# Jagdish (In Jail) v. State of U.P

- **Citation:** (2021) 7 ILRA 161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-01
- **Case number:** Criminal Appeal No. 3271 of 2011
- **Bench:** Bachchoo Lal, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-in-jail-v-state-of-u-p-47070
- **Pages:** 8

## Headnote

A. Criminal Law- Code of Criminal
Procedure, 1973 - Section 374(2) -
Indian Penal Code, 1860-Section 302/34
- Arms Act, 1959- Section 25-challenge
to-conviction-when the deceased was
returning
home
after
defecation,
appellants
having
unlicensed
gun
surrounded the deceased and shot firePW-1 and PW-2 seen the incident and
reached the spot immediately and FIR
lodged
by
PW-1
within
1
hour
5
minutes- ocular testimony of PW-1 and
PW-2 fully corroborated by medical
evidence-Presence of PW-3 on the spot
also proved -finding of the trial court is
based on proper appreciation of the
evidence.(Para 1 to 132)

B. The maxim 'falsus in uno falsus in
omnibus' is not a sound rule to apply in
the
conditions
in
this
country,
and
therefore, it is the duty of the court in
cases where a witness has been found to
have given unreliable evidence in regard
to certain particulars, to scrutinise the
rest of his evidence with care and caution.
omission on the part of the investigation
cannot go against the prosecution case if
it is otherwise supported by reliable and
credible evidence.(Para 122 to 128)

C. Evidentiary value of medical evidence is
only corroborative and not conclusive and
hence, in case of a conflict between oral
evidence
and
medical
evidence,
the
former is to be preferred unless the
medical evidence completely rules out the
oral evidence.(Para 120,121)

D. It is well settled position of law that
non-examination
of
independent
witnesses by itself may not give rise to an
adverse inference against the prosecution,
but when the evidence of the alleged
eyewitnesses raises serious doubts on the
point of their presence at the time of
actual
occurrence,
the
unexplained
omission to examine the independent
witnesses would assume significance. it is
also well settled that it is the quality of
the evidence and not the quantity of the
evidence which is required to be judged
by the court to place credence on the
statement,(Para 116)

The appeal is dismissed. (E-5)

List of Cases cited:

## Text

7 All. Jagdish Vs. State of U.P.
161

28. The record of the lower court be
transmitted immediately to the lower court.
----------
(2021)07ILR A161
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Appeal No. 3271 of 2011
with
Criminal Appeal No. 3210 of 2011

Jagdish ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajul Bhargava, Sri A.C. Tiwari, Sri
Indra Jit Singh, Sri Manoj Kumar Rajpal, Sri
Rajeev Kumar Singh, Sri Yogesh Srivastava,
Sri Noor Muhammad, Sri O.P. Singh

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

A. Criminal Law- Code of Criminal
Procedure, 1973 - Section 374(2) -
Indian Penal Code, 1860-Section 302/34
- Arms Act, 1959- Section 25-challenge
to-conviction-when the deceased was
returning
home
after
defecation,
appellants
having
unlicensed
gun
surrounded the deceased and shot firePW-1 and PW-2 seen the incident and
reached the spot immediately and FIR
lodged
by
PW-1
within
1
hour
5
minutes- ocular testimony of PW-1 and
PW-2 fully corroborated by medical
evidence-Presence of PW-3 on the spot
also proved -finding of the trial court is
based on proper appreciation of the
evidence.(Para 1 to 132)

B. The maxim 'falsus in uno falsus in
omnibus' is not a sound rule to apply in
the
conditions
in
this
country,
and
therefore, it is the duty of the court in
cases where a witness has been found to
have given unreliable evidence in regard
to certain particulars, to scrutinise the
rest of his evidence with care and caution.
omission on the part of the investigation
cannot go against the prosecution case if
it is otherwise supported by reliable and
credible evidence.(Para 122 to 128)

C. Evidentiary value of medical evidence is
only corroborative and not conclusive and
hence, in case of a conflict between oral
evidence
and
medical
evidence,
the
former is to be preferred unless the
medical evidence completely rules out the
oral evidence.(Para 120,121)

