# Mahendra Singh Baghel & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 1245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-18
- **Case number:** Criminal Appeal No. 6864 of 2010
- **Bench:** Manoj Misra, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-baghel-anr-in-jail-v-state-of-u-p-45965
- **Pages:** 16

## Headnote

1246 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal
Code,1860
-
Section
302/34challenge to -conviction-deceased's close
relatives turned hostile and that PW3
himself appeared to be inimical to the
accused,
as
he
and
his
sons
were
implicated in a case at the instance of the
accused and had to go to jail- PW3 and
others were there amongst the audience
of the dance party of which the deceased
was a part -The deceased however left the
audience to urinate, When he was out
urinating, he was shot at by someone. -on
the basis of past enmity, the accused were
named as is the narration by PW2 during
his cross-examination by the defence-
Though PW1 and PW2 were declared
hostile but no specific question was put to
them to demonstrate that they turned
hostile for any specific reason-prosecution
examined no independent witness despite
the fact that the incident occurred at a
time when a dance programme was on- no
recovery
from
the
accused
of
any
incriminating
material
to
lend
corroboration to the prosecution story-no
convincing
evidence
to
indicate
that
accused had shared common intention
with other accused to whom the role of
firing at the deceased was attributed-
prosecution failed to establish the guilt of
the accused-appellants beyond reasonable
doubt
and,
therefore,
the
accusedappellants are entitled to the benefit of
doubt.(Para 1 to 36)

The appeal is allowed. (E-5)

List of Cases cited:-

## Text

_Characters 0–39,921 of 54,466. This is a partial read: ask again with offset=39921 for what follows._

1 All. Mahendra Singh Baghel & Anr. Vs. State of U.P.
1245
magistrate. Our judicial discretion impels
us to maintain the sentence of rigorous
imprisonment for life and, hence, we
sustain the judgment of conviction and the
order of sentence passed by the High
Court."

28. Thus in view of the above
proposition of law, the sentence awarded to
the appellant by the trial Court for the
offences under section 376 IPC and under
section 307 IPC for life imprisonment,
respectively is perfectly justified in the
instant case, as it shocks the conscience of
the society and the Courts must hear the
loud cry for justice by the society in cases
of rape of innocent helpless girls of tend
years and respond by imposition of
sentence. To show mercy in the case of
such heinous crime, could be travesty of
justice and the plea of leniency is wholly
misplaced.

29. The trial Court, thus, on the basis
of
prosecution
evidence,
has
rightly
recorded the findings of conviction and
sentenced the appellant for the offences in
question, which does not require any
interference by this Court as the appellant
has been found guilty for committing such
a heinous crime against a minor girl.

30. In view of the discussions made
above, the impugned judgment and order
passed by the trial Court and conviction
and sentence of the appellant for offences
in question is hereby upheld.

31. The appeal lacks merit and is
accordingly dismissed.

32. The appellant is in jail, he shall
serve out the sentence awarded by the trial
Court.

33. Let the lower court record along
with a copy of this order be transmitted to
the trial Court concerned for necessary
information and follow up action, if any.

34. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

35. The concerned Court /Authority
/Official shall verify the authenticity of the
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)01ILR A1245
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. 6864 of 2010

Mahendra Singh Baghel & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri V.K. Tripathi, Sri Arvind Agrawal, Sri
Kalika Prasad Pal, Sri Kamlesh Kumar
Tripathi, Sri R.B. Pal, Sri Rajiv Gupta

Counsel for the Opposite Party:
A.G.A., Sri Brij Raj Singh
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal
Code,1860
-
Section
302/34challenge to -conviction-deceased's close
relatives turned hostile and that PW3
himself appeared to be inimical to the
accused,
as
he
and
his
sons
were
implicated in a case at the instance of the
accused and had to go to jail- PW3 and
others were there amongst the audience
of the dance party of which the deceased
was a part -The deceased however left the
audience to urinate, When he was out
urinating, he was shot at by someone. -on
the basis of past enmity, the accused were
named as is the narration by PW2 during
his cross-examination by the defence-
Though PW1 and PW2 were declared
hostile but no specific question was put to
them to demonstrate that they turned
hostile for any specific reason-prosecution
examined no independent witness despite
the fact that the incident occurred at a
time when a dance programme was on- no
recovery
from
the
accused
of
any
incriminating
material
to
lend
corroboration to the prosecution story-no
convincing
evidence
to
indicate
that
accused had shared common intention
with other accused to whom the role of
firing at the deceased was attributed-
prosecution failed to establish the guilt of
the accused-appellants beyond reasonable
doubt
and,
therefore,
the
accusedappellants are entitled to the benefit of
doubt.(Para 1 to 36)

The appeal is allowed. (E-5)

List of Cases cited:-

1. Raghav Prapanna Tripathi Vs St. of U.P.
(1963) AIR SC 74

2. Sunil Kundu & anr. Vs St. of Jharkhand
(2013) 4 SCC 422

3. Bipin Kumar Mondal Vs St. of W.B. (2010) 12
SCC 91

4. Paramjeet Singh @ Pamma Vs St. of U.K.
(2010) 10 SCC 439

(Delivered by Hon'ble Manoj Misra, J.)

1. Instant appeal is against the
judgment and order dated 30.09.2010
passed by the Additional Session Judge,
Court No. 2, Firozabad in Sessions Trial
No. 502 of 2003 by which the appellants
Mahendra Singh Baghel (A1) and Geetam
Singh Baghel (A2) have been convicted
under section 302 read with section 34
I.P.C.
and
sentenced
to
undergo
imprisonment for life with fine of Rs.
10,000/- each and in default of payment of
fine to undergo imprisonment of two years.

