# Dalveer & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 4 ILRA 450
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-21
- **Case number:** Criminal Appeal No. 1599 of 1992
- **Bench:** Manoj Misra, Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dalveer-ors-in-jail-v-state-of-u-p-45001
- **Pages:** 19

## Headnote

A. Criminal Law - Indian Penal Code,
1860 - section 148 (Rioting, armed with
deadly weapons) and 302/149 - Every
member of the unlawful assembly guilty
of offence committed in prosecution of
common object.

B. Evidence Law - Indian Evidence Act,
1872- first information report does not
constitute substantive evidence - can only
be used as a previous statement for the
purpose of either corroborating its maker
under section 157 of the Evidence Act or
for contradicting him under section 145
thereof - Cannot be used to corroborate or
contradict other witnesses - FIR was
lodged by doing guess-work and by
creating witness of circumstance, namely,
P.W.2.(Para 34 & 50)

In the instant case, admittedly, the informant was
not produced as a witness and the FIR did not
relate to the cause of his own death, or as to any
of the circumstances of the transaction which
resulted in his death, therefore the said first
information report is not admissible as a dying
declaration under section 32(1) of the Evidence
Act - Held- it cannot be used for the purpose of
contradicting or corroborating the testimony of
other witnesses - no recovery, either of the gun or
of any other incriminating material, from the
possession or on the pointing out of the surviving
appellant or the other two accused who were seen
running with him-there is virtually no worthwhile
evidence to uphold the conviction of the
appellant(Naresh). (Para 35 & 49)

C. Evidence Law - Indian Evidence Act,
1872 - Section 6 - rule of res gestae - the
facts which, though not in issue, are so
connected with the fact in issue as to
form part of the same transaction,
become relevant by itself, whether they
occurred at the same time and place or
at different times and places. (Para 44)

Where the time gap between the statement and
the fact in issue is such that it does not make it
contemporaneous with the fact in issue, or where
there is no satisfactory evidence to show that the
statement is contemporaneous with the fact in
issue, or where the distance between the place of
occurrence and the place where the statement is
made is such, which could be considered sufficient
to douse the stress or the emotions, thereby giving
opportunity to the possibility of concoction, the
statement would not fall within the exception to the
rule against hearsay and, hence, would not be
admissible. (Para 47)

Held: - There are too many gaps in the
prosecution evidence and, therefore, by the
circumstantial
evidence,
the
chain
of
circumstances is not complete to rule out all
other hypothesis than the guilt of the accused
- The accused appellant is entitled to get the
benefit of doubt. (Para 53)

Criminal Appeal allowed. (E-7)

List of cases cited: -

## Text

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450 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)12 ILR A450

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.11.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Appeal No. 1599 of 1992

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

Counsel for the Appellants:
Sri Mohan Chandra, Sri Mohit Singh

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

A. Criminal Law - Indian Penal Code,
1860 - section 148 (Rioting, armed with
deadly weapons) and 302/149 - Every
member of the unlawful assembly guilty
of offence committed in prosecution of
common object.

B. Evidence Law - Indian Evidence Act,
1872- first information report does not
constitute substantive evidence - can only
be used as a previous statement for the
purpose of either corroborating its maker
under section 157 of the Evidence Act or
for contradicting him under section 145
thereof - Cannot be used to corroborate or
contradict other witnesses - FIR was
lodged by doing guess-work and by
creating witness of circumstance, namely,
P.W.2.(Para 34 & 50)

In the instant case, admittedly, the informant was
not produced as a witness and the FIR did not
relate to the cause of his own death, or as to any
of the circumstances of the transaction which
resulted in his death, therefore the said first
information report is not admissible as a dying
declaration under section 32(1) of the Evidence
Act - Held- it cannot be used for the purpose of
contradicting or corroborating the testimony of
other witnesses - no recovery, either of the gun or
of any other incriminating material, from the
possession or on the pointing out of the surviving
appellant or the other two accused who were seen
running with him-there is virtually no worthwhile
evidence to uphold the conviction of the
appellant(Naresh). (Para 35 & 49)

C. Evidence Law - Indian Evidence Act,
1872 - Section 6 - rule of res gestae - the
facts which, though not in issue, are so
connected with the fact in issue as to
form part of the same transaction,
become relevant by itself, whether they
occurred at the same time and place or
at different times and places. (Para 44)

Where the time gap between the statement and
the fact in issue is such that it does not make it
contemporaneous with the fact in issue, or where
there is no satisfactory evidence to show that the
statement is contemporaneous with the fact in
issue, or where the distance between the place of
occurrence and the place where the statement is
made is such, which could be considered sufficient
to douse the stress or the emotions, thereby giving
opportunity to the possibility of concoction, the
statement would not fall within the exception to the
rule against hearsay and, hence, would not be
admissible. (Para 47)

