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

- **Citation:** (2020) 2 ILRA 674
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-13
- **Case number:** Criminal Appeal No. 442 of 2001
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagannath-ors-in-jail-v-state-of-u-p-45720
- **Pages:** 14

## Headnote

A. Criminal Law-Indian Penal CodeSection 302 I.P.C. read with Section 34 -
Appeal against conviction.

In
cross-examination
nothing
has
been
extracted by the defence from this witness also
so that his testimony can be doubted regarding
firing of shots by accused persons at the
deceased. In view of the above discussion,
contention of the appellant has no force that
presence of P.W.1 and P.W.2 is doubtful. (Para
34)

Informant has specifically stated that a day
before the incident in the evening the accused
persons had dismantled his medh regarding
2 All. Jagannath & Ors. Vs. State of U.P.
675
which an altercation took place with his son.
No
question
regarding
dismantling
of
informant's medh by accused persons has been
put by defence as such the statement of P.W.1
is uncontroverted, therefore we have no reason
to
disbelieve
his
testimony
regarding
dismantling of his medh. (Para 48)

If the Investigating Officer did not inspect the
dismantled medh it is a fault on the part of the
Investigating Officer which is trivial in nature
which will not affect the prosecution case.
(Para 48)

Therefore, on a conspectus of the facts and
circumstances of the case and close scrutiny of
evidences available on record as discussed
above we find that prompt FIR naming the
appellants has been lodged, informant are
witnesses of the incident and their testimony is
trustworthy and reliable. Ocular version is
supported by medical evidence. (Para 51)

Criminal Appeal rejected. (E-2)

List of cases cited:-

## Text

_Characters 0–39,968 of 46,669. This is a partial read: ask again with offset=39968 for what follows._

674 INDIAN LAW REPORTS ALLAHABAD SERIES
who referred the matter for further
treatment to District Hospital/B.H.U. The
testimony on the point of occurrence of
both the aforesaid eye-witnesses P.W.1
and P.W.2 is consistent, truthful and
unambiguous. No suggestion, whatsoever,
has come forth, which may cast any
shadow of doubt on the veracity of these
two
eye-witnesses.
These
two
eyewitnesses have given a detailed account of
the occurrence and they are worthy of
credit. Their position on the spot is found
to be natural. The postmortem examination
report also tallies with the ocular version
that several 'lathi' blows were given by the
accused to the victim. Upon careful
perusal, we found seven ante-mortem
injuries to have been noted by Dr. J.S.
Gogia
(P.W.3)
in
the
postmortem
examination and has proved these antemortem injuries, due to which the accused
died
on
account
of
shock
and
haemorrhage. In view of the evidence on
record to claim that no one saw the
occurrence, is an absolutely misconceived
claim and it cannot be sustained on its
face. The trial Judge while considering the
case on its merit, has recorded just and
consistent finding. The same is based on
material on record.

16. Consequently, the conviction
recorded under Section - 302 I.P.C. and
the sentence imposed on the accused is
justified. We hereby affirm the conviction
and sentence imposed upon the accused as
no good ground is made out for
interference.

17. Consequently, this appeal sans
merit and the same is hereby dismissed.

18. The appellant is on bail. He be
taken into custody forthwith to serve out
the remaining part of the sentence imposed
on him by the trial court. His personal
bonds and bail bonds are cancelled and
sureties stand discharged.

19. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action. The lower court record be remitted
to the lower court concerned.
----------
(2020)02ILR A674

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 442 of 2001

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

Counsel for the Appellants:
Sri Kamal Krishna, Sri R.K. Tiwari, Sri
Anshul Tiwari, Sri Ghan Shyam Das, Sri
Sanjeev Yadav

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

A. Criminal Law-Indian Penal CodeSection 302 I.P.C. read with Section 34 -
Appeal against conviction.

In
cross-examination
nothing
has
been
extracted by the defence from this witness also
so that his testimony can be doubted regarding
firing of shots by accused persons at the
deceased. In view of the above discussion,
contention of the appellant has no force that
presence of P.W.1 and P.W.2 is doubtful. (Para
34)

Informant has specifically stated that a day
before the incident in the evening the accused
persons had dismantled his medh regarding
2 All. Jagannath & Ors. Vs. State of U.P.
675
which an altercation took place with his son.
No
question
regarding
dismantling
of
informant's medh by accused persons has been
put by defence as such the statement of P.W.1
is uncontroverted, therefore we have no reason
to
disbelieve
his
testimony
regarding
dismantling of his medh. (Para 48)

If the Investigating Officer did not inspect the
dismantled medh it is a fault on the part of the
Investigating Officer which is trivial in nature
which will not affect the prosecution case.
(Para 48)

Therefore, on a conspectus of the facts and
circumstances of the case and close scrutiny of
evidences available on record as discussed
above we find that prompt FIR naming the
appellants has been lodged, informant are
witnesses of the incident and their testimony is
trustworthy and reliable. Ocular version is
supported by medical evidence. (Para 51)

