# Dhaunkal & Ors v. State of U.P

- **Citation:** (2024) 4 ILRA 1127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-22
- **Case number:** Criminal Appeal No. 680 of 2001
- **Bench:** Siddharth, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhaunkal-ors-v-state-of-u-p-51776
- **Pages:** 29

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 304(1), 147, 148 & 149 -
Code of Criminal Procedure, 1973 -
Sections 161, 313 & 374 - Criminal Appeal
Against Conviction and Sentence - Murder -
Unlawful Assembly - Dying Declarations - EyeWitness Testimony - Motive - Medical Evidence
- Alteration of Conviction
The appellants, Dhaunkal, Bhaiya Lal, Rajendra,
Ram Swaroop, and Buddhu, challenged the
judgment dated 22.02.2001 by the VIth
Additional Session Judge, Fatehpur, in S.T. No.
405 of 1996, convicting them for the murder of
Raju alias Kamta Prasad on 10.09.1995 at
Rampatiya Ka Purwa, Fatehpur. Buddhu was
convicted under Section 302 IPC simplicitor and
Section 148 IPC, sentenced to life imprisonment
and
one
year
rigorous
imprisonment,
respectively.
The
other
appellants
were
convicted under Sections 302/149 and 148 IPC,
sentenced to life imprisonment and one year
rigorous
imprisonment,
respectively,
with
sentences to run concurrently. The incident
stemmed from enmity over a prior criminal case,
where the deceased, while weeding in his chili
field, was shot by Buddhu (and allegedly Ram
Swaroop) following Bhaiya Lal's exhortation,
causing fatal injuries. The FIR was lodged by
the deceased in an injured condition at 6:30 PM
on
10.09.1995,
supported
by
his
dying
declarations (under Section 161 Cr.P.C. and by
Naib
Tehsildar),
eye-witness
PW-1
(Smt.
Mantoriya, deceased's mother), and medical
evidence (Ext. Ka-2, Ka-3). The appellants
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
claimed false implication due to village rivalry
and the deceased's alleged criminal ties. Held:
(1) The appeal was partly allowed; Buddhu's
conviction under Section 302 IPC was altered
to Section 304(1) IPC, sentencing him to 10
years rigorous imprisonment and Rs. 10,000
fine (8 months additional imprisonment in
default); convictions of Dhaunkal, Bhaiya Lal,
Rajendra, and Ram Swaroop under Section
302/149
IPC
were
altered
to
Section
304(1)/149 IPC, sentencing them to 7 years
rigorous imprisonment and Rs. 7,000 fine each
(6 months additional imprisonment in default);
Section 148 IPC convictions were affirmed; all
sentences to run concurrently with set-off for
custody undergone. (2) The court found the
prosecution case proved beyond reasonable
doubt through the deceased's three dying
declarations (FIR, Section 161 Cr.P.C. St.ment,
and magisterial declaration), PW-1's eyewitness testimony, and medical evidence,
despite minor discrepancies (e.g., role of Ram
Swaroop, timing of incident); the cause of
death was toxemia and septicemia due to
firearm injuries to non-vital parts (waist, knee),
indicating no intention to cause death but
intent to cause bodily injury likely to cause
death, warranting alteration to Section 304(1)
IPC, per Sucha Singh Vs St. of Punj., AIR 2003
SC 3617. (3) The presence of all appellants at
the scene was established, and their vicarious
liability under Section 149 IPC was upheld, as
no specific overt act is required, per Masalti Vs
St. of U.P., (1964) 8 SCR 133, and Parshuram
Vs St. of M.P., (2023) SCC OnLine SC 1416. (4)
Defence claims of false implication due to
village rivalry or the deceased's criminal ties
were unsupported; minor inconsistencies did
not discredit the prosecution case, and the
maxim falsus in uno falsus in omnibus does not
apply in India. (5) The dying declarations were
reliable, with the deceased in a fit mental St.,
supported by medical certification and PW-1's
testimony, per Laxman Vs St. of Maharashtra,
(2002) 6 SCC 710. Appellants on bail were
directed to surrender to serve the modified
sentence, with coercive measures for noncompliance.

List of Cases cited:

## Text

_Characters 0–39,837 of 101,743. This is a partial read: ask again with offset=39837 for what follows._

4 All. Dhaunkal & Ors. Vs. State of U.P.
1127
for a period of 3 years, as directed and will
apprise the Court concerned regarding
conduct and behaviour of the juvenile, if
found contrary to the conditions of the
probation bond.

35.

Accordingly,
Criminal
Appeal No.705 of 1983, stands dismissed
and the conviction and sentence passed
against the appellant Satish Kumar
Gupta in impugned judgement is hereby
affirmed and the Criminal Appeal
No.573 of 1983 stands partly allowed in
respect of sentence awarded to appellant
Ajai Kumar Gupta as directed above. He
need not surrender.

36. Appellant Satish Kumar Gupta
has been enlarged on bail by orders of this
Court passed in present criminal appeal.
Therefore, he is directed to immediately
surrender before the Court of Sessions
Judge, Banda to undergo the sentence
awarded in impugned judgement dated
4.3.1984. In case of failure of the
appellant to surrender before the trial
court concerned, the trial court shall
compel the appearance of the appellant
by issuing appropriate coercive process
against
him
and
on
being
apprehended/appearance before the court
as the case may be, he will be sent to jail
for undergoing the sentence of life
imprisonment as awarded in impugned
judgement.