Held: - There are too many gaps in the
prosecution evidence and, therefore, by the
circumstantial
evidence,
the
chain
of
circumstances is not complete to rule out all
other hypothesis than the guilt of the accused
- The accused appellant is entitled to get the
benefit of doubt. (Para 53)

Criminal Appeal allowed. (E-7)

List of cases cited: -

1. Sheikh Hasib alias Tabarak v. The State of
Bihar: (1972) 4 SCC 773,

2. Harkirat Singh v. State of Punjab: (1997) 11
SCC 215

3. Gentela Vijayavadhan Rao and another v.
State of A.P.: (1996) 6 SCC 241
4 All. Dalveer & Ors. Vs. State of U.P.
451
4.
Vasa
Chandrasekhar
Rao
vs
Ponna
Satyanarayana & Anr.: (2000) 6 SCC 286

5. Dhal Singh Dewangan vs State of
Chhattisgarh: (2016) 16 SCC 701

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal assails the judgment
and order dated 28.08.1992 passed by the
IVth
Additional
Sessions
Judge,
Moradabad in Sessions Trial No. 587 of
1986 by which the appellants, namely,
Dalveer, Ramesh and Naresh
were
convicted under sections 148 and 302/149
IPC and punished as follows: one year of
rigorous imprisonment under section 148
I.P.C.; and imprisonment for life under
section 302 read with section 149 I.P.C.
Both sentences to run concurrently.

2. The aforesaid appellants were
sent for trial along with co-accused Man
Singh. Man Singh however died during
the course of the trial. Hence, the case
against him was abated. Amongst the
appellants, Dalveer and Ramesh died
during the pendency of the appeal hence
their appeal was abated vide order dated
31.01.2019. Thus this appeal has been
pressed only on behalf of surviving
appellant no.3, namely, Naresh.

3. In brief the facts of the case are
that on 14.06.1986, at 04:15 hours, a first
information
report
(for
short
FIR)
(Exhibit Ka-1) was lodged by Jagdish
Prasad (not examined) at police station
Kund Fatehgarh, District Moradabad,
which was at a distance of about 10 km
from the place of occurrence. In the FIR it
was alleged that the informant along with
his sister's husband (the deceased - Kishan
Lal), nephew (another deceased, namely,
Mahender son of Kishan Lal) and another
nephew (P.W.3), namely, Surender son of
Kishan Lal, had gone to the house of Nathu
Lal (not examined), at about 7 pm, on
13.06.1986, to attend a feast. On their way
back home, near the house of Roshan (not
examined), at about 8:30 p.m., they were
surrounded by five persons, namely,
Dalveer (appellant no.1), Ramesh (appellant
no.2); Naresh (appellant no.3); Man Singh
Jatav (who died during trial); and one
unknown person. All of them had emerged
from the Gher of Naresh. Naresh had a gun
whereas the rest had Tabal (sharp-edged
weapon). Ramesh challenged the deceased -
Kishan Lal by saying that today he shall be
taught a lesson for lodging a case against
him and for implicating Dalveer's father in a
dacoity case. On his saying so, Naresh
opened fire from his gun at the deceased -
Kishan Lal, as soon as he fell down,
Dalveer attacked him with his Tabal. In the
meantime, informant's nephew, namely,
Mahender, was surrounded by accused
Ramesh, Man Singh, Dalveer and the
unknown person, who all attacked him with
Tabal and killed him too. Seeing all that, the
informant raised an alarm. Upon which,
Ramesh fired two shots in the air, as a
result, due to fear, no villager came forward.
Thereafter, Dalveer, Ramesh and Naresh
effected their escape by running away
towards the west and while they were
running informant's sister- Ramwati (PW2)
and informant's niece Ramshree (not
examined) spotted them from the roof of
their house. The remaining accused,
namely, Man Singh and the unknown
person escaped by using a Gali (lane)
towards the east. In the FIR it was alleged
that bodies of the two deceased were lying
on the spot. The FIR sought to explain the
delay by stating that in the night, due to
fear, it could not be lodged.

4. The informant was not examined
as a witness, as he was reported dead.
452 INDIAN LAW REPORTS ALLAHABAD SERIES
However, the lodging of the FIR was
proved by the Head Moharir (Shiv Kumar
Singh - P.W.4), who had made GD entry
of the FIR, and the writing of the
informant was proved by his relative,
namely, Yashoda Nandan (P.W.7).

