# Jagdish v. State of U.P

- **Citation:** (2021) 7 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-v-state-of-u-p-47071
- **Pages:** 31

## Text

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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
7 All. Jagdish Vs. State of U.P.
169
and has refuted the arguments made on behalf
of the appellants and submitted that this is a
case of broad daylight murder with direct
evidence to prove the guilt. The incident took
place on 10.11.2007 at 9:30 A.M. in the field of
Prem Singh and PW-1 Mangal Singh and PW2 Lakhan Singh saw the incident from the
tubewell of Prem Singh and PW-3 Rekha saw
the incident from her plot and they reached the
place of the incident immediately after seeing
the occurrence. The FIR was lodged by the
informant against the appellants and the coaccused on the same day at 10:35 A.M.
promptly i.e. within 1 hour and 5 minutes of the
incident. The ocular testimony of eye-witnesses
is corroborated by the medical evidence. The
doctor (PW-7), who conducted the postmortem examination had clearly suggested that
death might have been taken place within 8
hours, which suggests that the incident has
occurred at the time put by the prosecution.
There is a sufficient reason put forth with regard
to the delay caused in sending the SR Report;
there is no inordinate delay in recording the
statement of PW-3 Rekha under Section 161 of
Cr. PC.

26. Learned A.G.A. further submitted
that the prosecution has successfully
proved the prosecution case. The trial court
has properly appreciated the evidence and
rightly held the appellants guilty. The
findings recorded by the trial court are
based on proper appreciation of the
evidence. The judgment and order of the
trial court are liable to be affirmed. Hence,
the appeals are liable to be dismissed.

ANALYSIS
OF
THE
PROSECUTION EVIDENCE

27. Before we proceed to test and
analyse the respective submissions, it
would be apposite to notice the
arguments on behalf of the appellants in
detail. The appellants' arguments are:
Firstly; the FIR of the present case was
lodged ante-timed which casts a complete
shadow of doubt on the prosecution case
for the reasons below:

(a) There are overwriting in serial
no. 5, 6, and 9 of the Chick FIR, by which
corrected the distance between the place of
the incident and the police station on digit
'6' of digit '16 Km', the registering time of
the FIR on the digit '0' of time '10:35 A.M.'
and the time of the incident on the letter 'A'
after '9:30 A.M.'. Initially, the distance
between the place of the incident and the
police station was '12 Km', the registering
time of the FIR was 11:35 A.M., and the
time of the incident was 9:30 P.M. were
written.

(b)
The
special
report
(SR
Report) has been sent after an unexplained
delay of about 6 hours at 16:20 hours on
10.11.2007.

(c) There is an inconsistency
between the testimony of PW-1 Mangal
Singh on one hand and PW-4 S.I. Rakesh
Kumar Awasthi on the other hand with
regard to the scribe of the complaint
(Ex.Ka.-1). According to PW-1 Mangal
Singh, Mahavir Singh is a writer of the
complaint; whereas, PW-4 stated that
Mahavir did not state that he had written
the complaint.

(d) PW-1 Mangal Singh has given a
self-contradictory statement, with regard to the
writer of the complaint (Ex.Ka.-1); he stated in
his examination-in-chief that the report of the
incident was written by Mahavir Singh;
whereas he stated in his cross-examination that
on the day of the incident he had not met with
Mahavir Singh.
170 INDIAN LAW REPORTS ALLAHABAD SERIES

(e) The scribe of the complaint,
Mahavir Singh had not been examined by
the prosecution to prove the complaint
(Ex.Ka.-1).

(f) The informant had not lodged
the FIR, because the informant had not
signed on the first page of the complaint
(Ex.Ka.-1).

Secondly; PW-1 Mangal Singh,
PW-2 Lakhan Singh, and PW-3 Rekha are
chance witnesses, their presence is highly
doubtful, and as alleged that they saw the
incident from distance. The presence of
PW-1, and PW-2, at the tubewell of Prem
Singh at the time of the incident, has not
been satisfactorily explained and proved.
The prosecution also failed to explain and
prove the presence of PW-3 Rekha near the
field of Prem Singh at the time of the
incident, therefore, the testimony of PW-1,
PW-2, and PW-3 does not appear reliable
and does not inspire confidence in the
prosecution case, which, seriously affects
the credibility of PW-1, PW-2, and PW-3.
Which
emerges
from
the
following
circumstances:

(a) Prem Singh has not been
examined by the prosecution to prove the
presence of PW-1 and PW-2 at the tubewell
at the time of the incident.