Criminal Appeal rejected. (E-2)

List of cases cited:-

1. Arumugam Solathirayar vs. Ponnalagu
Pandarar and others, 1957 SCC online
Madras 172,

2. Ramji Singh and others vs. St. of U.P.
2019 SCC online SC Hon'ble Supreme Court
1597,

3. Syed Ibrahim vs. St. of A.P., (2006) 10
SCC 601.

4. Gautam Chaturvedi vs. St. of U.P., 2019
SCC Online All 4307,

5. St. of Kar. v. Suvarnamma and another,
(2015) 1 SCC 323,

6. St. of UP vs. M.K. Anthony (1985) 1 SCC
505,

7. Ramji Singh and others vs. St. of U.P.
2019 SCC Online SC 1597,

8. Rajesh Govind Jagesha vs. St. of Maha.,
(1999) 8 SCC 428
(Delivered by Hon'ble Ali Zamin, J.)

1. Heard Sri Kamal Krishna, learned
Senior Counsel assisted by Sri Ghan
Shyam Das and Sri Sanjeev Kumar Yadav,
learned counsel for the appellants and Sri
Ajeet Ray, learned A.G.A. for the State.

2. This appeal has been preferred
against the judgement and order dated
31.01.2001
passed
in
Session
Trial
No.481/90, arising out of Case Crime
No.242 of 1990 by which learned
Additional Sessions Judge, IVth (Room
No.4),
Allahabad,
convicting
the
appellants, under Section 302 I.P.C. read
with Section 34 I.P.C. has sentenced them
to life imprisonment.

3. According to prosecution version
Ram Harsh had dismantled the Medh of
the informant Jagannath in the evening a
day before the incident on 08.10.1990 and
his son Santosh Kumar had stayed on the
filed to mend the Medh when Ram Harsh
his son Jagannath and Nanka @ Ram
Swaroop had an altercation with his son.
On that day his son came to his house and
on 08.10.1990 at 6:00 a.m. in the morning
when his son Santosh Kumar had gone
towards west side of the village to respond
the call of nature, Jagannath having
licensee gun of his father, Nanka @ Ram
Swaroop and Jagatpal son of Ram
Padarath Patel having country-made pistol
of 315 bore went to his son and
surrounding him, fired shot at him due to
the incident of the previous day on account
of which he died on the spot. The incident
has been witnessed by Babu Lal son of
Ram Bharosh Patel, Ram Jatan son of Ram
Garib Patel, Ram Newaj son of Mahajan
Patel, resident of Kashimpur Juda @
Moosepur, Police Station Nawabganj,
District Allahabad.
676 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Informant Jagannath got scribed the
report (Ext.Ka-1) of the incident from Durga
Prasad and lodged report to the police station
Nawabganj. On the basis of written report
Ext.Ka-1. Chik F.I.R. Ext.Ka-12 under Section
302 I.P.C. was registered on 08.10.1990 at
7:45 and investigation of the case was
entrusted to S.H.O., A.S. Yadav, who reached
the spot and prepared inquest memo (Ext.Ka2) as well as challan lash (Ext.Ka-3), letter to
R.I. (Ext.Ka-4), letter to C.M.O. (Ext.Ka-5),
specimen seal (Ext.Ka-6), photo lash (Ext.Ka7) and dispatched the dead body for postmortem.

5. Dr. N.P. Singh (P.W.4) conducted
autopsy on the dead body and prepared report
(Ext.Ka-11). According to the post-mortem
following injuries were found on the dead
body :-

1. Fire arm wound of entry middle
of the nose 1 x 1 c.m.

2. Fire arm wound of entry left side
of neck 1 x 1 c.m., 2 c.m. below the middle of
mandible.

3. Fire arm wound of entry 1 x 1
c.m. left side of scapula clavicle.

4. Fire arm wound of entry 1 x 1
c.m. left arm 2 c.m. below the left acromion
process size 1 c.m. x 1 c.m.

5. Fire arm wound of entry 1 x 1
c.m. on left side chest wall, 2 c.m. medial to
the left nipple blackening present.

6. Fire arm injury 1 x 1 c.m. on the
right side chest wall, 5 c.m. below right nipple
1 x 1 c.m.

7. Fire arm wound of exit 2 c.m. x 2
c.m. over left scapular region 1 c.m. medial to
the medial both of scapula.

8. Fire arm wound of exit 2 c.m. x 2
c.m. in middle of biter scapular region of the
upper part.

Four medium size pellets recovered
from thoracic cavity.

Cause of death was found shock
due to excess bleeding and death occurred 12
hours earlier due to the ante-mortem injuries
caused.

6. Investigating Officer also prepared
spot map Ext.Ka-9, taking into possession two
empty cartridges 12 bore from the spot, plain
earth as well as blood stained earth from the
field of Pandit Budh Narayan prepared
recovery memo Ext.Ka-8. After completing
the investigation, he submitted charge sheet
(Ext.Ka-10), under Sections 302 I.P.C. against
the accused-appellants before the court of
C.J.M.