5. Two inquest reports were
prepared for the two deceased. They were
proved by the Investigating Officer (I.O.)
(P.W.5) and were marked Exhibit Ka-3
and Exhibit Ka-4. Ex. Ka-3 indicated that
inquest started at about 8.05 am on
14.06.1986 and was completed at 10.15
am. The other inquest, as per Ex. Ka-4,
started at 10.15 am and was completed at
about 11.30 am. The autopsy of deceased
- Mahendra Kumar was conducted on
15.06.1986 at about 2.45 pm. As per
autopsy report (Ex. Ka-27), eight antemortem incised wounds were there. Semi
digested food material was present in
small intestine whereas large intestine
was found full with faecal matters. The
cause of death was due to shock and
haemorrhage as a result of ante-mortem
injuries. Time of death was estimated
about two days before. Autopsy of Kishan
Lal was conducted on 15.06.1986 at about
1.00 pm. The autopsy report (Ex. Ka.22)
disclosed five ante-mortem injuries on his
body. Apart from one gun shot wound of
entry on the front of right side of chest 4
cm
below
the
right
nipple,
with
blackening and charring present all
around the wound, there were three
incised wounds and one abrasion found.
Some semi-digested food material was
also found in the small intestine and the
large intestine was found loaded with
faecal matter. The time of death was
estimated two days before.

6.

During
the
course
of
investigation, recovery of Farsa (Tabal)
was made on the pointing out of coaccused Man Singh of which a fard /
memorandum
(Exhibit
Ka-12)
was
prepared. However, no recovery of any
incriminating material was made from the
appellants. After investigation, chargesheet (Ex. Ka 14) was laid against four
accused,
namely,
Dalveer,
Ramesh,
Naresh, and Man Singh. The identity of
the fifth accused however could not be
ascertained.
Upon
cognizance
and
consequential committal to the court of
sessions, charges were framed against all
the four accused for offences punishable
under section 148 I.P.C. and under section
302 read with section 149 I.P.C. The
accused pleaded not guilty and claimed
for trial.

7. Seven witnesses were examined
by the prosecution. PW 2 and PW 3 were
witnesses of fact whereas the rest were
formal witnesses. Before we proceed to
notice the testimony of the witnesses of
fact, it would be useful to briefly notice
the testimony of the other witness, which
is as under:

8. P.W.1- Natthu Singh, constable
who visited the spot along with the
Investigation Officer (I.O.). He stated that
on 14.06.1986, he visited the spot with the
I.O; that the dead body of Mahender and
Kishan Lal were sealed and handed over
to him for being carried to the mortuary
for autopsy; that by the time he could
reach there, it had become late, therefore,
autopsy could not be conducted on that
day.
Hence,
it
was
conducted
on
15.06.1986 post noon.

9. P.W-4 - Shiv Kumar Singh,
Head Moharir posted at the police station
where the FIR was lodged. He stated that
on 14.06.1986 Jagdish Prasad (informant)
4 All. Dalveer & Ors. Vs. State of U.P.
453
had brought a written report to the police
station of which GD Entry was made by
him.

10. P.W.5- Harish Chand Rana, the
I.O. - Station House Officer of the police
station concerned. He proved the various
steps
taken
during
the
course
of
investigation including holding of inquest
proceeding, preparation of memorandums
of recovery of: (I) samples of bloodstained and plain earth, (ii) empty catridge
of 12 bore, (iii) slippers and shoes of the
two deceased and (iv) Farsa (sharp-edged
weapon) from co-accused Man Singh.
Site plan (Ex. Ka 13) from where
recovery of Farsa was shown was
prepared by him. The site plan (Exhibit
Ka - 6) of the scene of the incident was
prepared by him. He stated that on
14.06.1986 he had recorded statement of
informant - Jagdish Prasad. He stated that
on the same day, he recorded statements
of Smt. Ramwati; Laturi Singh, Bhuri,
Ram Avtar, Km. Ramshree, Itwari Lal
and others. He also stated that on
15.06.1986, he recorded the statement of
Surendra (PW3) on the basis of gestures
made by him to the questions put to him.
He also stated that though PW3 was dumb
but he had the capacity to hear. He proved
the submission of charge-sheet (Ex. Ka14). He also stated that he learnt about the
death of informant - Jagdish Prasad
through a
Pairokar. In his crossexamination at the instance of accused
Ramesh and Dalveer, he stated that
though he had recorded statement of
various persons of the area residing close
to the place of occurrence but they all
gave hearsay evidence except Chowkidar
Latti (not examined). He also admitted
that in the site plan (Exhibit Ka-6), he had
not shown the house of deceased - Kishan
Lal and had also not disclosed the place
from where Ramwati (PW2) had seen the
accused running away. He stated that
towards north of the place of occurrence,
at a distance of just about 15-20 paces,
there are shops. He admitted that he had
not
recorded
statement
of
those
shopkeepers. He also stated that towards
north of the place of occurrence there is a
temple and towards north-east there is
jungle whereas towards north-west there
is abadi. He stated that he did not record
statement of Nathu Lal or any such person
who may have returned with the deceased
after attending the feast. During crossexamination, he could not tell the distance
of deceased- Kishan Lal's house from the
place of occurrence though he stated that
it is quite near. He however denied the
suggestion that he had filed a false
charge-sheet.
He
also
denied
the
suggestion that Jagdish had not given any
statement. He however admitted that he
had not mentioned the date on which
report of the case was sent though he
stated that it was sent by post. He stated
that as per endorsement, the FIR was sent
to the court of Chief Judicial Magistrate
on 19.06.1986.