37. Let lower court record be
sent back to court concerned within a
period
of
two
weeks
from
today
alongwith certified copy of this order for
information/necessary compliance.
----------
(2024) 4 ILRA 1127
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.03.2024
BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 680 of 2001

Dhaunkal & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Arvind Agarwal, Sri Rajrshi Gupta

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 304(1), 147, 148 & 149 -
Code of Criminal Procedure, 1973 -
Sections 161, 313 & 374 - Criminal Appeal
Against Conviction and Sentence - Murder -
Unlawful Assembly - Dying Declarations - EyeWitness Testimony - Motive - Medical Evidence
- Alteration of Conviction
The appellants, Dhaunkal, Bhaiya Lal, Rajendra,
Ram Swaroop, and Buddhu, challenged the
judgment dated 22.02.2001 by the VIth
Additional Session Judge, Fatehpur, in S.T. No.
405 of 1996, convicting them for the murder of
Raju alias Kamta Prasad on 10.09.1995 at
Rampatiya Ka Purwa, Fatehpur. Buddhu was
convicted under Section 302 IPC simplicitor and
Section 148 IPC, sentenced to life imprisonment
and
one
year
rigorous
imprisonment,
respectively.
The
other
appellants
were
convicted under Sections 302/149 and 148 IPC,
sentenced to life imprisonment and one year
rigorous
imprisonment,
respectively,
with
sentences to run concurrently. The incident
stemmed from enmity over a prior criminal case,
where the deceased, while weeding in his chili
field, was shot by Buddhu (and allegedly Ram
Swaroop) following Bhaiya Lal's exhortation,
causing fatal injuries. The FIR was lodged by
the deceased in an injured condition at 6:30 PM
on
10.09.1995,
supported
by
his
dying
declarations (under Section 161 Cr.P.C. and by
Naib
Tehsildar),
eye-witness
PW-1
(Smt.
Mantoriya, deceased's mother), and medical
evidence (Ext. Ka-2, Ka-3). The appellants
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
claimed false implication due to village rivalry
and the deceased's alleged criminal ties. Held:
(1) The appeal was partly allowed; Buddhu's
conviction under Section 302 IPC was altered
to Section 304(1) IPC, sentencing him to 10
years rigorous imprisonment and Rs. 10,000
fine (8 months additional imprisonment in
default); convictions of Dhaunkal, Bhaiya Lal,
Rajendra, and Ram Swaroop under Section
302/149
IPC
were
altered
to
Section
304(1)/149 IPC, sentencing them to 7 years
rigorous imprisonment and Rs. 7,000 fine each
(6 months additional imprisonment in default);
Section 148 IPC convictions were affirmed; all
sentences to run concurrently with set-off for
custody undergone. (2) The court found the
prosecution case proved beyond reasonable
doubt through the deceased's three dying
declarations (FIR, Section 161 Cr.P.C. St.ment,
and magisterial declaration), PW-1's eyewitness testimony, and medical evidence,
despite minor discrepancies (e.g., role of Ram
Swaroop, timing of incident); the cause of
death was toxemia and septicemia due to
firearm injuries to non-vital parts (waist, knee),
indicating no intention to cause death but
intent to cause bodily injury likely to cause
death, warranting alteration to Section 304(1)
IPC, per Sucha Singh Vs St. of Punj., AIR 2003
SC 3617. (3) The presence of all appellants at
the scene was established, and their vicarious
liability under Section 149 IPC was upheld, as
no specific overt act is required, per Masalti Vs
St. of U.P., (1964) 8 SCR 133, and Parshuram
Vs St. of M.P., (2023) SCC OnLine SC 1416. (4)
Defence claims of false implication due to
village rivalry or the deceased's criminal ties
were unsupported; minor inconsistencies did
not discredit the prosecution case, and the
maxim falsus in uno falsus in omnibus does not
apply in India. (5) The dying declarations were
reliable, with the deceased in a fit mental St.,
supported by medical certification and PW-1's
testimony, per Laxman Vs St. of Maharashtra,
(2002) 6 SCC 710. Appellants on bail were
directed to surrender to serve the modified
sentence, with coercive measures for noncompliance.

List of Cases cited:

