# Bhagwan Deen (In Jail) v. State

- **Citation:** (2019) 2 ILRA 337
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-27
- **Case number:** THE HON'BLE RAJ BEER SINGH. J. Criminal Appeal No. 1431 of 1987
- **Bench:** Pritinker Diwaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-deen-in-jail-v-state-44739
- **Pages:** 6

## Headnote

evidence. If there is delay in lodging FIR,
advantage of spontaity is lost and danger
of coloured version/concocted story as a
result
of
consultations/deliberations
creeps in. A promptly lodged FIR reflects
the firsthand account of the actual incident
and the accused. An inference as to
whether a FIR is ante timed can be drawn
only on basis the proper cross examination
of complainant and the police officer who
recorded the FIR. (Para 16)
Criminal Appeal dismissed (E-2)
List of cases cited: -

## Text

2 All. Bhagwan Deen Vs State
337
marriage. But instead of coming out with
clean hands, mutually incompatible lines
of defence have been pleaded at different
stages which only go to explode the
falsity of the defence and can be read
even as an additional circumstance
against the accused. Learned A.G.A.
contends that the Court therefore for these
reasons should not take liberal view in the
matter.

6. Looking to the nature of offence,
its gravity and the evidence in support of
it and the overall circumstances of this
case, this Court is of the view that the
appellant has not made out a case for bail.
Therefore, the prayer for bail of the
appellant is rejected.

7.

It
is
clarified
that
the
observations, if any, made in this order
are strictly confined to the disposal of the
bail application and must not be construed
to have any reflection on the ultimate
merits of the case.

8. The court is open and is feeling
inclined to hear the appeal finally. If the
appellant
or
his
counsel
has
any
inclination to argue the case finally, he
can always take steps to expedite the
hearing of the appeal.

(Order in Criminal Misc. Short
Term
Bail
(Parole)
Application
No.34208 of 2015)

9. We have already heard the regular
bail application of the appellant and did
not find it a fit case where the accused
could be released on bail, and therefore,
we rejected the same. We also do not find
any good ground to release of the
appellant on parole, and therefore, same
also stands rejected.
----------
(2019)10ILR A 337

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH. J.

Criminal Appeal No. 1431 of 1987

Bhagwan Deen ...Appellant (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri Vinay Saran, Sri P.K. Mishra.

Counsel for the Opposite Party:
Sri Amit Sinha, A.G.A.

A. The FIR is vital and valuable price of
evidence. If there is delay in lodging FIR,
advantage of spontaity is lost and danger
of coloured version/concocted story as a
result
of
consultations/deliberations
creeps in. A promptly lodged FIR reflects
the firsthand account of the actual incident
and the accused. An inference as to
whether a FIR is ante timed can be drawn
only on basis the proper cross examination
of complainant and the police officer who
recorded the FIR. (Para 16)
Criminal Appeal dismissed (E-2)
List of cases cited: -
1. Jai Prakash Singh Vs St. of Bihar (2012) 4 SCC 379
2. Madru Singh Vs St. of M. P. & Ram
Sanjiwan Singh Vs St. of Bihar
(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of
impugned judgment and order dated
29.4.1987 passed by VII Additional
District & Sessions Judge, Kanpur Dehat
338 INDIAN LAW REPORTS ALLAHABAD SERIES
in Sessions Trial No.384 of 1983,
convicting the appellant under Section
302 of IPC and sentencing him to undergo
imprisonment for life.

2. In the present case, name of the
deceased is Ram Dayal and as per
prosecution case, on 29.9.1983 at about
2:00 am (in the mid-night) he was killed by
appellant Bhagwan Deen by causing him
number of incised wounds by a Tabbal.
Further case of the prosecution is that
about 8-10 days prior to the incident,
Nirmala Devi, wife of Bechey Lal (brother
of the appellant) was teased by the
deceased and at that time, the appellant
made efforts to get the deceased, but he
could not succeed. Getting the opportunity,
on 29.9.1983, the appellant entered the
house of the deceased and caused him
several injuries by a Tabbal, when he was
sleeping in his Varandah. After hearing the
cries of the deceased, (PW-1) Ram Gopal
(nephew of the deceased), (PW-2) Kishuna
Devi (wife of the deceased) and (PW-3)
Chhotey Lal reached to the place of
occurrence and, in the natural moon light
and in the light of torch, saw the appellant
causing injuries to the deceased. When
these eye-witnesses have challenged the
appellant, he fled away from the spot. On
the next morning, at 8:30 am, on the basis
of written report Ex.Ka.1 lodged by (PW1) Ram Gopal, FIR Ex.Ka.3 was registered
against the appellant under Section 302 of
IPC.