11. P.W.6 - Dr. Y.C. Gupta proved
the post-mortem reports of the two
deceased. He opined that the death could
have had occurred in between 8 and 8:30
pm on 13.06.1986. Though, during crossexamination, he stated that it is possible
that the deceased may have had died at
about quarter to 11 pm on 13.06.1986 as
there could always be a variation of 6 to 8
hours in the estimation of time of death.
He also accepted the possibility that the
deceased died 3 to 4 hours after having
meal.

12. P.W.-7 - Yasoda Nandan
proved the signature of Jagdish Prasad on
454 INDIAN LAW REPORTS ALLAHABAD SERIES
the written report (FIR). He stated that he
is the brother-in-law (Jija) of the deceased
- Mahender and son-in-law of the
deceased-Kishan Lal and that he knew
Jagdish Prasad (informant), the brotherin-law of Kishan Lal, very well and was
conversant with his writing. He stated that
Jagdish Prasad had been visiting Raholi
(the village where the incident occurred)
quite often. In his cross-examination, he
admitted that he has not brought with him
any writing of Jagdish Prasad. He denied
the suggestion that Jagdish Prasad had
died in the year 1980-81. He feigned
ignorance as regards execution of will by
Jagdish Prasad in favour of deceased
Mahendra as also whether Mahendra (the
deceased), on strength of that will on
death of Jagdish Prasad, had applied for
mutation. He denied the suggestion that
on 13/14.06.1986 Jagdish Prasad was not
alive.

13. The two witnesses of fact,
namely, Ramwati (P.W.2), the widow of
the deceased - Kishan Lal and the mother
of the other deceased- Mahender, and
Surendra Singh (PW3 - the other son of
the deceased), deposed as follows:

