# Jubli & Anr v. State of U.P. & Anr

- **Citation:** (2025) 8 ILRA 835
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-14
- **Case number:** Criminal Appeal No. 393 of 1984
- **Bench:** Salil Kumar Rai, Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jubli-anr-v-state-of-u-p-anr-53816
- **Pages:** 20

## Headnote

Section 302 IPC could be sustained on the basis
of ocular testimony of related eye-witnesses,
corroborated by medical evidence and a
statement of the deceased recorded under
Section
161
Cr.P.C.
treated
as
a
dying
declaration, despite acquittal of other coaccused
and
alleged
contradictions
in
prosecution evidence.

Headnotes
Indian Penal Code, 1860 - s.302 -
Criminal Trial - Appreciation of evidence
-
Related
eye-witnesses
-
Dying
declaration recorded under s.161 Cr.P.C.
- Absence of medical fitness certificate -
Evidentiary value - Acquittal of coaccused - "Falsus in uno, falsus in
omnibus" - Not applicable - Conviction
affirmed.

Held:
Testimony of PW-1 (informant) and PW-3 (eyewitness), though related to the deceased, was
natural,
consistent
and
trustworthy.
Their
presence at the place of occurrence was fully
explained and could not be doubted merely on
the ground of relationship. Minor inconsistencies
and embellishments did not affect the core
prosecution version. [Paras 36-40]

Statement of the injured recorded under Section
161 Cr.P.C., followed by his death, assumed the
character of a dying declaration. Absence of a
doctor's certificate regarding mental fitness was
not fatal where evidence of witnesses and
Investigating
Officer
established
that
the
deceased was conscious and capable of making
the statement. The dying declaration stood
corroborated by ocular and medical evidence.
[Paras 46-51]

Medical evidence fully supported the prosecution
case. Gunshot injuries, direction of wounds and
absence of blackening/tattooing corroborated
the manner of assault described by the eyewitnesses. Time of death as opined in postmortem report was consistent with ocular
testimony. [Paras 38-39, 58-59]

Acquittal of six co-accused did not render the
entire prosecution case doubtful. The maxim
falsus in uno, falsus in omnibus has no
application in Indian criminal jurisprudence;
court is duty-bound to separate truth from
embellishment. Conviction of the appellants
could be sustained on reliable residue of
evidence. [Paras 52-55]

Prosecution proved motive, prompt lodging of
FIR, place of occurrence and chain of events
beyond reasonable doubt. Conviction under
Section
302
IPC
and
sentence
of
life
imprisonment rightly recorded by the trial court.
Appeal dismissed. [Paras 41-45, 60-64]

Appeal dismissed. (E-14)

Case Law Cited
Dharmendra Kumar @ Dhamma v. State of M.P.,
(2024) 8 SCC 60 - applied; Laxman v. State of
Maharashtra, (2002) 6 SCC 710 - relied on;
Mahendran v. State of Tamil Nadu, (2019) 5 SCC
67 - followed; Ramesh Harijan v. State of U.P.,
(2012) 5 SCC 777 - relied on; Gangadhar
Behera v. State of Orissa, (2002) 8 SCC 381 -
referred; Balaka Singh v. State of Punjab,
(1975) 4 SCC 511 - referred.

List of Acts / Statutes
836 INDIAN LAW REPORTS ALLAHABAD SERIES
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Indian Evidence Act, 1872.

List of Keywords
Murder; Section 302 IPC; Ocular evidence;
Related witnesses; Dying declaration; Section
161 Cr.P.C.; Medical corroboration; Motive;
Acquittal of co-accused; Falsus in uno falsus in
omnibus;
Appreciation
of
evidence;
Life
imprisonment.

Case Arising From
Judgment and order dated 03.02.1984 passed
by the Additional Sessions Judge, Budaun in
Sessions Trial No. 37 of 1982 (State v. Jubli
and 7 others), arising out of Case Crime No. 129
of 1981, Police Station Rajpura, District Budaun.

Appearance for Parties
For the Appellants: Sri Apul Misra, Sri P.N.
Misra
For the Respondent: Sri A.P. Tewari

## Text

_Characters 0–39,960 of 69,563. This is a partial read: ask again with offset=39960 for what follows._

8 All. Jubli & Anr. Vs. State of U.P. & Anr.
835
---------
(2025) 8 ILRA 835
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.08.2025

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE SANDEEP JAIN, J.

Criminal Appeal No. 393 of 1984

Jubli & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Apul Mishra, P.N. Misra

Counsel for the Respondents:
A.P. Tewari

Issue for Consideration
Whether the conviction of the appellants under
Section 302 IPC could be sustained on the basis
of ocular testimony of related eye-witnesses,
corroborated by medical evidence and a
statement of the deceased recorded under
Section
161
Cr.P.C.
treated
as
a
dying
declaration, despite acquittal of other coaccused
and
alleged
contradictions
in
prosecution evidence.

Headnotes
Indian Penal Code, 1860 - s.302 -
Criminal Trial - Appreciation of evidence
-
Related
eye-witnesses
-
Dying
declaration recorded under s.161 Cr.P.C.
- Absence of medical fitness certificate -
Evidentiary value - Acquittal of coaccused - "Falsus in uno, falsus in
omnibus" - Not applicable - Conviction
affirmed.