3. Inquest on the dead body of the
deceased was conducted vide Ex. Ka.5 on
29.9.1983 and the body was sent for
postmortem which was conducted on
30.9.1983 vide Ex. Ka.17 by (PW-7) Dr S
N Srivastava.

As
per
Autopsy
Surgeon,
following four injuries were noticed on
the body of the deceased:

"(1) Incised wound on face Rt
side extending from 3 cm away and lateral
from Rt Ear extending obliquely downward
Right angle of mouth Rt side with clear
margin and tapering end. Injury measures 5
cm x 1 1/2 cm x bone cut.

(2) Incised wound in the center
of
nose
bridge
extending
upwards
obliquely Rt side of forehead with clear
margin measuring 2 1/2 cm x 3/4 cm x
bone deep.

(3) Incised wound on face Lt
side extending from tragus of Lt ear
obliquely upwards to Rt side across the Rt
eye and puncturing Lt eye ball center with
margin and tapering end on Lt side,
wound measuring 11 cm x 2 1/2 cm x
bone cut.

(4) Incised wound on neck Rt
side after root of neck placed horizontally
and measuring 11 cm x 3 cm x bone and
cavity deep 3 cm away tabere Rt collar
bone with clear margins and tapering end
and wound cut cervical vertebrae of Rt
side. Wound is at root of neck and
extending out surface and neck in front."

Cause of death of the deceased
was due to shock and hemorrhage as a
result of injuries (Ante Mortem).

4. While framing charge, the trial
Judge has framed charge against the
appellant under Section 302 of IPC.

5. So as to hold accused appellant
guilty, prosecution has examined seven
witnesses. Statement of accused appellant
was recorded under Section 313 of Cr PC
in which, he pleaded his innocence and
false implication.
2 All. Bhagwan Deen Vs State
339

6. By the impugned judgment and order,
the trial Judge has convicted the accused
appellant under Section 302 of IPC and
sentenced him as mentioned in paragraph-1 of
this judgment. Hence, this appeal.

7. Counsel for the appellant
submits:-

(i) that the FIR is ante-timed
and there is delay in lodging the same.

(ii) that three eye-witnesses, i.e.
(PW-1) Ram Gopal, (PW-2) Kishuna
Devi and (PW-3) Chotey Lal, are not
reliable and trustworthy. It has been
argued
that
there
are
material
contradictions in their statements.

(iii) that the incident occurred in
the mid-night and the witnesses were
sleeping and, thus, question of seeing the
incident by them does not arise at all.

(iv) that there was no sufficient
source of light at the place of occurrence.

8. On the other hand, supporting the
impugned judgment and order, it has been
argued by learned State Counsel:

(i) that the conviction of the
appellant is in accordance with law and
there is no infirmity in the same.

(ii) that a very prompt report was
lodged by (PW-1) Ram Gopal. He, however,
submits that the incident occurred at 2:00 am
(in the mid-night) whereas at 8:30 am, the
report was lodged and the distance between
the place of occurrence and that of Police
Station is about 8 kms.

(iii) that the statements of eyewitnesses have been duly supported by
the postmortem report of the deceased and
the Autopsy Surgeon has also duly proved
the same.

(iv) that on the date of incident,
there was sufficient light at the place of
occurrence. It has been argued that as per
moon chart available on internet, it was
54% visibility on the date of incident. It
has further been argued that even
otherwise, (PW-1) and (PW-3) were
carrying torch with them and in the torch
light as well as in the moon light, they
saw the appellant causing injuries to the
deceased.

9. We have heard learned counsel
for the parties and perused the record.

10. (PW-1) Ram Gopal, is the first
informant and an eye-witness to the
incident.
While
supporting
the
prosecution case, he has stated that about
8-10 days prior to the incident, wife of
Bechey Lal, namely, Nirmala Devi was
teased by the deceased and despite efforts
being made by the appellant, he could not
get deceased Ram Dayal. He has further
stated that in the night intervening
28/29.9.1983, the appellant entered the
house of the deceased who was sleeping
in his Varandah and caused several
injuries to him by a Tabbal. Upon hearing
the cries of the deceased, (PW-2) Kishuna
Devi and (PW-3) Chotey Lal reached to
the spot carrying torch with them and then
they saw the appellant causing several
injuries by a Tabbal, resulting his death at
the spot. He further states that the
appellant was challenged by them, but he
fled away from the spot.

