# Dharampal v. State of U.P

- **Citation:** (2024) 4 ILRA 1229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-08
- **Case number:** Criminal Appeal No. 4785 of 2010
- **Bench:** Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharampal-v-state-of-u-p-51784
- **Pages:** 17

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 452, 304/34, 504 & 506 - Code
of Criminal Procedure, 1973 - Sections
313 & 374(2) - Indian Evidence Act, 1872
- Section 27 - Criminal Appeal Against
Conviction and Sentence - House Trespass -
Culpable Homicide Not Amounting to Murder -
Common Intention - Insult and Criminal
Intimidation - Eye-Witness Testimony - Child
Witness - Medical Evidence - Recovery of
Weapon - Delay in FIR - Minor Contradictions
The appellant, Dharampal, challenged the
judgment dated 03.07.2010 by the Additional
Sessions Judge/Fast Track Court No. 2, Bijnor, in
Sessions Trial No. 140 of 2009, convicting him
under Section 304/34 IPC (10 years rigorous
imprisonment, Rs. 10,000 fine, 3 months simple
imprisonment in default) and Section 452 IPC (3
years rigorous imprisonment, Rs. 3,000 fine, 3
months simple imprisonment in default), with
sentences to run concurrently. The prosecution
alleged that on 21.02.2008 at 6:00 PM,
Dharampal, armed with a tabbal, along with his
wife Somo and son Kapil, armed with lathi and
danda, trespassed into the house of PW-1 (Ram
Singh) and assaulted his son Harvansha due to
a dispute over a water tap, causing fatal head
injuries. Harvansha died on 26.02.2008, leading
to the addition of Section 304 IPC. The FIR was
lodged on 26.02.2008, delayed due to medical
treatment. Held: (1) The appeal was partly
allowed, affirming the conviction but modifying
the sentence to the period already undergone.
(2) The prosecution proved the case beyond
reasonable doubt through consistent eyewitness testimonies of PW-1 (father), PW-2
(grandson, child witness), and PW-4 (sister),
corroborated by medical evidence showing head
injuries caused by blunt and sharp weapons,
and recovery of the tabbal under Section 27 of
the Evidence Act. (3) Minor contradictions in
witness testimonies (e.g., sequence of arrival,
weapon descriptions) were insignificant and did
not undermine the prosecution case. (4) The
delay in lodging the FIR was satisfactorily
explained by PW-1's focus on Harvansha's
critical medical treatment. (5) PW-2's testimony
as a child witness was reliable, supported by
case law affirming the credibility of child
witnesses unless tutored. (6) The absence of
blood-stained earth at the scene was attributed
to investigative lapses and delay, not disproving
the incident. (7) The sentence was modified to
the
period
undergone,
considering
the
appellant's
custody
and
a
separate
life
imprisonment conviction in another case.

List of Cases cited:

## Text

_Characters 0–39,938 of 57,116. This is a partial read: ask again with offset=39938 for what follows._

4 All. Dharampal Vs. State of U.P.
1229
58. Accordingly, in the instant
case, we modify the order of sentence
passed by the trial court for the offence
punishable under Section 302 IPC. The
appellant
is
already
in
jail
having
undergone about 20 years of actual
imprisonment, as such, we direct that the
appellant shall be released only after he
completes 22 years of actual sentence. The
instant criminal appeal is partly allowed to
the above extent.

59. Let a copy of this judgment
and order be forwarded to the court
concerned along with trial court record
for
information
and
necessary
compliance.
----------
(2024) 4 ILRA 1229
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2024

BEFORE

THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 4785 of 2010

Dharampal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajeev Sisodia, Ms. Mayuri Mehrotra (A/C),
Sri Shashank Kumar

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 452, 304/34, 504 & 506 - Code
of Criminal Procedure, 1973 - Sections
313 & 374(2) - Indian Evidence Act, 1872
- Section 27 - Criminal Appeal Against
Conviction and Sentence - House Trespass -
Culpable Homicide Not Amounting to Murder -
Common Intention - Insult and Criminal
Intimidation - Eye-Witness Testimony - Child
Witness - Medical Evidence - Recovery of
Weapon - Delay in FIR - Minor Contradictions
The appellant, Dharampal, challenged the
judgment dated 03.07.2010 by the Additional
Sessions Judge/Fast Track Court No. 2, Bijnor, in
Sessions Trial No. 140 of 2009, convicting him
under Section 304/34 IPC (10 years rigorous
imprisonment, Rs. 10,000 fine, 3 months simple
imprisonment in default) and Section 452 IPC (3
years rigorous imprisonment, Rs. 3,000 fine, 3
months simple imprisonment in default), with
sentences to run concurrently. The prosecution
alleged that on 21.02.2008 at 6:00 PM,
Dharampal, armed with a tabbal, along with his
wife Somo and son Kapil, armed with lathi and
danda, trespassed into the house of PW-1 (Ram
Singh) and assaulted his son Harvansha due to
a dispute over a water tap, causing fatal head
injuries. Harvansha died on 26.02.2008, leading
to the addition of Section 304 IPC. The FIR was
lodged on 26.02.2008, delayed due to medical
treatment. Held: (1) The appeal was partly
allowed, affirming the conviction but modifying
the sentence to the period already undergone.
(2) The prosecution proved the case beyond
reasonable doubt through consistent eyewitness testimonies of PW-1 (father), PW-2
(grandson, child witness), and PW-4 (sister),
corroborated by medical evidence showing head
injuries caused by blunt and sharp weapons,
and recovery of the tabbal under Section 27 of
the Evidence Act. (3) Minor contradictions in
witness testimonies (e.g., sequence of arrival,
weapon descriptions) were insignificant and did
not undermine the prosecution case. (4) The
delay in lodging the FIR was satisfactorily
explained by PW-1's focus on Harvansha's
critical medical treatment. (5) PW-2's testimony
as a child witness was reliable, supported by
case law affirming the credibility of child
witnesses unless tutored. (6) The absence of
blood-stained earth at the scene was attributed
to investigative lapses and delay, not disproving
the incident. (7) The sentence was modified to
the
period
undergone,
considering
the
appellant's
custody
and
a
separate
life
imprisonment conviction in another case.