Held:
Testimony of PW-1 (informant) and PW-3 (eyewitness), though related to the deceased, was
natural,
consistent
and
trustworthy.
Their
presence at the place of occurrence was fully
explained and could not be doubted merely on
the ground of relationship. Minor inconsistencies
and embellishments did not affect the core
prosecution version. [Paras 36-40]

Statement of the injured recorded under Section
161 Cr.P.C., followed by his death, assumed the
character of a dying declaration. Absence of a
doctor's certificate regarding mental fitness was
not fatal where evidence of witnesses and
Investigating
Officer
established
that
the
deceased was conscious and capable of making
the statement. The dying declaration stood
corroborated by ocular and medical evidence.
[Paras 46-51]

Medical evidence fully supported the prosecution
case. Gunshot injuries, direction of wounds and
absence of blackening/tattooing corroborated
the manner of assault described by the eyewitnesses. Time of death as opined in postmortem report was consistent with ocular
testimony. [Paras 38-39, 58-59]

Acquittal of six co-accused did not render the
entire prosecution case doubtful. The maxim
falsus in uno, falsus in omnibus has no
application in Indian criminal jurisprudence;
court is duty-bound to separate truth from
embellishment. Conviction of the appellants
could be sustained on reliable residue of
evidence. [Paras 52-55]

Prosecution proved motive, prompt lodging of
FIR, place of occurrence and chain of events
beyond reasonable doubt. Conviction under
Section
302
IPC
and
sentence
of
life
imprisonment rightly recorded by the trial court.
Appeal dismissed. [Paras 41-45, 60-64]

Appeal dismissed. (E-14)

Case Law Cited
Dharmendra Kumar @ Dhamma v. State of M.P.,
(2024) 8 SCC 60 - applied; Laxman v. State of
Maharashtra, (2002) 6 SCC 710 - relied on;
Mahendran v. State of Tamil Nadu, (2019) 5 SCC
67 - followed; Ramesh Harijan v. State of U.P.,
(2012) 5 SCC 777 - relied on; Gangadhar
Behera v. State of Orissa, (2002) 8 SCC 381 -
referred; Balaka Singh v. State of Punjab,
(1975) 4 SCC 511 - referred.

List of Acts / Statutes
836 INDIAN LAW REPORTS ALLAHABAD SERIES
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Indian Evidence Act, 1872.

List of Keywords
Murder; Section 302 IPC; Ocular evidence;
Related witnesses; Dying declaration; Section
161 Cr.P.C.; Medical corroboration; Motive;
Acquittal of co-accused; Falsus in uno falsus in
omnibus;
Appreciation
of
evidence;
Life
imprisonment.

Case Arising From
Judgment and order dated 03.02.1984 passed
by the Additional Sessions Judge, Budaun in
Sessions Trial No. 37 of 1982 (State v. Jubli
and 7 others), arising out of Case Crime No. 129
of 1981, Police Station Rajpura, District Budaun.

Appearance for Parties
For the Appellants: Sri Apul Misra, Sri P.N.
Misra
For the Respondent: Sri A.P. Tewari

(Delivered by Hon'ble Sandeep Jain, J.)

1. This Criminal Appeal has been
preferred by the convicted accused Jubli
and Mihilal @ Bhagatji against the
impugned judgment and order dated
03.02.1984 passed by Sri. B.D. Maurya,
Additional Sessions Judge, Budaun in
Sessions Trial No.37 of 1982 (State vs.
Jubli and 7 others), arising out of Case
Crime No.129 of 1981, Police Station
Rajpura, District Budaun, whereby the
appellants have been convicted under
Section 302 I.P.C. and sentenced to
undergo life imprisonment.

2.
Factual
matrix
is
that
on
28.08.1981, first informant Dhan Singh
(PW-1 at the trial) along with his son
Shahzadey,
his
brother's
son
Kishanlal(PW-3 at the trial), villagers
Sheodan, Gendan Lal (PW-5 at the trial),
and first informant's brother Fateh Singh,
were returning from animal market Babrala
and when they reached in between village
Pahalwada and Ji Nagla, then at about 5:00
PM, they met accused Jubli, Nawab,
Mihilal @ Bhagatji, Ganga Sahai, Ompal,
Surja, Palia and Gappoo, who after
exchanging greetings, surrounded the first
informant
and
the
other
persons
accompanying him. After saying, that Fateh
Singh was doing intense pairvi against Ram
Singh in a case, jointly accused Jubli and
Mihilal with intention to kill, pulled out
'tamancha' and fired two shots on first
informant's brother Fateh Singh, and when
the first informant and the persons
accompanying him, tried to save Fateh
Singh, then the accused persons fired two
more rounds and then accused Nawab,
Ompal, Ganga Sahai, Palia, Gappoo and
Surja also threatened them, by saying, that
the fate of Fateh Singh has been decided
and their fate would too, be decided.
Thereafter, the first informant and other
persons
accompanying
him,
brought
injured Fateh Singh on a cot to Police
Station Rajpura for registering the first
information report, where Dhan Singh
(PW-1) gave an application (Ex.Ka-1 at the
trial) scribed by Shafaat Ali.

3. On the basis of application Ex.Ka-1
given by Dhan Singh PW-1 at police
station Rajpura, first information report
regarding the incident was registered on
28.08.1981 at 21:35 PM being Case Crime
No.129 of 1981, under Sections 147, 149,
307 I.P.C. against accused-appellants Jubli,
Mihilal and their six accomplices and a
corresponding entry was made in G.D. at
serial No.20 at 21:35 hours on 28.08.1981.
at P.S. Rajpura.