1. Sucha Singh Vs St. of Punj., AIR 2003 SC
3617
2. Masalti Vs St. of U.P., (1964) 8 SCR 133

3. Parshuram Vs St. of M.P., Criminal Appeal No.
524 of 2021, (2023) SCC OnLine SC 1416

4. Laxman Vs St. of Maharashtra, (2002) 6 SCC
710

5. Gulab Singh Vs St. of U.P., 2003 (47) ACC 161

6. Mohd. Muslim Vs St. of U.P., 2023 LiveLaw
(SC) 489

7. Irfan @ Naka Vs St. of U.P., 2023 LiveLaw
(SC) 698

8. Shahid Khan Vs St. of Rajasthan, (2016) 4
SCC 96

9. Jafarudheen Vs St. of Kerala, (2022) 8 SCC
440

10. Harbeer Singh Vs Sheeshpal, (2016) 16 SCC
418

11. Himachal Pradesh Administration Vs Shri Om
Prakash, (1972) 1 SCC 249

12. Kali Ram Vs St. of Himachal Pradesh, (1973)
2 SCC 808

13. St. of Rajasthan Vs Raja Ram, (2003) 8 SCC
180

14. Chandrappa Vs St. of Karn., (2007) 4 SCC
415

15. Upendra Pradhan Vs St. of Orissa, (2015) 11
SCC 124

16. Golbar Hussain Vs St. of Assam, (2015) 11
SCC 242

17. Darya Singh Vs St. of Punj., AIR 1965 SC
328

18. Puran Vs St. of Punj., AIR 1953 SC 459

19. Shivlal Vs St. of Chhattisgarh, (2011) 9 SCC
561

20. Rajeevan Vs St. of Kerala, (2003) 3 SCC
355
4 All. Dhaunkal & Ors. Vs. State of U.P.
1129
21. St. of Rajasthan Vs Om Prakash, (2002) 5
SCC 745

22. Ganesh Bhavan Patel Vs St. of Maharashtra,
(1978) 4 SCC 371

23. Nallapati Sivaiah Vs Sub-Divisional Officer,
Guntur, (2007) 15 SCC 465

24. Bhajju alias Karan Singh Vs St. of Madhya
Pradesh, (2012) 4 SCC 327

25. Neville Nembhard Vs The Queen, (1982) 1
All ER 183

26. The King Vs William Woodcock, (1789) 1
Leach 500

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. The instant Criminal Appeal has
been preferred by the convict /appellants
against the judgment and order dated
22.02.2021
passed
by
learned
VIth
Additional Session Judge, Fatehpur in Case
No.405 of 1996, whereby the appellants are
convicted for charge under Section 302 IPC
read with section 149 IPC and sentenced to
imprisonment for life for the said charge.
The appellants Dhaukal, Bhaiya Lal,
Rajendra and Ram Swaroop are convicted
for charge under Section 302 IPC read with
Section 149 IPC and sentenced to life
imprisonment, and they are also convicted
for
charge
under Section 148
IPC,
sentenced
to
one
year
rigorous
imprisonment
for
said
charge.
The
appellant Buddhu is convicted for charge
under Section 302 IPC and sentenced to
imprisonment for life. He has also been
convicted for charge under Section 148 IPC
and sentenced to one year rigorous
imprisonment for said charge. All the
sentences are directed to run concurrently.

2. The factual matrix of the case in
brief as discerned from the material on
record is that FIR in the case was lodged on
the basis of written report Ext. Ka-1 of
deceased Raju alias Kamta in injured
condition which was scribed by one
Dharamveer Singh, at Police Station
Kishanpur, District Fatehpur on 10.09.1995
at 6:30 PM, wherein he stated that he is a
resident of village Rampatiya Ka Purwa,
H/o Dariyapur, Police Station Kishanpur,
District Fatehpur. His co-villager Dhaukal
son of Jodhi had got a criminal case
registered against him and his father in
which he was bailed out. In view of this
enmity the accused, co-villagers Buddhu
and Dhaukal sons of Jodhi, Bhaiya Lal son
of Ramdev, Rajendra son of Rambhawan
and one Ram Swaroop son of Badal, R/o
Gokulpur H/o Dariyapur, P.S. Kishanpur,
came to him at his agricultural field lying
in his village Rampatiya Ka Purwa, where
he was weeding, his mother Mantoriya and
one Hiruwa son of Kichdu were ploughing
the field, as soon as he said to take meal,
these persons came near him, and on being
given a call by Bhaiya Lal to kill, him
come whatever may, he would spend
whatever money required, accused Buddhu,
fired two shots from his fire arm at him
which hit him on his right waist and knee
of left leg, he fell down on the spot, the
miscreants fled away after the incident. The
incident was seen by mother of the injured
and witness Hiruwa. As condition of the
injured deteriorated, his dying declaration
was recorded by Naib Tehsildar (Executive
Magistrate) on 11.09.1995 at around 7:45
AM at District Hospital, Fatehpur, wherein
he substantially reiterated his version in
FIR with variation that in dying declaration
he stated that first fire was shot at him by
Buddhu, which hit him and thereafter
Ramswaroop fired a shot at him by his gun
and he fell down. He also stated the
accused persons were on inimical terms
with him and a scuffle (marpeet) occurred
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
prior to ten days, in which he was sent to
jail. The investigation of the case was
entrusted to Sub Inspector Kamla Singh,
who collected relevant papers including
copy of FIR, got the inquest and
postmortem examination on dead body of
the deceased Rajesh who died during
treatment on 17.09.1995 at 04:00 PM at
District Hospital, Fatehpur. In postmortem
examination report Ext. Ka-3, the cause of
death has been shown as Toxemia and
Septicemia as a result of ante-mortem
injuries. The postmortem was conducted on
19.09.1995 at 04:30 PM and inquest was
conducted on 19.09.1995 at 10:00 AM. The
Investigating Officer carried out local
inspection of the place of incident and
prepared a site plan, which is marked as
Ext. Ka-4. The medico legal examination of
the deceased was conducted in injured
condition at C.S.C. Khaga, which is
marked as Ext.Ka-2. He was admitted in
District Hospital, Fatehpur for his medico
legal examination, where he died during
treatment. The FIR was initially registered
vide Crime No.136 of 1995, under Sections
147, 148,149, 307 IPC at Police Station
Kishanpur, District Fatehpur and same was
altered into Section 302, 147, 148,149 IPC
vide GD Report No.11, time 08:00 hours
dated 21.09.1995 on receiving death memo
of injured Raju alias Kamta from hospital.