7.

Learned
C.J.M.,
Allahabad
committed accused to the court of session
for trial where Case Crime No.342 of
1990, under Section 302 I.P.C. was
registered as Session Trial No.481 of
1990, wherefrom the case was transferred
to the court of Second Additional Session
Judge, Allahabad, who framed charge
under Section 302 I.P.C. read with Section
34 I.P.C. against the accused persons, who
denied the charge and claimed trial.

8. Prosecution to prove charge
against the accused persons produced five
witnesses. P.W.1 Jagannath is informant,
P.W.2 Babu Lal is a witness of fact, P.W.3
Anwar Singh Yadav Investigating Officer
of the case, P.W.4 Dr. N.P. Singh
conducted post-mortem and P.W.5 Indra
Bahadur Singh scribed the F.I.R. (Ext.Ka13) and G.D. (Ext.Ka14), are the formal
witnesses.
After
examination
of
prosecution witnesses, statement of the
accused persons were recorded under
Section 313 Cr.P.C. in which accused
Jagdish Pal has stated that due to enmity
the case proceeded against him and
accused Jagannath and Nanka have stated
that the family of the informant had
2 All. Jagannath & Ors. Vs. State of U.P.
677
forcefully taken possession of Gram Sabha
land; their father Ram Harsh was pradhan,
who had filed case against him. The
deceased
was
a
man
of
criminal
antecedent. The incident occurred at
another place and they have been falsely
implicated in the present case. The
accused persons led no evidence in their
defence.

9. After hearing the parties and
perusal of the record, learned Additional
Sessions Judge, IVth (Room No.4),
Allahabad passed the impugned judgement
and order, hence this appeal.

10.

Learned
counsel
for
the
appellants submits that salient features;
like, informant Jagannath has seen the
incident, deceased he had gone to answer
call of nature; the incident took place in
the field of Budh Narayan; 5-6 shots were
fired upon the deceased, who told him
about the incident, are absent. Per contra
learned AGA submits that FIR is not an
encyclopaedia and every detail is not
necessary to be mentioned in the FIR.

11. In Arumugam Solathirayar vs.
Ponnalagu Pandarar and others, 1957
SCC online Madras 172, Hon'ble High
Court has held that the fact that in the
F.I.R, the name of one accused is not
mentioned or the names of some witnesses
are not mentioned is no ground for
disbelieving the prosecution story and
acquitting the accused whose names are
mentioned in the F.I.R. and disbelieving
the witnesses whose names are mentioned
in the F.I.R. The F.I.R is not an
encyclopedia. It is not the beginning and
end of every case, it is only a complaint to
set the law into motion. It is only at the
investigation stage that all the details can
be gathered and filled up.

12. In Ramji Singh and others vs.
State of U.P. 2019 SCC online SC
Hon'ble Supreme Court 1597, Hon'ble
Supreme Court has held that an F.I.R is
not supposed to be an encyclopedia
detailing all facts in extenso.

13. On consideration of the law laid
down by the Madras High Court and
Hon'ble Supreme Court, we are of the
view that the contention of the learned
counsel for the appellants that salient
features like, informant Jagannath has seen
the incident, deceased had gone to answer
call of nature, incident took place in the
field of Budh Narayan, 5-6 shots were
fired upon the deceased and the question
as to who told him about the incident are
absent in the F.I.R. is without force.

14. Learned counsel further submits
that there is sharp contradiction in the
statement of P.W.1 Jagannath informant
and P.W.2 Babu Lal. P.W.1 Jagannath
states that the incident has taken place in
the field of Budh Narayan whereas Babu
Lal states that the incident has taken place
in the field of Radhey Shyam. It is not the
case of prosecution that the deceased
Santosh after receiving injuries in the field
of Budh Narayan ran towards the field of
Radhey Shyam. Evidence of P.W.1, on
page 22 in the third paragraph of paperbook is that after receiving the injuries he
fell down in the field of Budh Narayan. He
also submits that in order to establish the
place of occurrence bloodstained and plain
earth is always taken into possession by
the Investigating Officer and are then sent
to the serologist but in the present case the
Investigating Officer PW-3 Anwar Singh
Yadav admitted on page 32 of the paperbook that he has not sent the bloodstained
and plain earth to the serologist. A perusal
of the site plan would show that it does not
678 INDIAN LAW REPORTS ALLAHABAD SERIES
contain recital to the effect that any blood
was found at the place of occurrence and
on this ground, he submits that the place of
occurrence is not proved. In support of his
contention he has relied on the judgements
of Syed Ibrahim vs. State of A.P., (2006)
10 SCC 601 and Gautam Chaturvedi vs.
State of U.P., 2019 SCC Online All 4307.