In the cross-examination, this
witness remained very firm and has
reiterated as to the manner in which the
340 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased was done to death by the
appellant.

11. (PW-2) Kishuna Devi, is also an
eye-witness to the incident. She is the
wife of the deceased. She states that on
the date of incident, she was sleeping in
an adjacent room to her Varandah,
whereas her husband was sleeping in the
Varandah and upon hearing his cries,
when she came out from the room, she
saw the appellant causing injuries to her
husbanfd
by
a
Tabbal.
She
has
categorically stated that on the date of
incident, it was half moon light and in the
said light, she could see the appellant
properly.

12. (PW-3) Chotey Lal, is another
eye-witness to the incident and he too has
categorically stated that, on the date of
incident, it was half moon light and he
saw the appellant, causing injuries to the
deceased by a Tabbal. He has further
stated that he was carrying a torch and
there was sufficient moon light as well.

13. (PW-4) Sri Krishna, recorded
chik FIR. (PW-5) Surendra Pratap Singh,
took the body of the deceased for
postmortem. (PW-6) Surendra Pal Singh,
is the Investigating Officer, has duly
supported the prosecution case. (PW-7)
Dr S N Srivastava, conducted the
postmortem of the deceased.

14. Close scrutiny of the evidence
makes it clear that on account of previous
enmity, on 29.9.1983 at about 2:00 am,
the appellant entered the house of the
deceased and caused him several injuries
by a Tabbal. Upon hearing the cries of the
deceased, (PW-1) Ram Gopal and (PW-3)
Chotey Lal, reached to the place of
occurrence carrying torch with them and
saw the appellant assaulting the deceased.
That apart, when (PW-2) Kishuna Devi,
who was sleeping in a room adjacent to
her Varandah, after hearing the cries of
the deceased came out from the room,
saw the appellant causing injuries to the
deceased.
When
the
appellant
was
challenged by these eye-witnesses, he fled
away from the spot. In view of this, we
have
no
reason
to
disbelieve
the
statements of these three eye-witnesses,
who are very firm and have candidly
stated as to the manner in which the
deceased was done to death by the
appellant.

15. We find no substance in the
argument of the defence that there was no
source of sufficient light at the place of
occurrence. As per moon chart available
on internet, on the date of incident, the
visibility was 54%. Even otherwise, (PW1) and (PW-3) were carrying torch with
them and in the torch light as well as in
the moon light, they saw the appellant
causing injuries to the deceased.

16. We further find no substance in
the argument of the defence that the FIR
is ante-timed. The incident occurred at
2:00 am, whereas at 8:30 am, the report
was lodged and the distance between the
place of occurrence and that of Police
Station is about 8 kms. Considering the
fact that the deceased died at the spot; it
was mid-night and (PW-1) Ram Gopal
might have taken sometime to adjust
himself and then rushed to the police
station for lodging the FIR, we are of the
view that there was no time for (PW-1) to
concoct the story or fabricate the evidence
in any manner. Therefore, it cannot be
said that the report is ante-timed. Even
otherwise, there is no evidence to show as
to in what manner this entire story has
2 All. Bhagwan Deen Vs State
341
been cooked up by (PW-1). In absence of
any such evidence, it cannot be presumed
that the FIR is ante-timed. Law in this
respect is very clear.

In Jai Prakash Singh v State
of Bihar the Supreme Court observed as
under:

12. The FIR in criminal case is a
vital and valuable piece of evidence
though may not be substantive piece of
evidence. The object of insisting upon
prompt lodging of the FIR in respect of
the commission of an offence is to obtain
early
information
regarding
the
circumstances in which the crime was
committed, the names of actual culprits
and the part played by them as well as the
names of eye-witnesses present at the
scene of occurrence. If there is a delay in
lodging the FIR, it looses the advantage of
spontaneity, danger creeps in of the
introduction
of
coloured
version,
exaggerated account or concocted story as
a
result
of
large
number
of
consultations/deliberations. Undoubtedly,
the promptness in lodging the FIR is an
assurance
regarding
truth
of
the
informant's version. A promptly lodged
FIR reflects the first hand account of what
has actually happened, and who was
responsible for the offence in question.
(Vide: Thulia Kali v. State of T.N. (1972)
3 SCC 393, State of Punjab v. Surja Ram,
1995 Supp. (3) SCC 419, Girish Yadav v.
State of MP, (1996) 8 SCC 186 and
Takdir Samsuddin Sheikh v. State of
Gujarat (2011) 10 SCC 158."