List of Cases cited:

1. Gul Singh @ Guliya Vs St. of M.P., 2014 SCC
Online SC 719
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
2. St. of U.P. Vs Krishna Master, (2010) 12 SCC
324

3. Gulab Vs St. of U.P., (2024) 1 SCC (Criminal)
609

4. Birbal Nath Vs St. of Rajasthan, 2023 SCC
Online SC 1396

5. St. of U.P. Vs Naresh, (2011) 4 SCC 324

6. Appabhai Vs St. of Gujarat, 1988 (Supp) SCC
241

7. Tehsilar Singh Vs St. of U.P., AIR 1959 SC
1012

8. Yogesh Singh Vs Mahabeer Singh, (2017) 11
SCC 195

9. Perumal Raja @ Perumal Vs St., 2024 SCC
Online SC 12

10. Dharampal Vs St. of U.P., (2024) 4 ILRA,
Criminal Appeal No. 47

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Ms. Mayuri Mehrotra,
learned Amicus Curiae for the appellant
and Sri Ratnesh Nandan Singh, learned
Additional Government Advocate for the
State.

2. Perused the record.

3. This Criminal Appeal has been
filed against the Judgment and Order dated
03.07.2010 passed by the Additional
Sessions Judge/Fast Track Court No.2,
Bijnor in Sessions Trial No.140 of 2009
(State vs. Dharampal) arising out of Case
Crime No.179 of 2008, under Sections 452,
304/34, 504, 506 IPC, Police Station
Kotwali Dehat, District Bijnor, whereby the
appellant Dharampal has been convicted
under Sections 304/34 and 452 IPC and
sentenced as follows:

(i) Under Section 304/34: 10 years
rigorous
imprisonment
with
fine
of
Rs.10,000/-.
(ii) Under Section 452 IPC: 3 years
rigorous
imprisonment
with
fine
of
Rs.3000/-.
In case of default of fine, further
imprisonment
of
3
months
simple
imprisonment
shall
be
awarded. All
sentences to run concurrently.

INTRODUCTORY FACTS

4. The prosecution version in
brief, is that, on 26.02.2008, the first
informant Ram Singh lodged the First
Information Report (for short 'FIR') at
Police Station Kotwali Dehat, District
Bijnor, based on a written Tehrir (ExhibitKa1) dated 25.02.2008 scribed by Dumpi
stating that on 21.02.2008 at around 6:00
pm when his son Harvansha was at home,
the accused Dharampal armed with tabbal,
his wife Somo and son Kapil armed with
lathi and danda respectively entered into
his
house
and
hurled
abuses
and
challenged them for dire consequences for
not allowing them to wash the clothes at
the tap. His son objected but all the three
accused armed with tabbal, lathi and
danda gave severe beatings to his son in
order to kill him. Hearing the noise, the
first informant and the villagers Raju and
Abid rushed to the spot and tried to save
Harvansha from the accused. The accused
extended life threats and fled away. In the
said
incident
of
marpeet,
his
son
Harvansha received severe injuries on his
head and the body. He was given medical
treatment at Government Hospital, Bijnor.
As the condition of his son was critical, so
he remained busy with the medical
treatment and approached late to lodge an
FIR.
4 All. Dharampal Vs. State of U.P.
1231
5. Initially, the aforementioned
FIR was registered under Sections 452,
323, 504, 506 and 308 IPC, subsequently,
vide G.D. Rapat No. 29 dated 27.2.2008,
the case was amended and section 304 IPC
was added as Harvansha died on 26.2.2008.
The inquest proceedings and the post
mortem of the deceased were conducted on
the same day. The investigation was
entrusted to S.I. Ghanshyam Tyagi who
reached the spot and recorded the statement
of the witnesses and prepared the site plan.
A recovery memo of Tabbal at the pointing
of Dharampal was also prepared. After the
completion of investigation, the chargesheet dated 09.03.2008 was submitted
against Dharampal and his wife Smt. Somo
alias Somvati under Sections 452, 504, 506,
304 IPC. The co-accused Kapil being a
juvenile, was also charge sheeted and was
referred to the Juvenile Justice Board for
further course of action.