D. It is well settled position of law that
non-examination
of
independent
witnesses by itself may not give rise to an
adverse inference against the prosecution,
but when the evidence of the alleged
eyewitnesses raises serious doubts on the
point of their presence at the time of
actual
occurrence,
the
unexplained
omission to examine the independent
witnesses would assume significance. it is
also well settled that it is the quality of
the evidence and not the quantity of the
evidence which is required to be judged
by the court to place credence on the
statement,(Para 116)

The appeal is dismissed. (E-5)

List of Cases cited:

1. Nagappan Vs St. by Inspr. of Police,
T.N.(2013) 15 SCC 252

2. Yogesh Singh Vs Mahaveer Singh & ors.
(2017) 11 C 195

3. Ganga Bhawani Vs Rayapati Venkat Reddy &
ors. (2013) 15 SCC 298
162 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Bhagalool Lodh & anr. Vs St. of U.P.(2011)
AIR SC 2292

5. Dhari & ors. Vs St. of U.P.(2013) AIR SC 308

6. Anil Rai Vs St. of Bih. (2001) SCC 456

7. Raju@ Balachandran & ors. Vs St. of T.N.
(2012) 12 SCC 701

8. Jodhan Vs St. of M.P.(2015) 11 SCC 52

9. St. of U.P. Vs Jagdeo (2003) 1 SCC 256

10. Stalin Vs St. reptd. by the Inspr of
Police(2020) SCC 524

11. Badam Singh Vs St. of M.P.(2003) 12 SCC
792

12. Sheikh Hasib alias Tabarak Vs St. of Bih.
(1972) 4 SCC 773

13. Balram Singh & anr. Vs St. of Punj.(2003)
11 SCC 286,

14. Puran Vs St. of Punj.(1953) AIR SC 459

15. Sarvesh Narain Shukla Vs Daroga Singh &
ors. (2007) 13 SCC 360

16. Hem Raj & ors. Vs St. of Har. (2005) 10 SCC
614

17. Jarnail Singh Vs St. of Punj. (2009) 9 SCC
719

18. Rana Pratap & ors. Vs St. of Har. (1983) 3
SCC 327,

19. Ashok Vishnu Davare Vs St. of Mah. (2004)
9 SCC 431

20. Radha Kumar Vs St. of Bih.(2005) 10 SCC
216

21. Sunil Kumar Sambhudayal Gupta(Dr.) & ors.
Vs St. of Mah.(2010) 13 SCC 657

22. Baldev Singh Vs St. of Punj.(2014) 12 SCC
473

23. Raghubir Singh Vs St. of U.P.(1972) 3 SCC
79

24. St. of H. P. Vs Gian Chand, (2001) 6 SCC 71,

25. C.Muniappan & ors. Vs St. of T.N.(2010)
AIR SC 3718

26. Deep Chand Vs St. of Har.(1969) 3 SCC 890

27. Sucha Singh & anr. Vs St. of Punj. (2003) 7
SCC 643

(Delivered by Hon'ble Sanjay Kumar
Pachori, J.

1. The present appeals have been
preferred by the appellants against the
common judgment and order passed by
Additional District & Sessions Judge,
Court No. 2 Mathura, on 16.5.2011 and
18.5.2011 in Sessions Trial Nos. 40 of
2008, 207 of 2008, 208 of 2008, and 73 of
2008 arising out of Case Crime No. 681 of
2007 Police Station1 Highway, District
Mathura, whereby the appellants Jagdish
and Manoj Kumar have been convicted for
the offences punishable under Section 302
read with 34 of Indian Penal Code (in short
"I.P.C."). The punishment awarded to the
appellants for their conviction noticed
above is as follows; imprisonment for life
with a fine of Rs. 20,000/- each and default
sentence of one year under Section 302
read with 34 of I.P.C. Learned trial court
acquitted other co-accused Raghunath and
Sahukar under Section 302 read with
Section 34 of I.P.C. and the appellants
Jagdish and Manoj Kumar under Section
25 of Arms Act and no Government
appeal/s was/were reported to be pending
against the aforesaid acquittal. Since the
abovementioned appeals arise from a
common judgment of the trial court, it will
be proper for us to deal with these appeals
in a common judgment.
7 All. Jagdish Vs. State of U.P.
163