15. Per contra learned AGA submits
that from the prosecution evidence it is
proved that the place of incident is the
field of Budh Narayan. Investigating
Officer took bloodstained and plain earth
from the field of Budh Narayan which is
established from its recovery memo
Ext.Ka-8
proved
by
him.
Although
Investigating Officer has committed a
lapse in not sending the bloodstained and
plain earth to the serologist and he also did
not mention in the site plan wherefrom the
bloodstained and plain earth were taken
but on the basis of these lapses on the part
of Investigating Officer the prosecution
case cannot be thrown out as held by
Hob'ble Supreme Court in State of
Karnatka v. Suvarnamma and another,
(2015) 1 SCC 323.

16. P.W.1 Jagannath has stated that
his son was going to answer the call of
nature and when he reached the field of
Budh Narayan, the accused Jagannath
having licensee gun of his father, Jagatpal
and Nanka @ Ram Swaroop having
country-made pistol came and surrounding
his son killed by firing 5-6 shots at him.
From his cross-examination by defence
nothing has been extracted, so that, any
adverse inference may be drawn that the
incident did not occur in the field of Budh
Narayan. P.W.2 Babu Lal has also stated
that Santosh Kumar son of Jagannath was
murdered on 08.10.1990. It was 6:00 a.m.
of the morning, he was returning after
answering the call of nature, when he saw
that the accused persons killed Santosh
Kumar in the field of Budh Narayan. In
the hand of Jagannath there was a gun and
in the hand of Nanka and Jagannath
country-made pistol and all the three
accused fired shots from their arms. At
page 28 of the paper book, in crossexamination this witness has stated that
towards south west is that field of Radhey
Shyam where murder took place. On the
basis of this very statement learned
counsel for the appellants has emphasized
that the statements of P.W.1 Jagannath and
P.W.2 Babu Lal are contradictory to each
other but in our opinion the above
statement of P.W.2 Babu Lal does not
connote that the incident took place in the
field of Radhey Shyam. It appears that the
question was tactfully put to the witness in
such a manner, so that, such inference can
be drawn from the reply of the witness.
The question might have been put to the
witness whether there is field of Radhey
Shyam in the south west of the village
where murder took place and witness then
replied as mentioned above. P.W.1 Anwar
Singh Yadav, Investigating Officer has
proved the spot map as Ext.Ka-9 in which
it is mentioned that ''A' is the place where
murder took place and this is shown as
field
of
Budh
Narayan.
In
crossexamination the Investigating Officer has
firmly stated that the murder took place in
the field of Budh Narayan and this field
will be towards west of the village. Thus
we find that there is consistency in the
prosecution evidence of P.W.1 Jagnnath,
P.W.2 Babu Lal and Investigating Officer
P.W.3 Anwar Singh Yadav regarding the
place of incident to be field of Budh
Narayan.

17. It is true that in spot map Ext.Ka9, the Investigating Officer has not
2 All. Jagannath & Ors. Vs. State of U.P.
679
mentioned the place from where he took
bloodstained and plain earth but in view of
the consistent prosecution evidence as
discussed
above
regarding
place
of
incident to be field of Budh Narayan and
recovery memo Ext.Ka-2 of bloodstained
and plain earth as well as two empty
cartridges proved by him, in which it is
clearly mentioned that the bloodstained
and plain earth were taken into possession
from the place of incident (field of Pandit
Budh Narayan).

18. In State of Karnataka vs.
Suvarnamma and another supra referred
by learned AGA, Hon'ble Supreme Court
has considered its own opinion in para
12.5 of the judgement held in State of UP
vs. M.K. Anthony (1985) 1 SCC 505 that
minor discrepancies on trivial matters not
touching the core of the case, hyper
technical approach by taking sentences
torn out of context here or there from the
evidence, attaching importance to some
technical
error
committed
by
the
Investigating Officer not going to the root
of matter would not ordinarily permit
rejection of the evidence.

19. The Investigating Officer has
admitted in cross examination that he did
not send bloodstained and plain earth to
the expert. He also did not mention in the
site plan the place from where he took the
bloodstained and plain earth which are
lapses on the part of the Investigating
Officer. However, since in aforesaid
discussion we have found that regarding
place of incident (field of Budh Narayan)
prosecution
evidence
is
consistent,
therefore the above lapses committed by
the Investigating Officer are in the
category of minor discrepancies, which do
not go to the root of the matter. In view of
consistency in prosecution evidence in the
instant case and keeping in mind the
opinion of Hon'ble Supreme Court in State
of UP vs. M.K. Anthony considered in
State of Karnataka vs. Suvarnamma and
another
supra,
the
above
lapses
committed by investigating officer will not
affect the prosecution case.

20. In the case of Syed Ibrahim vs.
State of A.P. (supra), referred by learned
counsel for the appellants, P.W.1 had
indicated four different places to be the
place of occurrence. The Hon'ble Supreme
Court held that when the place of
occurrence itself has not been established,
it would not be proper to accept the
prosecution version.