14. P.W.-2 Ramwati stated that
about a year and a half before the
incident, her husband (Kishan Lal) had
lodged a first information report against
the accused Ramesh and Dalveer in
connection with theft of tractor bearings.
In that theft case, Dalveer and Ramesh
were charge-sheeted, as a result, the
accused
were
inimical towards her
husband and son. She stated that Jagdish
Prasad (the informant) was her brother.
Two days prior to the date of incident,
Jagdish Prasad had come to her house. On
the date of the incident, her two sons,
namely, Surendra (PW3) and Mahendra
(the other deceased) along with Jagdish
Prasad and her husband (deceased -
Kishan Lal) had left the house at about
7.00 pm to attend a feast at Natthu's place.
At about 8 pm, while she was there at her
own house with her daughter (Ramshree),
she heard a gun shot. On hearing the gun
shot, she and her daughter went upstairs.
While they were climbing the staircase,
they heard two shots more. Soon
thereafter, she saw, towards the west, in
the Gali, Dalveer, Ramesh and Naresh
running and uttering in an abusive tone, in
vernacular, "this is what happens to police
informers". Naresh had a gun in his hand
whereas Dalveer and Ramesh had Tabal.
They ran through the Gher of Khushiram
towards the North. She saw them in
moonlight. Shortly thereafter her brother
(informant) and her son Surendra (PW3)
arrived and informed her that Dalveer,
Naresh, Ramesh and Man Singh along
with another person have killed her
husband and her son Mahendra. In her
cross-examination, she could not tell the
distance of the place of occurrence from
her house. She admitted having seen the
accused running, near her house only. She
also admitted that by that time the night
had set in. She admitted that towards east
of the place of occurrence, there is a rasta
going towards the jungle. In response to
the suggestion that her house is at a
distance of 300-400 yards from the place
of occurrence, she could not tell the
distance. She stated that when her brother
and son (PW3) informed her about the
incident she had already come down from
the staircase. She stated that she had
visited
the
spot
after
receiving
information but no one from the Mohalla
was present there, though, later, they had
come. Later, Natthu had also arrived. In
her cross-examination, she denied the
suggestion that her husband had got her
4 All. Dalveer & Ors. Vs. State of U.P.
455
son's name mutated over the land of
Jagdish by showing him dead. She also
denied the suggestion that on account of
such act of her husband, Jagdish was
angry with him. In her cross-examination
she stated that her brother and son (PW3)
at that time had not informed her whether
the deceased had left Natthu's house after
having food, though, later, she came to
know that they had had food. In her crossexamination
she
admitted
that
her
maternal home i.e. house of Jagdish, is at
a distance of 15 Kos (45 km) from her
village. She stated that there was no
special reason for Jagdish to have come to
her house though he used to visit her
house on a regular basis. In her crossexamination, she admitted that boundary
wall of her house is quite high towards the
lane, which was used by the accused for
effecting their escape, and that she could
not have seen the accused had she not
been on the roof. A specific question was
put to her as to when she first saw the
accused to which she responded by saying
that when they were about 8-10 yards
away from her door towards the east. In
response to a specific question as to what
her brother had been doing the entire
night, she stated that she could not tell
because she had been crying and was in a
state of shock. She also could not tell who
had visited her in the night. She, however,
stated that her brother had left at about 4
am, before sun rise, on a tractor, along
with fellow villagers Parmanand and her
son' brother-in-law, namely, Umesh, to
lodge the FIR. In her cross-examination,
she admitted that her husband had been
mingling with criminals and had been
passing on information to the police, as a
result, criminals were annoyed with him.
She accepted the suggestion that her
husband
had
got
multiple
accused
arrested. She however could not tell
whether he had been witness in various
cases. She also stated that in her house,
about 25 years back, there was a dacoity
in
which
Dalveer's
father,
namely,
Lokman alias Loki, was accused though
he was acquitted. She stated that though,
thereafter, there had been no quarrel with
Loki but, about two years back, Dalveer
and Ramesh had stolen her tractor's parts.
However, she could not tell whether any
case in that connection was going on. She
denied the suggestion that on the night of
the incident there was no moonlight as
there were clouds. She further denied the
suggestion that she did not see the
accused but has implicated them on
account of past enmity. In her crossexamination, at the instance of accused
Naresh, she admitted that Naresh is Nai
by caste whereas the remaining accused
were Dhobi by caste. During her crossexamination at the instance of Naresh, she
was also confronted by her statement
recorded under Section 161 Cr.P.C.
wherein she had not stated that she heard
Naresh also exclaiming about the fate of
police informers when she spotted him
running with other accused persons. On
being confronted with that statement, she
stated that she does not know as to how
the I.O. did not mention that. She denied
the suggestion that Jagdish, her brother,
had died much before the incident. As
regards the direction where the accused
went,
during
cross-examination,
she
stated that the accused were seen running
towards north through the Gher of
Khushiram's house. Later, she stated that
she had seen the accused entering that
Gher but could not see where they went.
She stated that, at that time, her daughterin-law and her daughter were also there at
the roof. She stated that she had informed
the I.O. about the place from where she
had witnessed the incident but she could
456 INDIAN LAW REPORTS ALLAHABAD SERIES
not tell as to why the I.O. had not
disclosed that place in the site plan. She
further stated that her younger son
Surender (PW3) though is dumb but is
able to hear and understand. She denied
the suggestion that she, at the time of
incident, was at her Maika. She denied the
suggestion that Jagdish was not present.
She also denied the suggestion that
Naresh was not involved in the incident
and that she leveled false allegations.

15. P.W.3 - Surendra Singh, son of
the deceased - Kishan Lal, who was aged
about 14-15 years at the time of his
examination,
being
dumb,
therefore,
through
gestures
got
his
statement
recorded in the question and answer form.
The said witness initially tried to support
the prosecution case but in his crossexamination, the said witness made
gestures to questions in such a manner
which suggested that he did not have
knowledge of the incident and was
tutored. Interestingly, the said witness, in
his
cross-examination,
by
making
gestures, admitted that he came to know
about his father and brother's death when
he woke up in the morning. The trial court
therefore discarded his testimony.

16.

The
entire
incriminating
circumstances
evinced
from
the
prosecution evidence were put to the
accused while recording their statement
under Section 313 Cr.P.C. The accused
denied the allegations and claimed that
they were falsely implicated on account of
police pressure and enmity. In addition
thereto, they claimed that Jagdish Prasad
(the informant) had died much before the
incident and in support thereof they
passed
on
a
Khatauni
extract
to
demonstrate that mutation proceedings
were drawn in respect of plots of
agricultural land consequent to death of a
tenure holder named Jagdish Lal. They
however led no evidence in defense.

17. The trial court though discarded
the testimony of P.W.3 by holding him to
be a tutored witness but convicted the
accused-appellant on the basis of other
evidence. While recording conviction, the
trial court relied on the hearsay testimony
of Ramwati (PW2), by treating it to be
admissible under section 6 of the
Evidence Act, 1872 (for short the
Evidence Act). The trial court took the
view that the said hearsay testimony was
corroborated by circumstantial evidence
as well as medical evidence.

18. We have heard Sri V.P.
Srivastava,
learned
senior
counsel,
assisted by Sri Mohit Singh, for the
surviving appellant - Naresh; and Sri
Deepak Mishra, the learned A.G.A. for
the State.

