# Keshav Singh @ Kesho (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 1260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-18
- **Case number:** Criminal Appeal No. 8378 of 2008
- **Bench:** Manoj Misra, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/keshav-singh-kesho-in-jail-v-state-of-u-p-45967
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 383 - Indian
Penal Code,1860 - Section 302/120B -
Arms Act,1959 - Section 25 - appellants
with their common intention to kill the
deceased is indicated by their conduct,
the manner of assault, the weapon used,
the situs of the injuries and their nature
and there was preconcert as shown by
the evidence of PWs' 1, 2 and 4-Their
common intention is fully established by
the
circumstances
and
events
that
unfolded in the prosecution story, duly
corroborated by PW-1, PW- 2 and PW- 4.
-minute discrepancies in ocular version
and medical evidence does not vitiate
the proceeding and trustworthiness of
witnesses-trial court rightly observed
the matter- The trial court has wrongly
appreciated the evidence on the point of
the criminal conspiracy without giving
any cogent reasoning as to how and in
what manner the appellant hatched the
criminal conspiracy along with the other
4 appellants-appellant gets benefit of
doubt
in
hatching
conspiracy
and
acquitted while other four appellants
sentence is affirmed.(Para 1 to 71)

B. It is observed that undue importance
should not be attached to omissions,
contradictions and discrepancies which
do not go to the root of the matter and
shake
the
basic
version
of
the
prosecution witnesses. A witness cannot
be expected to possess a photographic
memory and to recall the details of an
incident
verbatim.
Ordinarily,
it
so
happens that a witness is overtaken by
events.
A
witness
could
not
have
anticipated the occurrence which very
often has an element of surprise. The
mental faculties cannot, therefore, be
expected to be attuned to absorb all the
details. Thus, minor discrepancies were
bound to occur in the statement of
witnesses. The evidence of relative
cannot be disbelieved merely on the
ground that the witnesses are related to
each other or to the deceased. While
appreciating the evidence of a witness,
the approach must be whether the
evidence of the witness read as a whole
appears to have a ring of truth. Once
that
impression
is
formed,
it
is
undoubtedly necessary for the court to
scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them
to find out whether it is against the
general tenor of the evidence given by
the witness and whether the earlier
evaluation of the evidence is shaken as
to render it unworthy of belief. (Para 34)

The appeal is partly allowed. (E-5)

List of Cases cited:-

## Text

1260 INDIAN LAW REPORTS ALLAHABAD SERIES
party as to how the incident unfolded as
also that there was no recovery from the
accused of any incriminating material to
lend corroboration to the prosecution story,
leaves us with no option but to extend the
benefit of doubt to the two accused.

35. At this stage, though it is not
required as we have already taken a
decision to extend the benefit of doubt to
the two accused, we may observe that there
was no convincing evidence to indicate that
Mahendra Singh had shared common
intention with Geetam Singh to whom the
role of firing at the deceased was attributed.
Mahendra Singh was attributed only the
role of stopping the deceased without
disclosing whether he exhorted the main
shooter to finish off the deceased or that he
caught hold of the deceased with a view to
immobilise him so as to enable the shooter
to finish off the deceased. Further, the
alleged weapon of assault is a country
made pistol which can easily be concealed.
It is not shown that when Mahendra Singh
stopped the deceased, Geetam Singh had
already taken out his gun. Under the
circumstances, in absence of any evidence
of a premeditated plan, fastening liability
on accused Mahendra Singh by invoking
the provisions of Section 34 IPC was not
justified. However, surprisingly, both the
accused were tried for the charge of murder
read with Section 34 I.P.C. when, in the
facts of the prosecution case, the main
shooter should have been tried with the
charge of murder simpliciter, punishable
under Section 302 I.P.C., and the other with
the aid of Section 34 I.P.C.

36. In view of the foregoing
discussion, we are of the considered view
that prosecution has not been able to
establish the guilt of the accused-appellants
beyond reasonable doubt and, therefore, the
accused-appellants are entitled to the
benefit of doubt. Consequently, the appeal
is allowed. Both the appellants are
acquitted of the charge for which they have
been tried. The appellant No. 1 (Mahendra
Singh Baghel) is reported to be on bail, he
need not surrender subject to compliance of
the provisions of Section 437 A CrPC
before the trial court below. In so far as
appellant no. 2 (Geetam Singh Baghel) is
concerned, he is reported to be in jail. He
shall be released forthwith, unless wanted
in any other case, subject to compliance of
the provisions of Section 437 A CrPC
before the trial court below.