6.

After
the
committal
proceedings, the Sessions Court framed the
charges against the accused Dharampal and
Smt. Somo alias Somvati under Sections
452, 304/34, 504, 506 IPC. The accused
pleaded not guilty and claimed to be tried.
During trial, the co-accused Smt. Somo
alias Somvati died and the trial against her
was abated on 24.02.2010.

PROSECUTION EVIDENCE

7. During the trial proceedings, the
prosecution examined as many as ten
witnesses. Their testimony, in brief, are as
follows:

P.W.-1
Ram
Singh:
the
first
informant/father
of
the
deceased/eyewitness stated on oath that he
knew the accused Dharampal, Smt. Somo
alias Somvati and Kapil, who were the
resident of his village. There was previous
enmity with Dharampal regarding water
tap. Due to this reason, on 21.02.2008 at
about 6:00 pm, when his son Harvansha
was at home, in the meantime, Dharampal,
his wife Smt. Somo alias Somvati and his
son Kapil entered into their house.
Dharampal was armed with tabbal, Smt.
Somo was armed with lathi and Kapil was
armed with danda. All the three accused
challenged his son Harvansha for dire
consequences for not allowing to fetch
water from the water tap. Often, the
accused washed dishes and cleansed the
dirt etc. at the water tap which was objected
by him and his son. This water tap was
installed within his premises. The accused
hurled abuses. His son objected. But the
accused attacked and gave severe beatings
to Harvansha with their weapon. At the
time of incident, first informant was
sleeping in his room hearing the noise, he
reached the spot where other villagers also
joined, amongst whom were Abid, Raju, his
grandson Dumpi and his daughter Rajo,
who intervened and saved Harvansha from
the accused. While fleeing, the accused
extended life threats. His son Harvansha
received serious injuries on his body. With
the help of the villagers, Harvansha was
brought to Bijnor. Looking to his critical
condition, he was given medical treatment.
As he was busy in his treatment, therefore,
delay was caused in lodging the FIR
(Exhibit Ka-15).
After four days of the incident, he
gave a Written Tehrir (Exhibit Ka-1),
scribed by his grandson Dumpi bearing his
thumb impression. He further stated that
the Tehrir was written on 22.02.2008 but as
he remained busy in the treatment of his
only son, therefore, he modified the date of
Written
Tehrir
from
22.02.2008
to
25.02.2008. His son died on 26.02.2008
due to the said injuries, while returning
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
from Delhi. His son was given medical
treatment at Meerut and Delhi. In the said
marpeet, his son received injuries on his
head caused with tabbal and danda. The
danda injuries were caused on his hands,
shoulders and waist, resultantly, his son
fainted at the spot and could not regain his
consciousness and finally succumbed to
death.

P.W.-2 Himanshu alias Dumpi: an
eyewitness/the grandson of the first
informant who scribed the Written Tehrir
stated on oath that on the date of incident
he was at his maternal grandfather's
(Nana) home where his maternal uncle
Harvansha died due to the incident which
took place on 21.02.2008 at 6:00 pm. The
accused Dharampal, Somvati and Kapil
came to his maternal grandfather's home,
armed with lathi and danda. Dharampal
was armed with tabbal and the rest two
were armed with lathi and danda. The
accused assaulted his maternal uncle with
the
said
weapons
who
lost
his
consciousness and the blood was oozing
out
from
his
body.
His
maternal
grandfather who was sleeping, reached
thereafter at the spot. His maternal aunt
was also present at the spot. He did not
remember as to who else were present
there. His maternal uncle was taken to the
Hospital where he died during treatment
due to the said injuries. He stated that
Written Tehrir (Exhibit Ka-1) was scribed
by him and his maternal grandfather had
put the thumb impression. The said report
bears his signature as well.
P.W-3 Sanjay Kumar Shankar: the
consultant pathologist stated on oath that
on 26.02.2008 at 4:30 pm, he conducted the
post mortem of the deceased Harvansha
whose body was brought in a sealed cover
by Constable Jabbar Singh and Home
Guard Rajpal. The seal was checked and
was found in order. The details of the post
mortem report is as follows:

External Examination

The deceased was about 32 years
old and was of normal height and physique.
There was rigour mortis present over upper
extremity. This was happening in the lower
part from the beginning. There was a rice
tube in the nose. The urine tube was also
lying there. Three jelly pads were fitted and
there was a vein flow on the left wrist.

Anti Mortem Injuries

(i) Stitched wound (one stitch) of 1
cm back of left skull and 5 cm from left
Ear.
(ii). Stitched wound (two stitches)
of 3.5 cm on the right skull and 6 cm from
Ear.
(iii). Contusion 2 x 1 cm on Right
arm and 2.5 cm below shoulder.

On dissection of the head, the
parietal bone on right side was broken and
there was only 120 gms of Haematoma in
the cavity. The heart was empty on the left
side. The straight side was full. The teeth
were 16/16. The stomach mucosa was
normal. The stomach was empty. The gall
bladder was full. The weight of the
pancreas liver was 1200 gms. The weight
of both the kidneys was 200 gms. Death
was possible about half a day back. The
cause of death was coma as a result of ante
mortem injuries and the patient was given
first aid before post mortem. He prepared
the post mortem report (Exhibit Ka-2) at
the time of inspection, which was present
in his hand writing and was kept on the file.

