hon'ble Ali Zamin, J.)

1. Heard Sri R.K. Singh, learned
Senior Counsel assisted by Sri Tripurari
Pal and Sri J.K. Upadhyay learned A.G.A.
for the State, considered the written
submission of the appellants and perused
the material on record.

2. This appeal has been filed against
the judgement and order dated 07.03.1986
passed in Session Trial No.396 of 1984
(State vs. Bhaggoo and others), Police
Station Usehat, District Budaun by which
learned Special Judge (E.C. Act), Budaun
has convicted the appellants-accused
Bhaggoo, Dodhey, Dharam Singh, Atar
Singh, Puttoo, Satyapal, Navrang and
Ramphal and sentenced to undergo two
years
rigorous
imprisonment
under
Section 148 of I.P.C., 6 months rigorous
imprisonment under Section 323/149 of
I.P.C. and life imprisonment under
Section 302/149 of I.P.C. Accused
Roshan has been sentenced to undergo
one year's rigorous imprisonment under
Section 147 of I.P.C., 6 months rigorous
imprisonment under Section 323/149 of
I.P.C. and imprisonment for life under
Section 302 I.P.C. It has been also
directed that all the sentences shall run
concurrently.

3. Appeal qua appellant no.1
(Bhaggoo), appellant no.2 (Dodhey),
appellant no.3 (Dharam), appellant no.4
(Navrang) and appellant no.9 (Roshan)
have been dismissed as abated vide order
dated 23.04.2019. Hence, this appeal
remain for consideration against appellant
no.5 (Atar Singh), appellant no.6 (Puttoo),
appellant no.7 (Satyapal) and appellant
no.8 (Ramphal).

4. In brief facts of the case are that
near about one and half year preceding to
the incident Hari Ram, brother of the
accused Navrang was murdered in which
Navrang had made informant Dori Lal,
deceased Ram Bharosey, Dori, Prem Pal,
Shishupal and Malkhan accused.

Accused Bhaggoo and Dodhey
are real brothers, Ram Sahai is son of
Dodhey, Dharam Singh and Navrang are
sons of Ram Sahai. Accused Roshan is
son of Badri and Sohan Pal is son of
Ganga Singh, accused Satyapal and
Ramphal are sons of Soran, accused Atar
Singh and Puttoo are sons of Balwant.
Atar and Puttoo are cousins of accused
Bhaggoo, accused Ramphal, Satyapal and
Sohan Pal are nephews of Navrang,
Roshan Lal is cousin of Navrang.

In the family of the informant
his great aunt and his maternal uncle Arav
Singh, father of the deceased Ram Rais
had expired, on account of which they
were not celebrating the Holi festival. On
22.03.1984 before sun set in the evening
informant Dori Lal, his brother Ram
Bharosey, Prem Pal, nephew Surendra
Pal, cousin Ram Rais and Durvijay son of
Harbhajan, resident of village Milkia,
police station Kalan and Shankar Singh
son of Het Ram, village Fatehgarh were
sitting over the chaupal. In the meantime,
accused Bhaggoo, Dodhey, Navrang,
Dharam Singh, Atar Singh and Puttoo
armed with guns, Ramphal and Satyapal
armed with country-made pistols, accused
Sohan Lal and Roshal Lal armed with
lathi came there and on exhortation of
Dharam Singh and Satyapal that they
should not be allowed to escape accused
274 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhaggoo and Dharam Singh fired at Ram
Bharosey, Navrang and Satyapal fired at
Ram Rais, Dodhey and Atar Singh fired at
Surendra, Puttoo and Ramphal fired at the
informant with intention to kill them.
Informant Dori Lal escaped from the fire
shot but fire shots hit to Ram Bharosey,
Ram Rais and Surendra. As soon as Ram
Bharosey was shot, he fell down after
running for 2-3 steps and Ram Rais also
fell down after running 20-25 steps
towards South. Surendra Singh hid
himself in the wheat crop. Informant Dori
Lal, Prem Pal, Durvijay and Shankar took
cover behind door of the surrounding
houses and raised alarm. The accused fled
away towards the gallery from which they
had come. After the accused had fled,
they found that Ram Bharosey and Ram
Rais had both died. On search Surendra
was found lying in the field of wheat crop
after going 50 steps. Informant got the
written report (Ext.Ka-1) scribed at his
house by one Pratap Singh in the village
and along with Surendra, Ram Naresh,
Prempal and Ram Chandra reached the
police station by bullock cart and at 10:00
p.m. handed over the written report to the
Head Moharrir, who on the basis of
written report Ext.Ka-1, registered Case
Crime No.48 of 1984, under Sections 147,
148, 149, 302, 307 I.P.C. against the
appellants and prepared chik report
Ext.Ka-3 and G.D. entry Ext.Ka-4.
Investigation was taken over by Station
Officer Mahendra Pal Singh.

