# Jagdish & Ors v. State of U.P

- **Citation:** (2019) 2 ILRA 63
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-27
- **Case number:** Criminal Appeal No. 2582 of 2005
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-ors-v-state-of-u-p-44715
- **Pages:** 15

## Headnote

A. Indian Penal Code, 1860 - Section
307/34, 302/34 I.P.C, Section 25 and
4/25 Arms Act,1959 - criminal appeal -
accused were examined under Section
313 Cr.P.C. - F.I.R. is anti-timed- motive
for committing a crime is something
which is hidden in the mind of the
accused - held - it is an impossible task
for the prosecution to prove what
precisely have impelled the murderer to
kill a particular person- the incident is of
the day hours and it happened in the
presence of witnesses, as such it is a
case of direct evidence - "motive" in a
criminal case in face of ocular testimony
of witnesses is not at all relevant - eye
witnesses of the incident who have
supported
the
case
which
is
also
corroborated by the medical and formal
evidence - acquitted the appellants
under Section 307/34 I.P.C., u/s 4/25
and 25 Arms Act,1959 and has convicted
them under Section 302/34 I.P.C. and
sentenced them to imprisonment for life.
 (Para 9, 22, 24, 26, 27, 28 & 42)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,973 of 49,095. This is a partial read: ask again with offset=39973 for what follows._

2 All. Jagdish & Ors. Vs. State of U.P.
63

33. It is directed that out of the total
fine realized, Rs 50,000/ shall be paid to
the legal heirs of deceased Bajrangi and
Rs 20,000/ each shall be paid to each of
the three injured of the incident.

34. The appeal is partly allowed in
above terms.
----------
(2019)10ILR A 63

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2019

BEFORE

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

Criminal Appeal No. 2582 of 2005

Jagdish & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Pankaj Shukla, Sri Arvind Pandey, Sri
B.R. Mishra, Sri Lav Srivastava, Sri Manoj
Kumar, Sri Noor Mohammad.

Counsel for the Opposite Party:
A.G.A., Sri N.K. Sharma.

A. Indian Penal Code, 1860 - Section
307/34, 302/34 I.P.C, Section 25 and
4/25 Arms Act,1959 - criminal appeal -
accused were examined under Section
313 Cr.P.C. - F.I.R. is anti-timed- motive
for committing a crime is something
which is hidden in the mind of the
accused - held - it is an impossible task
for the prosecution to prove what
precisely have impelled the murderer to
kill a particular person- the incident is of
the day hours and it happened in the
presence of witnesses, as such it is a
case of direct evidence - "motive" in a
criminal case in face of ocular testimony
of witnesses is not at all relevant - eye
witnesses of the incident who have
supported
the
case
which
is
also
corroborated by the medical and formal
evidence - acquitted the appellants
under Section 307/34 I.P.C., u/s 4/25
and 25 Arms Act,1959 and has convicted
them under Section 302/34 I.P.C. and
sentenced them to imprisonment for life.
 (Para 9, 22, 24, 26, 27, 28 & 42)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

1. St. of U.P. Vs Ramesh Prasad Misra & ors.
(1996) 10 SCC 360

2. K. Anbazhagan Vs S.P. (2004) 3 SCC 767

3. Ramesh & ors. Vs St. of Har. (2017) 1 SCC
529

4. Praful Sudhakar Parab Vs St. of Mah. (2016)
12 SCC 783

5. St. of H.P. Vs Jeet Singh (1999) 4 SCC 370

6. Rajagopal Vs Muthupandi @ Thavakkalai &
ors. (2017) 11 SCC 120

7. Rajesh Govind Jagesha Vs St. of Mah.
(1999) 8 SCC 428

8. Krishna Mochi Vs St. of Bihar (2002) 6 SCC
81
(Delivered by Hon'ble Ali Zamin, J.)

1. Heard learned counsel for the
appellants, learned A.G.A. for the State
and perused the material on record.

2. This appeal has been filed by the
appellants against the judgement and
order dated 21.06.2005 passed in Sessions
Trial No.193 of 2001 (State v/s Jagdish
and others) under Section 307/34, 302/34
I.P.C. and Sessions Trial No.194 of 2000,
under Section 25 and 4/25 Arms Act,
64 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Station Sureer, District Mathura
whereby the learned Additional Sessions
Judge-IV, Mathura has acquitted the
appellants Jagdish, Rajendra Singh and
Vijay Kumar under Section 307/34 I.P.C.,
u/s 4/25 and 25 Arms Act and has
convicted them under Section 302/34
I.P.C.
and
sentenced
them
to
imprisonment for life with fine of
Rs.10,000/- and in default of payment of
fine further to undergo imprisonment for
one year.