37. Let a certified copy of this order
and the record of the trial court be sent to
the trial court forthwith for information and
compliance.
----------
(2021)01ILR A1260
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2020

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Appeal No. 8378 of 2008
With
Criminal Appeal No. 7424 of 2008 & 7517
of 2008

Keshav Singh @ Kesho...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Birendra Kaushik, Sri Chandra Kumar
Rai, Sri Noor Mohammad, Sri Vineet Kumar
Singh, Sri Sukhvir Singh

Counsel for the Opposite Party:
A.G.A., Sri Pankaj Sharma
1 All. Keshav Singh @ Kesho Vs. State of U.P.
1261
A. Criminal Law - Code of Criminal
Procedure,1973 - Section 383 - Indian
Penal Code,1860 - Section 302/120B -
Arms Act,1959 - Section 25 - appellants
with their common intention to kill the
deceased is indicated by their conduct,
the manner of assault, the weapon used,
the situs of the injuries and their nature
and there was preconcert as shown by
the evidence of PWs' 1, 2 and 4-Their
common intention is fully established by
the
circumstances
and
events
that
unfolded in the prosecution story, duly
corroborated by PW-1, PW- 2 and PW- 4.
-minute discrepancies in ocular version
and medical evidence does not vitiate
the proceeding and trustworthiness of
witnesses-trial court rightly observed
the matter- The trial court has wrongly
appreciated the evidence on the point of
the criminal conspiracy without giving
any cogent reasoning as to how and in
what manner the appellant hatched the
criminal conspiracy along with the other
4 appellants-appellant gets benefit of
doubt
in
hatching
conspiracy
and
acquitted while other four appellants
sentence is affirmed.(Para 1 to 71)

B. It is observed that undue importance
should not be attached to omissions,
contradictions and discrepancies which
do not go to the root of the matter and
shake
the
basic
version
of
the
prosecution witnesses. A witness cannot
be expected to possess a photographic
memory and to recall the details of an
incident
verbatim.
Ordinarily,
it
so
happens that a witness is overtaken by
events.
A
witness
could
not
have
anticipated the occurrence which very
often has an element of surprise. The
mental faculties cannot, therefore, be
expected to be attuned to absorb all the
details. Thus, minor discrepancies were
bound to occur in the statement of
witnesses. The evidence of relative
cannot be disbelieved merely on the
ground that the witnesses are related to
each other or to the deceased. While
appreciating the evidence of a witness,
the approach must be whether the
evidence of the witness read as a whole
appears to have a ring of truth. Once
that
impression
is
formed,
it
is
undoubtedly necessary for the court to
scrutinise the evidence more particularly
keeping in view the deficiencies, drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them
to find out whether it is against the
general tenor of the evidence given by
the witness and whether the earlier
evaluation of the evidence is shaken as
to render it unworthy of belief. (Para 34)

The appeal is partly allowed. (E-5)

List of Cases cited:-

1. Prithu @ Prithi Chand & anr. Vs St. of H.P.
(2009) 11 SCC 588

2. St. of U.P. Vs M. K. Anthony (1985) 1 SCC 505

3. Mangu Khan & ors. Vs St. of Raj. (2005) AIR
SC 1912

4. Madan Gopal Kakkad Vs Naval Dubey & anr.
(1992) 3 SCC 204

5. Dilip Singh & ors.Vs St. of Punj. (1953) AIR
SC 364

6. Stalin Vs State reptd. by Inspr of Police CRLA
No. 577 of 2020

7. R. Shaji Vs St. of Ker. (2013) 14 SCC 266

8. Yogesh Singh Vs Mahabeer Singh & ors.
(2017) 11 SCC 195

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

1. The present appeals are filed
against the judgment and order passed by
Additional Sessions Judge, Court No. 2
Mathura, on 22.10.2008 in Sessions Trial
No. 637 of 2005 by which the appellants
Keshav Singh @ Kesho, Bhuri Singh @
Bhura, Surendra Singh and Jagdish Singh
have been convicted for the offences
punishable under section 302 Indian Penal
Code
("I.P.C.")
and
the
appellant
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
Ghanshyam for the offence punishable
under section 302 read with section 120-B
I.P.C. In addition thereto, the appellants
Keshav Singh @ Kesho and Bhuri Singh @
Bhura have also been convicted for the
offence punishable under section 25 Arms
Act. The punishment awarded to the
appellants for their conviction noticed
above is as follows; imprisonment for life
with a fine of Rs.5,000/- each and default
sentence
of
six
months
additional
imprisonment under section 302 I.P.C., and
section 302 read with section 120-B I.P.C.;
one year's rigorous imprisonment with fine
of Rs. 500/- each and default sentence onemonth additional imprisonment for section
25 Arms Act. The sentences were directed
to run concurrently.