4. After registration of F.I.R., since the
seriously injured Fateh Singh required
treatment, as such, he was referred to
District hospital Budaun. The investigation
of the case was assigned to S.I. Hari Nath
8 All. Jubli & Anr. Vs. State of U.P. & Anr.
837
Sharma(PW-6 at the trial), who also
recorded the statement of injured Fateh
Singh under Section 161 Cr.P.C and later
on, after his death, treating it as dying
declaration, proved it as Ex.Ka-9 during
trial, which reads as under:-

"फ़तेह कसंह पुत्र कबहारी थाना राजपुरा ने बताया कक
आज मैं वह मेरा भाई िन कसंह बाजार बबरािा पैंठ करने गए थे।
वहां से हम वह गााँव के ककशन िाि पुत्र संतराम, कशवदान पुत्र
पािी, मेरा भतीजा शहज़ादा तथा तुमररया घाट का गेंदन िाि पुत्र
भांजन बबरािा का बाजार करके घर आ रहे थे। जब हम सब
पहिवाड़ा तथा जी नंगिा के बीच के करीब आए तो हमें रास्ते में
गाकड़या बगडोर के जुबिी, नवाब, कमकहिाि कजसको भगतजी भी
कहते हैं, कजसका बाप का नाम मुंशी है, गंगा सहाय पुत्र तोड़ी व
ओमपाि पुत्र अरी कसंह, सुरजा पुत्र रामचंदर तथा हमारे गांव के
पकिया पुत्र होिी तथा गप्पू पुत्र राम कसंह गांव के बैठे,कमिे,हमारे...
... राम ककशन कहने के बाद हम सबको चारों तरफ से घेर किया
और मुझसे कहा कक तू राम कसंह के मुक़दमे में कखिाफत कर रहा है।
जुबिी तथा कमकह िाि ने यह कहकर अपनी अपनी अंटी से तमंचा
कनकािकर जान से मारने के किए मेरे ऊपर दो फायर ककए। जब
हमारे साथ वािों ने बचाने की कोकशश की तो दो फायर और ककए
तथा यह कहकर कक तुम्हारा सभी का इंतज़ाम होगा चिे गए। मेरी
कांख तथा कमर में गोिी िगी है और मैंने अपने पेट पर पट्टी बााँि
िी थी, तथा चारपाई पर रखकर थाना आया ह ाँ। "

5. It is the case of the prosecution that
when the injured Fateh Singh was being
taken on cot for treatment from police
station Rajpura to District Hospital
Budaun, then, on the way at Babrala,
he died. His dead body was taken to
the nearest police station Gunnaur
where, the Panchayatnama of his dead
body was prepared by Hoshiyar Singh
(PW-4 at the trial), which is Ex.Ka-3,
on 29.08.1981, between 9:30 AM and
11 AM. PW-4 also prepared the
necessary papers for conducting the
autopsy of the dead body of Fateh
Singh and thereafter, the dead body
was sent to District Hospital, Budaun,
for autopsy.

6. The autopsy of deceased Fateh
Singh was conducted by Dr. V.K. Gupta
(PW-2 at the trial) on 30.08.1981 at 12:00
noon. The following ante-mortem injuries
were found on his body:

(i) Gun shot wound of entry 1cm
x 1 cm on the posterior aspect and upper
1/3 part of left forearm, 6.5 cm below the
left elbow joint. No blackening and
tattooing present, margin lacerated and
inverted, on dissecting both bone fractured
ulna and radial artery lacerated.

(ii) Gun shot wound of exit 2.5cm
x 2 cm on the anterior of middle of left
forearm 9 cm beneath the middle of left
cubital fossa, margin lacerated and everted
and communicate with injury No.1.

(iii) Gun shot wound of entry of 1
cm x 1 cm x cavity deep on the right side of
abdomen in the middle of axillary line, 15
cm above the right illiac crest. Margin
lacerated and inverted. No blackening and
tattooing present. On dissecting of wound,
muscle, peritoneum, small intestine and
spleen lacerated, one litre clotted blood
present in cavity.

 (iv) Gun shot wound of exit 2 cm
x 1.5 cm on the posterior axillary line on
the left side of abdomen 17 cm above the
left illiac crest communicate with injury
No.3, margin lacerated and everted.

7. In the opinion of the Doctor PW-2,
Fateh Singh died about one and a half day
prior to the autopsy, due to shock and
haemorrhage. The autopsy report is Ex.Ka2 at the trial.

8. The Investigating Officer PW-6
collected blood stained and plain soil from
the spot on 29.08.1981. The recovery
memo of the above objects is Ex.Ka-11.
The Investigating Officer also prepared the
site plan of the spot of occurrence, which is
838 INDIAN LAW REPORTS ALLAHABAD SERIES
Ex. Ka-10, at the trial. The Investigating
Officer after completion of investigation
submitted a charge sheet (Ex.Ka-12)
against Jubli, Nawab, Mihilal @ Bhagatji,
Ganga Sahai, Ompal, Surja, Palia and
Gappoo under Section 147, 148, 149, 302
IPC, on which cognizance was taken.

9. The trial court framed charges
against the accused Jubli and Mihilal under
Section 147 and 302 IPC and against
accused Nawab, Ganga Sahai, Ompal,
Surja, Gappoo and Palia under Section 147
and 302/149 IPC on 01.10.1982, to which
they pleaded not guilty and claimed trial.
The trial court by impugned judgment and
order dated 03.02.1984, acquitted the
accused Ompal, Ganga Sahai, Surja,
Nawab, Gappoo and Palia from the charges
under Section 147, 302 IPC and convicted
accused-appellants Jubli and Mihilal @
Bhagatji under Section 302 IPC, hence this
appeal by the convicted accused.