3. The Investigating Officer,
received report of Serologist regarding
blood stained clothes of the deceased,
which is marked as Ext. Ka-17. The
Investigating Officer submitted chargesheet against accused persons on finding
their complicity in the offence marked,
which is marked as Ext. Ka-5. The learned
Civil Judge (Judicial Magistrate, Kharga)
District Fatehpur took cognizance of the
offence and committed the case to the court
of session vide order dated 21.10.1996,
where it was registered as ST No.405 of
1996, and was transferred to the Court of
VIth
the
Additional
Session
Judge,
Fatehpur. The learned trial judge, framed
charge under Section 147, 148,302/149 IPC
against all the accused persons and charge
under Section 302 IPC against accused
Buddhu simplicitor on 20.02.1997 on
commencement of trial.

4. The prosecution examined PW1,
Matoriya wife of Shivmohan, father of the
deceased, PW3 Dharamveer Singh scribe
of written report Ka-1, PW4 Dr. K.N.
Pandey, the author of injury report of
deceased Raju @ Kamta Prasad during his
life time, PW5 Dr. Anil Kumar Shukla,
author of postmortem examination report of
the deceased, PW6 Sub Inspector Kamla
Singh the initial investigating officer of the
case, PW7 Sub Inspector Rambahadur
Verma, who carried out final investigation
in the case, PW8 Gyan Prakash Srivastava,
the
then
Naib
Tehsildar/
Executive
Magistrate who recorded dying declaration
of the deceased. The trial court recorded
statements of accused persons under
Section 301 Cr.P.C., in which they admitted
that
they
belong
to
same
progeny
(khandan) and are resident of same village,
except accused Ramswaroop. Accused
persons barring Ramswaroop are of same
Khandan of which deceased belonged.
They also admitted that some scuffle
(marpeeth) took place on some date prior to
the incident between informant (deceased)
and his father and accused persons had
lodged a report against deceased and his
father regarding said prior incident of
marpeeth. However, they denied the
incident alleged in the present case and
stated that informant/deceased had lodged
wrong report against them, they are not
aware of the contents of documents proved
during trial. Naib Tehsildar, Gyan Prakash
4 All. Dhaunkal & Ors. Vs. State of U.P.
1131
Srivastava, had given wrong statement with
regard to dying declaration of the deceased.
The Investigating Officer had carried out
wrong investigation and submitted wrong
chargesheet against them. They are falsely
implicated in the case due to village
Partibandi. Accused persons examined
DW1 Sukul Prasad, DW2 Shiv Poojan,
DW3 Om Bhihari Shukla, DW4 Hiralal
alias Hiru as witnesses of defence. They
also filed a copy of chargesheet filed
against deceased Raju alias Kamra under
Section 25 of Arms act, in Case Crime
No.168 of 1990, P.S. Kishanpur, District
Fatehpur dated 16.09.1990.

5. Learned trial judge after
considering
the
submissions
made
by
prosecution and defence and appreciating the
evidence on record concluded trial regarding
conviction and sentences against accused
persons as aforesaid. The convict accused
persons preferred present Criminal Appeal
under Section 374 Cr.P.C. feeling aggrieved
by impugned judgment and order.

6. We have heard submissions of
Sri Arvind Agarwak and Sri Rajrshi Gupta,
learned counsel for the appellants and
learned A.G.A. appearing on behalf of the
State-respondent and perused the material
on record including impugned judgment.