(b) PW-1 and PW-2 saw the incident
from a distance of 150 steps and saw the
appellants and co-accused with lethal weapons
before the incident but they kept mum till the
accused persons did not flee away from the spot
after committing the offence.

(c) PW-3 saw the incident from
the plot and saw the accused persons with
lethal weapons before the incident but she
also kept mum till the accused persons have
not been fled away from the spot after
committing the offence.

(d) PW-3 Rekha has given a selfcontradictory statement with regard to the
place of her presence. PW-3 Rekha stated
in her examination-in-chief that she was
coming from the field after dumping the
cow dung at that time and rushed to the
spot; whereas PW-3 Rekha stated in crossexamination that she was dumping cow
dung in her plot located near the field of
Prem Singh.

(e) PW-1, PW-2, and PW-3 being
eye-witnesses of the incident neither made
any hue and cry before the incident nor
they attempted to save the deceased.

(f) There is no satisfactory
explanation put forth with regard to the
delay of 25 days after the incident in
recording the statement of PW-3 Rekha
under section 161 of Cr. PC.

(g) PW-1 Mangal Singh has
given a self contradictory statement about
the direction of the gunshot, firstly he
stated that Raghunath Singh and Sahukar
surrounded the deceased from the front
side, Jagdish and Manoj fired from his
backside; further, he stated that Raghunath
Singh and Sahukar stopped the deceased
from the front side, as soon as he turned
back, Jagdish and Manoj fired upon him.

(h)
There
is
a
material
inconsistency between the ocular evidence
and the medical evidence about the manner
of the direction of gunshot, PW-1 Mangal
Singh stated that Raghunath Singh and
Sahukar stopped the deceased from the
front side, as soon as he turned back,
Jagdish and Manoj fired upon him; whereas
according to PW-7 Dr. Surendra Singh, all
firearm injuries caused to the deceased
could not be caused from the front side.

(i) Role of exhortation attributed
to
co-accused
Raghunath
Singh
and
Sahukar had not been proved and the
prosecution failed to prove the role of
exhortation
against
the
co-accused
Raghunath Singh and Sahukar.

(j) There is no recovery of empty
cartridges from the place of occurrence,
7 All. Jagdish Vs. State of U.P.
171
even though all the eyewitnesses have
stated that three gunshots were fired and
they reached immediately at the place of
the incident.

Thirdly; The eye-witnesses are
related/inimical witnesses their testimony was
not corroborated by any independent witnesses,
though Raghuvir Singh and Moolchand are
independent eye-witnesses as alleged in the
FIR, they have not been examined. The other
independent eyewitnesses Prem Singh, Tej
Singh, Lekhraj, Padam Singh, and Harbhajan,
as stated by PW-1 Mangal Singh had also not
been questioned by the I.O.

Fourthly; The motive to commit the
murder of Kamal Singh assigned to the
appellants has not been proved by the
prosecution.

28. Before we proceed to dwell upon the
merit of the contentions raised before us, it
will be apposite to have a close scrutiny of the
entire ocular evidence, which is as follows:

29. PW-1 Mangal Singh stated in his
examination-in-chief that the incident took
place at 9:30 A.M. on 10.11.2007 when his son
Kamal Singh was returning home after
defecation, at the same time Manoj and Jagdish,
who had unlicensed guns (Paunia) and
Raghunath and Sahukar having lathies in their
hands, surrounded Kamal Singh in the field of
Prem Singh. Raghunath and Sahukar shouted
that his father poses himself to be a great
litigant, kill him, and don't let him escape.
Manoj and Jagdish shot fire at Kamal Singh
from their unlicenced guns (Paunia). Hearing
the sound of the gunshot, he and his eldest son
Lakhan, who were standing on Prem Singh's
tubewell reached the spot. On hearing the noise,
Raghuvir, Moolchand, and his daughter Rekha
reached the spot. On seeing the people coming,
the accused persons fled away towards their
house. Kamal Singh ran towards his house
after being shot and fell down after walking 10
steps and died on the spot. On 2.7.2007,
Jagdish, Sahukar, Raghunath, and Vinod had
beaten Kamal Singh and Lakhan Singh, in this
regard a criminal case is pending in the court.
He has a plot of 200 yards in the village which
is in his possession, he had dug the foundation
in the plot 10-12 days before 2.7.2007, but the
accused persons restrained him from raising
construction over the plot. He had filed a Civil
Suit against Jagdish and others, in which a
Court Ameen inspected the spot. Kamal Singh
used to do Pairavi of the case, due to this
enmity Jagdish, Manoj, Raghunath, and
Sahukar murdered his son. The complaint
(Tahrir) of the incident was written by Mahavir
Singh.