10. The State has not challenged the
acquittal of accused Ompal, Ganga Sahai,
Surja, Nawab, Gappoo and Palia, by filing
Government Appeal.

11. During trial, the prosecution
examined the following witnesses, who
proved the following documents/material
objects:-

S.No.
Witnesses
Document proved
1.
Dhan Singh, first
informant,
examined as PW-1
Proved
the
Tehrir
as
Ex.Ka-1
2.
Dr. V.K. Gupta,
examined as PW-2.
Proved the autopsy report
of deceased Fateh Singh as
Ex.Ka-2
3.

Kishanlal,
eye
witness, examined
as PW-3,
Proved no document
4.
Inspector Hoshiyar
Singh, examined as
PW-4
(i)Proved
the
Panchayatnama
of
deceased Fateh Singh as
Ex.Ka-3,
(ii)The prosecution papers
prepared for conducting
the autopsy of deceased
Fateh Singh as Ex.Ka-4 to
Ex.Ka-8.
5.
Gendan
Lal,
examined as PW-5
Proved no document
6.
S.I.
Hari
Nath
Sharma,
Investigating
Officer, examined
as PW-6
(i)Proved the statement of
injured Fateh Singh under
Section
161
Cr.P.C.,recorded
in
the
case diary, as Ex.Ka-9
(ii)site plan of the spot of
occurrence as Ex.Ka-10.
(iii)recovery
memo
of
blood stained and plain
earth as Ex.Ka-11.
(iv)charge sheet against the
accused as Ex.Ka-12.
7.
Constable Netrapal,
examined as PW-7
(i)Proved the check FIR as
Ex.Ka-13 and the carbon
copy of G.D. entry No.20
time 21:35 hours dated
28.08.1981 as Ex.Ka-14.

12. The accused appellant Jubli and
Mihilal @ Bhagatji in their statement under
Section 313 Cr.P.C. denied the prosecution
story and stated that they have been falsely
implicated.

13. The first informant, Dhan Singh
(PW-1) stated in his examination-in-chief
that about fifteen months back, he, his son
Shahzadey, Kishanlal, his brother Fateh
Singh had gone to Babrala market at about
10:00 AM. After selling the bullock of
Shahzadey in the market, they started
return journey at about 03:00 PM, then, in
the way, Sheodan and Gendan Lal (PW-5
at the trial) met, who also accompanied
them and when they reached between
village Pahalwada and Ji Nagla, then they
met accused Jubli, Mihilal, Ompal, Ganga
Sahai, Surja, Nawab, Palia and Gappoo,
who were sitting on the way, who after
exchanging greetings, surrounded them,
and they said to Fateh Singh that he was
doing intense Pairvi against the case of
Ram Singh. Then accused Jubli and Mihilal
pulled out their 'tamancha' and both fired a
8 All. Jubli & Anr. Vs. State of U.P. & Anr.
839
single shot on Fateh Singh. They raised
alarm. The accused persons thereafter,
stated that the fate of Fateh Singh was
decided and their fate will also be decided.
Thereafter, they fired twice in the air. Fateh
Singh collapsed on the ground and the
accused persons fled towards east. He
further deposed that he took his brother on
a cot to police station Rajpura, where he
got the application scribed from a person,
known to his brother. The first informant
proved the application given at police
station Rajpura as Ex. Ka-1. He further
deposed that his brother Fateh Singh died at
Babrala.

14.
PW-1
deposed
in
crossexamination that Fateh Singh had enmity
with the accused, regarding the case
pertaining to Ram Singh. Besides this,
there was no other enmity. According to
him, a dacoity occurred at Ram Singh's
house, about two to two and a half months
prior to this incident. He admitted that,
except accused Gappoo and Palia, the
remaining accused had no concern with the
above dacoity. In that dacoity, Bhure,
Mahendra, Kalyan and Roshan were
accused. He admitted that his brother Fateh
Singh, was tried for murdering Lakhi, in
which accused Jubli, was also an accused.
He also admitted that his brother Fateh
Singh and accused Jubli were acquitted in
that murder case about two years back. He
denied the suggestion that in a case of
dacoity relating to village Bisangpur, P.S.
Bahjoi, District Moradabad, Fateh Singh
was tried and arrested.

15. PW-1 further deposed in crossexamination that he left his house for the
market at about 10:00 AM., and reached
the market at about 11:30 AM. Shahzadey
sold his bullock for Rs.1,400/- to a
shepherd of Islamnagar, the recitals of sale
were recorded in the cattle market, Babrala.
He further deposed that after selling
bullock, they started the return journey at
about 03:00 PM and in the way, Gendan
Lal and Sheodan met them outside the
Babrala
market
and
they
(including
Kishanlal
and
Shahzadey)
were
all
returning together. He further deposed that
the spot of occurrence, is at a distance of 23/4 koos from Babrala and, 2-2 1⁄4 koos
from the police station Rajpura, and it
takes, about an hour, to reach the police
station, on foot. He further deposed that in
the journey between Babrala market and
the spot of occurrence, they had not met
any person. He further deposed that one
can reach the spot from Babrala in about 11 1⁄2 hours. He went from the spot of
occurrence to police station Rajpura.