PROSECUTION CASE

2. The brief facts of the case, as
unfolded by the prosecution are as follows:
On 10.11.2007, at 10:35 A.M., Mangal Singh
(PW-1), the father of the deceased Kamal
Singh, gave a written complaint (Ex.Ka.-1) at
P.S. Highway, District Mathura, stating that
his son Kamal Singh (deceased) returned
back after attending the call of nature on
10.11.2007 at about 9:30 A.M. then Manoj
and
Jagdish,
who
had
skimmers
(Paunia/unlicensed gun) in their hands and
Raghunath Singh and Sahukar, who had
lathies in their hands, surrounded his son in
the field of Prem Singh; then Raghunath and
Sahukar shouted that his father poses himself
to be great litigant, kill him and don't let him
escape, at the same time Manoj and Jagdish
shot fire at his son Kamal Singh with their
skimmers (Paunia/ unlicensed gun). On
hearing the gunshots, he along with his elder
son Lakhan (PW-2), who were standing on
the tubewell of Prem Singh, reached the spot.
After hearing the noise, Raghuvir Singh,
Moolchand, (not examined) and his 15 years
old daughter Rekha (PW-3), who was
coming from the field after dumping the cow
dung, rushed to the spot. On seeing many
people coming from the village, accused
persons fled away towards their house
threatening them to kill. Injured Kamal
Singh, who tried to run towards his house
after being shot, fell on the ground after 1520 steps and died on the spot.

3. On the basis of a written complaint
(Ex.Ka.-1) of Mangal Singh (PW-1) which
was scribed by Mahavir Singh, an FIR
dated
10.11.2007
(Ex.Ka-16)
was
registered as Case Crime No. 681 of 2007
under section 302 I.P.C. against the
appellants
and
co-accused
Raghunath
Singh, and Sahukar at PS. Highway,
District Mathura, at 10:35 A.M. by Head
Constable2 124 Ramesh Chand (PW-5) and
he entered the FIR in G.D. Report No.19 at
10:35 A.M. on 10.11.2007 (Ex.Ka.-17).
The distance between the place of the
incident and the Police Station is 16 Km.
The special report (SR Report) of the
present case had been sent to the Magistrate
on the same day at 16:20 hours. After
lodging the F.I.R. of the case, SubInspector3 Rakesh Kumar Awasthi (Station
House Officer4/PW- 4) himself took over
the investigation of the case and he along
with S.I. Netrapal Sharma (not examined)
reached the place of occurrence. S.I.
Rakesh Kumar Awasthi after inspecting the
place of the incident, as pointed out by the
informant (PW-1), prepared a site map
(Ex.Ka-2) of the place of the incident. He
also recovered blood-stained and plain
earth from the place of the incident in
presence of witnesses and prepared a
seizure memo (Ex.Ka-3). The proceedings
of the inquest were commenced at 11:05
A.M. and completed at about 12:15 P.M.
by S.I. Netrapal Sharma under the direction
of S.I. Rakesh Kumar Awasthi and in
presence of Panchan (witnesses) at the spot
and the inquest report (Ex.Ka-4) and other
police papers i.e. letter to Chief Medical
Officer, Photo Nash, Challan Lash and
letter to R.I. (Ex.Ka-5 to Ex.Ka-7 and
Ex.Ka.-24) were prepared for getting a
post-mortem of the body of the deceased.
The body of the deceased was sent for
autopsy along with copy of the Chick FIR
(Ex.Ka.-8) and other police papers through
Constable No. 448 Ratan Kumar and
Constable No. 147 Ashok Kumar. The
statements of eyewitnesses Mangal Singh,
Lakhan
Singh,
Raghuvir
Singh
and
Moolchand have been recorded by the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
investigating officer5, under Section 161
Cr. PC. On 10.11.2007.

4.