21. In Gautam Chaturvedi vs. State
of U.P. (supra), as per F.I.R. the incident
occurred when P.W.1, his nephew P.W.4
Amit Gupta and the deceased were talking
amongst themselves standing in the lane
outside their house, and the deceased
parted company to leave for some place
where he had to go. He had reached a
point in front of the house of Rajendra,
bearing premises no.2/32, where the
appellant arrived in an inebriated condition
and after a sharp exchange of words
between appellant and the deceased, the
appellant stabbed him in the witnesses'
presence but in his dock evidence, he
stated that the appellant arrived at the
entrance to the deceased's home, premises
no.2/123, where after some exchange of
words, the appellant stabbed the deceased.
Therefore, it was held that prosecution has
not been able to formally establish the
place of occurrence.

22. In the instant case, prosecution
evidence is consistent with regard to place
of incident, the field of Budh Narayan,
while in the referred cases, place of
680 INDIAN LAW REPORTS ALLAHABAD SERIES
incident was not consistent. Therefore, on
the basis of the referred cases, no benefit
can be given to the appellants.

23. In view of the above discussion,
from the evidences on record as discussed
above place of incident is proved to be the
field of Budh Narayan, accordingly, there
is no substance in the contention of the
learned counsel for the appellants that
statement of P.W.1 Jagannath and P.W.2
Babu Lal are contradictory to each other
that there is no mention of taking
bloodstained and plain earth in the site
plan and that Investigating Officer did not
send the bloodstained and plain earth to
serologist, therefore place of incident is
not proved.

24. As per P.W.4 Dr. N.P. Singh and
post-mortem report Ext.Ka-11 proved by
him blackening in injury nos.1, 2 and 5
have been found and according to P.W.3
Anwar Singh Yadav as well as spot map
Ext.ka-9 proved by him the deceased had
received injuries on point A and the
accused had fired from point B. Distance
between A and B is 10 feet therefore
learned counsel for the appellants submits
that if the injuries were caused from a
distance of 10 feet then blackening in the
injuries would not occur.

25. In Ramji Singh and others vs.
State of U.P. 2019 SCC Online SC 1597,
Hon'ble Supreme Court has held in para 17
of the judgment that a site plan only gives
a general idea and is not a true scale map.
In para 17 of the judgment it has been also
held that it would not be possible for any
witness to exactly state who was at which
place.

26. In the instant case the witnesses
have not stated from which place the
accused persons fired shots upon the
deceased. In view of the statement of
witnesses in the instant case that all the
accused persons fired upon the deceased
by their fire arms, as well as opinion of
Hon'ble Supreme Court held in Ramji
Singh and others vs. State of U.P. (supra)
on the basis of distance mentioned of the
deceased and accused in the site plan and
blackening found in the injuries no. 1, 2
and 5 to the deceased the prosecution case
cannot be doubted. Accordingly we find
no substance in the contention of the
learned counsel of appellants.

27.

Learned
counsel
for
the
appellants also submits that according to
post mortem report injuries of same
dimension 1 cm x 1 cm have been found,
therefore, it cannot be conceived that all
the three assailants had a weapon of the
same bore. Per contra learned AGA
submits that according to prosecution a
gun and two countrymade pistols were
used in the incident and as per recovery
memo Ext.Ka-8 two empty cartridges of
12 bore were taken into possession and
cartridge of 12 bore can be used in country
made pistol as well as gun both.

28. According to the written report
Ext.Ka-1 Jagnnath having licensee gun of
his father, Nanka alias Ramswaroop and
Jagatpal other accused having country
made pistol of 315 bore went to the
deceased and shot him. P.W.1 Jagnnath as
well as P.W.2 Babu Lal has stated that
Jagnnath had a gun, Nanka and Jagat Pal
had Tammancha in their hand and they
fired bullets from their arm. In crossexamination no question has been put by
defence on this point, therefore, statement
of both witnesses in this regard is
uncontroverted, hence we have no reason
to disbelieve the prosecution version
2 All. Jagannath & Ors. Vs. State of U.P.
681
regarding use of aforesaid arms in the
incident by the accused persons. As per
recovery memo Ext.Ka-8 two empty
cartridges of 12 bores were recovered from
the place of incident. As per 24th Edition
Reprint 2012 page 535 of Modi Medical
Jurisprudence and Toxicology improvised
or country made firearms made out of steel
tubes are crude, mostly smooth, 12 bored
unlicensed weapons which are often made
by criminals in India. In guns as well as
country made pistols, 12 bore cartridges
are used. Although in the written report it
has been mentioned that Jagatpal had
country made pistol of 315 bore which
may be a wrong identikit on the basis of
assumption only which cannot affect the
prosecution case, since it is the consistent
prosecution case that a gun and two
countrymade pistols were used in the
incident, 12 bore empty cartridges were
also recovered from the spot and 12 bore
cartridges can be used by countrymade
pistol and gun both, therefore, injury of
same dimension is possible. In view of the
above, contention of the learned counsel
for the appellant is misconceived that
injuries of same dimensions have been
found therefore it cannot be conceived that
all the assailants had a weapon of same
bore.