PROSECUTION CASE

2. Prosecution case in brief, as could be
elicited from the FIR lodged by Balveer
(PW- 1), is that the appellants Ghanshyam,
Keshav Singh @ Kesho, Bhuri Singh @
Bhura, Surendra Singh and Jagdish Singh had
enmity with informant's brother Ranveer
Singh (deceased) as they suspected that
Ranveer Singh had informed the police about
Ghanshyam's illegal arms factory, which was
seized by the police on 10.6.2005. Due to this
enmity, on 19.7.2005, at about 6.30 a.m.,
while Ranveer Singh was going to his
Nauhara along with his wife Smt. Guddi
Devi (PW- 2) and daughter Asha (not
examined), when he reached in front of the
house of Ghanshyam, the appellants Keshav
Singh, Bhuri Singh, Surendra Singh, and
Jagdish Singh, ambushed him and fired shots
at Ranveer Singh by rifle and unlicensed
pistols. On receiving gunshot injuries,
Ranveer Singh died at the spot. Hearing the
gunshots, Hakim Singh (not examined) and
Devendra Singh (PW- 4) arrived at the spot.
The appellants threatened them and fled away
from the spot. According to the prosecution,
Ghanshyam
Singh
had
hatched
the
conspiracy to murder Ranveer Singh and,
before the incident, he and other accusedappellants had threatened the informant.

3. The First Information Report1 dated
19.7.2005 (Ex. Ka-3) had been registered
under section 302, 506, 120-B I.P.C. against
the appellants at Police Station- Baldev,
District Mathura at 7.15 a.m. by Balveer
Singh (PW- 1). The distance between the
place of occurrence and Police Station is 14
KM. The special report (SR Report) of the
present case had been sent to the Magistrate
on the same day at 8.30 a.m. PW-6 SubInspector2 B.R. Zaidi, after receiving a
telephonic information reached the place of
occurrence at around 7.00 a.m., during the
investigation,
he
recovered
two
used
cartridges (which were .315 & .12 bore) and
blood-stained earth and plain earth from the
place of the incident, the proceeding of the
inquest had been completed at 10.30 a.m. The
body of the deceased was sent for autopsy
with other police papers (Ex. Ka-11 to Ex.
Ka-14).

4. PW-3 Dr. B. D. Bhaskar conducted
the post-mortem examination of the body
of the deceased on 20.7.2005 at 1.30 p.m.
and opined that the cause of death was
'shock and haemorrhage due to antemortem injuries'. The post-mortem (Ex.
Ka-2) disclosed presence of 6 ante-mortem
injuries on the corpse of Ranveer Singh.
These are as under:

1. Wound of entry of firearm size
0.5 cm x 0.5 cm x cavity deep present on
the left side outer aspects lower chest, 17
cm below of left nipple at 5 'O' clock
position.

2. Wound of exit of firearm size 2
cm x 3 cm x cavity deep present on back of
1 All. Keshav Singh @ Kesho Vs. State of U.P.
1263
right side chest lower part 3 cm away from
mid line connected with injury no. 1.

3. Wound of entry of firearm size
01 cm x 01 cm x cavity deep present on the
right side forearm just below the elbow
joint (Right) anterior aspect.

4. Wound of exit of firearm size
02 cm x 1.5 cm x bone deep present on the
posterior
aspect
of
left
elbow
just
connected with injury no. 3 wounding
bone.

5. Wound of entry of firearm size
01 cm x 01 cm x cavity deep present on the
right side chest lower part 15 cm below
right nipple at 7 'O' clock position.

6. Abrasion size 02 cm x 01 cm
on the right side of neck middle part.

5. During the investigation, on
29.7.2005 at 5.30 a.m., PW-6 S.I. B. R.
Zaidi arrested the appellants Bhuri Singh
and Surendra Singh. He reached the
recovery place as told by the appellant
Bhuri Singh. At 6.45 a.m., he recovered an
unlicensed
pistol
.315
bore
on
the
disclosure statement and pointing out of the
appellant Bhuri Singh from the bushes near
Kashimpur mod, Madora canal at Barauli
Road. On 4.8.2005 at 8.30 a.m. he also
arrested the appellants Keshav Singh and
Jagdish Singh near Khanpur crossing at
9.30 a.m., on the disclosure statement and
pointing out of Keshav Singh, he recovered
another unlicensed pistol .12 bore from a
closed Dal Mill near Hathkoli Road,
seizure memo of the two recovered pistols
(Ex. Ka-17, Ex. Ka-19) have also been
prepared. Two F.I.R.'s of case crime nos.
124 of 2005 and 129 of 2005 (Ex. Ka- 28,
Ex. Ka- 5) were also lodged. All the
articles recovered during the investigation
were sent for forensic examination.