PW-7
Dr.
Surendra
Singh
conducted the post-mortem examination of
the body of the deceased on 10.11.2007 at
3:40 P.M. and opined that the cause of
death was shock and haemorrhage due to
ante-martem injuries. The post-mortem
report
(Ex.Ka.-23)
disclosed
multiple
firearm ante-mortem injuries on the corpse
of Kamal Singh (aged about 18 years).
These are as under:

1. Multiple wounds of entry of
firearms size 0.5 cm x 0.5 cm skin deep
present on right arm and forearm, margin
inverted.

2. Multiple wounds of entry of
firearms size 0.5 cm x 0.5 cm x cavity deep
present on both chest and neck, margins
inverted.

3. Multiple wounds of entry of
firearms size 0.5 cm x 0.5 cm skin deep
present on front of abdomen, margins
inverted.

5. The doctor further opined that
during the post-mortem, 10 pellets (3 from
heart, 2 from the right lung, 3 from the left
lung, and 2 from the liver) were recovered
from the corpse which was handed over to
the concerned constable in a sealed cover
envelope. The membranes of the brain of
the deceased were yellow, and accumulated
blood was present, both lungs were torn,
the stomach was empty, liver was torn,
both kidneys were also yellow. The doctor
further opined that death might have been
caused 8 hours earlier to the post-mortem.

6. During the investigation, on
13.11.2007,
co-accused,
Sahukar
and
Raghunath
Singh
were
arrested,
and
thereafter they were sent to jail after
recording their respective statements. On
23.11.2007
PW-4 S.I.
Rakesh
Kumar
Awasthi also arrested the appellant Jagdish,
his statement was recorded and as pointed out
by the appellant Jagdish recovered a skimmer
(Paunia/unlicensed gun) .12 bore, four live
and one empty cartridge, from the bushes
near Pokhara Kachchi Road in presence of
witnesses and seizure memo (Ex.Ka.-9) was
prepared. Thereby, he has committed offence,
on the basis of recovery made, an F.I.R. of
Case Crime No. 708 of 2007 (Ex.Ka.-21) was
registered against the appellant Jagdish under
Section 25 of Arms Act at PS. Highway,
Mathura. All the articles recovered during the
investigation
were
sent
for
forensic
examination.
After
completion
of
the
investigation on 3.1.2008, a charge sheet
(Ex.Ka.-11) was submitted against the
appellants Jagdish and co-accused Raghunath
Singh and Sahukar in Case Crime No. 681 of
2007
under
Section
302
I.P.C.
The
prosecution has not examined the witnesses
of the inquest report (Ex.Ka.-4) and S.I.
Netrapal
Sharma,
who
completed
the
proceedings of the inquest and prepared the
inquest report (Ex.Ka.-4) and other related
police papers (Ex.Ka.-5, Ex.Ka.-6, Ex.Ka.-7,
and Ex.Ka.-24) which have been proved by
PW-4 S.I. Rakesh Kumar Awasthi as
secondary evidence.

7. S.I. Kunwar Singh (PW-6) after
receiving the investigation of Case Crime
No. 708 of 2007, under Section 25 of Arms
Act, on 25.11.2007 prepared a site map
(Ex.Ka.-18) of the place where the
skimmer (Paunia/unlicensed gun) .12 bore
was recovered and after completion of the
investigation submitted a charge sheet
under Section 25 of Arms Act, (Ex.Ka.-19)
against the appellant Jagdish.

8. Proceedings under Section 82 and
83 of Code of Criminal Procedure, 1973 (in
7 All. Jagdish Vs. State of U.P.
165
short "Cr. PC.") were initiated against
the appellant Manoj Kumar by the
competent court. Pursuant to which the
appellant Manoj Kumar surrendered
before
the
court
concerned
on
28.01.2008 and was sent to jail. The
statement of the appellant Manoj Kumar
had been recorded in jail by the I.O.
After taking police custody remand of
appellant Manoj Kumar on 3.2.2008,
The I.O. recovered a skimmer (Paunia/
unlicensed gun) .12 bore, two live and
one empty cartridge, on pointing out of
the appellant Manoj Kumar from the
bushes of Babool near Bohara Pokhara
Road in presence of witnesses and
seizure memo (Ex.Ka-12) was prepared.
Thereby, he has committed offence, on
the basis of recovery made, an F.I.R. of
case crime no. 59 of 2008 under Section
25 of Arms Act (Ex.Ka.-27) at P.S.
Highway,
Mathura
was
registered
against the appellant Manoj Kumar. All
the
articles
recovered
during
the
investigation were sent for forensic
examination. After completion of the
investigation on 3.2.2008, a charge
sheet (Ex.Ka.-13) in Case Crime No.
681 of 2007 under Section 302 I.P.C.
was submitted against the appellant
Manoj Kumar.