29. Next submission of learned
counsel for the appellants is that as per
evidence adduced during trial the
deceased was surrounded by assailants
and shots were fired upon him. Postmortem report shows that most of the
injuries are on the left of the deceased
which are not possible if the incident
was caused surrounding the deceased,
therefore presence of P.W.1 Jagnnath
and P.W.2 Babu Lal at the place of
occurrence is doubtful. Per contra
learned AGA submits that surrounding
doesn't mean that deceased was encircled
and shots were fired from all sides.

30. In Ext.Ka-1 it is mentioned that
accused
persons
shot
the
deceased
surrounded the deceased and shot him.
P.W.1 Jagnnath has also deposed that the
accused had surrounded the deceased and
shot him. As per post mortem report
Ext.Ka-11 on the person of the deceased
eight injuries in total were found among
which injury no. 7 and 8 are exit injuries.
Injury no. 1 is on the middle of nose;
injuries no. 2, 3, 4, 5 are towards left side
of neck, scapula, acromion process and
chest wall respectively. It appears that
injury no. 7 is the corresponding injury of
injury no. 5 as injury no. 5 is on the left
side chest wall 2 cm medial to left nipple
which have been caused from the front
side that is why injury no. 7 is the exit
wound over left scapular region. In the
spot map Ext.Ka-9 the location of accused
persons at the time of incident has not
been disclosed. In cross-examination also
in this regard no question has been put to
P.W.1 Jagnnath and P.W.2 Babu Lal by
the defence. As per prosecution version
the incident was caused at the time of the
deceased going to answer the call of
nature. In such a situation it is possible
that while the deceased was going, the
accused persons coming in front of the
deceased
fired
upon
him.
In
the
circumstance and evidence available on
record it cannot be gathered that the
incident was caused by the accused
persons encircling the deceased. In view of
the above, in the present case surrounding
does not connote that incident was caused
by the accused persons encircling the
deceased and thereafter fired shots upon
him. Accordingly we find no force in the
contention of the learned counsel of the
appellant that presence of P.W.1 Jagnnath
682 INDIAN LAW REPORTS ALLAHABAD SERIES
and P.W.2 Babu Lal at the place of
occurrence is doubtful.

31. Learned counsel for the appellant
on the basis of statement of P.W.1
Jagnnath at page 18 of the paper book that
he is not able to remember whether the
police personnel prepared the inquest
memo at the mortuary or not and obtained
signature of panches or not, submits that
presence of the witness at the time of
occurrence is doubtful. Per contra learned
AGA submits that the contention of the
learned counsel for the appellant is based
on picking sentences made by the witness
in his favour. Subsequent to the statement
he has firmly stated that inquest was
conducted where incident took place,
therefore, presence of the witness at the
time of occurrence is established.

32. P.W.1 Jagnnath at page 18 of the
paper book has stated that he is not able to
remember
whether
police
personnel
prepared the inquest memo at the mortuary
or
not,
but
in
his
further
cross
examination, he has stated firmly on the
same page that the inquest memo was
prepared at 11:00 AM on the spot by the
Daroga. He has also stated that he had
reached the Police Station at quarter to
8:00 AM. The Daroga arrived at 10:00
AM on the spot. He saw the dead body,
took into possession the empty cartridges
found on the spot. He also took blood
stained shirt in his possession, thereafter
prepared inquest memo and directed the
police for taking the dead body to the
medical
college,
thereafter
the
Investigating Officer went away. In view
of aforesaid vivid statement of witness
Jagnnath on the basis of his statement that
he is not remembering whether police
personnel prepared inquest at mostuary or
not and obtained signature of panches or
not which too has been recorded after a
lapse of near about eight years from the
date of incident, presence of witness
cannot be doubled. Accordingly, we find
no substance in the contentions of learned
counsel for the appellant, that P.W.1
Jagnnath is unable to tell as to where the
Panchayatnama of the deceased was
conducted, therefore presence of the
witness at the time of occurrence is
doubtful.

33. P.W.1 Jagnnath has stated that 56 shots were fired and as per recovery
memo Ext.Ka-8 two empty cartridges were
taken into possession by the police,
therefore submission of learned counsel
for the appellants is that the presence of
P.W.1 Jagnnath and P.W.2 Babulal is
doubtful. Per contra learned AGA submits
that P.W.1 Jagnnath and P.W.2 Babu Lal
are the eye-witnesses of the incident and
their credibility is could not be shaken
from the cross-examination, therefore, on
the basis of recovery of two empty
cartridges
their
presence
cannot
be
doubted.