19. The learned counsel for the
appellant submitted that as the informant
(Jagdish Prasad) was not examined, the
first information report which, by itself, is
not a substantive piece of evidence, could
not have been taken into consideration to
corroborate
the
testimony
of
other
witnesses and could not have been read to
ascertain the manner in which the incident
occurred. He submitted that since the
testimony of P.W. 3 has been discarded
by the trial court there remains the
testimony of Ramwati (P.W.2) only.
Admittedly, Ramwati is not an eyewitness of the incident. Her testimony is
only to the effect that she saw three
persons
running
with
arms
and
proclaiming that "this is what happens to
police informers". This by itself is not a
clinching circumstance inasmuch as the
4 All. Dalveer & Ors. Vs. State of U.P.
457
place of the incident and the place from
where P.W.2 noticed the three, out of the
five accused, running were not proved to
be in such close proximity to each other
that involvement of other persons in the
crime could be ruled out.

20. It has been submitted that the
site plan prepared by the I.O. neither
discloses the location of the house of
P.W.2 with reference to the place of
occurrence nor it discloses the spot from
where she had allegedly witnessed the
three accused running. Moreover, the
suggestion put to PW2 that her house is at
a distance of 300-400 yards from the
place of
occurrence has not been
specifically denied though she claimed
that she is not aware of the distance.
Further, in her testimony, PW2 has
neither disclosed the time nor the timegap by which, or within which, she
received information from her brother
Jagdish regarding the murder of her
husband and her son by the accusedappellants. Otherwise also, since it has not
specifically come in the evidence as to
how contemporaneous with the incident
was the reporting of the incident by the
informant to PW2, the hearsay evidence
would not become admissible by applying
the principle of res gestae enshrined under
section 6 of the Evidence Act.

21. In addition to above, the learned
counsel for the appellant submitted that it
has come in the post-mortem of the
deceased that there was semi-digested
food found present in the intestine though
the large intestine was found full of faecal
matter which is suggestive of the fact that
the deceased had had their food 2-3 hours
before their death. If that is so, then the
prosecution story that the deceased had
left at 7 pm to attend a feast at the house
of Natthu and, after having the dinner
there, on way back, at about 8 pm, the
incident occurred gets falsified. It has
been submitted that in all probability the
incident had occurred much later and,
only after learning about the incident, on
the basis of guess work and past enmity,
the prosecution story was developed,
which theory gets probabilized by the
delay in lodging the FIR.

22. It has also been submitted that
evidence was brought on record to
demonstrate that in the year 1981, by
showing Jagdish Prasad (the informant)
dead, mutation proceedings had been
undertaken concerning land of Jagdish
Prasad which resulted in entry of the
name of one of the deceased, that is
Kishan Lal's son, in the revenue records.
This gives rise to three possibilities, first,
that Jagdish, if not dead, would be
inimical towards the deceased's family
and, therefore, would not probably be in
the company of the deceased; second,
that, under the circumstances, he came
only after hearing about the death of his
brother in law to help out his bereaved
sister and, therefore, was not witness to
the
incident;
and,
third,
the
first
information report is completely bogus. It
has been submitted that even assuming
that Jagdish Prasad was alive, the second
possibility
gets
credence
from
the
circumstance
that
there
was
no
justification to wait till 4:15 am of the
next day to lodge the FIR, particularly,
when they had a tractor for transportation
and, if there had been fear of the night,
even by that time, that is 4:15 am, the sun
had not come out, which is the admitted
case of the prosecution. It thus appears
that the incident occurred late in the night;
that no one had witnessed the incident;
that Jagdish Prasad who resided at a
458 INDIAN LAW REPORTS ALLAHABAD SERIES
distance of about 45 kms was informed
and called; that, upon his arrival, on the
basis of suspicion and guess-work, the
prosecution story was developed with the
help of the police as the deceased Kishan
Lal was admittedly a police informer.

23. In addition to above, it was
submitted that if the statement of
Ramwati (PW2) is taken in its entirety,
Jagdish had not informed her as to who
played what role in the killing of the two
deceased, as also, as to how many shots
were fired by whom and in what manner,
because, she has merely stated that
Jagdish informed her that the accused
have killed her husband and son but who
did what is not disclosed by her. The
medical evidence discloses, inter alia,
solitary gun shot wound, that too, on one
of the two deceased persons. Whereas,
according to PW2 she heard three gun
shots. Who fired those three shots is not
disclosed. The contents of the FIR though
may offer explanation for all that but it is
not admissible in evidence as the
informant was not examined. Thus, as
only three accused were seeing running
and, out of them, only one had gun in his
hand whereas the other two had Tabal,
who fired the other shots becomes a
mystery. More so, because the I.O. in his
testimony disclosed that on the spot only
one 12 bore empty cartridge was found.