3. Briefly stated the facts of the case
are that on 21.12.2000 at about 4:30 p.m.,
Mukesh, the informant, Rohitash Kumar
(deceased), his wife Mamta, sister of the
first informant, niece Kavita, Sanjay son of
Sumer Singh, Naresh son of Shri Indrapal
Singh, Rajkumar son of Sri Kishori Lal and
others were sitting on a chabutra (elevated
floor) outside the house of Rohitash and
talking among themselves when the three
accused, namely, Jagdish, Rajendra and
Vijay Kumar came there armed with
weapon in their hand and stating that they
would teach him a lesson with regard to
Pradhan elections all the three accused
persons fired at Rohitash with intention to
kill. Rohitash after receiving fire arm injury
in order to save himself entered into the
house of Sumer Singh running through
Gully, assailants also entered into the house
of Sumer Singh firing behind him and they
killed him there. When they reached the
house of Sumer Singh, they found Rohitash
lying dead and the assailants, the appellants
herein, fled away firing at them with
intention to kill them.

4. Informant Mukesh Kumar got
scribed the report Ext.Ka-1 by Satya Deo
(P.W.5) and handed it over to the police
station Sureer, District Mathura, on the
basis of the written report (Ext.Ka-1),
chik F.I.R. Ext.Ka-19, Case Crime
No.149/2000, under Sections 302, 307/34
I.P.C. was registered on 22.12.2000 at
19:00 P.M. Investigation of the case was
entrusted to S.H.O. Sri Shiv Kumar
Singh.
On
the
instruction
of
the
Investigating Officer Shiv Kumar Singh,
P.W.8 S.I. S.N. Singh prepared inquest
report
(Ext.Ka-5)
of
the
deceased
Rohitash Kumar. He also prepared
relevant documents for post-mortem and
dispatched the dead body for post-mortem
along with Constable Shiv Kumar and
Jayanti Prasad.

5. Dr. V.S. Agnihotri (P.W.7)
conducted autopsy on the dead body of
the deceased Rohitash on 23.12.2000 at
3:20 P.M. and prepared report (Ext.Ka-4),
according to which following injuries
were found on the person of the deceased:

1. Incised wound 1 c.m. X .3
c.m. X .4 c.m. left side middle of neck.

2. Incised wound 1.5 c.m. X .3
c.m. X .3 c.m. right side of the neck on the
lower part.

3. Incised wound 1.5 c.m. X .3
c.m. X .3 c.m. on the upper part of the
right shoulder.

4. Incised wound 3 c.m. X 1 c.m.
X cavity deep on the right side of intestine
mid wall 3 c.m. below the sub- costa
margin.

5. Incised wound 2 c.m. X .8
c.m. muscle deep towards right of the
chest above the 10th and 11th rib.

6. Incised wound 2.5 c.m. X 1
c.m. muscle deep in front of chest above
the 8th and 9th rib.
2 All. Jagdish & Ors. Vs. State of U.P.
65

7. Incised wound 2.5 c.m. X 1
c.m. X chest cavity deep over 6th and 7th
rib.

8. Incised wound 1.5 c.m. X .5
c.m. X .4 c.m. in front of left middle
finger.

9. Fire arm wound of entry .5
c.m. X .2 c.m. X .3 c.m. on left side back, 8
c.m. from L-1 spine.

In internal examination 6th, 9th
and 10th right side ribs were found
fractured and right side lung was
ruptured. In the opinion of P.W.7 Dr. V.S.
Agnihotri injury no.1 to 8 are possible by
knife. Injury no.9 is possible by fire arm
like country-made pistol and injuries were
sufficient to cause death. Death was one
day old from the time of examination and
it was possible at 4:30 P.M. in the evening
of 22.12.2000.

6. The Investigating Officer took
into his possession four live cartridges
315 bore, one empty cartridge 315 bore,
two bullets in which one like 303 bore
and one 315 bore from the place of
incident and house of Sumer Singh and
prepared memo (Ext.Ka-3). He took into
his possession blood stained and plain
earth from the place of dead body and
prepared memo (Ext.Ka-2). He also took
all the accused in police custody remand
on 19.01.2001 and recovered one countrymade pistol and a knife on the pointing
out of accused Jagdish from the clump of
bulrushes situated at the south of the
hydrent about 75 steps north of the culvert
towards north of side walk of both canals
in village Mehmoodgadhi. He also
recovered a country-made pistol and a
knife on the pointing out of accused
Rajendra from the clump of bulrushes
situated at the north of the hydrent and
from nearby a knife was also recovered
on the pointing out of accused Vijay
Kumar. He prepared recovery memo
(Ext.Ka-16), thereafter, he took into
custody
the
accused
persons
under
Section 25 and 4/25 Arms Act and
prepared custody memo (Ext.Ka-18). On
the basis of the recovery memo chik
F.I.R.
(Ext.Ka-21),
Case
Crime
No.3/2001 and 4/2001 u/s 25 and 4/25
Arms Act against the accused Jagdish,
Case Crime No.5/2001 and 6/2001 u/s 25
and 4/25 Arms Act against accused
Rajendra and Case Crime No.7/2001 and
4/25 Arms Act against accused Vijay
Kumar, was registered.