9. S.I. Veeresh Kumar (PW-8) also
after receiving the investigation of Case
Crime No. 59 of 2008, under Section 25
of Arms Act on 3.2.2008 prepared a site
map (Ex.Ka.-24) of the place where
skimmer (Paunia/unlicensed gun) .12
bore
was
recovered
and
after
completion
of
the
investigation
submitted a charge sheet (Ex.Ka.-25)
under Section 25 of Arms Act against
the appellant Manoj Kumar.

10. Upon completion of the
investigation of Case Crime Nos. 681 of
2007, 708 of 2007, and 59 of 2008, the
investigating officers submitted the charge
sheets, upon which cognizance was taken
by the concerned Magistrate and thereafter,
the cases were committed to the Court of
Sessions giving rise to Sessions Trial Nos.
40 of 2008, 207 of 2008, 208 of 2008, and
73
of
2008.
All
the
cases
were
amalgamated and the trial commenced. On
21.7.2008, learned trial court framed
charges against the appellants Jagdish and
co-accused Raghunath Singh, and Sahukar
under Sections 302 read with Section 34
I.P.C. and a separate charge was framed
against the appellant Jagdish under Section
25 of Arms Act. On 22.7.2008, the trial
court framed charges against the appellant
Manoj Kumar under Sections 302 read with
Section 34 I.P.C. and a separate charge was
framed against the appellant Manoj Kumar
under Section 25 of Arms Act. The
appellants
and
co-accused
Raghunath
Singh and Sahukar denied the charges and
plead 'not guilty' and hence they were tried
by the Court of Sessions.

11. During the trial, eight prosecution
witnesses were examined to prove the
prosecution case. PW-1 Mangal Singh,
informant/father of deceased, PW-2 Lakhan
Singh, elder brother of the deceased, PW-3
Rekha, age about 15 years/ younger sister
of the deceased were the eye-witnesses of
the incident. PW-4 S.I. Rakesh Kumar
Awasthi, the then SHO, who investigated
the case Crime No. 681 of 2007, proved
various
stages
of
the
investigation
including
the
documents
connected
therewith and also proved the material
objects as Ex.-1 to Ex.-22, PW-5 HC
Ramesh Chand, scribe of F.I.R. who
proved the registration of the FIR, the
166 INDIAN LAW REPORTS ALLAHABAD SERIES
Chick FIR and GD entry as G.D. Report
No. 19, thereof, PW-6 S.I. Kunwar Singh,
I.O. of Case Crime No. 708 of 2007, PW-7-
Dr. Surendra Singh, who conducted the
post-mortem,
proved
the post-mortem
report and PW-8 S.I. Veeresh Kumar, I.O.
of Case Crime No. 59 of 2008. The
permissions for prosecution under Arms
Act against the appellants were given by
District Magistrate Mathura (Ex.Ka.-20,
Ex.Ka.-26), and were filed before the
committal court, and proved by PW-6 and
PW-8.

12. The appellants and co-accused
were examined by the trial court under
Section 313 of Cr.PC. wherein, they denied
the incriminating evidence put to them and
stated
that
they
have
been
falsely
implicated on account of enmity. The
appellants Jagdish, Manoj Kumar stated
that Mangal Singh, informant wanted to
encroach their plot in the garb of the
murder of Kamal Singh, the murder took
place at different place and time by other
persons, a false report has been lodged
against them for taking possession of their
plot. The appellants, however, did not lead
any oral or documentary evidence in
support of their defence.