The
Investigating
Officer
recorded statement of informant injured
Surendra and sent injured Surendra for
medical examination. Dr. Ragesh Rai
medically examined injured Surendra
Singh and prepared his medical report
Ext.Ka-2, according to which following
injuries were found on the person of the
injured:

1. A contused swelling on both
lips colour read situated on all over the
both lips simple caused by some hard
object duration fresh.

2. Bleeding from right ear
present,
no
external
injury
seen,
suspected internal injury, advised x-ray,
injury kept under observation referred to
radiologist and E.N.T. Surgeon duration
fresh.

3. Contused swelling 6 cm x 4
cm oral red situated 2 cm outer to the
right lateral end of mouth simple caused
by hard object duration fresh.

4. tenderness felt 4.5 cm. below
the right mastoid, no external injury is
seen caused by some hard object duration
fresh.

5. Eighteen gun shot wound entry
in an area 23 cm. x 21 cm. in front of right
ear to the mid line of skull on right side
palpable, no scorching tattooing bleeding
seen caused by some fire arm direction
straight duration fresh patient feel omitting,
sensible referred to radiologist.

5. The Investigating Officer along
with S.I. Sher Singh and other employees
reached the village in the night of the
incident and kept deceased Ram Rais's
body in the varandah because it was lying
in a dirty place. Being night inquest report
could
not
be
completed.
On
the
instruction of Investigating Officer S.I.
Sher Singh conducted inquest of deceased
Ram Bharosey and Ram Rais, prepared
inquest reports, relevant documents i.e.
photo of the dead body, challan of dead
body and sample of dead body seal
Ext.Ka-11 to Ext.Ka-14 and Ext.Ka-15 to
Ext.Ka-18 respectively. After completing
the inquest he dispatched the dead bodies
of Ram Bharosey and Ram Rais for postmortem along with Constable Uma
Shankar and Naresh Pal Singh.
1 All. Sanjeev Kumar Singh Vs. State of U.P.
275

6. P.W.8 Dr. R.K. Verma conducted
autopsy on the body of deceased Ram
Bharosey on 24.03.1984 at 9:00 a.m. and
prepared
post-mortem
report
Ext.Ka-9,
according to which on the person of deceased
Ram Bharosey following injuries were found:

1. Gun shot wound of entry on
left side of upper part of chest mid
axillary line 5 cm. below left axilla and 7
cm. away from left nipple measuring 4
cm. x 3 cm., chest cavity deep 1 cm.
blackening present around the wound.

2. Abrasion measuring 5 cm. x 3
cm. on right side of forehead.

3. Gun shot wound of entry on
lower side of middle of chin 1 cm. x 0.75
cm. x bone deep, mandible bone fractured
and in communication with wound no.4.

4. Gun shot wound of exit 3 cm.
x 1 cm. x bone deep on upper part of
middle of chin.

5. Gun shot wound of entry 2
cm. x 2 cm. x bone deep on lateral side of
dorsum aspect of left palm at the base of
thumb through and through wound.
Dispraying the whole of left thumb. The
first metacarpal bone badly fractured.

6. Gun shot wound abrasion in
an area of 6 cm. x 5 cm. on right aide
abdomen just below left side and 6 cm.
away from umbilicus.