24. It was also argued that no source
of light except moonlight has been
disclosed by P.W.2 in her testimony. The
distance from where P.W. 2 saw the
accused running appears to be about 8 to
10 yards. Whether a person could be
recognized
from
that
distance,
in
moonlight, is extremely doubtful. It has
also been submitted that, apart from
above, P.W.2 in her statement recorded
under section 161 Cr.P.C has not
disclosed that Naresh was also exclaiming
that "this is what happens to police
informers". This clearly shows that her
stand is not consistent and her testimony
in absence of other convincing evidence
cannot form basis of conviction.

25. Learned counsel for the
appellant also submitted that, admittedly,
Naresh is a Nai by caste whereas the other
accused were Dhobi by caste; and there is
no motive attributed to Naresh for the
crime though motive has been attributed
to other accused Dalveer and Ramesh.
Hence, there was no valid reason shown
for Naresh to associate with the other
accused persons.

26. It has next been submitted that
nothing incriminating has been recovered
on the pointing out of the accused Naresh
or Dalveer or Ramesh who were allegedly
seen running together. The recovery, as
alleged, is at the instance of co-accused
Man Singh who was not seen running
with the accused appellants.

27. It was lastly contended that the
appellants though have been convicted
under section 148 IPC as also under
section 302 with the aid of section 149
I.P.C. but the prosecution has miserably
failed to disclose that there was a fifth
accused also. Even the charge-sheet was
submitted against four persons only.
Further, the fourth person, namely, Man
Singh, was not seen together with the
accused-appellant.
Under
the
circumstances, there was no evidence to
suggest that there existed an unlawful
assembly of five persons of which the
appellants were members. Hence, the
conviction under section 148 I.P.C. as
also under section 302 I.P.C. with the aid
4 All. Dalveer & Ors. Vs. State of U.P.
459
of section 149 I.P.C. is not at all
sustainable.

28. It has thus been prayed that the
conviction of the accused appellant by the
trial court is completely unjustified and
the impugned judgment and order be
therefore set aside.

29. Per Contra, the learned A.G.A.
submitted that the evidence brought on
record indicated that the two deceased had
died at the same time and on or about the
same spot. One of them died due to gun
shot injury as also incised wounds and the
other died due to several incised wounds
which disclosed that multiple assailants
were there. Shortly, after hearing the gun
shot, the appellant - Naresh was seen in
the company of other two accused persons
with such weapons of which injuries were
found on the body of the two deceased
and,
soon
thereafter,
Jagdish,
the
informant, who had accompanied the two
deceased, came rushing and informed
P.W.2 that her husband and her son have
been killed by five persons, out of those
five, three were seen by her. All this
constituted part of the same transaction
and therefore the statement of Jagdish
Prasad (the informant), narrated to his
sister - Ramwati (P.W.2), becomes
admissible in evidence by applying the
doctrine of res gestae enshrined under
section 6 of the Evidence Act and as such
was admissible and sufficient to record
conviction, particularly, when nothing
material could come out of her crossexamination.

30. It was also submitted by him
that, admittedly, Ramesh and Dalveer
were inimical to the deceased as they had
been implicated by the deceased in a theft
case. Hence, they had motive for the
crime and Naresh by joining them has
incurred liability even though he may not
have had personal motive for the crime.

31. The learned A.G.A. also pointed
out that it was proved not only by the
testimony of the Investigating Officer but
also of P.W.7 that Jagdish had lodged the
FIR. It has been submitted that as two
persons were brutally murdered in the
night, awaiting the wee hours of the
morning to lodge the FIR is a natural
human conduct on the part of victim's
family and therefore it cannot be said that
the FIR is highly delayed and that the
prosecution
version
suffers
from
embellishment.

32. It was next submitted that no
explanation has been offered by the
accused as to why they were running with
weapons in the night shortly after the
incident. Lack of explanation could
therefore provide the missing link which
completes the chain of circumstances
pointing towards the guilt of the accused.
He thus prayed that the appeal be
dismissed and the judgment of the court
below be maintained.

33. We have given our thoughtful
consideration to the rival submissions and
have perused the record carefully.

34. Before we proceed to deal with
the weight of the rival submissions, it
would be useful for us to first examine
whether the contents of the FIR lodged by
Jagdish Prasad, who has not been
examined as a witness, could be read and
considered
for
the
purpose
of
corroborating
and
contradicting
the
testimony of the witnesses who were
examined during the course of trial. In
this regard in Sheikh Hasib alias
460 INDIAN LAW REPORTS ALLAHABAD SERIES
Tabarak v. The State of Bihar : (1972) 4
SCC 773, it has been held that a first
information report does not constitute
substantive evidence. It can, however,
only be used as a previous statement for
the purpose of either corroborating its
maker under section 157 of the Evidence
Act or for contradicting him under section
145 thereof. It cannot be used for the
purpose of corroborating or contradicting
other witnesses. Similarly, in Harkirat
Singh v. State of Punjab : (1997) 11 SCC
215, the apex court had observed that
where the first informant could not be
examined as a witness during the course
of trial and the first information report
does not relate to the cause of his own
death, or as to any of the circumstances of
the transaction resulting in his death, the
first information report cannot be used as
substantive piece of evidence.