P.W.-4 Smt Rajo: the sister of the
deceased Harvansha and an eyewitness of
4 All. Dharampal Vs. State of U.P.
1233
the incident stated on oath that she knew
the accused Dharampal, his son Kapil and
his wife Somo alias Somvati. About 2 years
back at around 6:00 pm, her brother
Harvansha was beaten by the accused
Somo alias Somvati, Dharampal and Kapil.
The marpeet took place in her house and
she was an eyewitness account. Several
villagers gathered at the time of incident
who saved Harvansha. Her brother died due
to the injury caused by the accused.

P.W-5 Mohan Lal Yadav: prepared
the
inquest
report
of
the
deceased
Harvansha on 26.02.2008. He stated on
oath that the information regarding the
death of Harvansha was given by Subhash
Chand. After receiving the information, he
along with Constable Jabar Singh and
Home Guard Rajpal Singh proceeded to
District Hospital Bijnor along with the
necessary documents. He appointed the
five Panchas before preparing the inquest
report and relevant records. The relevant
records i.e. Inquest Report, Challan Lash,
Chitthi RI, Chitthi CMO, Photo Lash were
in his hand writing and were prepared at
the time of inquest which were proved by
him as Exhibit Ka-3. He sealed the dead
body and handed over to Constable Jabar
Singh and Home Guard Rajpal Singh.

P.W.-6 Constable Jabar Singh:
took the dead body for post mortem in a
sealed condition. After the post mortem, the
dead body was handed over to the family
members.

P.W.-7 Dr. R.S. Ravidas: examined
the injuries of Harvansha on the date of
incident. He stated on oath that on
21.02.2008, he was posted at Sadar
Hospital,
Bijnor
and
he
medically
examined
the
injuries
of
Harvansha
(Exhibit Ka-9). The said witness proved the
medical report (Exhibit Ka-9) and stated
that injured Harvansha was brought by his
father Ram Singh. At the time of medical
examination, he found following injuries
on the body of deceased Harvansha:

(i) Injury No.1 : Lacerated wound,
1x 0.5 cm x scalp deep on left side back of
skull 5 cm behind from left ear. Surrounded
with swelling in an area of 3 cm x 2 cm.
(ii) Injury No.2 : The incised
wound was 3.5 cm x 0.5 cm x bone deep,
on the right side of the skull, 6 cm away
from right ear.
(iii) Injury No.3 : A red contusion 2
cm x 1 cm on the right upper arm 121⁄2 cm
below top of shoulder.

In his opinion, the Injury Nos. 1
and 3 were caused by blunt and hard object
while Injury No. 2 was caused by some
sharp edged object. Injuries Nos. 1 and 2
were kept under observation. An X-ray of
skull was advised. Injury no. 3 was simple.
All the injuries were fresh. The patient was
admitted and referred to the Surgeon. He
further deposed that the patient's injury
nos. 1 and 3 were caused by danda and
sticks and Injury No. 2 was caused by
tabbal at 6:00 pm on 21.02.2008. Injuries
No. 1 and 2 were on the head which was a
vital part of the body. This witness further
stated that the medical report was in his
hand writing and was prepared at the time
of examination and the original medical
register was in front of him which he had
brought. The photocopy of it was on the
file which he matched with the Register
and was correct as per the original records.
So, he authenticated it. Thus, the medical
report dated 21.02.2008 (photocopy) was
proved by this witness as Exhibit Ka-9.

P.W.-8 S.I. Ghanshyam Singh
Tyagi: the Investigating Officer stated on
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
oath
that
on
26.02.2008,
after
the
registration of the FIR, he was entrusted
with the investigation. On the same date, he
inspected the spot. On the pointing of the
first informant, he prepared the site plan
which was in his handwriting and was
exhibited as Exhibit Ka-8. On 27.02.2008,
he recorded the statement of witnesses Ram
Prasad, Rajesh and Subhash. He perused
the medical examination report and entered
them in the Case Diary and added Section
304 IPC on the basis of the post mortem
report (Exhibit Ka-2). On 28.02.2008, he
arrested Dharampal at 12:30 pm at
Bhankhala Road Tiraha who in his
confessional statement, disclosed that on
21.02.2009, at around 6:00 pm, he
quarrelled with Harvansha for the tap
water. Harvansha lifted and threw him on
the ground, so he rushed to his sister's
house and brought a tabbal with which he
assaulted Harvansha. He even assured to
get the tabbal recovered. Relying on his
statement on 28.02.2008, the Constable
Udai Veer Singh and Suresh Singh went on
the
Government
Vehicle
driven
by
Raghuveer Singh and reached at his sister's
residence. The accused Dharampal went
straight to the roof top of the house and
took out a tabbal hidden under the heap of
eucalyptus logs. He disclosed that he
assaulted Harvansha with this tabbal. The
tabbal was sealed on the spot, the recovery
memo was prepared and a site plan of the
recovery was also prepared. The said
recovery memo was signed by the police
officers and the copy was handed over to
the accused and the thumb impression was
also taken. The recovery memo was
prepared in his hand writing which he
proved it as Exhibit Ka-11. The said
recovery was entered in the G.D. as G.D.
Rapat No.22 at 14:50 dated 28.02.2008,
which was marked as Exhibit Ka-12. The
said GD was in his hand writing and was
prepared at the spot. The site plan of the
place of recovery was prepared as Exhibit
Ka-13, which was in his hand writing.
Thereafter, the rest two accused were
arrested and the statements were recorded.
After completing the investigation, the
accused Dharampal, wife Sonu @ Somvati
were charge sheeted vide charge sheet No.
22 dated 09.03.2008 which was marked as
Exhibit Ka-14. On the same date, charge
sheet No.22-A was submitted against the
co-accused Kapil. The said witness stated
that the sealed cover opened before him
was the recovered tabbal. It was the same
tabbal which was recovered on 28.02.2008
at the pointing of the accused Dharampal
from his sister's house at the rooftop
hidden under the heap of eucalyptus logs.
The recovered tabbal was marked as
Exhibit -2 and the sealed cloth was marked
as Exhibit-1.