30. PW-1 Mangal Singh in his crossexamination stated that he along with
Lakhan went to ask Prem Singh to get
water from the tubewell of Prem Singh for
irrigation of his field, which is located near
his field, at that time Prem Singh was
present on his tubewell. The incident took
place when they were returning from the
tubewell after talking to Prem Singh. He
heard the sound of 3 gunshots. Prem
Singh's tubewell is situated on the eastern
side about 150 steps away from the place of
the occurrence. Kamal Singh was shot from
a distance of 5-6 steps. Sahukar and
Raghunath Singh surrounded Kamal Singh
from the front side, Jagdish and Manoj
were fired from his backside. He further
stated that Raghunath and Sahukar stopped
Kamal Singh from the front side, as soon as
he turned back, Jagdish and Manoj fired at
him. Raghunath and Sahukar did not cause
any injury to Kamal Singh with lathies.
Kamal Singh had run towards Gutia's house
after being shot, which is about 20 steps
away from the place where he had fallen.
172 INDIAN LAW REPORTS ALLAHABAD SERIES
He had not found any Tiklee, empty
cartridge, and pallets on the spot. The dead
body was lying in the field of Prem Singh.
Moolchand and Lakhan went to the police
station with him to lodge the report. He did
not meet Mahavir on that day. Moolchand
and Raghuvir did not see the incident, so
their names were not written in the
complaint as eye-witnesses. Though, they
are witnesses of the inquest report. Prem
Singh, Tej Singh, Lekhraj, Padam Singh,
and Harbhajan also witnessed the incident.
He, while writing the complaint, did not tell
the names of the above eyewitnesses to the
scriber.

31. PW-1 Mangal Singh in his crossexamination further stated that he left home
at 9 o'clock to go to the tubewell of Prem
Singh and arrived within 7-8 minutes. He
returned at 9:30 A.M., till then the incident
had taken place. Prem Singh's field is
adjacent to the outskirts of the village but
the field is about 5 Khet far from his house.
The distance between the house of accused
and the place of the incident is one Khet,
there is no other Khet in the middle. Houses
of Mehilal, Ranvir, and Gutia are adjacent
to the field of Prem Singh. The house of
Gutia is situated between his house and the
place of the incident. When he dug up the
foundation of the plot, the accused persons
restrained him then he filed a civil suit
against
Jagdish
and
others.
Jagdish
appeared in the civil suit and he filed his
written statement. Kamal Singh used to do
Pairavi of the cases with him, and used to
take him to court, this fact was neither
written in the complaint nor told to the
police. On 2.7.2007, Jagdish, Sahukar,
Raghunath, and Vinod had beaten Kamal
and Lakhan, this fact had not been written
in his complaint but he told this fact to the
police. He had told about the enmity, it is
not known to him whether it was written in
the report or not because he was upset at
that time.

32. Durng the cross-examination,
certain suggestions were put to the witness,
which have been specifically denied by
P.W.-1 and he stated that it is wrong to say
that our unlicensed pistol was fired during
our scrumble, which hit Kamal Singh. It is
wrong to say that the incident had not taken
place in the field of Prem Singh, and it had
taken place at our house. It is wrong to say
that he wanted to encroach unpartitioned
land unauthorisedly and lodged a false
report against them. It is also wrong to say
that the complaint had not been written on
his instructions and he had not signed at the
time which is shown in the report.