7. Gun shot abrasion in an area
of 8 cm. x 4 cm. on right side of upper
part of chest below right clavicle.

8. Gun shot wound in an area 5
cm. x 4 cm. x bone deep on right hand
dispraying
whole
of
right
thumb
fracturing the metacarpal bone of thumb
and tearing all the adjacent muscle of
first index finger right hand. On opening
the chest 2nd and 3rd ribs of left side, left
lung and heart were badly damaged.
Small pallets nos.69 recovered from the
wound.

In his opinion cause of death
was shock due to excess bleeding and
death was possible on 22.03.1984 at the
time of sun set. The ante-mortem fire arm
injuries found on the body of deceased
were sufficient to cause death.

Dr. R.K. Verma also conducted
autopsy on the body of deceased Ram
Rais and prepared post-mortem report
Ext.Ka-10. According to which following
injuries were found on the body of the
deceased Ram Rais:

1. Gun shot wound of entry left
side of chest 2 cm. x 2 cm. circular
shaped x chest cavity deep, 4 cm. below
left nipple, blackening 2 cm. present.

2. Gun shot abrasion in an area
of 4 cm. x 3 cm. x skin deep on outer side
of wrist joint.

On opening the chest 5th and
6th ribs were fractured. The left lung was
damaged
partly,
Heart
completely
lacerated. The right side lung is lacerated
badly and both chest cavity are full of
clotted blood.

In his opinion the death could
be attributable to shock and hemorrhage.
Both the deceased could have died on
22.03.1984 before sun set. These injuries
could be caused by fire arm and the
injuries were sufficient in the ordinary
course of nature to cause death.

7.

The
Investigating
Officer
recorded the statement of witnesses,
Prempal, Surendrapal, Durvijay, Pratap
Singh, Ram Naresh etc. and inspected the
spot on the pointing of complainant and
witnesses
and
prepared
spot
map
Ext.Ka.5. He also took the blood stained
and plain earth from the places where the
dead bodies of Ram Bharosey and Ram
Rais were found and got prepared its
memo Ext.Ka-6 and Ext.Ka-7. After,
276 INDIAN LAW REPORTS ALLAHABAD SERIES
completing the investigation submitted
the charge sheet Ext.Ka-8 before the
C.J.M., Budaun, under Sections 302/149
and 323/149 I.P.C. against the accused,
who committed the accused for trial to the
court of Session where Case Crime
No.480/1984 was registered as Session Trial
No.396 of 1984 (State vs. Bhaggoo and
others) from where it was transferred to the
court of Special Judge (E.C. Act), Budaun
for trial. The trial court framed charge against
the accused-appellants Bhaggoo, Dodhey,
Dharam Singh, Navrang, Atar Singh, Puttoo,
Satyapal and Ramphal under Section 148
I.P.C. and charge against Bhaggoo, Dodhey,
Dharam Singh, Navrang, Atar Singh, Puttoo,
Satyapal, Ramphal, Roshan and Sohanpal
was framed under Sections 302/149 I.P.C.
Charge against the accused-appellant Roshan
was also framed under Section 323/149
I.P.C. The accused abjured the charge and
claimed trial.

8. The prosecution in order to prove its
case examined nine witnesses. P.W.1 Dori
Lal informant, P.W.2 Surendra Pal injured,
P.W.3 Durvijay and P.W.4 Pratap Singh
scribe of written report were examined as
witnesses of fact while P.W.5 S.R. Sharma
Pharmacist, P.W.6 Harpal Singh chik and
G.D. scribe, P.W.7 Mahendra Pal Singh
Investigating Officer, P.W.8 R.K. Verma
who had conducted autopsy of the dead
bodies and P.W.9 S.I. Sher Singh, who had
prepared the inquest memo of dead bodies as
well as memo of blood stained and plain
earth from the place of dead bodies were
produced as formal witnesses. The accusedappellants in their examination under Section
313 Cr.P.C., denied the prosecution case and
alleged false implication due to partibandi
and enmity.

9. After hearing learned counsel for the
parties and scrutinizing the entire evidence on
record, the impugned judgement and order
has been passed. Hence, this appeal.