7. The Investigating Officer after
completing the investigation in Case
Crime No.149/2000 submitted charge
sheet
(Ext.Ka-16
under
Section
302/307/34 I.P.C. against the accused
Jagdish, Rajendra and Vijay Kumar
before
the
court
of
C.J.M.
The
Investigating Officer of Case Crime No.3,
4, 5, 6 and 7 of the year 2001, after
completing the investigation in Case
Crime No.7/2001 submitted charge sheet
(Ext.Ka-26) u/s 4/25 Arms Act against
accused Vijay Kumar. Charge sheet
(Ext.Ka-27) in Case Crime No.6/2001
under Section 4/25 Arms Act and charge
sheet
(Ext.Ka-28)
in
Case
Crime
No.5/2001 under Section 25 Arms Act
against accused Rajendra, charge sheet
(Ext.Ka-29) in Case Crime No.3/2001
under Section 25 Arms Act and charge
sheet
(Ext.Ka-30)
in
Case
Crime
No.4/2001 under Section 4/25 Arms Act
against Jagdish before C.J.M., who
committed the accused for trial to the
court of Session where Case Crime
No.149/2001 was registered as a Session
Trial No.193/2001 (State vs. Jagdish and
66 INDIAN LAW REPORTS ALLAHABAD SERIES
others) and Case Crime Nos. 3/2001,
4/2001, 5/2001, 6/2001, 7/2001 were
registered as Session Trial No.194/2001
wherefrom the above mentioned both
trials were transferred to the court of
Additional Session Judge-IV, Mathura for
trial who framed charge under u/s 307/34
and 302/34 I.P.C. against the accused
Jagdish, Rajendra and Vijai Kumar. He
also framed charge u/s 4/25 and 25 Arms
Act against accused Jagdish and Rajendra
and u/s 4/25 Arms Act against accused
Vijai Kumar. Accused denied the charge
and claimed trial.

8. To prove its case prosecution has
examined 12 witnesses. P.W.1 Mukesh
Kumar, informant, P.W.2 Narendra Kumar
@ Naresh, P.W.3 Km. Kavita, P.W.4 Ram
Chander and P.W.5 Satya Deo are witnesses
of fact while P.W.6 Constable Jayanti Prasad
brought the dead body for post-mortem,
P.W.7
Dr.
V.S.
Agnihotri
conducted
autopsy, P.W.8 S.I. S.N. Singh conducted
inquest, P.W.9 H.C.P. Narendra Singh
witness of recovery of arms, P.W.10 S.I.
Hakim Singh scribe of chik F.I.R. and G.D.,
P.W.11 Netra Pal scribe of chik F.I.R. and
G.D. under Section 25 Arms Act and 4/25
Arms Act, P.W.12 H.C.P. Ram Vir Singh
I.O. of the Case Crime No.3, 4, 5, 6, 7 of
2001 under Section 25 and 4/25 Arms Act
are formal witnesses.

9. After adducing prosecution
evidence, the accused were examined
under Section 313 Cr.P.C. in which they
have stated that due to enmity of election
of Pradhan they have been falsely
implicated in the present case. Accused
have produced D.W.1 Sahab Singh as
defence witness.

10. After hearing the parties and
scrutinising the evidence on record
learned Additional Session Judge-IV,
Mathura
has
passed
the
impugned
judgement and order as disclosed in para
1 of the judgement. Hence this appeal.

11. Learned counsel for the
appellants submits that P.W.5 Satya Deo
and accused Vijay Kumar had contested
the
election
of
Pradhan,
deceased
Rohitash had not contested the election
and he was only supporter of P.W.5 Satya
Deo the winner of election. Satya Deo has
stated that Rohitash did not do any special
work for him. He was not his polling
agent. Neither he blazed flags of Vijay
Kumar nor he did quarrel with any
supporter of Vijay Kumar, nor he stopped
his voters going to poll. So, there is no
motive for the appellants to commit the
offence. He also submits that according to
prosecution in the house of Sumer Singh
deceased Rohtash was killed but as per
inquest memo dead body has been found
on chabutra of Sumer Singh. P.W.5 Satya
Deo has stated that on 22.12.2000 at 7:00
P.M., he came seeing the dead body of
Rohitash at that time dead body was at
chabutra till then police had not come in
the village, thus, from the evidence led by
prosecution, place of incident is not
established. He further submits that as per
statement of Mukesh (P.W.1) deceased
Rohtash died due to fire arm injury while
P.W.-7 Dr. V.S. Agnihotri has found that
there are eight incised wound and one
injury of fire arm and no pellet or bullet
was found from the injury, cause of death
has been found shock and haemorrhage
due to the injuries. Thus, from the
prosecution evidence the alleged manner
and mode of the incident is also not
proved. He also submits that according to
prosecution incident has been caused in
the house of Sumer Singh and at that time
his wife Savitri was present but she has
2 All. Jagdish & Ors. Vs. State of U.P.
67
not been produced by the prosecution
which is fatal to the prosecution case.
Lastly he submits that time of incident is
alleged 4:30 P.M. on 22.12.2000 and as
per F.I.R. information has been given to
the police at 19:00 P.M. while P.W.1
Mukesh Kumar, informant has stated that
report was scribed on the dictation of the
villagers at 10:00 P.M. in presence of the
police. He has also stated that daroga
called him to the police station when it
was less than one or two days to a month
from the incident, where he got his
signature on papers and he went to the
police station for the first time when his
signatures were obtained on papers which
creates doubt regarding time of incident
and giving information at the police
station. There is also overwriting in the
inquest memo in the column of distance
of police station from the place of
incident. In the column 18 has been made
16 while in chik F.I.R. distance of police
station from the place of incident has been
mentioned 15 kilometers, if F.I.R. was in
existence and available at the time of
preparing inquest memo of dead body,
then such overwriting could not have been
made. These anomalies make the F.I.R.
anti-timed also. In fact Rohitash was
killed somewhere outside the village by
some unknown persons. Accused Vijay
Kumar had contested the Pradhan election
against P.W.5 Satya Deo, who barely won
the election. Neither deceased Rohitash
contested the election nor he was agent.
Due to election enmity Vijay Kumar and
his supporter Jagdish and Rajendra have
been implicated falsely in the case. He
prays that prosecution has miserably
failed to prove its case beyond reasonable
doubt against the appellants-accused.
Learned Additional Session Judge-IV,
Mathura without proper appreciation of
evidence
has
passed
the
impugned
judgement and order which is not
sustainable and liable to be set aside.
Appellants are liable to be acquitted.