33. It is worthy to note that PW-1
consistently stated that he along with
Lakhan went to ask Prem Singh to get
water from the tubewell of Prem Singh for
irrigation of his field at the time of the
incident and they saw the incident from the
tubewell. At that time Prem Singh was
present at his tubewell. The incident took
place in the field of Prem Singh. Raghunath
and Sahukar stopped Kamal Singh from the
front side, as soon as he turned back,
Jagdish and Manoj fired upon him. Kamal
Singh was shot from a distance of 5-6
steps. PW-1 and PW-2 Lakhan reached the
spot immediately, and after hearing the
noise PW-3 Rekha reached the place of the
occurrence, and he along with his son
Lakhan, and Moolchand went to the police
station to lodge the report and the inquest
proceedings were commenced at 11.05
A.M. at the spot.

34. After considering testimony and
having a close scrutiny of the testimony of
PW-1, it is noticeable that the above facts
have not been controverted on behalf of the
7 All. Jagdish Vs. State of U.P.
173
appellants. The presence of PW-1 Mangal
Singh along with PW-2 Lakhan at the
tubewell of Prem Singh and conduct of
PW-1 just before or after the incident have
not been disputed. There is no crossexamination directed against his testimony
to discredit his evidence on the above facts.
The evidence of PW-1 was not shaken in
the cross-examination and nothing infirm
has been elicited to cast doubt on his
veracity.

35. Apart from this, it is relevant to
note that there is no dispute with regard to
the place and time of the incident; his
presence at the tubewell of Prem Singh at
the time of the incident with PW-2 Lakhan
Singh; purpose of his presence along with
PW-2 Lakhan Singh at the tubewell of
Prem Singh; at the time of the incident the
deceased
was
returning
home
after
defecation; the role attributed to the
appellants; happening of the incident dated
2.7.2007; his behaviour at the time of the
incident and after the incident; arrival of
PW-3 Rekha at the spot after hearing the
noise; lodging the FIR by PW-1 Mangal
Singh at 10:35 A.M. on 10.11.2007. It is
significant that, no suggestions have been
put to the witness regarding his presence
along with PW-2 Lakhan Singh at the
tubewell of Prem Singh at material time;
time and place of the incident; their arrival
on the place of the incident immediately
after the incident; arrival of PW-3 Rekha at
the spot after hearing the noise; lodging the
FIR by this witness at 10:35 A.M. on
10.11.2007 and about the incident dated
2.7.2007. In addition to above, without
disputing the time and place of the
occurrence, a suggestion was put to the
witness that our unlicenced pistol was fired
during scrumble at our house, which hit
Kamal
Singh,
which
has
been
specifically denied by PW-1 Mangal Singh.

36. After considering the evidence of
PW-1 Mangal Singh, the inferences may
safely be drawn which are: (a) the incident
took place in the outskirts of the village
which is adjacent to another field of Prem
Singh; (b) the place of the incident is 150
steps away from the tubewell of Prem
Singh; (c) there is no obstruction because
of the visibility between the place of the
incident and the tubewell of Prem Singh;
(d) at the time of the incident the deceased
Kamal Singh was returning home after
defecation; (e) the incident took place in
the open field and there was no crop
standing in the adjacent fields; (f) the field
of PW-1 is situated near the tubewell of
Prem Singh; (g) after receiving the gunshot,
Kamal Singh ran towards his house but
after 10 steps he fell and died on the spot;
(h) PW-1 usually visited his field which is
located near the tubewell of Prem Singh; (i)
PW-1 was not presented coincidentally or
by chance at the tubewell of Prem Singh at
the time of the incident.

37. PW-2 Lakhan Singh stated in his
examination-in-chief that the incident took
place at 9:30 A.M. on 10.11.2007 when his
brother Kamal Singh was returning home
after defecation. When he reached the field
of Prem Singh, at the same time Manoj,
Jagdish, who had unlicensed guns (Paunia)
and Raghunath, Sahukar having lathies in
their hands surrounded Kamal Singh in the
field of Prem Singh. Raghunath and
Sahukar shouted that his father poses
himself to be a great litigant, kill him and
don't let him escape. Manoj and Jagdish
shot at Kamal Singh from their unlicenced
guns (Paunia). Kamal Singh ran towards
174 INDIAN LAW REPORTS ALLAHABAD SERIES
his house after receiving gunshot injuries
and fell down at the place wherefrom the
shot was fired and after running 10-15
steps, he died on the spot. Hearing the
gunshots, he and his father, who were
standing at the tubewell of Prem Singh,
reached the spot. His sister Rekha, who was
coming home after dumping cow dung
from the field also saw the incident and
reached the spot. Raghuvir Singh and
Moolchand also witnessed the incident.
After the incident, the accused persons fled
away towards their house. His father has a
plot of 200 yards in the village which is in
our possession, there was enmity with the
accused persons regarding the plot. The
report was lodged by his father.