P.W.-9 Constable Onkar Singh:
prepared the Chik FIR and stated on oath
that he registered the FIR on the basis of
the Written Tehrir (Exhibit Ka-1) given by
P.W.-1 Ram Singh and made necessary
entries in the General Diary. The said
witness proved the First Information Report
under Sections 452, 323, 504, 506, 308 IPC
which was registered by him and whose
carbon copy was kept under the record.
This witness proved the FIR (Exhibit Ka15) and Kaymi Muqadma GD (Exhibit Ka26) were proved by him. He also proved
the GD (Exhibit Ka-27) on 27.02.2008,
vide Rapat No. 29, Section 304 IPC was
added which were in his handwriting and
was proved by him.

P.W-10 Subhash Chandra: the
brother-in-law of the deceased gave an
application at the Police Station for
conducting the post mortem of Harvansha.
He stated on oath that the application dated
4 All. Dharampal Vs. State of U.P.
1235
26.02.2008 placed on record having his
signature was in his own handwriting and
was marked as Exhibit Ka-8. He also stated
that his brother-in-law was beaten on
21.02.2008 at 6:00 pm and due to the said
injuries, he died.

STATEMENT UNDER
SECTION 313 Cr.P.C.

8. After the prosecution evidence
was
recorded,
the
incriminating
circumstances that appeared against the
appellant in the prosecution evidence were
put to him for recording his statement
under Section 313 Cr.P.C. The appellant in
his statement recorded under Section 313
Cr.P.C. denied the prosecution case and
stated that he was falsely implicated on the
basis of false evidence. In fact, a person
named Akbar committed the offence. No
defence witness was produced.

TRIAL COURT FINDINGS

9. The Trial Court recorded the
following findings:

There
was
no
material
contradiction in the statement of the
eyewitnesses.
Even
in
the
crossexamination,
no
contradiction
or
inconsistencies were found in regard to the
place and manner of incident. All the three
witnesses of fact were extensively crossexamined, their presence at the place of
incident was not found doubtful.

The Trial Court also found that the
medical report corroborated with the ocular
evidence. The medical examination report
dated 21.02.2008 was proved by P.W.-7 Dr.
R.S. Ravidas. The said witness found that
Injury Nos. 1 and 3 were caused with a
blunt weapon and Injury No. 2 was caused
by some sharp edged weapon. The seat of
Injury Nos. 1 and 3 was the head and the
Injury No. 2 was on the shoulder. P.W.-1, in
his statement, disclosed that deceased
Harvansha received injuries on the head
and shoulder. The rest two eyewitnesses
disclosed that the deceased Harvansha was
assaulted on his head with tabbal and
Danda which corroborated with the medical
report.

The learned Trial Court also found
that the weapon (tabbal) used in the
incident was recovered at the pointing of
the appellant Dharampal.

All the relevant records, post
mortem and inquest reports were duly
proved by the prosecution witnesses,
therefore, the offence was proved to be
committed
by
the
appellant
beyond
reasonable doubt.

As far as delay in the lodging of the
FIR is concerned, the learned Trial Court
found that there was no discrepancy in the
narration of facts and it was explained by
the first informant Ram Singh that as he
was busy in the treatment of his only son,
therefore, delay was caused in lodging the
FIR
which
was
reasonably
and
satisfactorily explained. The prosecution
case cannot be refuted on the ground that
no suggestion was given to the said
witnesses.

The accused, in his statement,
under Section 313 Cr.P.C. did not state that
there was any enmity between them.
Therefore, it cannot be concluded that there
was any previous enmity existing between
them.