10. Learned counsel for the
appellants submits that the prosecution
witness P.W.-4 Durvijay in para 9 of his
testimony has stated that Daroga came on
next day and got scribed the report by
Pratap Singh which belies the prosecution
claim that the F.I.R. was lodged and
registered at the police station on
22.03.1984 at 10:00 p.m. He also submits
that injured Surendra Pal has stated that
Dodhey and Atar Singh fired at him but
he could not tell which part of his body
was hit by the shot. The doctor who had
medically examined him has not been
produced and no supplementary report
has been filed before the Court. However,
P.W.5 S.R. Sharma has identified his
hand writing and signature. He has stated
that injury report of Surendra Pal is
mentioned at page No.135 of the register
but on this page police case is not
mentioned while at page no.136 and 134,
police case has been mentioned. He
further submits that P.W.1 Dori Lal has
stated that Investigating Officer had taken
the blood stained and plain earth also
from the place where Surendra Pal injured
had hidden himself in the field while
P.W.7 Mahendra Pal Singh-Investigating
Officer has stated that he had taken the
blood stained and plain earth from both
the places where the dead-bodies were
found. P.W.2 Surendra has stated that
informant Dori Lal had taken him from
the field while P.W.1 Dori Lal has stated
that injured Surendra himself came out of
the field. P.W.1 Dori Lal in his deposition
at page 28 has stated that the bed was
spread on the chabutra while at page 58,
the Investigating Officer has stated that on
the spot no carpet was found. Thus, the
statement of P.W.1 Dori Lal does not find
1 All. Sanjeev Kumar Singh Vs. State of U.P.
277
support but makes his presence doubtful.
At page 58 and 59 the Investigating
Officer has stated that chabutra was white
washed on which the deceased and
injured were said to be sitting at the time
of the incident. On this chabutra, no mark
of pellets or pellet was found. Such
contradictory statements make presence
of witnesses as well as place of
occurrence doubtful. He also submits that
injured P.W.2 Surendra has stated that
shot hit Ram Rais while he was fleeing
towards South and accused were firing
from North but according to post-mortem
report Ext.Ka-10, gun shot entry wound
on left side of chest 2 cm x 2 cm chest
cavity deep was found which could not be
possible if deceased was towards South
and assailant had fired from North. Thus
ocular evidence is contrary to medical
evidence, as such prosecution case is
doubtful.

11. Next submission of learned
counsel for the appellants is that the
statement of P.W.1 Dori lal at page 32
does not find support from the spot map
that he did not flee in the direction in
which accused were standing. In spot map
Ext.Ka-5
place-P
has
been
shown
surrounding of the complainant where
complainant and other witnesses fled to
save themselves from place-C while at
place-X has been shown presence of the
accused. If the witnesses were present on
the spot and had fled towards their
surrounding to save themselves, then in
any case would not have escaped unhurt
and the accused would have not have
spared the witnesses. Lastly, he submits
that prosecution has completely failed to
prove the incident. Looking to the injuries
of injured and deceased, it appears that
due to enmity, the appellants have been
falsely
implicated
exaggerating
the
incident. Appeal qua accused- Bhaggu
and Dharam Singh, who have caused the
death of Ram Bharose and Naurang, who
had shot at deceased Ram Rais, has been
abated. One gun shot wound was found
on the person of Surendrapal. Appeal qua
Dhodhey, author of one of the fire arm
wound received by Surendra, has also
been abated. Dori Lal had not received
any injury, so, in the interest of justice,
benefit of doubt may be given to the
appellants-Satya Pal, Atar Singh, Puttoo
and Ramphal.