38. PW-2 Lakhan Singh stated in his
cross-examination that on the day of the
incident, he went to the tubewell of Prem
Singh along with his father to ask him to
take water for irrigation of his field. There
are other persons' tubewells nearby his field
but the tubewell of Prem Singh is located
nearest to his field. Fields of Kishori,
Govind Singh, Hari Singh are also situated
adjacent to his field. He did not see the
tubewells of other persons. Indeed, the field
of the tubewell of Prem Singh is far away
as compared to the field of Kishori. He did
not tell that how these persons irrigate their
fields. The water of the tubewell of Prem
Singh was not saline. He and his father had
witnessed the incident from the tubewell of
Prem Singh, where from the place of the
incident would be 40-50 steps away. The
place of the incident would be about 2 Khet
away from the tubewell. The incident took
place within 2 minutes after reaching the
tubewell.
The
accused
persons
had
surrounded his brother from all sides.
Further, he stated that the accused persons
did not surround the deceased from all
sides. He had wrongly stated earlier that the
accused persons surrounded his brother
from all sides. Raghunath and Sahukar did
not cause any injury to his brother with
lathies. He had heard 3 gunshots. Kamal
Singh ran 10-15 steps from the place of the
incident and then fell down. When he saw
that the accused persons had gone away, he
reached the spot after 4-5 minutes, at that
time Kamal Singh did not say anything and
he died in front of him. He saw the blood in
both places, some blood at the place of the
incident and some blood on the spot where
he had fallen. The police had taken blood
from both the places. If the police had not
shown the place in the site plan where the
blood is taken, he cannot tell its reason. He
cannot tell the reason, why the murder took
place on the day of the incident.

39. PW-2 Lakhan Singh further stated
in his cross-examination that the accused
persons had come from the same direction
in which his brother had gone after the
incident. When we reached on the spot, at
that time Mehilal, Ranvir, and Gutia also
reached there, who told us that the accused
persons had shot fire at Kamal Singh, we
had also seen the incident. Prem Singh also
reached on the spot. He can not tell whether
the name of Mehilal, Ranvir, and Gutia had
been written as eye-witnesses in the report
or not. It is correct to say that the houses of
Mehilal, Ranvir, and Gutia are situated
between the place of the incident and his
house, and the houses of Mehilal, Ranvir,
and Gutia are situated adjacent to the field
of Prem Singh. The Houses of the accused
persons and his house are located nearby.
The place of the incident would be about
250 steps away from the house of the
accused persons.

40. PW-2 Lakhan Singh further stated
in his cross-examination that the deceased
went for defecation at 9:15 A.M on the day
7 All. Jagdish Vs. State of U.P.
175
of the incident and his time of going for
defecation was not fixed. He used to go for
defecation at half-past eight, sometimes at
quarter to nine or at nine O'clock. It is
correct to say that when he and his father
returned from defecation, his brother went
for defecation. Usually, he and his father,
and his brother used to go to defecation in
his field, his field would be about one
hundred steps away from the place of the
incident and the path of his field goes
through the field of Prem Singh, where the
incident took place. The land dispute with
the accused persons was going from one
year. The dispute was going on from 4-5
months before 2.7.2007. Kamal Singh had
stopped studying 2-3 years before the date
of the incident. The police station would be
10-11 Km away from the place of the
incident.

41. During his cross-examination,
certain suggestions were put to this witness,
which have been specifically denied by
P.W.-2 and he stated that it is wrong to say
that the water of the tubewell of Prem
Singh was saline and Prem Singh used to
irrigate his field with the tubewells of
Kishori, Govind Singh, and Hari Singh. It
is wrong to say that his brother had not
been killed by the accused persons. It is
wrong to say that the incident had not taken
place in the field of Prem Singh. It is wrong
to say that the incident took place at some
other place and was committed by other
persons. It is wrong to say that a false
report has been lodged to grab the land of
the accused persons.