12. On the contrary learned A.G.A.
for the respondent-State, submitted that
P.W.1 Mukesh, P.W.2 Narendra, P.W.3
Km. Kavita (niece of the deceased) have
supported the prosecution version. P.W.4
Ram Chander, who is an independent
witness has stated that on 23.12.2000
blood stained and plain earth were taken
into possession by the Investigating
Officer in his presence from the place
where the dead body was lying in the
room, inside the house of Sumer Singh.
He has proved the two containers in
which blood stained and plain earth were
kept and sealed in his presence as material
(Ext-4 and 5). He has also stated that
when darogaji came, he kept the dead
body on the door of Sumer Singh, but
before the police came the dead body was
in the house of Sumer Singh. From the
testimony P.W.4 Ram Chander place of
occurrence is established. The learned
A.G.A. further submits that statement of
P.W.1
Mukesh
Kumar
started
on
10.07.2001 and was completed in five
different dates on 12.09.2002. Informant
Mukesh Kumar supported the prosecution
story with regard to time of incident and
lodging report at police station but when
he settled the marriage of his sister (wife
of the deceased) then he retracted from
his previous statement and stated that the
report was scribed on the dictation of
villagers in the presence of police after 2
to 3 hours of the incident and again stated
the time as 10:00 P.M., which is liable to
be discarded. He prays that from the
evidence produced by the prosecution
charge under Section 302/34 I.P.C.
against the appellants-accused is fully
proved
and
the
learned
Additional
68 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions Judge-IV, Mathura has rightly
convicted and sentenced the appellantsaccused in which no interference is
required by this Court and the appeal is
liable to be dismissed.

13. The incident is alleged to have
occurred on 22.12.2000 at 4:30 P.M. and
as per Ext.Ka-19 its information has been
given at 19:00 P.M. on the same day.
P.W.1 Mukesh has stated that after he got
report scribed by Satya Deo Singh,
reported the incident to the police station
and proved it as Ext.Ka-1. In crossexamination on 11.01.2002 he has stated
that he himself scribed the report. He did
not scribe the report by asking anyone but
in cross-examination on 12.06.2002, he
has retracted from his previous statement
and has stated that the report was scribed
by the villagers in presence of police. He
does not know the name of anyone who
scribed the report. He has further stated
that after 2 to 3 hours of the incident and
again stated that at 10:00 P.M. the report
was scribed. He has also stated that after
one or two days short of a month from
incident darogaji called him and obtained
his signatures on papers in the police
station. On the recovery papers of
country-made
pistol
and
knife
his
signatures were obtained. First time he
went to police station when his signatures
were obtained on the papers.

14. In State of U.P. v/s Ramesh
Prasad Misra and others, (1996) 10 SCC
360, it has been held that it is equally
settled law that the evidence of a hostile
witness would not be totally rejected if
spoken in favour of the prosecution or the
accused, but it can be subjected to close
scrutiny and that portion of the evidence
which is consistent with the case of the
prosecution or defence may be accepted.

15.

In
K.
Anbazhagan
v/s
Superintendent of Police (2004) 3 SCC
767, Hon'ble Supreme Court has held that
if a court finds that in the process the
credit of the witness has not been
completely shaken, he may after reading
and considering the evidence of the
witness as a whole with due caution,
accept, in the light of the evidence on the
record that part of his testimony which it
finds to be creditworthy and act upon it.
The finding of K. Anbazhagan vs.
Superintendent of Police (supra) has been
relied on by the Hon'ble Supreme Court in
Ramesh and others vs. State of Haryana,
(2017) 1 SCC 529 .