SUBMISSION ON BEHALF OF
THE APPELLANT
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
10. The learned Amicus Curiae
Ms. Mayuri Mehrotra, appearing for the
appellant vehemently argued as follows:

(i) Firstly, it was argued that there
was delay in lodging of the FIR and was
lodged after deliberation and consultation.
Broadly, it was submitted that the three
witnesses of fact (PW-1, PW-2 and PW-4)
stated that though the police reached at the
spot on the same day yet no FIR was
lodged. PW-2 Dumpi went to the extent of
stating that he went along with his
grandfather PW-1 and his injured uncle
Harvansha (deceased) to the Police Station,
yet no attempt was made to lodge an FIR
by either of them. It was asserted that there
were two instances of lodging the FIR, in
case they were the eyewitnesses to the
incident and knew the names of the
accused-appellant, they would have lodged
it at once. Till that time, they did not know
as to how this offence was committed and
who committed it, therefore, none of the
prosecution witnesses made an effort to
lodge an FIR and had not even witnessed
the incident. The FIR was lodged after
consultation and deliberation.
(ii) Secondly, it was argued that the
place of occurrence was doubtful. The
prosecution witnesses deposed that the
place of occurrence was the room of the
deceased, but during investigation no blood
was found. The Investigating Officer, S.I.
Ghanshyam Tyagi, PW-8 did not find any
drop of blood on the floor, neither on the
cot nor on the bed roll or quilt though it
was deposed by PW-1 Ram Singh that he
found his son in a pool of blood lying on
the cot, when he reached at the spot.
(iii) It was next argued that PW-1
Ram Singh, PW-2 Himanshu alias Dumpi
and
PW-4
Rajo
were
examined
as
eyewitnesses. But in the charge sheet only
PW-1 Ram Singh was the sole eyewitness.
Had PW-2 and PW-4 been present at the
place of the incident they would have been
incorporated as eyewitnesses in the charge
sheet? Moreover, PW-8, the Investigating
Officer categorically stated that neither
PW-2 nor PW-4 gave any statement nor did
he
record
their
statements
during
investigation which casts serious doubt on
the presence of P.W.- 2 and P.W.-4 at the
spot.
(iv) It was further argued that there
were major contradictions in the statements
of the three eyewitnesses, which are as
follows:
(a) PW-1 Ram Singh was the father
of the deceased and in his testimony, he
made major improvements as compared to
what he asserted in the FIR. He stated that
he was sleeping when he heard the noise
then he came out of his room and thereafter
he along with the villagers saved his son
from the accused appellants. He further
improved his statement to show the
presence of PW-2 and PW-4 that they also
saved the deceased from the accusedappellant as opposed to the version of the
FIR. The FIR nowhere mentions the name
of the two witnesses that they were also
present at the place of the incident. Further,
PW-1 stated that he had a poor vision. The
incident occurred in the month of February
at 06:00 P.M. It becomes dusky and,
therefore, it also casts doubt if he was able
to recognise the assailants due to his poor
eyesight. PW-1 thereafter stated that his son
Harvansha fell unconscious due to the
injuries inflicted upon him and later
succumbed to death. The question arises
here if PW-1 was sleeping at the time of
incident and reached only after hearing the
commotion and then his son became
unconscious, who later died, how did he
come to know about the incident as to how
it occurred and who were the assailants? It
is the version of PW-1 that when he woke
4 All. Dharampal Vs. State of U.P.
1237
up and saw many persons near his son who
also saved him. It casts serious doubt on the
testimony of PW-1 and his intention to
falsely implicate the accused-appellant.
(b)
The
presence
of
PW-2
Himanshu alias Dumpi was not proved on
the date and time of the incident but as per
his statement recorded before the Court
below the injured was taken to the hospital
immediately after the incident by PW-1 and
PW-2. P.W.-2 further admitted that taking
notice of the said incident the police
personnel reached at the spot between
07:30 and 08:00 PM. The witness further
stated that the injured along with this
witness was taken to the Police Station by
the Police where FIR was lodged. The said
version of the PW-2 contradicts the
statement of PW-1 and the FIR because it
was lodged on 25th/26th February, 2008
and the incident was of 21st February 2008.
(c) Another contradiction discussed
was that P.W.2 Himanshu @ Dumpi was
sleeping at the time of incident next to his
maternal grandfather (nana) and on hearing
the noise, he reached at the spot.
(d) Further, P.W.2 Himanshu @
Dumpi in his deposition stated that the
accused Dharampal was armed with tabbal
and the rest accused were armed with lathi
and danda, who assaulted his maternal
uncle Harvansha causing injuries on his
head and body. P.W.3 Smt. Rajo, in her
chief, stated that the accused Dharampal,
his wife Somo and his son Kapil assaulted
her brother Harvansha with lathi, danda and
weapons.
(v) As far as testimony of PW-2
Himanshu alias Dumpi is concerned, it was
argued by learned Amicus Curiae that he
was
a
child
witness,
therefore,
his
credibility was doubtful as an eyewitness.
The name Dumpi nowhere finds mention in
the FIR as a witness nor in the chargesheet. In his examination-in-chief, PW-2
stated that he was sleeping with his
grandfather (PW-1) and after hearing the
noise, he woke up. He admitted that his
grandfather (PW1) reached the place of
occurrence after him. However, in his
cross-examination, he took a different stand
and stated that he was playing near the
disputed tap. He heard the noise, then he
entered into his house, woke up everyone
and called everyone in the house and then
he witnessed the incident. There were three
injuries found on the person of the
deceased and as per the prosecution version
there were three assailants, so far how long
were they hitting and beating the deceased
that PW-2 got so much time to enter, call
everyone and even witness the incident. It
was submitted that he was not an
eyewitness to the occurrence.
(vi) PW-4 Smt. Rajo, the mother of
PW-2, daughter of PW-1 and sister of the
deceased stated that she saw her brother
(the deceased) in a pool of blood who fell
unconscious for three to four hours. She
even gave exaggerated statement and said
that the Police came to the place of
occurrence and took her thumb impression.
However, no such paper was produced as to
what was the purpose of thumb impression
if at all they were taken. She was neither
named in the FIR as a witness nor in the
charge-sheet.
(vii) In regard to recovery of
tabbal, it was argued by learned Amicus
Curiae for the appellant that Dharampal did
not give any statement in police custody
that weapon (tabbal) used in the incident
was kept hidden in the house of his sister
Vinod Kumari nor any such recovery was
effected. It was also submitted that no
independent witness was present at the time
of recovery nor any blood stain was found
on the tabbal, which was recovered at the
pointing out of the accused-appellant
Dharampal. The said recovery was not
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
done in compliance with Section 27 of the
Indian
Evidence Act. The
recovered
weapon was not sent for examination to the
Forensic Science Laboratory. Thus, it was
not proved that the said weapon was used
by Dharampal.
Thus, it was argued by the learned
Amicus Curiae that the contradictions in
the statement of the witnesses proved that
none of the eyewitnesses were present at
the spot nor had seen the incident. It is also
a case of the prosecution that the incident
took place at the sunset and PW-1 Ram
Singh had poor eye vision hence there is
every likelihood that the informant had
falsely implicated the accused persons due
to previous enmity. On the basis of the
aforesaid submissions, the appellant is
liable to be acquitted.