42. It is noteworthy that the presence
of PW-2 at the tubewell challenged on the
ground that at the time of the incident, the
water of tubewell of Prem Singh was saline
and there were other tubewells of other
persons, why PW-2 asked to get water from
the tubewell of Prem Singh and why he and
his father both had gone to the tubewell,
one person could have asked. Prem Singh
used to irrigate his field from the tubewells
of Kishori, Govind Singh, and Hari Singh.

43. Upon considering the testimony
of PW-2 Lakhan Singh, reveals that there is
no dispute with regard to the location of the
tubewell of Prem Singh; his presence at the
tubewell of Prem Singh at the time of the
incident with PW-1 Mangal Singh; at the
time of the incident the deceased was
returning home after defecation; the role
attributed to the appellants; his behaviour at
the time of the incident and after the
incident; arrival of PW-3 Rekha at the spot
after hearing the noise; lodging the FIR by
PW-1 Mangal Singh at 10:35 A.M. on
10.11.2007; about the incident dated
2.7.2007. It is relevant to note that three
suggestions have been asked first time to
PW-2 Lakhan Singh as: first, that the water
of the tubewell of Prem Singh was saline;
second, the incident took place at some
other place and committed by other
persons; third, there is other tubewells of
other farmers and Prem Singh himself used
to irrigate his field with other tubewells
because these suggestions were not made to
PW-1 Mangal Singh.

44. It is worthy to note that, no
suggestions have been put to the witness
regarding his presence along with PW-1
Mangal Singh at the tubewell of Prem
Singh at material time; time and place of
the incident; their arrival on the place of the
incident immediately after the incident
from the tubewell of Prem Singh; about the
incident dated 2.7.2007; arrival of PW-3
176 INDIAN LAW REPORTS ALLAHABAD SERIES
Rekha at the spot after hearing the noise;
lodging the FIR by PW-1 at 10:35 A.M. on
10.11.2007.

45. PW-2 Lakhan Singh consistently
stated in his testimony that PW-2 went to
the tubewell of Prem Singh along with his
father PW-1, to ask him to take water for
irrigation of his fields and his field is
located near to the tubewell of Prem Singh.
They had witnessed the incident from the
tubewell of Prem Singh. The incident took
place after 2 minutes of reaching the
tubewell. The incident took place at 9:30
A.M. on 10.11.2007, when his brother
Kamal Singh was returning home after
defecation. Jagdish and Manoj shot fire his
brother from the front site and his father
lodged the report.

46. After considering the testimony of
PW-2 and having close scrutiny, it is
noticeable that the above facts have not
been controverted on behalf of the
appellants. The presence of PW-2 Lakhan
along with PW-1 Mangal Singh at the
tubewell of Prem Singh at the time of the
incident and conduct of PW-2 just before or
after the incident have not been disputed.
There is no cross-examination directed
against his testimony to discredit his
evidence on the above facts. The evidence
of PW-2 was not shaken in the crossexamination and nothing infirm has been
elicited to cast doubt on his veracity.

47. After considering the testimony
of PW-2, the inferences may safely be
drawn that: (i) the path of his field goes
through the field of Prem Singh wherein
the incident took place; (ii) there is no
obstruction in view of the visibility
between the place of the incident and the
tubewell of Prem Singh; (iii) at the time of
the incident, the deceased Kamal Singh
was returning home after defecation; (iv)
the incident took place in the open field
and there was no crop standing in the
adjacent fields; (v) PW-2 usually visited
his field which is located near the tubewell
of Prem Singh; (vi) PW-2 was not present
coincidentally or by chance at the tubewell
of Prem Singh at the time of the incident.