12. Per contra learned A.G.A.
submits that P.W.1 Dori Lal and P.W.4
Pratap Singh scribe of the written report
have supported the prosecution version.
PW.6 Harpal Singh also has stated that on
22.03.1984 at 21:55 p.m. on the basis of
written report Ext.Ka.1, he had registered
Case Crime No.480 of 1984 and prepared
chik report Ext.Ka-3 and G.D. Ext.Ka-4.
The Investigating Officer has also denied
the fact. Thus, giving information and its
registration is fully proved. He has also
submitted that from the testimony of P.W.1
Dori
Lal
and
P.W.2
Surendra
and
Investigating Officer P.W.7 Mahendra Pal
Singh place of occurrence is established.
P.W.5 S.R. Sharma in his deposition has
stated that Dr. Ragesh Rai was posted for
two years as C.M.O. to P.H.C. Usehat. He
was well acquainted with his writing and
signature, whereabouts of the doctor is not
known. He proved the injury report Ext.Ka2, so, if the Doctor, who had medically
examined Surendra Pal had not been
produced, it cannot be said that fire injury
was not caused to injured Surendra. So far
as the mentioning of police case in the
register is concerned, the Head Moharrir
P.W.6 has stated that he had written
majroobi chitthi, entry with regard to which
was made in G.D. No.28. So far as the
278 INDIAN LAW REPORTS ALLAHABAD SERIES
variation in the statements of P.W.1 Dori
Lal and P.W.2 Surendra regarding the
manner in which injured Surendra Pal came
out from the field, not finding pellets or
mark of pellet on chabutra or a carpet
spread on chabutra or not finding it by the
Investigating Officer it as well as not taking
of blood stained and plain earth from the
place of hiding of injured Surendra by
Investigating Officer, are concerned, these
are minor discrepancies which cannot affect
the prosecution case. In furtherance of
common object, all the accused, had
committed the offence, which is fully
proved from the evidences led by the
prosecution, hence, anyone, who is member
of unlawful assembly, cannot be given
benefit of doubt as contended by learned
counsel for the appellants. Appeal has no
merit and it is liable to be dismissed.

13. P.W.1 Dori Lal has stated that
after getting the written report scribed by
Pratap Singh, it was handed over to Head
Moharrir at about 10:00 p.m. in the police
station. He proved it as Ext.Ka-1. From
the cross-examination of this witness by
defence, nothing has been elicited. The
aforesaid fact finds corroboration from
the evidence of P.W.2 injured Surendra
Pal and from his cross-examination too,
nothing has been elicited. P.W.4 Pratap
Singh specifically has stated that on
dictation of Dori Lal he had written the
report Ext.Ka-1 and he had denied the
suggestion that the report was written on
dictation of Daroga. P.W.6 Head Moharrir
C.P. Harpal Singh has stated that on
22.03.1984 at 21:55 p.m. he had prepared
chik on the basis of the written report
Ext.Ka-1 given by complainant Dori Lal
and also entered it in the G.D. No.28. He
had proved the chik report Ext.Ka-3 and
G.D. entry as Ext.Ka-4. From his crossexamination also nothing has been
elicited. A suggestion has been given by
the defence to the Investigating Officer
P.W.7 Mahendra Pal Singh that on his
dictation the information was scribed and
totally bogus proceedings were conducted
which has been denied by him. P.W.3
Durvijay had given his statement first
time in court after a lapse of one and half
year from the incident and nothing turns
on his evidence that F.I.R. was got scribed
by Darogaji on the next morning.
Considering the convincing, consistent
and reliable evidences of informant
Dorilal, injured Surendra, scribe P.W.4
Pratap Singh, Head Moharrir P.W. 6
Harpal Singh and Investigating Officer
P.W.7 Mahendra Pal Singh the statement
of P.W.3 Durvijay given time in court
after one and half year of the incident
does not appear trustworthy and reliable.
Accordingly, we do not find any force in
the contention of learned counsel for the
appellants that giving first information
report is ante time.

14. P.W.2 Surendra Pal, injured, in
cross-examination at page 38 of the paper
book has stated that shot hit him on his
head which is also supported with injury
report Ext.Ka-2 proved by P.W.5 S.R.
Sharma and other witnesses of fact. So
contention
of
learned
counsel
for
appellants is without substance that
injured did not state on which part of his
body the shot had hit.