16. P.W.5 Satya Deo scribe of the
report has stated that on the dictation of
P.W.1 Mukesh, he has scribed the report
on 22.12.2000 at about 5:00 P.M. at
Khaira while returning from Delhi to his
village and he had also proved it as
Ext.Ka-1. He has denied the suggestion
by defence that report was not scribed on
dictation. From the cross-examination by
defence nothing has been extracted, so
that any adverse inference can be drawn
that on dictation of P.W.1 Mukesh Kumar
report was not scribed by him at about
5:00 P.M. on 22.12.2000 at Khaira. Thus,
previous statement of P.W.1 Mukesh
scribing report Ext.Ka-1 from P.W.5
Staya
Deo
is
consistent
with
the
prosecution case.

17. P.W.10 Hakim Singh has stated
that he was posted on 22.12.2000 at P.S.
Sureer and he had registered chik F.I.R.,
Case Crime No.149/2000, under Section
302, 307/34 I.P.C. on the basis of the
written report of the informant Mukesh
Kumar and proved it as Ext.Ka-19. He
has also stated that he entered the case in
G.D. No.32 on 22.12.2000 at 19:00 P.M.
2 All. Jagdish & Ors. Vs. State of U.P.
69
and proved it as Ext.Ka-20. He has further
stated that he copied the same as was
scribed in the written report and denied
the suggestion that chik and G.D. have
been scribed anti-time. He has also stated
that two persons had come along with the
informant. In G.D. Ext.Ka-20, it is
mentioned that Sri Mukesh son of Bhudev
Singh, resident of Jait, P.S. Vrindavan,
District Mathura and other companion
Rakesh son of Sukhveer Singh, Raju son
of Kishori, resident of Mehmoodgadhi,
P.S. Sureer, District Mathura came and
handed over an application written and
signed by Satya Deo. Defence has also
cross-examined this witness, nothing has
been elicited from his cross-examination,
so that adverse inference can be drawn
that P.W.1 Mukesh (informant of the
case) had not gone to the police station on
22.12.2000 along with his companion
Rakesh son of Sukhveer Singh and Raju
son
of
Kishori,
resident
of
Mehmoodgarhi, District Mathura and he
did not hand over the written report to the
witness. As such the testimony of P.W.1
Mukesh
giving
information
of
the
incident to police station is also consistent
with the prosecution case.

18. According to P.W.9 H.C.P.
Narendra Singh, he recognizes the writing
of Sri Shiv Kumar and has seen him
writing and reading. He has died.

19. P.W.8 S.I. S.N. Singh has stated
that he was posted at police station Sureer
as S.I. on 23.12.2000 and on the
instruction of Inspector Shiv Kumar he
conducted
the
inquest
of
deceased
Rohitash Kumar @ Pappu. He was posted
with him and recognizes his hand writing.
He has proved the spot map Ext.Ka-6 and
other papers. In cross-examination he has
stated that he cannot tell where the
statement of the informant was taken. He
can however tell seeing the case diary. He
cannot tell whether the informant went
from the police station by his own vehicle
or how he went. Since, the Investigating
Officer has died and this witness has not
disclosed where statement of informant
was recorded, in such a situation for this
purpose case diary has to be seen and
according to it informant and scribe of
F.I.R. H.M. 65 Hakim Singh were present
in the police station on 22.12.2000 and
their statements were recorded at the
police station from which also presence of
the informant Mukesh at the police station
is supported and prosecution evidence
regarding presence of informant at the
police station is consistent.

20. In view of the finding of Hon'ble
Supreme Court in State of U.P. v/s
Ramesh Prasad Misra and others, K.
Anbazhagan
vs.
Superintendent
of
Police and Ramesh and others v/s State
of Haryana (supra) and considering the
statement of P.W.5 Satya Deo, P.W.10
Hakim Singh and close scrutiny of the
statement of P.W.1 Mukesh, the statement
of P.W.1 Mukesh given in the crossexamination before 12.06.2002 being
consistent with the prosecution case is
convincing and reliable that he got scribed
the report Ext.Ka-1 from P.W.5 Satya
Deo and reported the incident on
22.12.2000 at 19:00 P.M. to police station
Sureer, District Mathura going along with
aforesaid Rakesh and Raju and the
statement given on 12.06.2002 that after
one or two days short of month the daroga
called him and obtained his signatures on
papers and first time he went to the police
station when his signatures were obtained
on the papers and written report Ext.Ka-1
was scribed on dictation of villagers in
presence of police are neither consistent
70 INDIAN LAW REPORTS ALLAHABAD SERIES
nor convincing nor acceptable. Bestowing
our consideration on the whole statement
of P.W.1 Mukesh Kumar as well as P.W.5
Satya Deo, P.W.10 Hakim Singh and
documents
available
on
record,
as
discussed above, in our opinion, from
prosecution evidences, it is established
that the written report Ext.Ka-1 was
scribed by P.W.5 Satya Deo on the
dictation of P.W.1 Mukesh which was
given by him at the police station going
along with Rakesh and Raju and as such
we find no force in the contention of
learned counsel for the appellants that the
time of incident and giving information at
the police station is in any manner
doubtful.