48. PW-3 Rekha, younger sister of
the deceased in her testimony deposed that
the incident took place a year and two
months ago when her brother was
returning home through the field of Prem
Singh after defecation at 9:30 A.M. At that
time she was dumping the cow dung in the
field near the field of Prem Singh. When
her brother reached the field of Prem
Singh, at the same time, Raghunath,
Sahukar having lathis, Jagdish and Manoj
having unlicensed guns (Puniya) and
surrounded
her
brother.
Raghunath
exhorted that "Isaka Pita Bahut Mukdame
Karta Hai Is Saale Ko Mar Do Bachne N
Paye" (his father litigates a lot, kill him
and he does not escape). Then Jagdish and
Manoj shot her brother Kamal with their
unlicensed guns (Puniya), which hit her
brother. One fire was hit on his arm and
another fire hit on his stomach. Her
brother ran some distance after being shot,
then fell down and died on the spot. Her
father and brother Lakhan, who were
taking water from the tubewell of Prem
Singh, came to the place of occurrence and
they picked up the body of Kamal Singh
and kept it on a cot (wooden cot). Apart
from her father and brother Lakhan,
Moolchand, Raghuvir and Gutia had also
witnessed the incident. She also witnessed
the incident. Accused persons wanted to
dispossess her father from his plot, due to
this enmity her brother was killed and they
fled away towards Nagla Bohre after
threatening.
7 All. Jagdish Vs. State of U.P.
177

49. PW-3 Rekha stated in her crossexamination that on the day of the incident,
she was dumping cow dung in her plot
located near the field of Prem Singh. She
heard 3 gunshots at that time she was
dumping cow dung in the plot. When she
reached near her brother, she came to know
that her brother received gunshots, at that
time he was breathing. After being shot, his
brother went 20-25 steps. It is true that no
injury was caused to Kamal Singh by
lathies. The tubewell of Prem Singh would
be 40-50 steps away from the spot. The
place of incident is not visible from the
house of the accused. The accused persons
had come from their house and ran towards
their house. The accused persons had gone
back from the path they had come from. The
other residents, who resided near Gutia's
house had not seen the incident, because
these people had come on the spot after the
incident. She does not know after how long
they came. She had not seen Prem Singh at
the place of the incident.

50. PW-3 Rekha stated further in her
cross-examination that the field of Prem
Singh would be 50 steps away from her
house. The tubewell of Prem Singh would be
60-70 steps away from her house. Her father's
field is 15 steps away from the field of Prem
Singh. Field of accused persons situated
between the field of her father and the field of
Prem Singh. She does not know how many
fields are there because she is illiterate. She
does not know whose fields are located on
the way between her home and her field. She
further stated that the fields of the accused
and Prem Singh are located. The length and
breadth of the plot in question are not known
but it's area is 200 yards. At the time of the
incident, she does not know how many
buffaloes or cows she had, she does not know
that she had one cow at that time. At the time
of the incident, she had two cows. But she
does not know that at that time we had 5-6
buffaloes and 8-10 cows or not. She used to
prepare cow dung cake in the plot. But on the
day of the incident, she had gone to dump
cow dung in the plot situated adjacent to the
field of Prem Singh.

51. PW-3 Rekha stated further in her
cross-examination that she does not know
that when this plot was purchased and how
big it is. She does not know the length and
breadth of this plot. She does not know what
is all around this plot, she further stated that
the houses of Moolchand, Lakhan, Gutia, and
Mishrilal are situated towards the field of
Prem Singh. She does not know that she
celebrates Gowardhan Puja or not. She does
not know as to whether cow dung is used in
making the statue of Lord Gowardhan or not.
She had gone to dump one Tasla cow dung
from her home at 9:00 A.M. Her brother
Kamal went for defecation 1-2 minutes
before her. She does not know whether at that
time her father and brother Lakhan were at
home or not.

52. PW-3 Rekha stated further in her
cross-examination that the police had come
to the spot at around 11 o'clock and took
away the dead body. Who had placed the
dead body on the cot, she does not know
because she was crying at that time. The
police did not carry the corpse along with
the cot. She does not know whether the
police vehicle had reached the field or not.
She had told to the police that her plot is
located near the field of Prem Singh and
she has also told about the dumping of cow
dung in that plot, if it is not written in her
statement then she can not tell the reason.
The accused persons wanted to take
possession of her plot and for this reason,
178 INDIAN LAW REPORTS ALLAHABAD SERIES
they had enmity. She told this fact to the
police, if it is not written this fact in her
statement, then she cannot tell any reason.