34. In the written report Ext.Ka-1 it
is not mentioned as to how many shots
were fired but as discussed above FIR is
not an encyclopaedia, therefore, not
mentioning fire shots in the written report
will not affect the prosecution case. P.W.1
Jagannath has stated that accused persons
killed his son by firing 5-6 shots and
defence has not put any question to his
witness regarding firing of shots as such
the evidence of P.W.1 Jagnnath is
uncontroverted, therefore, we have no
reason to disbelieve the witness. As such
the presence of witness Jagnnath on the
basis of his statement that 5-6 shots were
fired and only two cartridges were
recovered from the spot cannot be
2 All. Jagannath & Ors. Vs. State of U.P.
683
doubted, particularly when according to
post-mortem report Ext.Ka-11 proved by
Dr. N.P. Singh injuries were found to be
caused by firearm and cause of death was
found shock due to excessive bleeding on
account of ante-mortem injuries. P.W.2
Babulal has also stated that while returning
agter answering the call of nature he saw
in the field of Budh Narayan accused
Jagnnath having gun in his hand, Nanka
and Jagatpal country-made pistol in their
hand. All the accused persons fired from
their arms. In cross-examination nothing
has been extracted by the defence from
this witness also so that his testimony can
be doubted regarding firing of shots by
accused persons at the deceased. In view
of the above discussion, contention of the
appellant has no force that presence of
P.W.1 Jagnnath and P.W.2 Babu Lal is
doubtful.

35. Learned counsel for the appellant
further submits that P.W.2 Babu Lal has
stated on page 26 in his deposition that
P.W.1 Jagnnath was working in the city of
Allahabad as a gardener and the P.W.1
Jagnnath used to leave the village at about
6:00 AM and reach Allahabad at about
8:00 AM, distance between the city of
Allahabad and village of the P.W.1
Jagnnath is about 12 miles. P.W.1
Jagnnath has stated on page 18 in his
deposition that he saw the body of the
deceased on 08.10.1990 at about 1:00 PM
in the Medical College, Allahabad. In the
backdrop of evidence of P.W.2 Babu Lal,
the evidence of P.W.1 Jagnnath assume
simportance and makes the presence of
P.W.1 Jagnnath doubtful at the time of
occurrence. Per contra learned AGA
submits that prompt FIR had been lodged.
He has supported the prosecution case and
from cross-examination his presence is not
impeached.

36. P.W.2 Babu Lal at page 26 of the
paper-book has stated that at the time of
incident
his
brother
Jagannath
was
working in Allahabad as a gardener. He
used to go and come by cycle from his
village. He used to go at about 6:00 a.m.
from the house and reach Allahabad at
about 8:00 a.m. Distance of Allahabad
from his village is 12 miles. P.W.1
Jagnnath on page 18 of the paper-book has
stated that he saw the dead body of
Santosh in the medical college on the day
of murder i.e. on 08.10.1990 at 1.00 PM in
the day. He has also stated that apart from
him, the incident was witnessed by
Babulal, Ram Jatan and others. He has
stated that scribing the report from Durga
Prasad he gave it at the police station
which has been proved by him as Ext.Ka1. In cross-examination he has also stated
that he reached the police station at quarter
to 8 a.m. and the Daroga reached the place
of incident at 10:00 a.m. and at page 20 in
cross-examination he has stated that near
about after two hours of the murder he
reached the police station. From a lengthy
cross-examination
nothing
has
been
extracted by the defence so that an adverse
inference can be drawn that P.W.1
Jagannath did not get scribe the report
Ext.Ka-1 from Durga Prasad and did not
go to police station on 08.10.1990 along
with written report at 7:45 a.m. P.W.5
Indra Bahadur Singh scribe of the F.I.R
and G.D. has also stated that on
08.10.1990 he was posted as Moharrir at
police station Nawabganj and on the basis
of Ext.Ka-1, he had prepared chick F.I.R
of Crime No.342 of 1990 in his writing
and signature which has been proved by
him as Ext.Ka-12 and its reference was
made in the G.D. No.9 dated 08.10.1990 at
about 07:45 a.m. in his writing and
signature, which has been proved by him
as Ext.Ka-13. In cross-examination he has
684 INDIAN LAW REPORTS ALLAHABAD SERIES
also stated that by giving copy of the chick
F.I.R informant was sent back, entry of
which is made in the G.D.

37. In Ext.Ka-12 chick F.I.R the date
and time of the report has been mentioned
as 08.10.1990 at 07:45 a.m. P.W.3
Investigating Officer Anwar Singh Yadav
also has stated that the case crime no.342
of 1990 under Section 302 IPC was
registered in his presence and in crossexamination he has stated that he moved
from the police station for the spot at
07:45 a.m.

38. Thus, evidence of P.W.1
Jagannath, P.W.5 Indra Bahadur Singh and
P.W.3 Investigating Officer Anwar Singh
Yadav is consistent with regard to lodging
the report by informant P.W.1 Jagannath at
07:45 a.m. on 08.10.1990. If informant
P.W.1 Jagannath was not present at the
time of incident then prompt FIR could not
have been lodged which otherwise also
supports the presence of the informant
Jagnnath at the time of occurrence.