16. He further deposed that after
registration of F.I.R., the Investigating
Officer had enquired from him, Gendan
Lal, Sheodan and Kishanlal at the police
station. He remained at the police station
till 09:30 PM. Kishanlal went to the spot
again, but he had not thereafter, visited the
spot, because he remained with his brother.
He disclosed that he was not aware, who
scribed the Tehrir report, but it was written
by someone, who was known to his
brother. According to him, in his presence,
the Panchayatnama was prepared by SubInspector of police station Gunnaur. He
obtained cot from Malkhan of Ji Nagla on
which, he had taken his brother to the
police Station Rajpura. The cot was not
stained with blood, because he bandaged
his dhoti on the wounds. He denied the
suggestion that the first information report
was registered ante-time on the advise of
police.

17. He further deposed that they were
surrounded, from all sides, by all the
840 INDIAN LAW REPORTS ALLAHABAD SERIES
accused and at that time, they were at a
distance of about 2-3 paces from one
another. Accused Jubli was towards east of
Fateh Singh and accused Mihilal was
towards west of Fateh Singh. Both the
above accused, fired from a distance of
about 2-3 paces. He had not seen any
weapon with other remaining accused. His
brother was not having any licensed gun.
When accused Mihilal and Jubli had pulled
out their 'tamancha's, then he and Fateh
Singh had not fled and at that place, the
accused had surrounded them. They all
were towards south of Fateh Singh.
Kishanlal and Shahzadey were in front of
Fateh Singh, he was towards west and
Sheodan and Gendan Lal were behind
Fateh Singh. The assailants fired from eastwest, not from south. There was blood on
the spot. They had not suffered any
injuries, because the accused fired towards
the sky. He had got scribed in his report,
and also told the I.O. that the accused fired
in the sky for threatening them, but if it is
not mentioned in it, then he cannot tell its
reason. He further deposed that no pellet
etc. was found at the spot, because the
accused had put the empty cartridges, in
their pocket. He told this fact, to the
Investigating Officer and also got scribed
in his report, but, if this is not mentioned in
it, then he cannot tell its reason. After
firing, all the accused left. Due to fear, he
had not attempted to apprehend the
accused.
He
denied
that
he
falsely
implicated the accused Nawab and Jubli
because in the Panchayat, they had given a
verdict in favour of Fateh Singh. He further
denied the suggestion that no murder took
place at the spot of occurrence.

18. Dr. V.K. Gupta (PW-2) deposed in
his
examination-in-chief
that
on
30.08.1981, at 12:00 noon he conducted the
autopsy of deceased Fateh Singh. The antemortem injuries found on the dead body
have been mentioned previously in this
judgment, hence, are not being repeated.
This witness opined that Fateh Singh died
about one and a half day prior to the
autopsy, due to shock and haemorrhage,
caused from ante-mortem injuries. This
witness further opined that Fateh Singh
could have died on 28.08.1981 after 5:00
PM. He proved the autopsy report of
deceased Fateh Singh as Ex.Ka-2.

19. PW-2 stated in cross-examination,
that the direction of injury no.1 was
downwards, from back to front. Similarly,
the direction of injury no.3 was upwards,
from right to left. He admitted that both the
above injuries were possible from two
shots, which would have been fired from a
distance of more than three feet. He further
deposed that shape of entrance of both the
wounds, was circular.

20. Kishanlal (PW-3) deposed in his
examination-in-chief that two years and
three months back, he, Shahzadey, Dhan
Singh and Fateh Singh had gone to Babrala
market, where a bullock of Shahzadey was
sold. He had also taken his two bullocks for
selling in the market, but they remained
unsold. He, Fateh Singh, Dhan Singh and
Shahzadey commenced their return journey
at 3:00 PM from the market, then in the
way, they met Sheodan and Gendan Lal,
who also accompanied them. When they
reached between Ji Nagla and Pahalwada
village, then at 5:00 PM, they met accused
Jubli, Mihilal, Ompal, Ganga Sahai, Surja,
Gappoo, Palia and Nawab Singh. He knew
all of them previously. Accused Jubli,
Mihilal and Nawab Singh are real brothers,
Ompal, Ganga Sahai and Surja are cousin
brothers, Palia and Gappoo are also cousin
brothers. He further deposed that, after
having exchanged greetings with them, the
8 All. Jubli & Anr. Vs. State of U.P. & Anr.
841
accused surrounded them. The accused said
to Fateh Singh that he was intensely
opposing the case of Ram Singh. He
disclosed
that
previously,
a
dacoity
occurred at Ram Singh's house, in which
Bhure, Mahendra, etc. were accused, and
Fateh Singh had bailed out accused Bhure.
He further stated that Ram Singh is the
uncle of accused Jubli, etc and father of
accused Gappoo. He further deposed that,
thereafter, accused Jubli and Mihilal pulled
out their 'tamancha's and both fired a
single shot at Fateh Singh, who collapsed
after being shot. They raised alarm and
then accused said that they had silenced
Fateh Singh thereafter, accused Jubli and
Mihilal, fired two rounds in air and fled
towards east. He further deposed that PW-1
brought a cot from Ji Nagla and had also
torn pieces from his dhoti and bandaged the
wounds of Fateh Singh and thereafter,
Fateh Singh was put on the cot and Dhan
Singh, Shahzadey, Mahendra, etc. took the
injured to police station Rajpura. He
deposed that he proceeded to his house,
thereafter, on the next day Investigating
Officer had recorded his statement at the
spot.