53. PW-3 Rekha further stated in her
cross-examination that at that time her field
was empty, Pareh (irrigation of field before
seeding) was going on. She does not know
when Pareh started. The water of the
tubewell of Prem Singh was sweet at the
time of the incident. Since 2-3 months after
the incident, she was residing in Delhi with
her maternal grandfather and grandmother.
The accused persons wanted to kill her.
Since the accused paid 3 lakh rupees to kill
her, so she had gone to Delhi for saving her
life. This fact was revealed 3 months after
the incident. Her statement was recorded 25
days after the incident. She does not know
how many times the police had come to the
village during this period. We do not go for
defecation in our field because our field is
far away, so we go to the field of Prem
Singh for defecation. Raghunath is her real
uncle. It is true that the incident took place
on the day of Goverdhan Puja.

54. During her cross-examination,
certain suggestion were put to the witness,
which have been specifically denied by
P.W.-3 and she stated that it is wrong to say
that she has been residing in Delhi even
before the incident and is telling false that
she was dumping cow dung in the plot
located near the field of Prem Singh. It is
wrong to say that her brother was not
murdered by the accused persons. It is
wrong to say that Raghunath Singh was not
present at the time of the incident.

55. The presence of PW-3 Rekha near
the place of the occurrence at the time of
the incident has been assailed by the
appellants as; firstly; the incident took
place on Gowerdhan Puja, on that day the
statue of Lord Gowerdhan is made by cow
dung and therefore, no question arises for
dumping the cow dung on that day and she
is unaware about the numbers of her cattle;
Secondly; she is unaware the surroundings
of the plot, where it is alleged that at the
time of the incident, she was dumping the
cow dung at 9:30 A.M.; the deceased went
to defacation 1 or 2 minutes from the home
before her at 9:00 A.M., therefore she
reached the plot after 30 minutes, which is
improbable because her plot is situated
nearest to her house; thirdly; she stated in
her statement-in-chief that her father and
brother, who were taking water from the
tubewell of Prem Singh, came to the place
of occurrence and they picked up the body
of the deceased and placed it on a cot;
whereas
she
denied
in
her
crossexamination that she was unaware as to
who placed the body on cot; fourthly; she
stated that at the time of the incident her
father and bfrother Lakhan were taking the
water from the tubewell; whereas according
to the prosecution case, they went to the
tubewell to ask for taking the water for
irrigation; fifthly; she stated in her crossexamination that at the time of the incident,
she was dumping the cow dung in her plot
near the field of Prem Singh; whereas in
examinatiin-in-chief, she stated that at that
time she was coming from her field after
dumping the cow dung.

56. Upon a close scrutiny of the
evidence of PW-3 Rekha, reveals that she
was dumping cow dung in her plot at the time
of the incident which is situated near to the
field of Prem Singh. The houses of
Moolchand, Lakhan, Gutia, and Mishrilal are
situated adjacent to her plot, towards the field
of Prem Singh. It is noticeable that the field
of PW-3 is situated near the tubewell of Prem
Singh. The incident took place in the field of
Prem Singh which is located adjacent to the
7 All. Jagdish Vs. State of U.P.
179
outskirts of the village. There is no field of
PW-3 located adjacent to the place of the
incident. The plot where she is claimed
herself to be present at the time of the
incident and the field of her father are
different places. There is inconsistency in her
testimony with regard to her presence at the
time of incident. She stated in her
examination-in-chief that she was dumpting
the cow dung in the field located near the
field of Prem Singh, whereas, she stated in
her cross-examination that her plot is situated
near the field of Prem Singh and at that
material time she was dumping cow dung in
that plot if it is not written in her statement
she can not tell the reason.

57. It is relevant to note that there is no
dispute with regard to arrival of her father
(PW-1 Manal Singh) and her brother (PW-2
Lakhan Singh) at the place of the incident after
the occurrence from the tubewell of Prem
Singh and her arrival at the spot after hearing
the noise. It is significant that, no suggestions
have been put to the witness regarding the
above fact.

58. PW-4 S.I. Rakesh Kumar Awasthi
(I.O.) stated in his examination-in-chief that he
received the investigation of Case Crime No.
681 of 2007 on 10.11.2007.