15. P.W.5 S.R. Sharma has stated that
Dr. Ragesh Rai was posted for two years as
C.M.O. in P.H.C., Usehat and he was also
posted there. He is acquainted with
handwriting and signature of the doctor, the
whereabouts of the doctor is not known. In
view of his statement, if Dr. Ragesh Rai has
not been produced, the prosecution case will
not be adversely affected.
1 All. Sanjeev Kumar Singh Vs. State of U.P.
279

16. P.W.6 C.P. Harpal Singh has stated
that he had prepared majroobi chitthi and
made entry in the G.D. No.28. Injured
Surendra Pal himself has stated that fire shot
hit him on his head and he was medically
examined on being send by police, which has
been supported by informant Dori Lal, P.W.6
Head Moharrir Harpal Singh and P.W.7
Mahendra Pal Singh Investigating Officer. In
view of the above testimony of the
prosecution witnesses, prosecution case is
not affected on account of non filing of
supplementary report and not mentioning
police case in the register of mentioning
injury as stated by P.W.5 S.R. Sharma.

17. According to first information
report, complainant Dori Lal, deceased
Ram Bharosey, Ram Rais, Prempal,
Surendra and Durvijay were sitting on the
chaupal at the time of the incident.
Appellants
came
armed
with
gun,
country-made pistols and lathi. On
exhortation
of
Dharam
Singh
and
Satyapal the accused fired at them causing
fire arm injuries to Ram Bharosey, Ram
Rais and Surendra. Ram Bharosey died on
the spot. Ram Rais and Surendra fled
towards South. Ram Rais after running
for some distance also died and Surendra
fled and hid himself in wheat crop. P.W.1
in his deposition supporting the F.I.R.
version has stated that Ram Bharosey fell
down after 2-3 steps on receiving the gun
shot injury and Ram Rais fell down after
running for about 20-25 steps and
Surendra hid himself in wheat crop. In
cross-examination, he has stated that
Surendra fled 50 steps. This version has
been also supported by P.W.2 Surendra
who had also received injuries in the
incident
and
P.W.3
Durvijay.
The
Investigating Officer P.W.7 Mahendra Pal
Singh has stated that on the pointing of
complainant and witnesses, he inspected
the place of incident and prepared the spot
map and proved it as Ext.Ka-5. He took
into his possession the blood stained and
plain earth from the places where both the
dead bodies were found lying. In Ext.Ka5 spot map at place-A, the dead body of
the deceased Ram Bharosey has been
shown, Place-C is the place where the
deceased and witnesses were sitting.
Place-B has been shown where the dead
body of deceased Ram Rais was found
and place K is shown, where Surendra
had hidden himself in wheat crop.
Distance of place A to B has been
mentioned as 25 steps and distance of
place A to C has been mentioned 3 steps
and distance from place-C to place-K is
50 steps which corroborates the statement
of P.W.1 Dori Lal, P.W.2 Surendra, the
injured and P.W.3 Durvijay. Thus, the
testimonies of P.W.1 Dori Lal, P.W.2
Surendra and P.W.3 Durvijay regarding
the place of incident causing fire arm
injury and the places where the dead
bodies were lying and presence of injured
in wheat crop after the incident are
consistent and corroborated by P.W.7
Mahendra
Pal
Singh
Investigating
Officer. On the basis of evidences
available on record and as discussed
above, we are of the view that the
prosecution evidence with regard to the
place where informant Dori Lal, injured
Surendra, deceased Ram Bharosey, Ram
Rais and witnesses were sitting at place-C
the place of incident shown in Ext.Ka-5,
the chaupal and coming of accused armed
with weapons as mentioned above and
firing at them, causing death of Ram
Bharosey, Ram Rais and injury to
Surendra are consistent, corroborated and
convincing.
Considering
the
above
evidences, on the basis of statement of
P.W.7 Mahendra Pal Singh Investigating
Officer, that chabutra was white washed
280 INDIAN LAW REPORTS ALLAHABAD SERIES
and he had not found any marks of pellet
or pellets on chabutra, it can't be said that
place of incidence is doubtful.

18. P.W.7 Mahendra Pal Singh has
stated that on the spot, he did not find any
mattress spread but in spot map Ext.Ka-5,
it has been mentioned that below place-C
mattress was spread over on which the
deceased and witnesses were sitting
which indicates that at the time of
investigation, Investigating Officer had
found the mattress but at the time of
deposition he has made a contrary
statement. As such we find no weight in
the contention of learned counsel for the
appellant that statement of P.W.1 Dori Lal
does not find support from the evidence
of P.W.7 Mahendra Pal and it makes his
presence on the spot doubtful.