7. Learned counsel for the
appellants submitted that the conviction
and
sentence
recorded
against
the
appellants is against weight of evidence
appearing on record. No offence is proved
against the appellants on the basis of
evidence adduced by prosecution, sentence
is also severe. The appellants were enlarged
on bail in present appeal vide order dated
16.12.2002 passed by this Court, the appeal
is pending since year 2001. He further
submitted that :
(i) FIR in the case was lodged antitime, the distance of alleged place of
incident to the police station is mentioned
as 18 km in the FIR; the first Informant
who was injured and admittedly received
two gun shot wounds on body parts claims
to have walked around to the Police Station
which is highly unbelievable. The scribe of
FIR as stated in his testimony that he found
the injured alongwith his mother wondering
about and he had written down the written
report at Police Station, Vijaypur Chauki.
This facts creates a serious shadow of
doubt in the prosecution story, inasmuch as
it is difficult to believe that the injured/ first
informant
having
sustained
gunshot
wounds due village out post and police
personnel present there could not make any
effort to render medical assistance to him
first of all. The said police out post was not
situated on way to police station from the
place of incident, and there was no
occasion
on
the
part
of
the
informant/injured to visit the said police
out post for lodging the FIR. The time of
incident is shown as 1:30 PM, FIR was
lodged at 10:30 hours and medical
examination of the injured was conduced
on same day at 08:30 PM at CSC, Kharga,
which is around 60 kms away from police
station Kushangarh. This is inconceivable
that in the state of suffering two fire arm
injury, the deceased traveled the distance of
18
kms
for
getting
him
medically
examined.
(ii)
There
are
three
dying
declarations in the present case, first being
the FIR itself which is lodged by the
deceased while in injured condition; second
being the statement of deceased recorded
under Section 161 Cr.P.C. after lodging of
FIR, and third the dying declaration dated
11.09.1995 recorded by Naib Tehsildar,
Sadar Tehsil, Fatehpur which is marked as
Ext.
Ka-14,
and
the
alleged
dying
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration are in variants with each other
with regard to manner and the mode of
incident as well as timing and other dates.
In FIR the injured has stated that incident
took place at 10:30 pm, whereas in his
dying declaration he has stated that incident
occurred around 10-11 am, moreover, there
is variation with regard to manner of
assault, author of the injuries as stated in
FIR and dying declaration, whereas both
are recorded at the instance of the deceased
while in injured condition. In FIR both fire
arms injuries are attributed to accused
Buddhu on extortion of Bhaiyalal, whereas
in dying declaration Ext. Ka 14one shot is
attributed Buddhu and the other to accused
Ramswaroop.
(iii) The Doctor who has allegedly
given certificate of fitness, but margin of
dying declaration Ext. Ka-14 was not
examined as witness during trial and the
certificate of fitness has been appended
after recording of dying declaration, there
is no certificate of doctor prior to recording
of dying declaration regarding fitness of the
deponent.
The
dying
declaration
is
shrouded in suspicion and is not reliable.
(iv) PW1 is highly interested and
partisan
witness
who
has
given
contradictory statements about the time of
the incident as well as the manner of
assault,
her
statement
is
full
of
inconsistency
and
does
not
inspire
confidence. The independent witness Heera
Lal @ Hiru whose name has been surfaced
in FIR has not been examined as
prosecution prosecution witness and even
he was discharged, as prosecution witness
at the instance of PW1 to avoid his
testimony before the court, and he was
subsequently produced as a defence witness
(DW4)
who
has
not
supported
the
prosecution version.
(v) There is considerable delay of
14 days in recording statement of PW1
Smt.
Mantoriya,
the mother of
the
deceased, which is fitted to prosecution
story.
(vi) Motive, introduced by PW2-
Shiv Mohan the father of the deceased has
not been proved.
(vii) Unlawful Assemble has not
been proved by the prosecution has no
overt act has been attributed to most of the
accused persons. Genesis of the incident is
suspected in FIR and prosecution evidence.
No weapon of any incriminating article has
been affected to any of the accused persons.
Even, if this Court comes to the conclusion
that death of the deceased Raju was caused
by accused appellants, the case does not
travel beyond Section 304 (2) IPC due to
lack of intention to cause death of the
deceased on the part of accused-appellants.
With
the
above
submissions
learned counsel for the appellants prayed
for acquittal of accused appellants.

8. Per contra, learned A.G.A.
appearing
for
the
State-respondent
submitted that there is no discrepancy or
infirmity in the impugned judgment of
learned trial court, whereby the appellants
are convicted for charge under Section
302/149 IPC and Section 148 IPC in
accordance with law.

9. He further submitted that the
strength of the prosecution case lies in the
fact that FIR in the case was lodged at the
instance of deceased himself, while in
injured condition and from police papers
also it is established that he appeared on the
police station to lodge the FIR by
producing police report Ext. Ka.1 scribed
by one Dharamveer Singh, his dying
declaration is also recorded in formal
manner by Executive Magistrate and same
has been proved by Executive Magistrate
during trial. PW1, is mother of the
4 All. Dhaunkal & Ors. Vs. State of U.P.
1133
deceased, who has given an eyewitness
account of the incident and there is no
reason to disbelieve her testimony. PW2,
who is father of the deceased who is not an
eye witness, but has proved motive
attributed
to
accused
persons
for
commission
of
crime.
The
accused
appellants are convicted and sentence by
trial court in proper and legal manner. The
appeal is devoid of force and deserved to
be dismissed.

10. The postmortem examination
report, Raju alias Kamta Prasad was
prepared on 10.09.1995 at 08:30 PM by
PW4 Dr. K.N Pandey at CSC Khaga, who
has proved this document as Ext. Ka-2
during his evidence before the Court at
PW4. According to injury report of Raju
alias Kamta Prasad following ante-mortem
injuries were found on the persons of the
deceased:-

i. Fire arm wound of entry 1cm x 1
cm right side of back, 7 cm above from hip
bone, pellets felt on the left side of lower
abdomen under skin 9 cm away from
umbilicus. No blackening, no tattooing,
fresh bleeding is present.
ii. Multiple fire arm wound in the
are of 22 cm x 12 cm on the back side of
lower part of left thigh, left knee, joint and
upper part o left leg. No exit wound,
blackening or tattooing is present.

11. In the opinion of doctors and
the injuries kept under observation advice
xray referred to District Hospital, Fatehpur.
Both the injuries were caused by fire arm,
injury No.1 would have been caused from
far distance from right side of entry No.2
which was caused from close distance from
back side. This injury report was prepared
at the instance of police station through
Chitthi Majrubi of P.S. concerned.
12. PW4, Dr. K.N. Pandey has
sated in his evidence that injury No.1 could
be fatal. In cross examination, he stated that
xray report of this injury was not brought
before
him,
he
has
not
sent
any
supplementary report. Injury No.1 was
fresh, injury No.2 was also fresh; by the
word 'fresh" means within six hours with
three hours margin on both sides. He has
not written the duration of injuries in his
injury report Ext. Ka-2. Injury No.2 was
found in leg in the area 12 cm width, this
injury was caused by firing from back side
on leg, but he could not tell whether the fire
was shot from front or back.