21.
PW-3
deposed
in
crossexamination that the deceased Fateh Singh
was his uncle, who was neither a litigant
nor indulged in money transactions. Fateh
Singh did not belong to any party and was
facing trial in only Lakhi's murder case
alongwith, accused Jubli. He denied the
suggestion, that in a dacoity that took place
in Bisangpur village, police station Bahjoi,
District Moradabad, Fateh Singh was
apprehended and was identified in jail. He
also admitted that Shahzadey was his
cousin brother. He also admitted that in the
dacoity that took place at Ram Singh's
house, Bhure, Mahendra, Kalyan and
Roshan were accused, who all belong to
Fateh Singh's village, but in that dacoity,
the accused of this case, were not involved.
He also admitted that accused Palia is
nephew of Ram Singh and the remaining
accused, are cousin brothers of Gappoo and
Palia. He admitted that he had not told the
Investigating Officer that the accused were
relatives of Ram Singh and Fateh Singh
had bailed out Bhure, and was doing Pairvi
against Ram Singh. He admitted that Fateh
Singh had bailed out Bhure and was
his(Bhure's)surety. He also admitted that
except Bhure Singh, Fateh Singh was not
doing pairvi of any other accused in the
dacoity case of Ram Singh. He also
admitted that there was an enmity between
Fateh Singh and Ram Singh and his family
members, because Fateh Singh had bailed
out Bhure.

22. PW-3 further disclosed that he and
Shahzadey both had taken two bullocks
each, for selling in the market, but only one
bullock of Shahzadey was sold. When they
were returning from the market they had
three bullocks. He admitted that he had told
the Investigating Officer that they had
taken four bullocks for selling in the
market, but only one was sold out and 3
remaining bullocks were with them, but, if
this is not recorded in his statement, then he
cannot tell its reason. He further deposed
that around 1-1:30 PM the bullock was
sold, to a shepherd for Rs.1,400/-, it's
receipt was prepared, which was given to
the purchaser.

23. PW3 further deposed that they all
proceeded from their house together and
were also returning together. He further
deposed that they remained in the market
till 3-3:30 PM and thereafter, started their
return journey. The incident occurred on
thoroughfare and at that time, none was
present. He further deposed that, 4 of them
842 INDIAN LAW REPORTS ALLAHABAD SERIES
were walking together and in the way, they
met Sheodan and Gendan Lal, who were
also walking with them, at the time of the
incident. They met Sheodan and Gendan
Lal at a distance of about 8-10 paces, after
exiting from the market, who were not
having bullock with them, who have
purchased something from the market. It
took about one and a half hours to reach the
spot of occurrence, from the market. He
further deposed that it was a month of
Bhadon(Bhadrapada) and at that time, it
was not raining. It rained 5-10 days before
the incident. Millet(bajra) crop was in the
field.

24. PW3 further deposed that he saw
the accused from a distance of 2-3 paces,
but they were not afraid of being killed.
Even Fateh Singh was also not afraid. The
accused persons were sitting on the road
side, towards west, in a field, which was
ploughed for rabi crop. The movement on
this road is in the north-south direction.
The accused were not sitting on both sides
of the road. He had not told the
Investigating Officer that the accused were
sitting on both the sides i.e. east and west
of the road, and if, the Investigating Officer
has shown this in the site plan, then he
cannot specify its reason. He further
deposed that the accused surrounded Fateh
Singh, but had not caught him. The accused
fired in all, four rounds, after surrounding
him(Fateh Singh) which were fired by only
two persons. At the time of firing, accused
Jubli was towards east and accused Mihilal
was towards west of Fateh Singh, Fateh
Singh was in between them. When Fateh
Singh was shot, at that time, he(Fateh
Singh) was facing north, the accused fled
towards east. When Fateh Singh was shot,
he was in between Jubli and Mihilal, who
collapsed on the ground instantaneously
after being shot, but had not become
unconscious and was speaking, who
stopped speaking at Babrala. This witness
was asked whether Fateh Singh was
speaking
till
reaching
Babrala
and
previously also at police Station Rajpura,
but this question was disallowed by the trial
court, by recording that since the "witness
did not accompany the injured Fateh Singh
to the police station Rajpura, Babrala and
Budaun. He is not expected to give answer
to this question because the answer will be
based on hearsay knowledge."

25. PW-3 further deposed in the crossexamination that when the injured Fateh
Singh was brought to the police station,
then he was conscious, who was speaking a
lot, who had also seen the assailants, who
had a conversation with him, after being
injured. He further deposed that the
accused fired from a distance of about one
and a half yards. Two rounds were fired in
the sky and two rounds were fired at Fateh
Singh. He told the Investigating Officer
that two rounds were fired in the sky but, if
this is not mentioned in his statement, he
cannot tell its reason. He further clarified
that after firing two rounds at Fateh Singh
the accused threatened them and then fired,
two more rounds. He denied the suggestion
that he neither saw the incident nor went to
Babrala market for selling bullocks. He
admitted that except Jubli and Mihilal, the
other accused were unarmed. He further
admitted that when Fateh Singh was shot
dead, he was at a distance of 2-3 yards and
they were also surrounded on all sides, by
the accused. He was holding his bullocks,
but after firing, the bullocks got released.
He further claimed that he remained till
about an hour after the incident and the cot
was brought from Ji Nagla, from where,
many persons arrived. Till he remained at
the spot, neither anybody brought any
paper-pen nor any recital were prepared.
8 All. Jubli & Anr. Vs. State of U.P. & Anr.
843
He disclosed that the police station is at a
distance of about 5-6 miles from the spot,
which is traversed in 2-2:30 hours and
Fateh Singh was taken in the night on cot,
on foot, and it would have taken about 22:30 hours to reach the police station
Rajpura. He further admitted that when he
left the spot for his house, till then, Fateh
Singh etc. had not proceeded towards the
police station, who went thereafter. He
further admitted that except Fateh Singh,
neither any of them nor any bullock was
injured from pellets. He further disclosed
that at the spot, blood was found on two
places, which were in close proximity. He
further disclosed that shots were fired from
'tamancha', from the front.