19. According to P.W.1 Dori Lal
(informant) and P.W.2 Surendra, the
incident occurred on 22.03.1984 before
the sun set and according to P.W.3 and
P.W.4, it occurred near about 6:00-6:30
p.m. As per first information report
Ext.Ka-3, distance of the police station
has been shown to be 14 kilometers and
according to P.W.1 (informant Dori Lal),
P.W.2 Surendra and P.W.3 Durvijay, they
had gone to police station by bullock cart.
As per statement of P.W.6 Harpal Singh
the written report was given by informant
Dori Lal, on the basis of which chik F.I.R.
was registered and as per Ext.Ka-3 on
22.03.1984 at 21:55 p.m. within three to
three and half hours after the incident it
was
registered.
In
the
facts
and
circumstances, it appears that a prompt
report has been lodged. Thus on the point
of giving information by P.W.1 Dori Lal,
the evidence of P.W.1, P.W.2 Surendra
injured, P.W.3 Durvijay and P.W.6
Harpal Singh Head Moharrir scribe of
chik and G.D. is consistent. If the
informant was not present on the spot
then lodging first information report of
the incident promptly giving vivid details
of the incident would not have been
possible. This fact also fortifies the
presence of the informant Dori Lal on the
spot.

20. In Chand Khan vs. State of
U.P., (1995) 5 SCC 448, it has been held
that minor discrepancies in evidence of
eye-witnesses who have given convincing
and reliable evidence with regard to
details and manner of assault will not
affect their evidentiary value.

21. In spot map (Ex.Ka-5), the place
K wheat crop field has been shown where
the injured-Suredrapal was found. It is not
disputed that on the pointing of the
complainant-Dori Lal, the spot map was
prepared by the Investigating Officer. The
incident has occurred on 22.03.1984 and
the statement of P.W.1 Dori Lal has been
recorded in court on 03.09.1985, near
about after 1-1/2 years, so due to fading
of memory, due to lapse of time, P.W.1Dori Lal might have given the statement
that blood and plain earth was taken from
the place where Surendra had hidden
himself in the wheat crop field. It is not
disputed that Investigating Officer has
taken in his possession the blood stained
and plain earth from two places where the
dead-bodies of deceased-Ram Bharosey
and Ram Rais were found. Considering
the facts and circumstances of the case, in
the statement of the informant there does
appear to be a minor discrepancy. So far
as the statement of P.W.1 and P.W.2
regarding coming out of injured Surendra
from the field himself or being taken by
informant Dori Lal is concerned, it is also
a minor discrepancy. In view of the
1 All. Sanjeev Kumar Singh Vs. State of U.P.
281
observation of Hon'ble Supreme Court in
Chand Khan vs. State of U.P. (supra)
and above discussion on the basis of
statements of P.W.1 Dori Lal that injured
Surendra himself came and Investigating
Officer also took in his possession blood
stained and plain earth from the place in
the field where Surendra had hidden
himself and statement of P.W.2 Surendra
Pal that informant Dori Lal had taken him
from the field will not affect their
convincing and reliable evidence with
regard to details given about incident and
manner of assault.

22. In view of the above discussion,
we find no substance in the contention of
learned counsel for the appellants that
presence of witness as well as place of
occurrence is doubtful.