13. The postmortem examination
report of deceased Raju alias Kamta was
prepared by PW5. Dr. Anil Kumar Shukla,
who has proved this document as Ext. Ka-3
by his evidence before the Court. The
postmortem report of deceased Raju alias
Kamta Prasad, reveals that his postmortem
examination was conducted on 19.09.1995
at 4:30 PM at District Hospital, Fatehpur.
At the time of postmortem following antemortem injuries were found on his person:-

i. Stitched wound right side 18 cm
long on abdomen, just right to umbilicus,
15 stitches given on vertically place wound.
ii. Stitched would 3 cm horizontally
on right side back of abdomen 4 cm above
left crest 3 stitches given.
iii. Stitched would with drain of
rubber on left side of abdomen 3 cm long 3
stitches given.

14.

Initial
examination-
No
abnormality
detected
in
neck,
scalp,
membranes, brain, skull, vertebra, spinal
cord was not opened, no abnormality
detected in walls of ribs and cartilage,
pleura, trachea, longs, pericardia, both
chambers
of
heart
were
empty
in
1134 INDIAN LAW REPORTS ALLAHABAD SERIES
abdominal cavity 200 ml puss was present,
stomach was empty, his small intestine was
empty and only gases were present.
Multiple repairs were done at different
places by calgut, faeces and gas were
present in long intestine. In the the opinion
of doctor, the cause of death was due to
Toxemia and Septicemia, as a result of
ante-mortem injuries. The one unwrapped
bandage with lucoplast and rubberbands
were recovered from dead body and
entrusted to police constables who had
brought dead body for postmortem. These
exhibits were sent to FSL, Mahanagar,
Lucknow for scientific examination, in FSL
report dated 05.12.1995, human blood was
found in large parts of these articles.

15. First Information Report was
lodged by the deceased himself in injured
condition. The FIR is proved by evidence
of its scribe. PW3 Dharamveer Singh, due
to death of the author of Ext. Ka-1
deceased Raju alias Kamta Prasad. PW3
has stated in his evidence that about two
years ago Raju alias Kamta Prasad met him
in injured condition. He got the written
report scribed by him, he wrote down the
written report as dictated by injured Raju
alias Kamta and readover the same to him,
after writing this paper, he signed the
written report as scribed and got thumb
impression of informant Raju alias Kamta
Prasad, on this report which is paper
No.3A/2 on record, the documents is
marked as Ext. Ka1. The witnesses stated
that after signing this paper he handed over
the same to the informant Raju alias Kamta
Prasad.
Investigating
Officer
had
interrogated him about this paper. In cross
examination this witness has stated that he
had visited village Rampatiya Ka Purwa,
and village Dariyapur prior to the incident,
these villages are situated within 1⁄2 km of
distance. He drives the tempo from his
village Shivpuri to Khaga on the fateful day
he was going to his village from Khaga;
injured Raju and his mother met him on his
way at around 3:00 pm. He scribed the
report at police out post Vijaipur in the
name of Raju alias Kamta Prasad.

16. PW1 Smt. Mantoriya, has been
examined as eye witness of the incident,
she is mother of the deceased. She
identified the accused persons Buddhu,
Dhaukal, Bhaiya Lal, Rajendra and Ram
Swaroop before this court and stated that
Ramswaroop
is
resident
of
village
Gokulpur, and a relative of accused
Bhaiyalal. Dhaukal and Buddhu are real
brothers, Rajendra is nephew of Dhaukal
and the accused persons are related to each
other.

(i) She further stated in her
evidence that the incident occurred two
years ago, on the date of incident her son
was weeding in his chili field, she had
brought his meal in the field at 01:30 pm,
suddenly her co-villagers Dhaukal, Bhaiya
Lal, Bhuddhu, Rajendra and Ramswaroop
appeared, who were armed with lathi, gun
and Tamancha (country made pistol). Her
son Raju alias Kamta was sitting to take
meal, Bhaiya Lal exhorted and called other
accused persons to kill him, he will spend
whatever
money
would be
required,
whereupon Buddhu opened two fired by his
gun, the shot fired by Buddhu hit Raju alias
Kamata on his right waist and left knee.
The incident was seen by Hiruwa who was
ploughing his field in the vicinity, she
raised an alarm and challenged the accused
persons who fled away. Her son went to
police station for lodging FIR in injured
condition; he was sent to hospital and
thereafter to Fatehpur for treatment. Her
son Raju alias Kamta Prasad died in
District Hospital, Fatehpur due to injuries
4 All. Dhaunkal & Ors. Vs. State of U.P.
1135
suffered in the incident, her son had
produced written report at police station, he
had studied up to class 8th, he got the
report prepared at police station. Accused
Dhaukal and others had got a case
registered against her son and husband in
collusion with police, in which her husband
and son (decease) were challaned. They
were implicated in a case of marpeeth
(thrashing) and her sons and husband were
released on bail in that case. The accused
persons assaulted her son due to this enmity
and he died due to injuries suffered in the
incident.
The
Darogaji
(Investigating
Officer) met and interrogated her.