6. S.I. Prahlad Singh (PW- 7) after
receiving the investigation of case crime
no. 129 of 2005, under Section 25 Arms
Act, on 4.8.2005, prepared a site map (Ex.
Ka-22) of the recovery place of unlicensed
pistol
and
after
completion
of
the
investigation and after obtaining requisite
permission from the District Magistrate,
submitted a charge sheet (Ex. Ka-23)
against the appellant Keshav Singh. PW- 8
S.I. Raudas Singh also after receiving the
investigation of case crime no. 124 of 2005,
under Section 25 Arms Act, on 29.7.2005,
prepared a site map (Ex. Ka-25) of the
recovery place of unlicensed pistol and
after completion of the investigation and
after obtaining requisite permission from
the District Magistrate, submitted a charge
sheet (Ex. Ka-26) against the appellant
Bhuri Singh.

7.

After
completion
of
the
investigation, a charge sheet (Ex. Ka-21)
was submitted against the appellants, under
sections 302, 506, 120-B I.P.C by PW- 6
S.I. B. R. Zaidi. On committal, the trial
court framed charges against the appellants
Keshav Singh, Bhuri Singh, Surendera
Singh and Jagdish Singh under Sections
302, 506 I.P.C. and also framed charges
against the appellant Ghanshyam under
Sections 302 read with section 120-B I.P.C.
The trial court also charged the appellants
Keshav Singh and Bhuri Singh, under
Section 25 Arms Act. The appellants
denied the charges and claimed trial.

8. To prove the charges against the
appellants, the prosecution examined as
many as 8 witnesses, namely PW- 1
Balveer Singh (informant/younger brother
of the deceased), PW- 2 Smt. Guddi Devi
(wife of the deceased) and PW- 4 Devendra
Singh (cousin brother of the deceased) as
eye-witnesses and also produced formal
witnesses, namely PW-3 Dr. B.D. Bhaskar,
PW- 5 Head Moharrir Awan Kumar Dixit
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
(Scribe of the F.I.R.), PW- 6 S.I. B.R. Zaidi
(Investigating Officer), PW- 7 S.I. Prahlad
Singh and PW- 8 S.I. Raudas Singh, to
prove the exhibited documents and also
produced material objects. A Forensic
Scientific Laboratory report (paper no. 28
Ka/6 to 28 Ka/8) has also been submitted
by the prosecution. The prosecution proved
certain material exhibits, namely, an
unlicensed pistol .315 bore as material Ex.
No.-1, an unlicensed pistol .12 bore as
material Ex. No.-2, used cartridge .315
bore as material Ex. No.-3, used cartridge
.12 bore as material Ex. No.-4, blood
stained earth as material Ex. Ka-5, plain
earth
as
material
Ex.
No.-6.
The
prosecution proved F.I.R. dated 4.8.2005
and its G.D. report no. 16 as secondary
evidence by PW-8 S.I. Raudas Singh as Ex.
Ka-28 and Ex. Ka-29.

9. The appellants were examined
under section 313 Cr.P.C., wherein they
denied the questions put to them and stated
that they have been falsely implicated on
account of village partibandi, enmity of
election, the F.I.R. has been lodged antetimed, the deceased was a history-sheeter,
he was killed at outskirts of the village by
his companions in the intervening night and
his dead body was brought by his family
members. The appellant Bhuri Singh stated
that his left leg and left arm were fractured
and he was unable to move. The appellants
filed
certain
certified
copies
as
documentary evidence for showing the
criminal history of the deceased etc. The
appellants, however, did not lead any oral
evidence in support of their defence.