FINDINGS
OF
THE
TRIAL
COURT

13. The trial court on the basis of the
evidence held that the testimony of PW-1
Mangal Singh, PW-2 Lakhan Singh, and
PW-3
Rekha
is
cogent,
credible,
trustworthy, and wholly reliable with
regard to the guilt of the appellants Jagdish
and Manoj Kumar. The evidence of relative
of the deceased cannot be disbelieved
merely on the ground that the witnesses are
related to each other or to the deceased, it is
a settled position of law that mere fact that
the witnesses are related to each other itself
is no ground to discard their evidence.
Indeed,
the
evidence
of
a
closely
related/interested/inimical
witness
is
required to be carefully scrutinised and
appreciated with caution. It is an admitted
fact that there exists an enmity between the
appellants and the informant with regard to
a plot, it cannot be said that the motive
exists only against the informant.

14. The trial court also found that the
FIR against the appellants and co-accused
was lodged promptly i.e. within one hour
and 5 minutes of the incident wherein the
distance between the place of the incident
and the police station is 16 Km, and the
argument that the FIR had come into
existence after the inquest proceedings had
been completed, was unacceptable. The
informant Mangal Singh lodged the FIR
against the appellants and co-accused
promptly; the complaint contained the
signature of the informant at the bottom of
the complaint i.e. back of the complaint.
The credibility of the FIR is not affected
merely on the ground that the informant
had not signed on the first page of the
complaint;
scriber
of
the
complaint
(Ex.Ka.-1) Mahavir Singh had not been
examined because there is no dispute with
regard to the fact that the complaint was
received by PW-5 HC Ramesh Chand and
the copy of the FIR was issued to the
informant immediately after registering the
FIR. It is of no consequence, that the
complaint has not contained his signature
on the first page because the informant
signed at the bottom of the complaint i.e. at
the back of the first page.

15. The trial court further held that the
special report (SR Report) of the present case
was sent at 16:20 P.M. on 10.11.2007 by
Constable Dhanesh, the delay (about 6 hours)
7 All. Jagdish Vs. State of U.P.
167
in sending the SR Report had been duly
explained by PW-5 HC Ramesh Chand. The
inquest proceedings were commenced at
11:05 A.M. and the post-mortem of the dead
body was completed at 3:40 P.M. on the
same day, and it was suggested to PW-7 Dr.
Surendra Singh that no other police papers
except the inquest report, were received at the
time of post-mortem, and seizure of
incriminating articles was effected, only on
the basis of such delay in sending the SR
Report, the credibility of the FIR is not
affected; overwriting in the Chick FIR
(Ex.Ka.-16) at distance between the place of
the incident and the Police Station, digit '6' of
'16 Km'; at the time of lodging of the FIR
digit '0' of '10:35 A.M.' and the time of the
incident, letter 'A' of '9:30 A.M' are only a
clerical
mistake
because
there
is
no
overwriting in G.D. entry of Chick FIR. G.D.
Report No. 19 with regard to the other facts.
There is no dispute with regard to receiving
the copy of FIR by the informant after its
registration, on the basis of such clerical
mistake, it can not be said that the FIR of the
present case was lodged ante timed.

16. The trial court further held that
the presence of eye-witnesses PW-1
Mangal Singh and PW-2 Lakhan Singh at
the tubewell of Prem Singh, at the time of
the incident, is natural because they went
to the tubewell of Prem Singh for taking
the water for irrigation of their field,
wherein Prem Singh was present at that
time and after hearing of the gunshots,
PW-1 and PW-2 rushed to the spot. The
presence of PW-3 Rekha in her plot,
where she was dumping cow dung at the
time of the occurrence, which is situated
near the place of the incident, is natural
after seeing the incident she also rushed
to the spot. The eye-witnesses PW-1,
PW-2, and PW-3 has seen the incident
and after committing the offence, the
appellants and co-accused fled away from
the place of the occurrence.