26. Inspector Hoshiyar Singh PW-4
deposed in examination-in-chief that on
29.08.1981, he was posted as SHO at
police station Gunnaur, then it was
informed by Constable Ram Ji Lal, of P.S.
Rajpura, that he was taking injured Fateh
Singh from police station Rajpura for
treatment, then in the way at Babrala, Fateh
Singh died. This information was recorded
in GD No.12 at police station Gunnaur and
thereafter, he prepared the Panchayatnama
of deceased Fateh Singh, which was proved
as Ex.Ka-3. This witness also prepared the
other prosecution papers required for
conducting the autopsy of deceased Fateh
Singh and proved them as Ex.Ka-4 to Ka-8,
at the trial. He further proved that after
Panchayatnama, the dead body was sent
for autopsy. In cross-examination he
admitted that at the time of Panchayatnama
proceedings, he had FIR in his possession.
He stated that the information of the death
of Fateh Singh was received at police
station
Gunnaur
at
00.45
hours
on
29.08.1981
and
Panchayatnama
proceedings were started on 29.08.1981 at
09:30 AM. He further admitted that he told
from his memory, that Constable told him
that Fateh Singh died at Babrala. He denied
the suggestion that till the Panchayatnama
proceedings were conducted, the FIR was
not registered.

27. Gendan Lal, the alleged eye
witnesss of the incident, was examined as
PW-5, who deposed in his examination-inchief that he had not seen the murder of
Fateh Singh. In cross-examination, this
witness denied his previous statement
under Section 161 Cr.P.C. He admitted that
he had earlier returned alone, from the
Babrala market.

28. S.I. Hari Nath Sharma PW-6
deposed in examination-in-chief that on
28.08.1981 he was posted as SHO,
Rajpura, then in his presence, the FIR of
this case was registered, and thereafter, he
commenced the investigation. He recorded
the statement of Constable Netrapal, first
informant Dhan Singh and injured Fateh
Singh in the case diary. This witness further
deposed that since the condition of Fateh
Singh was serious, he was sent for treatment to
the hospital. This witness proved the statement
of injured Fateh Singh recorded under Section
161 Cr.P.C., as Ex.Ka-9, the site plan of the
spot of occurrence as Ex.Ka-10, the recovery
memo of blood stained soil and plain soil as
Ex.Ka-11 and the charge sheet submitted
against the accused as Ex. Ka-12.

29. PW-6 in cross-examination deposed
that the deceased Fateh Singh was also
brought to the police station and that time,
he was in a fit mental condition, was
speaking and he had not thought, that he
would die. He saw the bodily injuries of
Fateh Singh, which were serious, and he
opined, that if Fateh Singh had received
appropriate treatment, then he could have
been saved.
844 INDIAN LAW REPORTS ALLAHABAD SERIES

30. PW-6 further deposed that at the
time of registration of FIR, Fateh Singh
was lying on a cot, in front of his office and
when the FIR was being written, then Fateh
Singh was listening. At that time 2-4
persons were also present near Fateh Singh,
who brought him on a cot and they
remained present, when he recorded the
statement of Fateh Singh. He denied the
suggestion that at the time of registration of
FIR, Fateh Singh was unconscious.

31. PW-6 further deposed in crossexamination that since case crime number,
section of offence, etc. was mentioned in
the Panchayatnama, it appeared that SubInspector conducting the Panchayatnama,
obtained the first information report either
from the complainant or the injury memo. He
admitted that he had not seen any cartridge or
pellet on the spot, and had only collected
blood stained soil in the morning of
29.08.1981, and Fateh Singh was probably,
dead by then. He admitted that till the time he
had enquired from witnesses, on 29.08.1981,
he was not aware that Fateh Singh has died.
He admitted that witness Kishanlal told him
that both the accused fired a single shot, but
had not told that two rounds were fired in the
sky, but this witness told him that both the
accused had subsequently fired a single shot
and had also threatened.

32. Constable Netrapal (PW-7) proved
registration of the check F.I.R. and the
carbon copy of the corresponding G.D.
No.20 time 21:35 hours dated 28.08.1981
of
police
station
Rajpura
regarding
registration of F.I.R. as Ex.Ka-13 and
Ex.Ka-14, respectively. This witness also
admitted in cross-examination that injured
Fateh Singh was brought to the police
station, and he also admitted, that in the
above G.D., the injuries of Fateh Singh
were mentioned.