23. According to post-mortem report
Ext.Ka-10, gun shot wound of entry on
left side of chest 2 cm x 2 cm circular
shaped, chest cavity deep was found on
the body of deceased Ram Rais. In crossexamination P.W.2 Surendra has stated
that fire shot hit Ram Rais while he was
fleeing towards South and accused were
firing from North. Considering the
statement of P.W.2 Surendra and injury
found in Ext.Ka-10, post-morterm there
appears
prima-facie
contradiction
in
statement of witness Surendra and injury
found in post-mortem report Ext.Ka-10
because if fire is shot from North and
deceased was fleeing towards South
normally fire wound on chest will not be
possible.
P.W.2
Surendra
in
his
examination in chief has stated that on
exhortation of Dharam Pal and Satyapal,
Bhaggoo and Dharam Singh fired at his
father, Navrang and Satyapal fired at Ram
Rais, Dodhey and Atar Singh fired at him
and Puttoo and Ramphal fired at Dori Lal.
In cross-examination by defence he has
stated that all the accused had fired from a
distance of 6-7 steps towards North. They
had all fired at the same time and after
firing they fled in the direction from
which they had come. He has also stated
that no one had fired twice. Evidence of
P.W.1 Dori Lal, P.W.2 Surendra and
P.W.3 Durvijay is consistent on the point
that informant Dori Lal, deceased Ram
Bharosey, Ram Rais, injured Surendra,
Prempal, Durvijay and Shanker were
sitting on the chaupal at that time when
appellants/accused came and fired at
them, shots fired hit Ram Bharosey, Ram
Rais and Surendra, informant Dori Lal
escaped unhurt. Ram Bharosey fell down
after 2-3 steps, Ram Rais fell down after
20-25 steps and Surendra hid himself in
wheat crop field. It is not the case of
prosecution that when appellants/accused
came and fired at the deceased and
injured Surendra, they again fired when
injured and deceased Ram Bharosey and
Ram Rais as well as informant Dori Lal
and other witnesses were fleeing away
from the place of incident. Considering
the prosecution case and evidences led in
this respect including the injured Surendra
also as discussed above, on the basis of
the statement of injured Surendra that shot
fired hit Ram Rais while he was fleeing
towards South and accused were firing
from North then the shot hit Ram Rais,
the prosecution case cannot be doubted.
Accordingly, we find no force in the
contention of learned counsel for the
appellants.

24. In Ext.Ka-5 place-C is shown
where injured, deceased and witnesses
were sitting and towards East of it the
place-X has been shown the place from
where accused opened fire. Place-P has
been shown in East and North of the
282 INDIAN LAW REPORTS ALLAHABAD SERIES
place-C as well as from place-X. Distance
from C to X has been mentioned 5 steps.
Place A is shown where dead body of Ram
Bharosey was found. Distance from A to P
has been mentioned 12 steps. Distance of C
to A has been mentioned 3 steps. According
to the map place-X is towards West adjacent
to the way. Place-P is situated towards
eastern side of the way and there is a space
between the way and surroundings at placeP. P.W.1 has stated that from chaupal, his
surrounding is 10 to 12 steps and its door is
towards west. Accused were standing
towards North of the surroundings and fired
from there. He has also stated that when he
fled from the chabutra at that time the
accused had not fired at him but they had
fired at deceased Ram Bharosey and Ram
Rais. He has also stated that when accused
fired at him at that time accused were
standing in the North of his surrounding and
he was on East South corner to the accused.
They were standing towards South of the
house of Puttoo and towards North of his
surroundings below the chaupal. In the map
also towards North of his surrounding the
house of Puttoo has been shown. It is also
considerable that when a shot is fired
thereafter in re-loading of the arm it will take
time and in such a situation sprinting is
possible. In view of the statement of P.W.1
Dori Lal as well as the location and situation
depicted in the spot map, as discussed above,
we find no substance in the contention of
learned counsel for the appellants that
statement of P.W.1 Dori Lal does not find
support from the spot map that he did not
flee in the direction in which accused were
standing and if witnesses were present on the
spot and had fled away to their surrounding
then in that case they should have received
gun shot injuries.

25. We have gone through the
evidence produced by the prosecution.
We find that the statements of P.W.1 Dori
Lal and P.W.2 injured Surendra Pal Singh
are
consistent,
corroborative
and
convincing with regard to murder of Hari
Ram brother of accused Navrang. The
evidence of P.W.1 Dori Lal, P.W.2
injured Surendra Pal and P.W.3 Durvijay
with regard to their sitting over the
chaupal on 22.03.1984 before sun set and
coming the accused at that time and firing
at them in which death of Ram Bharosey
and Ram Rais was caused and Surendra
Singh
received
injuries
are
also
consistent, corroborative and convincing.
Ocular version is also supported by
medical evidence and formal witnesses
with regard to manner of assault and time
of injury as well as spot of the incident.
The case of the prosecution is fully
proved.

26. In Lalji and others vs.