17. PW2 Shiv Mohan, who is
father of the deceased is not an eye witness
of the incident; he stated in his evidence
that the incident occurred one month prior
to two years of his statement before the
Court, his son Raju alias Kamta Prasad was
shot in the incident. He had gone to visit
some relative on that day, where he got the
information that accused persons present in
the court named as Bhaiya Lal, Dhaukal,
Buddhu, Rajendra and Ramswaroop had
got his son injured by firing shots due to
enmity. He came to hospital at Fatehpur on
getting information, his son died in the
hospital after 8-9 days of the incident due
to injuries suffered in the incident. The
scuffle (marpeet) had taken place some
days ago between his son Raju alias Kamta
Prasad and accused persons, and a case is
still proceeding in regard to that incident.
The accused Dhaukal and others had got
him and his son Raju alias Kamta challaned
on the basis of false report, the deceased
and the witness were sent to jail in that case
and were later released on bail. The
accused persons had shot his son Raju alias
Kamta Prasad due to enmity. Darogaji
visited the village and took him and his
wife
at
the
spot
of
incident
and
interrogated. He received information of
this incident at village Tulsiput and reached
at the hospital on the next day.

18. PW3 Dharamveer Singh, has
stated that he found Raju alias Kamta
Prasad, resident of Rampatiya Ka Purwa in
injured condition. He got the written report
prepared by him by dictating its contents,
he wrote down whatever he dictated, he
read-over the written report after scribing
this to the informant and got his signature
appended on that, on which Ext. Ka-1 is
marked. He handed over the report to Raju
after
scribing
this.
Darogaji
had
interrogated him. In cross examination this
witness has stated he was returning to his
village from Khaga, the injured Raju alias
Kamta Prasad and his mother met him at
around 03:00 PM, he wrote down written
statement at O.P. Vijaipur. In cross
examination the witness denied suggestion
that he scribed the false report at the behest
of Athar.

19. PW4 Doctor K.N. Pandey is
author of the postmortem report of the
deceased Raju alias Kamta Prasad and has
proved the postmortem.

20. PW6, SI Kamla Singh, who is
first investigating officer of the case has
testified that on 10.09.1995 he was posted
as
Sub
Inspector
at
Police
Station
Kishanpur
(District
Fatehpur).
The
investigation of the case was entrusted to
him on that day, the witness prescribed the
steps taken by him in investigation of the
case, he stated that he recorded statement
of the victim/injured after much efforts.
The case was registered in its presence and
he had also signed the chick FIR. He
conducted raids to apprehend the accused
persons, but during the period in which
investigation was interested to him they
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
could not be arrested. The investigation
was later on resumed by Station House
Officer himself. In cross examination the
witness stated that injured visited the police
station for lodging the FIR, he asked him
about eye witnesses of the incident,
whereupon he told name of his mother and
one Hirwa of his village. He stated to him
that these persons had not come to police
station, the condition of the injured was
very serious, when he visited the police
station and for that reason he immediately
sent him to hospital for treatment. He did
not tried to record his dying declaration at
that time, but he recorded his statement
under Section 161 Cr.P.C. Chitthi Majrubi
was not bearing his signature, as it was left
due to inadvertence, Ext. Ka-2 is signed by
constable Manoj, when the patient was sent
to hospital he did not tried to put his clothes
off and take the same in his custody. He
visited the place of incident on the date of
incident, but had not carried out local
inspection, as it was night and none was
present in the house of the informant. He
did not record statement of eye witness
Hirwa, he had not met him on that time.
The witness verified the statement of
deceased Raju alias Kamta Prasad recorded
by him under Section 161 Cr.P.C. in his
cross-examination, wherein he stated that
on 10.09.1995 he was weeding in his field,
his mother Smt. Mantoriya had got meal
for her. Witness Hirwa was ploughing the
field in the vicinity. The accused persons
Dhaukal, Buddhu, Bhaiya Lal, Rajendra
and Ramswaroop appeared there in a
planned manner and while coming near
him Bhaiya Lal and Ramswaroop exhorted
to kill, whereupon Buddhu opened fire on
him in indiscriminate manner which hit
him on right side of waist, lower back and
back side of left knee. He visited the spot
on the date of incident, as he was lone
officer at police station at that time.
21. PW7 SI Ram Bahddur Verma
has testified the course of investigation
conducted by him as second investigation,
who was posted as Station House Officer at
P.S concerned. He stated that after
preliminary, he recorded statement of
witnesses Hira @ Hiruwa and conducted
spot inspection and prepared the site plan,
which is exhibited as Ext. Ka-4. He also
recorded statement of witnesses Chedi and
Jagdish proceeded to trace the accused
persons. On 13.09.1995 he came to know
that accused Ramswaroop, Bhaiya Lal and
Rajendra had surrender in the Court on
17.09.1995. He copied dying declaration of
Raju alias Kamta Prasad in case diary and
later on he went in search of Dhaukal and
Buddhu, but could not find them. On
17.09.1995 he received information of
surrender of accused Dhaukal in the Court.
On 20.09.1995 he again tried to trace out
the accused Buddhu and gave report for
issuing process under Section 82 and 83
Cr.P.C. against him in the Court. On
21.09.1995 vide GD Report No.11 time
08:00 hours the case was converted from
section 307 IPC to Section 302 IPC on
account of death of the injured Raju. On
24.09.1995 he recorded statement of Smt.
Mantoriya, mother of the deceased and
Shiv Mohan, father of the deceased. On
27.09.1995 he recorded statements of the
accused persons barring respondent No.2
Buddhu in jail after taking permission of
the Court. On 11.10.1995 he received
information regarding surrender of accused
Buddhu in the court and thereafter he
recorded
his
statement
after
taking
permission of the court. On 18.09.1995 he
recorded statements of the witnesses of
inquest, on 20.10.1995 he sent the exhibits
for scientific examination at FSL. He also
recorded the statement of scribe of the
written report namely Dharamveer Singh;
after concluding the investigation and
4 All. Dhaunkal & Ors. Vs. State of U.P.
1137
finding sufficient evidence against accused
persons Dhaukal and others and submitted
chargesheet before the court against them
under Sections 147, 148, 149, 302 IPC. The
witness proved the chargesheet as Ext. Ka5 by the evidence. He also proved Chik FIR
as Ext. Ka-6, entries of registration of case
vide GD Report No.22, time 18:20 hours
dated 10.09.1995 in absence of its author
head Moharir Yashwant Singh, as Ext. Ka7. He also proved modified GD Report
dated 21.09.1995 Report No.11 time 08:00
hours by which case was converted into
Section 302 IPC, in absence of its author
Constable Manoj Kumar who was posted
with him and the witness was acquainted
with his writing and signature. The
modified GD report is exhibited as Ext. Ka8. The witness also proved the inquest
report and papers relating to postmortem of
the deceased like Photo Nash, Chalan
Nash, letter CMO, letter RI and these
papers were exhibited as Ka-9 to 13. The
witness also stated that the report of FSL is
placed on record.