21. As per F.I.R. Ext.Ka-19 the
distance of the police station from the
place of incidence is 15 kilometers. In
cross-examination P.W.8 S.I. S.N. Singh
has stated that in the body of the inquest
memo initially 18 kilometers was written
but subsequently 16 kilometers is written
correctly. He has also stated that while
preparing inquest memo chik F.I.R. was
with him and he had read it and he has
denied the suggestion of defence that in
inquest memo and other papers blank
space were left for crime number and
sections. On going through the inquest
memo, we find that it has been prepared
in the same hand writing and ink.
Although, he has stated that he read the
chik F.I.R. but from his statement it is not
clear that while reading the chik F.I.R. he
entertained the distance of police station
from the place of incident mentioned in it.
It appears that by mistake in the inquest
memo Ext.Ka-5 regarding the distance of
police station from the place of incident
previously
18
kilometers
and
subsequently 16 kilometers has been
recorded. Contention of the learned
counsel for the appellants also does not
appeal to us for the reason that if the
F.I.R. was not with the witness P.W.8 S.I.
S.N. Singh and blank spaces were left in
the inquest memo and other papers for
crime number and sections, in that
condition distance 15 kilometers as
recorded in the F.I.R. Ext.Ka-19 should
have been recorded in the inquest memo
Ext.Ka-5 in place of subsequent recording
it as16.

22. Thus, upon considering the
evidences led by the prosecution as
discussed above, we also find no
substance in the contention of the learned
counsel for the appellants that as per
F.I.R. distance of police station from the
place of incident is 15 kilometers and
there is overwriting in the column of
distance of police station from the place
of incident in the inquest memo, so the
F.I.R. is anti-timed.

23. P.W.5 Satya Deo has stated that
he is the present by elected Pradhan of
village Amanallapur (Mahmoodgadhi)
and accused Vijay Kumar was defeated in
the last election. He has admitted that
Rohitash was his supporter who was not
his polling agent. He did not do any
special work for him. Rohitash did not set
blazed any flag of Vijay Kumar nor
quarrelled with his supporters. He also did
not stop his voters going to poll. In view
of the statement of P.W.5 Satya Deo
apparently it appears that the act and
conduct of the deceased was not such as
to impel the accused Vijay Kumar,
defeated candidate of Pradhan election, to
bear enmity towards him.

24. In the case of Praful Sudhakar
Parab v/s State of Maharashtra, (2016)
12 SCC 783, the Hon'ble Supreme Court
2 All. Jagdish & Ors. Vs. State of U.P.
71
has held that motive for committing a
crime is something which is hidden in the
mind of the accused and it has been held
by this Court that it is an impossible task
for the prosecution to prove what
precisely have impelled the murderer to
kill a particular person.

25. In State of H.P. v/s Jeet Singh,
(1999) 4 SCC 370, the Hon'ble Supreme
Court in para 33 has held as under:

"No doubt it is a sound principle
to remember that every criminal act was
done with a motive but its corollary is not
that no criminal offence would have been
committed if the prosecution has failed to
prove the precise motive of the accused to
commit
it.
When
the
prosecution
succeeded in showing the possibility of
some ire for the accused towards the
victim, the inability to further put on
record the manner in which such ire
would have swelled up in the mind of the
offender to such a degree as to impel him
to commit the offence cannot be construed
as a fatal weakness of the prosecution. It
is almost an impossibility for the
prosecution to unravel the full dimension
of the mental disposition of an offender
towards the person whom he offended."

26. In Rajagopal vs. Muthupandi @
Thavakkalai and others, (2017) 11 SCC
120, the Hon'ble Supreme Court has held
that motive need not be established where
direct evidence is available and in the case of
Rajesh Govind Jagesha vs. State of
Maharashtra, (1999) 8 SCC 428, the
Hon'ble Supreme Court has held that
"motive" in a criminal case based on ocular
testimony of witnesses is not at all relevant.

27. In the instant case prosecution
version is that on 22.12.2000 at 4:30 P.M.
informant Mukesh, deceased Rohitash
Kumar his sister Mamta, niece Kavita,
Savita, Sanjay, Naresh, Rajkumar and
others were talking among themselves
sitting on the chabutra outside the house
of Rohitash. At that time the accused
persons came and stating that they would
teach lesson of Pradhan election fired at
him. From which it is clear that the
incident is of the day hours and it
happened in the presence of witnesses, as
such it is a case of direct evidence. In
view of the opinion of the Hon'ble
Supreme Court in the case of Rajagopal
v/s Muthupandi @ Thavakkalai and
others and Rajesh Govind Jagesha v/s
State of Maharashtra (supra) in the
instant
case
motive
need
not
be
established and motive is not at all
relevant.