SUBMISSION ON BEHALF OF
THE RESPONDENT-STATE

11. Per contra, Mr. Ratnesh
Nandan
Singh,
learned
Additional
Government
Advocate,
vehemently
opposed the aforesaid contentions and
argued that the findings recorded by the
Trial Court is quite convincing and
satisfactory.

(i) As far as delay in lodging of the
FIR is concerned, the first informant
disclosed in the FIR itself that he was too
busy in the treatment of his only son whose
condition was critical, therefore, he could
not lodge the FIR in time. In his
examination-in-chief he also deposed that a
written Tehrir was scribed on 22.02.2008
by his grandson Dumpi P.W.2, but as he
was busy in the treatment of his only son,
therefore, he modified the date of the Tehrir
as 25.02.2008 and then gave it at the police
station, on the basis of which the FIR was
registered on 26.02.2008. The incident took
place on 21.02.2008 at about 06:00 P.M.
and the written report (Exhibit Ka-1) was
given on 25.02.2008. The FIR (Ex. Ka. 15)
was lodged on 26.02.2008 at 12:10 AM. As
per the version of PW-1, he took the injured
from Bijnor to Meerut and then to Delhi for
his
treatment.
His
son
remained
unconscious throughout and later died
while returning from Delhi on 26.02.2008.
It is only after his death that he lodged an
FIR. In the cross-examination, the said
witness deposed that, after the incident, he
went to the Police Station alongwith his
injured son Harvansha. The concerned
Police Officer advised him that he should
first rush for the treatment of his son,
therefore, the FIR was not lodged at that
very moment. Even from the medical
examination report (Exhibit Ka-9), it
clearly
shows
that
Harvansha
was
medically examined within two hours from
the time of the incident on 21.02.2008 at
District Hospital, Bijnor at 9:00 pm.
Thereafter his son was referred to Meerut
Hospital and then to Delhi. Finally while
returning from Delhi, his son died on
26.02.2008.
(ii) Another contention of the
defence that no blood stained earth was
found at the spot is also false and baseless.
P.W.1 Ram Singh deposed that when he
came out of his room and reached the spot
he saw his son lying on a cot in a pool of
blood. P.W.2 Himanshu @ Dumpi also
deposed that at the time of marpeet, the
blood was oozing out from the head of
Harvansha which fell on the ground. The
Investigating Officer should have recovered
the blood stained earth from the spot but as
in the instant matter, the FIR was lodged
after 3-4 days of the incident i.e.
26.02.2008 and thereafter, the Investigating
Officer went to the spot for inspection
where no blood stained earth was found.
Though P.W.-8 S.I. Ghanshyam Tyagi,
4 All. Dharampal Vs. State of U.P.
1239
Investigating Officer deposed that he
inspected the spot at the instance of the first
informant but still he could not collect any
blood stained earth indicates the lapses on
the part of the Investigating Agency. The
eyewitness account P.W.1 Ram Singh,
P.W.2 Himanshu @ Dumpi and P.W.4 Smt.
Rajo clearly deposed that the accused
Dharampal and other co-accused entered
into their premises and assaulted Harvansha
with tabbal, lathi and danda due to said
marpeet, Harvansha fainted and finally
succumbed to death due to the said injuries.
(iii) The next contention of the
defence that P.W.2 and P.W.4 were not
mentioned as a witnesses in the charge
sheet but were subsequently produced and
examined as prosecution witnesses is also a
baseless submission and does not belies the
prosecution
story
as
P.W.1
in
his
examination-in-chief deposed that P.W.2
and P.W.4 were present at the spot. Even if
they were not mentioned in the FIR or in
the charge sheet as eyewitnesses but were
examined subsequently as prosecution
witnesses, will not support the defence
version or disproof the prosecution case.
An FIR is not an encyclopedia which may
include each and every detail of the
incident. It is also not sine qua non that
each and every witness has to be mentioned
in the charge sheet. There is no hard-andfast rule that all the witnesses particularly
eyewitnesses should be indicated in the
FIR. It cannot be denied that the incident
took place inside the premises of P.W.1
Ram Singh, therefore, the presence of the
said witnesses (P.W.2 and P.W.4) at the
spot, is not doubtful and they are the
natural witnesses. The accused Dharampal
could not produce any credible evidence
which may deny the presence of P.W.1 Ram
Singh at the spot.
(iv) So far as contradictions and
discrepancies in the statement of the