35. In the instant case, admittedly,
the informant - Jagdish Prasad was not
produced as a witness and the FIR did not
relate to the cause of his own death, or as
to any of the circumstances of the
transaction which resulted in his death,
therefore the said first information report
is not admissible as a dying declaration
under section 32(1) of the Evidence Act.
Hence, in view of the decisions of the
apex court noticed above it can not be
used for the purpose of contradicting or
corroborating the testimony of other
witnesses. Under the circumstances, the
prosecution case would therefore depend
on the admissibility, reliability and weight
of other evidences led during the case of
the trial.

36. The issues that now arise for our
consideration are whether the hearsay
testimony of P.W.2 (Ramwati) that she
was informed by her brother (Jagdish
Prasad - informant) and her dumb son
(Surendra - P.W.3) that her husband
(Kishan
Lal)
and
her
elder
son
(Mahendra) were killed by the accused
persons could be considered admissible
under Section 6 of the Evidence Act. If
no, then, whether there remains on record
sufficient reliable evidence on the basis of
which the accused-appellant could be
convicted.

37. Before we proceed to examine
the admissibility of the statement of
Ramwati (P.W.2) that her husband and
son were done to death by the accused, as
told to her by her late brother and dumb
son, we may note that the trial court has
already discarded the testimony of her
dumb son, namely, Surendra Singh, who
was examined as PW3, by observing that
the said witness was not reliable as he
appeared tutored and could not withstand
the test of cross-examination and by his
gestures gave an impression that he used
to sleep by the sun set and that he got
information about the death of his father
and brother when he woke up next
morning. Thus, the testimony of PW2
alone survives for our consideration.

38. At this stage, before proceeding
to analyze the statement of P.W.2 on the
principles laid out by 6 of the Evidence
Act, it would be apposite for us to observe
that the prosecution has not set up
recovery of any incriminating article from
the surviving appellant or the other
accused-appellants
with
whom
the
surviving appellant (Naresh) was seen
running soon after the gun shots were
heard by PW2. The alleged recovery of
Farsa (sharp-edged weapon), allegedly
used in the crime, was made at the
instance of co-accused Man Singh, who
died during the pendency of the trial.
Admittedly, Man Singh was not seen
4 All. Dalveer & Ors. Vs. State of U.P.
461
running with the accused-appellants.
Hence, the recovery at the instance of
Man Singh is inconsequential in so far as
the surviving accused-appellant Naresh is
concerned.

39. Now we shall proceed to analyze
the testimony of Ramwati (P.W.2). Her
testimony is in two parts. The first part
relates to what she saw and the second
part relates to what she heard from her
brother Jagdish (Informant) and what she
gathered from her dumb son Surendra
Singh (P.W.3). As per what she saw, even
if her testimony is accepted in its entirety,
she just saw three persons, namely,
Dalveer;
Ramesh;
and
Naresh
(the
surviving
appellant)
running
with
weapons and proclaiming "this is what
happens to police informers". Though, in
her statement before the court, she stated
that she heard all three proclaiming in
unison but in her statement recorded
under section 161 Cr.P.C, with which she
was confronted, she had not disclosed that
the surviving appellant- Naresh was also
heard proclaiming. These three accused
were seen running in a lane which was
adjacent to her house. She saw them in
moonlight after she had climbed the stairs
of her house upon hearing gun shots. She
admitted in her cross-examination that the
boundary wall of her house is high and
the lane would not have been visible had
she not gone upstairs. She stated that as
she had heard gun shots, to find out as to
what had happened, she had climbed the
staircase with her daughter and daughter
in law. She stated that from the higher
floor of her house she could see the lane
and those three accused running. She had
been cross-examined in respect of source
of light. She stated that there was
moonlight and in that moonlight she saw
the accused running.

40. The learned counsel for the
appellant had strenuously urged that it
was not possible for P.W.2 to recognize
persons in moonlight, particularly, when
they are running and it has not been
satisfactorily established as to from how
far she had spotted the accused more so
when the I.O. in the site plan had not
shown the place from where P.W.2 saw
the accused running and the place where
they were seen running. Further, the site
plan that was prepared by the I.O. did not
disclose the location of the house of
P.W.2 from where she saw qua the place
where the incident occurred and the
bodies were found.

41. Upon careful perusal of the site
plan (Ex.