28. Apart from it as per F.I.R.
Ext.Ka-1 accused persons stating that they
would teach the deceased a lesson with
regard to Pradhan election fired at him
which has been supported by P.W.2
Narendra
Kumar
also
through
his
testimony. According to P.W.5 Satya Deo
deceased Rohitash was his supporter and
as per statement of accused Vijay Kumar
under Section 313 Cr.P.C. P.W.5 Satya
Deo barely won the election. All accused
have stated that due to Pradhan election
they
have
been
implicated
falsely.
Deceased Rohitash is said to be supporter
of elected Pradhan P.W.5 Satya Deo,
accused Vijay Kumar is the defeated
candidate of Pradhan and accused Jagdish
and Rajendra are his supporters, thus,
deceased Rohitash being supporter of
P.W.5 Satya Deo winner of Pradhan
election there appears an ire of Pradhan
election for the accused towards the
deceased. As such, in view of the opinion
of Hon'ble the Supreme Court in State of
72 INDIAN LAW REPORTS ALLAHABAD SERIES
H.P. v/s Jeet Singh (supra) we find that
prosecution succeeded in proving an ire of
Pradhan election for the accused towards
the deceased to impel them to commit the
offence. Accordingly, we do not find
substance in the contention of learned
counsel for the appellants also that there
is no motive against the appellants to
commit the offence.

29. P.W.5 Satya Deo in his crossexamination has stated that he came
seeing the dead body of Rohitash on
22.12.2000 at 7:00 P.M., at that time the
dead body was kept on the chabutra till
then police had not come in the village
while P.W.4 Ram Chander has stated in
the cross-examination that he met the
daroga at 8:00 P.M. on the day of incident
and next day morning at 8:00 A.M. When
the daroga came, he kept the dead body of
Rohitash at the door of Sumer Singh.
Thus, according to P.W.5 Satya Deo, dead
body of the deceased Rohitash was lying
at the chabutra before coming of the
police while as per statement of P.W.4
Ram Chander police came and kept the
dead body on the chabutra. Hence, there
is contradiction in the statement of both
witnesses regarding keeping the dead
body of deceased Rohitash on the
chabutra. So, we have to look for other
evidences in this regard.

30. P.W.4 Ram Chander has stated
that
Rohitash
was
murdered
and
Investigating
Officer
on
23.12.2000
collected blood stained and plain earth
from the place of incidence, in the room
inside the house of Sumer Singh sealed
and stamped in his and Pradhan Satya
Deo's presence; prepared memo and
obtained their signatures on the memo,
and has proved it as Ext.Ka-2. P.W.5
Satya
Deo
has
also
stated
that
Investigating Officer taking into his
possession the blood stained and plain
earth from the place of incidence in his
and Ram Chander's, presence, prepared
the memo and after reading out to him
obtained
his
signature
and
thumb
impression of Ram Chander. He has also
proved the recovery memo as Ext.Ka-2.
From the cross-examination by defence of
both witnesses i.e. P.W.4 Ram Chander
and P.W.5 Satya Deo, nothing has been
extracted by which any adverse inference
can be drawn that on 23.12.2000 the
blood stained and plain earth was not
taken in the presence of the witnesses
from the place of incidence, in the room
inside the house of Sumer Singh and it's
recovery
memo
Ext.Ka-2
was
not
prepared.

31. P.W.8 S.I. S.N. Singh has stated
that he prepared the inquest memo of
deceased Rohitash on the instruction of
Inspector
Shiv
Kumar.
In
crossexamination he has stated that he had
gone to the place of incidence, when
police party reached the spot the dead
body was kept outside of the house on the
chabutra. He has specifically stated that
murder of deceased was committed in the
house of Sumer Singh; before inquest of
the dead body he did not ask from the
informant or any other person as to who
brought the dead body on chabutra from
the place of occurrence. He has also stated
that he had taken the blood stained and
plain earth from the place of occurrence.
From the cross-examination of this
witness too nothing has been extracted by
defence, so that his statement regarding
taking of blood stained and plain earth
from the place of occurrence in the room
inside the house of Sumer Singh as stated
by P.W.4 Ram Chander and P.W.5 Satya
Deo also can be doubted. In Ext.Ka-2
2 All. Jagdish & Ors. Vs. State of U.P.
73
recovery memo of blood stained and plain
earth, it is mentioned that in the presence
of witnesses Satya Deo and Ram Chander
in Case Crime No.149/2000, under
Section 302/207 I.P.C. blood stained and
plain earth were taken into police custody
from the room inside the house of Sumer
Singh (uncle of the deceased), kept in
containers; were sealed and stamped,
recovery
memo
was
prepared,
and
signatures of witnesses were obtained. In
the spot map Ext.Ka-6 proved by P.W.8
S.I. S.N. Singh, place-A has been shown
where the murder of the deceased was
committed, which is shown in the room
inside the house of Sumer Singh.
Prosecution evidence of P.W.4 Ram
Chander, P.W.5 Satya Deo and P.W.8 S.I.
S.N. Singh is consistent regarding taking
of blood stained and plain earth from the
room inside the house of Sumer Singh.
P.W.1 Mukesh and P.W.2 Narendra
Kumar have stated very categorically that
after receiving fire arm injury, Rohitash
entered the house of Sumer Singh and
after following the accused they found
Rohitash dead in the house of Sumer
Singh. From their cross-examination
nothing has been extracted.