witnesses are concerned, the defence
version that P.W.1 Ram Singh reached the
spot after some time and was not an
eyewitness account and P.W.2 Himanshu @
Dumpi and P.W.4 Smt. Rajo were also not
present at the spot as they were the resident
of another village is not correct. In fact,
P.W.1 Ram Singh in his chief stated that on
hearing the noise he reached the spot and
saw the accused assaulting his son. Several
villagers Raju, Abid and others also
gathered along with his daughter Smt. Rajo
and grandson Himanshu @ Dumpi. From
the said statement, it can be concluded that
P.W.2 Himanshu @ Dumpi, P.W.4 Smt.
Rajo were present at the spot and witnessed
the incident. In his cross-examination, the
said witness deposed that on the previous
night, he was tired so he went to sleep in
the early hours of evening wrapped in his
quilt and on hearing the noise of his son
Harvansha, he rushed towards the spot.
P.W.2
Himanshu
@
Dumpi
in
his
examination-in-chief also deposed that at
the time of incident, he stood near the
Government tap to fetch water, in the
meantime, accused Dharampal alongwith
other co-accused assaulted Harvansha. On
hearing the noise, he rushed to the spot and
saw the incident and shouted thereafter his
maternal grandfather (nana) P.W.1 Ram
Singh
also
reached
at
the
spot
simultaneously, P.W.4 Smt. Rajo also
reached the spot and saw the incident.
Learned State-counsel in his submission
also stated that the ocular evidence
corroborates with the medical evidence.
P.W.7 Dr. R.S. Ravidas deposed that there
were three injuries on the body of
Harvansha out of which two were on his
head and one on his right shoulder. The
said witness also deposed that injury nos. 1
and 3 were caused with some blunt weapon
and injury no. 2 was caused with some
sharp edged weapon. The eyewitnesses
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
deposed that accused Dharampal was
armed with tabbal which is a sharp edged
weapon and rest of the accused Smt. Somo
and Kapil were armed with lathi and danda
and assaulted Harvansha. Thus, there were
no major contradiction in the prosecution
case.
(v) The arguments of learned
Amicus Curiae that P.W.2 Dumpi was a
child witness, therefore, his testimony was
not trustworthy, was refuted. To controvert
their submission, the learned State-counsel
cited the following case laws:
In Gul Singh @ Guliya and others
vs. State of M.P. and another, 2014 SCC
Online SC 719, the Apex Court held that:

" The evidence of child witness
cannot be rejected unless the same is
tutored or unless the same is unreliable."

In State of Uttar Pradesh vs.
Krishna Master and others, (2010) 12
SCC 324, wherein it was held that:

" It would be doing injustice to a
child witness possessing a sharp memory
to say that it is inconceivable for him to
recapitulate
facts
in
his
memory
witnessed by him long ago. A child of
tender
age
is
always
receptive
to
abnormal events which take place in his
life and would never forget those events
for the rest of his life. The child would be
able to recapitulate correctly and exactly
when asked about the same in future.
When a child of tender age witnesses
gruesome murder of his father, mother,
brothers, etc. he is not likely to forget the
incident for his whole life and would
certainly recapitulate facts in his memory
when asked about the same at any point
of time, notwithstanding the gap of about
ten years between the incident and
recording of his evidence."
(vi) It was further submitted by the
appellant-counsel that P.W. 4 Smt. Rajo
gave an exaggerated version of the
prosecution case and is not trustworthy. It
cannot be denied that P.W.4 Smt. Rajo was
an eyewitness account and gave her
testimony as a natural witness. She was a
rustic lady who used to put thumb
impression therefore, such improvements
and exaggerations might find possibility.
(vii)
Learned
State
Counsel
referred to the statement of the P.W.8 S.I.
Ghanshyam Singh Tyagi, Investigating
Officer, who deposed that on 28.02.2008
accused Dharampal was arrested and was
taken into police custody. During police
custody, he confessed that the weapon used
in the incident was kept hidden as his
sister's house Vinod Kumari. On the basis
of this confessional statement, Dharampal
was taken to that place and on the pointing
of accused Dharampal, he took out tabbal,
hidden under the heap of eucalyptus logs
on the roof-top of the house of his sister
Vinod Kumari on the basis of which
recovery memo was prepared which was
proved as Exhibit Ka-1.