17. The trial court further held that the
motive is not of much importance where
positive evidence of eye-witnesses against
the accused persons is clear in relation to
the offence; mere absence of motive, even
if assumed, will not per se entitle the
accused persons to acquittal, if otherwise,
the commission of the crime is proved by
cogent and reliable evidence. The medical
evidence supported the ocular version
inasmuch as the injuries found on the dead
body of Kamal Singh revealed that multiple
firearm injuries were received from the
front side.

18. The trial court further observed
that
merely
non-examination
of
independent witness Raghuvir Singh and
Moolchand, the prosecution evidence can
not be discarded on this ground alone.
Moreover, it is a settled position of law that
non-examination of a material witness is
not a mathematical formula for discarding
the weight of the testimony available on
record.

19. The trial court further observed
that the investigating officer has recorded
the statement of PW-3 Rekha under Section
161 of Cr. PC. after 25 days of the incident,
it is noteworthy that Rekha (PW-3) is
named as an eye-witness in the FIR and it
was not disputed that PW-3 Rekha had not
seen the incident, if the I.O. committed any
delay in recording the statement, it has no
relevance. It is an admitted fact that the
deceased Kamal Singh had not received
any injury of lathies and eye-witnesses
clearly stated that co-accused Raghunath
168 INDIAN LAW REPORTS ALLAHABAD SERIES
and Sahukar had not caused any injury to
the deceased with lathies. The eyewitnesses PW-1, PW-2, and PW-3 reached
the place of the incident after hearing the
gunshots and they saw the incident from
distance. It means that they had not heard
the exhortation, therefore, the prosecution
failed to prove the role of exhortation,
against Raghunath Singh and Sahukar.
There is no inconsistency between the
ocular and the medical testimony with
regard to the direction of the gunshot.

20. After analysing the evidence, the
learned trial court concluded that the
prosecution
successfully
proved
the
charges against the appellants Jagdish and
Manoj Kumar under Section 302 read with
Section 34 of I.P.C., beyond reasonable
doubt, and thereby convicted and sentenced
the appellants as above. The trial court
acquitted
co-accused
Raghunath
and
Sahukar under Section 302 read with
Section 34 of I.P.C. and the appellants
under Section 25 of Arms Act.

21. Being aggrieved by the trial
court's judgment and order, the appellants
have preferred these appeals.

SUBMISSION
BEFORE
THIS
COURT

22. We have heard Sri O. P. Singh,
learned Senior counsel assisted by Sri Rajiv
Singh, Sri Indrajit Singh for the appellants;
Sri Ratan Singh learned A.G.A., for the
State and have perused the record.

23. Mr. O. P. Singh, learned Senior
counsel for the appellants has raised several
arguments before us during the course of
the hearing for assailing the judgment of
the trial court and vehemently urged that
PW-1 Mangal Singh, PW-2 Lakhan Singh,
and PW-3 Rekha are chance witnesses. The
presence of PW-1, and PW-2, at the
tubewell of Prem Singh, has not been
satisfactorily explained and proved. The
presence of PW-3 Rekha on her plot at the
time of the incident has also not been
satisfactorily explained and proved. The
presence of the eye-witnesses is highly
doubtful and unbelievable because they
kept mum till the accused persons fled
away from the spot and there are material
inconsistencies in their testimony about
their presence thereof, which leads cast
serious doubt in the prosecution version.
The prosecution witnesses are relative
/inimical witnesses and the independent
witnesses Raghuvir, Moolchand have not
been examined and have been purposely
withheld by the prosecution. The medical
evidence is in conflict with the ocular
testimony of alleged eye-witnesses and it
materially affects the reliability of the
witnesses.

24. Learned counsel for the appellants
further submitted that there are overwriting
in the Chick FIR, by which the time of
registering of the FIR, the time of the
incident, and the distance between the place
of the incident and the police station were
corrected, which suggested that the FIR
was
lodged
ante-timed
and
a
false
prosecution story was developed. The trial
court did not appreciate and consider the
entire evidence on record in the correct
legal perspective. The prosecution has
failed to prove the case against the
appellants
beyond
reasonable
doubt
inasmuch as it has failed to prove that the
incident occurred in the manner alleged,
therefore, impugned judgment and order
are liable to be set aside.

25. Per contra; the learned AGA has
supported the judgment of the trial court