32. In defence D.W.1 Sahab Singh
has been produced to prove that Rohitash
was murdered somewhere else and due to
enmity of Pradhan election the accused
have been implicated falsely in the case.
Sahab Singh has stated that he and his
brother were in their field, at about 7:00
P.M. in the evening when they heard
sound of firing from the side of canal.
They undertook it to be miscreants and
came towards the village. When they
reached close to the village they saw that
people of the village are coming bringing
Rohitash in a fire arm injured condition
and they kept the dead body of Rohitash
on the chabutra of pahalwan Sumer
Singh. When the daroga came in the
morning he told about it to him but in
cross-examination by prosecution he has
stated that he had not told the daroga but
he had told about it to the police only. He
has also stated that he is stating for the
first time in court about telling the police.
Thus, his statement being contradictory at
the same stage and made first time in
court is neither convincing nor believable.
Contrary to it, the prosecution evidence
regarding place of incidence in the house
of Sumer Singh as discussed above is
consistent,
cogent,
convincing
and
reliable. Although the statement of P.W.4
Ram Chander appears trustworthy that the
daroga came and kept the dead body on
the chabutra as the dead body was not in
the house of deceased but it was in the
house of some other person yet, if it is
ignored, even then, the place of incident
of deceased Rohitash is established in the
room inside the house of Sumer Singh.
Therefore, once the place of incidence is
established in the room inside the house
of Sumer Singh then who kept the dead
body on chabutra outside the house of
Sumer Singh will not carry much
importance and it will not affect the
prosecution case. Accordingly, we also
find no substance in the contention of
learned counsel for the appellants that
place of incidence is not established.

33. In cross-examination P.W.1
Mukesh has stated that he knew that death
occurred due to fire arm shooting injury.
According to medical report Ext.Ka-4
proved by P.W.7 Dr. V.S. Agnihotri, a
fire arm wound of entry .5 c.m. x .2 c.m. x
.3 c.m. on left side back, 8 c.m. from L-1
spine and two on neck, one on upper part
of shoulder, one on intestine mid, three on
chest and one on left middle finger,
74 INDIAN LAW REPORTS ALLAHABAD SERIES
incised wounds have been found. In
internal examination 6th, 9th and 10th
right side ribs were found fractured and
right side lung was ruptured. Injuries were
sufficient to cause death. P.W.7 Dr. V. S.
Agnihotri has stated that injury no.9 can
be possible by fire arm and in injury no.9
no pellet or bullet was found. Since, depth
of the injury was less, so it was not
thought proper to have x-ray for search of
pellets. In view of nature of injury no.9 as
opined by doctor, it may not be the cause
of death of the deceased Rohitash.

34. As per written report Ext.Ka-1
deceased Rohitash after receiving fire shot
injury entered into the house of Sumer Singh
in order to save his life; the assailants also
entered into the house of Sumer Singh and
killed him there and fled away firing at the
informant and others. After the accused
persons left, the informant P.W.1 Mukesh
and others on going inside the house found
the dead body of Rohitash. P.W.1 Mukesh
has deposed in support of Ext.Ka-1, the
written report and has stated that when
Rohitash stepping down from the chabutra
started running, the accused persons started
firing. Rohitash received fire arm injury and
entered into the house of Sumer Singh. The
accused also entered into the house of Sumer
Singh behind Rohitash. The accused fled
away after coming out from the house of
Sumer Singh firing upon them. When the
informant and his sister went inside the
house of Sumer Singh after 10-15 minutes,
they found the dead body of Rohitash. In
cross-examination by defence nothing has
been extracted so that the statement of P.W.1
Mukesh can be doubted.

35. P.W.2 Narendra Kumar @
Naresh has also stated that on 22.12.2000
at 4:30 P.M. he was sitting on the
chabutra of Rohitash. Rohitash, his
brother in law Mukesh, wife Mamta,
niece Kavita, Savita, Sanjay and Raj
Kumar were also sitting there. Rohitash
was talking with Mukesh when at that
time accused Jagdish, Rajendra and Vijay
Kumar of the village came carrying
country made pistols in their hand and
addressed Rohitash to teach him lesson of
Pradhan election. On exhortation of the
accused Rohitash fled away towards the
gully; the accused chased and fired at
him, shot of Jagdish hit in the waist of
Rohitash. In order to save his life
Rohitash entered into the house of Sumer
Singh. The three accused also entered into
the house of Sumer Singh behind him,
going there the accused persons inflicted
knife injuries. The incident was witnessed
by him, Kavita, Mukesh and Savitri wife
of Sumer Singh. On their alarm the
accused persons fled away and on going
near Rohitash found him dead. Although,
the witness has exaggerated in respect of
witnessing the incident while causing
knife injuries by the accused but from
cross-examination by defence on material
point like while sitting on chabutra
coming of accused having country-made
pistols in their hand; stating that they
would teach lesson of Pradhan election;
fleeing of deceased towards gully; while
fleeing Rohitash being fired upon by
accused persons and on receiving fire
injury, entering into house of Sumer
Singh; entering of accused also into the
house of Sumer Singh behind Rohitash
and after fleeing away the accused
persons finding dead body of Rohitash in
the house of Sumer Singh, his testimony
is intact.

36. P.W.3 Km. Kavita has also
supported the prosecution version through
her testimony and from her crossexamination by defence too nothing has
2 All. Jagdish & Ors. Vs.