22. In cross examination, the
witness stated that at
the time of
registration of the case, he was on duty
outside the police station, but was not on
leave. He came back to police station on
10.01.1995 at 19:45 hours, he received
investigation of the case from previous
Investigating Officer on 12.01.1995. He
tried to record statement of one of the
accused Mantoriya in the village, but did
not visit the hospital for recording her
statement. He could not obtain the clothes
worn by the deceased due to his death
during treatment. He recorded statement of
Mantoriya on 24.09.1995, the incident
occurred
within
jurisdiction
of
O.P.
Vijaipur which was lying within police
station headed by him. The place of
incident is dacoity infested area. At the
time of incident the Gang was operated by
one Athar Nian who was resident of village
Rahmatpur, situated in the vicinity of police
station. During investigation he did not get
any information that deceased belonged to
a gang of Atharmia, this fact is not stated in
site plan that place of incident was 400-500
paces away from the village. The place of
incident was an empty agricultural field, in
which standing tree of Neem situated. This
field belonged to Raju alias Kamta, the
injured who later died, he has not shown in
the site plan that Chili was planted in the
field where incident occurred. He has also
not shown the place of weeding (Nirai). He
conducted spot inspection on the pointing
out of eye witness Hiru alias Hirawa. The
witness denied defence suggestion that
investigation was carried out in the case
was shoddy and was conducted under
influence of the injured. The witness
proved site plan of the place of occurrence,
as Ext. Ka-4 being preferred by him.

23. PW8 Sri Gyan Prakash
Srivastava, the then Naib Tehsildar Sadar,
District Fatehpur has testified that on
11.09.1995 he visited District Hospital
Fatehpur on orders of Sub Divisional
Magistrate, Fatehpur where injured Raju
alias Kamta prasad son of Shiv Mohan,
resident of Rampatiya Ka Purwa, H/o
Barar, Police Station Kishunpur, District
Fatehpur admitted in emergency ward
No.24, after general examination by doctor
recorded his dying declaration, which is
placed on record. He questioned him, as to
what happened to him and why, they he
replied on 10.09.1995 at around 10 to 11
hours in a day he was weeding in his chilli
field; in the meanwhile his mother brought
meal from home and he started eating this,
suddenly Buddhu, Dhaukal, Ramswaroop,
Bhaiya Lal and Rajendra reached there and
Buddhu fired a shot at him which hit him,
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Ramswaroop also fired a shot which hit
him and he fell down, thereafter they fled
away. He asked from the injured about
enmity with the accused persons to which
he replied that all of them were inimical
terms with him, the marpeet occurred 10-12
days ago in which was sent to jail. He
recorded the statement of the injured and
read-over to him on which he affixed his
thumb impression, which is attested by
him. The doctor has endorsed the fact of
fitness of patient after deposition. PW8 also
stated that he prepared dying declaration of
the deceased in his handwriting, on which
Ext. Ka-14 is being marked. In crossexamination the witness stated that no
written order of SDM Sadar addressed to
him for recording dying declaration, which
is placed on record. The order of SDM
would be of information sent by hospital to
P.S. Kotwali, he did not perused the bed
head ticket of the patient, as he did not find
its necessity.

24. The accused persons stated in
their statement under Section 313 Cr.P.C.
that witness has denied and testified against
them falsely, they had lodged a two reports
against deceased and his father, in which
they were challaned, but for that count they
had not borne any grudge against the
deceased, and the allegations made against
them with regard to cause of death of
deceased Raju alias Kamta Prasad is false.
They were not aware of the evidence of the
prosecution papers.