39. It appears that the learned
counsel for the appellant taking torn out
sentences out of context has advanced the
submission which has no force, as held by
Hon'ble Supreme Court in State of MP vs.
M.K. Anthony 1985 SCC (CRI 105),
(Supra), and observed in para 18 of the
judgement.

40. In view of the above discussion,
on the basis of statement of P.W.2 Babu
Lal that at the time of incident Jagnnath
was working in Allahabad as a gardener,
he used to go at about 6:00 AM and reach
Allahabad at 8:00 AM, distance of
Allahabad from his village is 12 miles and
statement of P.W.1 Jagnnath in crossexamination that he saw the dead body of
his son Santosh in the hospital of medical
college at 1:00 a.m., it cannot be held that
presence of P.W.1 Jagnnath at the time of
occurrence is doubtful. Accordingly we
find no substance in this contention also.

41. Learned Counsel for the
appellants also submits that P.W.2 Babu
Lal has admitted that he had filed a
complaint case against Ram Harsh father
of appellant no.1 Jagnnath and appellant
no.2 Nanka which shows that P.W.2
Babulal is inimical towards the accused.
Per contra learned AGA submits that a day
before
the
incident
the
medh
was
dismantled and an altercation had taken
place with the deceased and Ram Harsh
also but Ram Harsh has not been named in
the FIR which shows that only those who
caused the incident have been named in
the FIR and there is no false implication.

42. P.W.2 Babulal on page 26 of
the paper-book has stated that the
Pradhan of his village was Ram Harsh.
He is village-head since last 30 years.
The lekhpal had instituted 11 cases
against him on behalf of the Gaonsabha. He has further stated that
village pradhan or vice-pradhan of the
village never came for prosecuting the
case and he had filed a complaint case
against Ram Harsh. He has denied that
the case was proceeding at the behest
of Ram Harsh. Since Babu Lal had
filed a complaint case against Ram
Harsh, therefore, it may be inferred
that the witness Babu Lal and Ram
Harsh had inimical terms. Inimical
terms is a double edge weapon which
cuts both ways. On the basis of
inimical terms one can be falsely
implicated as well as one can author
the incident, therefore, on the sole
ground of inimical terms no conclusive
2 All. Jagannath & Ors. Vs. State of U.P.
685
inference can be drawn and the whole
evidence is to be evaluated for the
purpose.

43. P.W.1 Jagnnath on page 22 of the
paper-book has stated that he was going
towards south from the road west side of
the village and his son was going towards
north side, therefore learned counsel for
appellants submits that Jagannath was not
in a position to see the incident. Per contra
learned AGA submits that the incident has
taken place in the fields outside the village
where even on going in opposite directions
incident can easily be seen. Jagnnath has
promptly lodged the FIR and if he was not
present at the time of occurrence then
prompt FIR could not have been lodged.

44. In spot map Ext.Ka-9 the location
of Jagnnath has not been mentioned from
where he saw the incident but from the
spot-map it is clear that the incident has
occurred in the vacant field of Budh
Narayan. The witness on the same page
has stated that when first time he heard the
sound of fire his son was going taking a
Lota. Since the place of incident is visible
from the road on either side, i.e. North and
South, in such a situation on hearing the
sound of fire the deceased and accused
persons can be seen easily. In view of the
above we also find no substance in the
contention of the learned counsel for the
appellant that the deceased was going
towards north side and the witness
Jagnnath was going towards south side on
the road west side of the village in such
circumstance he was not in position to see
the incident.

45. Learned counsel for the appellant
also submits that it was the duty of the trial
judge to bring the evidence of the
witnesses in the notice of the accused
persons by putting a clear question but he
has not put the evidence in clear manner in
these circumstances the evidence of the
witnesses stand vitiated. Per contra learned
AGA submits that the learned counsel of
the appellant has not specifically attracted
attention towards the evidence which were
not put to the accused persons in clear
manner.

46. On going through the statement
under section 313 Cr.P.C. it appears that
question number third has been put
regarding inquest memo and spot map in
which exhibit number of inquest memo is
missing in the question and exhibit number
of spot map has been disclosed as Ext.Ka9. Since in the question the inquest memo
has been mentioned clearly, therefore,
mere non on the basis of mentioning
exhibit number of inquest memo, no
prejudice will be caused, accordingly, this
contention of the learned counsel for the
appellants is without substance.

47. Learned counsel for the appellant
further submits that the Investigating
Officer has not stated in his deposition that
he inspected the field where the medh was
broken, therefore motive of the incident is
not established. Per contra learned AGA
submits that the incident has occurred at
6:00 AM and there are witnesses of the
incident. If the dismantled medh was not
inspected by the Investigating Officer, it is
a trivial fault on the part of the
Investigating Officer which will not affect
the prosecution case.

48. As per written report Ext.Ka-1 a
day before the incident Ram Harsh had
dismantled the medh of the informant.