33. Learned counsel for the accusedappellants submitted that Fateh Singh was
seriously injured in the alleged incident,
who was not in a fit mental and physical
condition to give any statement, in fact, he
was unconscious at the time when he was
taken to the Police Station Rajpura, as such,
he could not have given any statement to
the Investigating Officer, PW-6. Even if, it
is assumed that Fateh Singh gave any
statement to the Investigating Officer, then,
it was not recorded by him in the manner,
in which statement under Section 164
Cr.P.C is recorded. The prosecution has not
examined any independent witness to prove
that Fateh Singh had ever given such
statement to the Investigating Officer. It
was further submitted that before recording
any dying declaration, it is mandatory to
get a certificate of doctor that such person
is in a fit mental and physical condition to
make statement, but in this case, no such
certificate of doctor was taken, before
recording statement of Fateh Singh. It was
further submitted that even if any such
statement was given by Fateh Singh, then it
was a tutored statement, which is not
credible. He further submitted that the first
informant Dhan Singh PW-1 and PW-3
Kishanlal are not the eye witnesses of the
incident, whose testimony is not credible.
There
are
many
contradictions
and
inconsistencies in their testimony. It was
further submitted that the prosecution failed
to prove any motive of the crime. There
was delay of about five hours in recording
the FIR, which was not explained, which
renders
the
whole
prosecution
story
doubtful. It was further submitted that there
is no evidence on record to prove at what
time Fateh Singh died. It was further
submitted that the time of death of Fateh
Singh mentioned in the autopsy report does
not match with the ocular evidence. It was
further submitted that the trial court
8 All. Jubli & Anr. Vs. State of U.P. & Anr.
845
disbelieved the testimony of PW-1 and
PW-3 regarding six other co-accused and,
as such, acquitted them. In view of this,
their entire testimony becomes doubtful
and, as such, the appellants could also not
have been convicted on that evidence.
Learned counsel further submitted that the
prosecution failed to prove its case beyond
reasonable doubt and, as such, the appeal
deserves to be allowed.

34. Learned A.G.A. submitted that the
incident took place on 28.08.1981 at about
5:00 PM and thereafter a cot was arranged,
to take the injured Fateh Singh, to Police
Station Rajpura, on foot. Fateh Singh was
taken on cot to Police Station Rajpura,
where FIR was registered on 28.08.1981 at
21:35 hours and, at that time, he was alive,
speaking and was in a fit mental and
physical condition, to make a statement,
which is proved from the evidence of PW1, PW-6 and PW-9. Learned A.G.A. further
submitted that the prosecution case is based
on direct evidence and, as such, it is not
required
to
prove
motive,
for
the
commission of crime. Learned A.G.A.
further submitted that since Fateh Singh
sustained gunshot injury in his abdomen, he
did not die instantaneously, but remained
alive for about 7 to 8 hours, after the
incident, which is proved from the
testimony of prosecution witnesses. He
further submitted that since Fateh Singh
died after making statement under Section
161 Cr.P.C., his statement became a dying
declaration, which is corroborated from the
ocular testimony of PW-1 and PW-3. The
injuries sustained by Fateh Singh are
proved
by
ocular
evidence
and
corroborated by medical evidence. It was
further submitted that in the facts and
circumstances of the case, there was no
delay in recording the FIR and the
prosecution evidence is credible. He
admitted that there were some minor
improvements and inconsistencies in the
testimony of eye witnesses but, according
to him, they were not of such nature, that
would make the whole prosecution case
doubtful. With these submissions, it was
prayed, that the appeal be dismissed.

35. We have heard the learned counsel
of both the parties and perused the trial
court record.

36. From the evidence of PW-1 Dhan
Singh and PW-3 Kishanlal, it is evident
that on the date of the incident, they along
with Shahzadey and Fateh Singh had left
their house for going to Babrala market at
about 10:00 AM for selling four bullocks,
had reached the market and after selling
one
bullock
of
Shahzadey,
they
commenced their return journey at about
3:00 PM, from the market, with three
unsold bullocks, then in the way, they met
Sheodan and PW-5 Gedan Lal, who also
accompanied
them
to
the
spot
of
occurrence. It was further proved that when
they reached in between village Pahalwada
and Ji Nagla, at about 5:00 PM, then they
met accused Jubli, Mihilal, Ompal, Ganga
Sahai, Surja, Nawab, Palai and Gappoo,
who after exchanging greetings with them,
surrounded them. It is further proved that
the accused said to Fateh Singh that he was
doing intense pairvi against the case of
Ram Singh and then, accused Jubli and
Mihilal pulled out their 'tamancha' and
fired one round each on Fateh Singh from
close distance. Thereafter, the accused
claimed that they had decided the fate of
Fateh Singh and the fate of the remaining
accused will also be decided. Thereafter,
the accused fired two more rounds in the
sky and fled. It is also proved that after
being shot, Fateh Singh collapsed on the
ground, who was taken on a cot, on foot, by
846 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-1 and others to police station Rajpura
where the first informant PW-1 scribed the
application, on the basis of which,
subsequently F.I.R. was registered. PW-1
proved the tehrir as Ex. Ka-1.

37. From the evidence of PW-1, it is
further proved that the application Ex.Ka-1
was scribed outside the Police Station
Rajpura, from a person who knew Fateh
Singh. PW-1 remained at the Police Station
till the FIR was registered and the
statement of Fateh Singh was recorded by
PW-6. It is also proved that the cot on
which Fateh Singh was taken to the police
station, was obtained from one Malkhan,
belonging to village Ji Nagla. It is also
proved that PW-1 and PW-3 knew all the
accused, prior to the incident. It is also
proved that a piece of dhoti was applied as
bandage on the wounds of Fateh Singh and
he was taken to the Police Station Rajpura
on foot, on a cot, by PW-1, Shahzadey, etc.
but PW-3 had not accompanied them. From
the evidence of PW-1 and PW-3, it is also
proved, that they were all returning
together from Babrala market and were
proceeding towards their house, then at
about 5 PM the incident occurred. They
proved that the incident took place on a
thoroughfare but, at that time, besides them
and their fellow villagers and accused, none
other was present. They also proved that, in
the way Sheodan and Gendan Lal met
them, who also accompanied them, but this
fact was denied by PW-5 Gendan Lal.