FINDINGS
OF
THE
TRIAL
COURT

10. The trial court on the basis of the
evidence held that the testimony of PW- 1
Balveer Singh, PW- 2 Smt. Guddi Devi,
and PW- 4 Devendra Singh is cogent,
credible, and trustworthy with regard to the
guilt
of
the
accused-appellants;
the
evidence of relative cannot be disbelieved
merely on the ground that the witnesses are
related to each other or to the deceased.
The trial court further held that it is trite
law that a mere information about an
incident on phone would not be treated as a
first information report. F.I.R. is not an
encyclopedia of the case, PW- 1 Balveer
Singh lodged a prompt F.I.R. and narrated
all the incriminating facts of the case
without any delay; he had seen the incident;
the defense side had not impeached his
evidence. On the basis of evidence that an
illegal arms factory had been seized by
PW- 6 on 10.6.2005; due to this enmity the
appellants had threatened the deceased
prior to the incident and the incident had
taken place in front of the house of
Ghanshyam;
other
appellants
Keshav
Singh, Bhuri Singh, Surendra Singh, and
Jagdish Singh hid themselves in the house
of Ghanshyam, therefore, Ghanshyam is
also liable for conspiracy.

11. The trial court also held that PW-
2 Smt. Guddi Devi and PW- 4 Devendra
Singh were eye-witnesses of the incident;
their names were disclosed in the F.I.R. as
eye-witnesses of the incident with regard to
the evidence of PW- 4 the trial court held
that
there
is
sufficient
explanation
regarding the delay in recording of the
statement by the Investigating Officer. The
trial court also considered the close
distance from where the witnesses saw the
incident and held that even if there is some
discrepancies but it would not affect the
otherwise
credible
evidence
of
the
witnesses; the trial court also held that
according to the Medical Jurisprudence
time of death as suggested by the PW- 6
1 All. Keshav Singh @ Kesho Vs. State of U.P.
1265
Dr. B. D. Bhaskar can vary 6 hours
plus/minus and PW- 6 in his examinationin-chief admitted that the death is possible
at 6.30 a.m. on 19.7.2005. The trial court
further held that the used cartridges
recovered from the place of the incident
were shot from the unlicensed pistols
which had been recovered at the instance of
Keshav Singh and Bhuri Singh. The FSL
report corroborated the above fact.

12. The trial court also dealt with the
inconsistency in the evidence of PW- 1
Balveer Singh and PW-6 S.I. B.R. Zaidi by
pointing out that PW- 1 Balveer Singh
stated that the police recovered the blood in
polythene from the place of occurrence by
PW- 6 whereas PW- 6 S.I. B.R. Zaidi
denied
this
fact.
It
held
that
this
inconsistency in ocular evidence is minor, a
witness cannot be expected to possess a
photographic memory so as to recall the
details of an incident and it does not shake
the basic version of the prosecution case.
The trial court also recorded its finding that
opportunity was provided to accusedappellants to explain the incriminating facts
of the prosecution evidence, but they had
not given any explanation.

13. On the basis of the evidence, the
trial court did not accept the submission
urged on behalf of the appellants and after
appreciating the oral and documentary
evidence, the trial court held that it is
proved beyond all reasonable doubt that the
appellants Keshav Singh, Bhuri Singh,
Surendra Singh and Jagdish Singh had
caused injuries to Ranveer Singh, which
resulted in his death, under conspiracy
hatched by Ghanshyam. The trial court
convicted and sentenced the appellants as
indicated herein above. Though, however,
the trial court acquitted the appellants
Keshav Singh, Bhuri Singh, Surendra
Singh, and Jagdish Singh of the charge of
offence punishable under section 506 I.P.C.

14. Being aggrieved by the judgment
and order dated 22.10.2008, the appellants
have preferred these appeals.

SUBMISSIONS
BEFORE
THIS
COURT

15. We have heard Sri Sukhvir Singh,
learned counsel for the appellants; Sri
Patanjali Mishra, learned A.G.A. for the
State; and have perused the record.

16. Learned counsel for the appellants
assailing the judgment of the trial court
argued that death of the deceased occurred
in the night hours of 18/19.7.2005 at about
1.30 a.m., as is established by the postmortem report which suggests that the
death of the deceased occurred 36 hours
prior to the post-mortem. The deceased had
criminal history and, therefore, had several
enemies and might have been killed by
some other persons at another place, as is
reflected by the circumstance that inquest
of the body of the deceased was not at the
place of occurrence. Admittedly, the police
had arrived at the spot before lodging of the
F.I.R. which suggests that the incident had
occurred much earlier than alleged and in
some other manner and only later a false
prosecution story was developed. It was
urged that the trial court has not properly
appreciated and considered the entire
evidence on record. The prosecution has
failed to prove the case against the
appellants beyond all reasonable doubts
and the impugned judgment is liable to be
set aside.

17. Per Contra; learned A.G.A.
refuted the arguments on behalf of the
appellants and submitted that this is a case