The Supreme Court in Madru
Singh vs. State of Madhya Pradesh and
Ram Sanjiwan Singh Vs. State of
Bihar, answered the similar question in
'negative'. In the said decisions, it has
been held by the Supreme Court that from
the cross-examination of prosecution
witnesses, circumstances have to be
elicited which would show that the FIR
was ante-timed and then alone, an
inference can be drawn that the FIR was
ante-timed.

It is further settled position of
law that FIR can be proved ante-timed or
ante-dated by adducing proper evidence.
The lodger of FIR should be subjected to
proper cross-examination as to on what
basis defence pleads the FIR to be antetimed or ante-dated. Likewise, the police
officer, who has recorded the FIR, is also
required to be properly cross-examined as
to on what basis defence pleads the FIR to
be ante-dated or ante-timed. If no such
requirement of law is completed and no
such proper cross-examination of the
witnesses is being done, it cannot be
presumed that the FIR is ante-dated or
ante-timed.

17. We further find no substance in the
argument of the defence that three eyewitnesses, i.e. (PW-1) Ram Gopal, (PW-2)
Kishuna Devi and (PW-3) Chotey Lal are not
reliable and trustworthy. No such contrary
evidence is available on record to presume
this fact as well. All these three eye-witnesses
appear to be the natural witnesses who had
seen the occurrence.

18. Considering all these aspects of
the case, we are of the considered view
that the trial Court was fully justified in
convicting the appellant. The appeal has
no substance and the same is, accordingly,
dismissed.

19. Since the appellant is on bail, he
be taken into custody forthwith for
serving remaining sentence.
342 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Let a copy of this judgment be
sent to the concerned trial Court for
compliance.
----------

(2019)10ILR A 342

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH J.

Criminal Appeal No. 535 of 1987

Ram Shankar & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.K. Dubey, Sri S.N. Singh, Sri Anurag
Shukla, Sri S.K. Mishra.

Counsel for the Opposite Party:
Sri Amit Sinha, A.G.A.

A. Indian Penal Code, 1860 - Section 300
IPC, Exception 4, can be invoked if death
is caused (a) without premeditation, (b)
in a sudden fight, (c) without offenders
having taken undue advantage, (d)
accused had not acted in a cruel or
unusual manner. (Para 21)

Doctrine of grave and sudden provocation
depends on the facts of each case; it cannot
be universally applied. (Para 21)

It is a question of fact and whether a quarrel
is sudden or not must necessarily depend
upon the proved facts of each case (Exception
4 of section 300 IPC). (Para 21)

Criminal Appeal partly allowed (E-2)

List of cases cited: -
1. St. of A.P. Vs Rayavarapu Punnayya & anr.
1977 AIR 45 1976 SCC (4) 382
2. Budhi Singh Vs St. of H. P. (2012) 13 SCC 663
3. Kikar Singh Vs St. of Raj. 1993 SCC (4) 238
4. Surain Singh Vs St. of Panj. (Criminal appel
decided by 10.04.2017)
5. Ranjitham Vs Basavaraj (2012) 1 SCC 414
6. Ankush Shivaji Gaikwad Vs St. of Mah.
(2013) 6 SCC 770
7. Kumaran Vs St. of Ker. & anr. (criminal
appel decided by 05.05.2017)

(Delivered by Hon'ble Pritinker
Diwatker, J.)

1. This appeal arises out of impugned
judgment and order dated 17.2.1987 passed
by Vth Additional Sessions Judge, Basti in
Sessions Trial No.222 of 1984, convicting
accused no.5-Tirath, accused no.6-Laxmi,
accused no.7-Ashok, accused no.8-Ram
Bhabhuti, accused no.9-Bhadeshwar and
accused no.10-Parmatma under Sections
147, 323 read with Section 149 and Section
302 read with Section 149 of IPC and
sentencing them to undergo one month's RI;
three months' RI and imprisonment for life
respectively. Further, accused no.1-Ram
Shankar, accused no.2-Onkar, accused no.3Mahadeo and accused no.4-Rajeshwar have
been convicted under Sections 148, 323 read
with Section 149 and Section 302 read with
Section 149 of IPC and sentenced to undergo
one year's RI, three months' RI and
imprisonment for life respectively.

2. As per prosecution case, there
were two groups in the village, one was of
'Pandit' community, whereas the other