INTRODUCTORY FACTS AND
PROSECUTION CASE

2. The prosecution case as per the first
information report (for short 'FIR') (Ex. Ka1), which was lodged on 25.05.2002, at
3:05 am, at P.S. Pachokhra, District
Firozabad, by Mohan Lal Baghel (not
examined), elder brother of the deceased
(Bhagwan Singh Baghel), is that there was
a marriage party of the daughter of Prem
Singh in which a dance programme was
going on. The informant, his younger
brother (the deceased) and several others
were witnessing the dance programme.
While watching the programme, at about
1.30 am in the night of 25.05.2002, the
deceased left the programme to attend to
nature's call, there Mahendra Singh Baghel
(A1) stopped him and Geetam Singh
Baghel (A2), the brother of A-1, fired at the
deceased from a country made pistol
thereby causing injury to the deceased. In
the first information report it was alleged
that the incident was witnessed by Munshi
Lal Baghel (PW.3) and informant's nephew
Ranveer Singh (PW.1) and various other
persons, who tried to get hold of the
accused but they escaped. The alleged
motive for the crime was land dispute.
1 All. Mahendra Singh Baghel & Anr. Vs. State of U.P.
1247

3. The FIR was scribed by Ram
Swaroop Baghel (PW.2). The Chik FIR
(Ex. Ka4) was made by Pooran Mal (PW6).
Initially it was registered for an offence
punishable under Section 307 I.P.C. as by
that time the deceased was alive. After
lodging the FIR the deceased was rushed to
the hospital but died on way at about 5 am.
On report of his death, vide GD Entry
No.11 (Ex. Ka 6), at about 10.30 am, on
25.05.2002, the case was converted to
Section 302 I.P.C. Thereafter, the inquest
was conducted in the mortuary of District
Hospital, Firozabad at about 1.00 pm on
25.05.2002. Inquest report (Ex. Ka-2) was
prepared and witnessed by Nihal Singh
(PW.4) amongst others who have not been
examined.

4. The post-mortem of the body of the
deceased was conducted at about 4:30 pm
on 25.5.2002 by Dr. A.K. Anand (PW.7).
The post-mortem report (Ex. Ka-7), which
was proved by PW.7, estimated the time of
death around half a day before. Rigor
mortis
was
found
present
in
both
extremities. External ante-mortem injuries
found were: (i) one gun shot wound of
entry size 3.0 cm x 0.5 cm cavity deep on
the right lateral side of chest 18 cm above
iliac crest at post axillary line level,
margins inverted, lacerated with blackening
and tattooing present; and (ii) gun shot
wound of exit size 4.0 cm x 1.5 cm on the
abdomen, 5 cm upward and right lateral to
umbilicus, margins everted. Amongst the
internal injuries, eighth rib was found
fractured; right lung was found ruptured;
peritoneum, liver and gall bladder was
found ruptured; and 8 ounce of blood was
found in the cavity. Small intestine was
found lacerated with presence of 10 ounce
of semi-digested food. In the large intestine
faecal matter was present. According to the
doctor, the cause of death was due to shock
and haemorrhage as a result of antemortem firearm injury sustained.

5. Initial investigation was carried out
by Sri Dharm Prakash Dwivedi (PW.8),
who collected bloodstained and plain earth
from the spot and prepared a fard thereof
(Ex. Ka-3), recorded the statement of the
deceased (Ex. Ka-8), prepared site plan
(Ex. Ka-9) on the pointing out of informant
and PW.3, prepared the inquest report,
photo lash, challan lash and recorded
statement of the eye-witness Munshi Lal
Baghel (PW3) amongst others.

6. Nanha Ram Kureel (PW.9) carried
out raid operations to arrest the accused but
could not succeed. Though, later, the
accused
surrendered
in
Court
on
01.07.2002. He completed the investigation
and submitted charge-sheet (Ex. Ka-14).
On submission of the charge-sheet, after
taking cognisance, the case was committed
to the Court of Session. The Court of
Session
framed
charge
against
the
appellants for offence punishable under
Section 302 read with Section 34 I.P.C.
The accused denied the charge and claimed
trial.

PROSECUTION EVIDENCE

7. The prosecution examined as many
as nine witnesses.

8. PW.1 (nephew of the deceasedRanveer Singh) though was examined as
an eye-witness of the incident but was
declared hostile. He stated that at the time
of the incident he was at his own house and
had not witnessed the incident. He stated
that when he received information that his
maternal uncle (Mama), the deceased, was
shot, he went to see him but by the time he
could reach, his uncle was dead.
1248 INDIAN LAW REPORTS ALLAHABAD SERIES

In his cross-examination by the
State
counsel,
he
stated
that
the
investigating officer had not recorded his
statement. Upon being confronted by the
statement recorded under Section 161
Cr.P.C, he stated that he does not
remember that he gave any such statement.
He denied the suggestion that he was not
stating the truth because of fear of the
accused.

9. PW.2 (Ram Swaroop) : The scribe
of the FIR. He stated that the report (Ex.
Ka-1) was in his writing but it was not on
the dictation of Mohan Lal Baghel
(informant).

In his cross-examination by the
State counsel, upon being confronted by his
previous statement under section 161
CrPC, he stated that he was not aware as to
how that statement was recorded. He
denied the suggestion that he scribed the
FIR on dictation of the informant. He stated
that he wrote the FIR on dictation of the
Inspector. He denied the suggestion that he
was lying because he had colluded with the
accused.

In his cross-examination by the
counsel for the accused, he stated that at the
time of the incident, he was with his
maternal uncle Mohan Lal and Munshi Lal.
At that point of time, it was 10 pm. They
heard that Bhagwan Singh has been shot at.
Upon which, he, his maternal uncle Mohan
Lal, Munshi Lal and Ranveer Singh, all
four went to the spot and found Bhagwan
Singh lying in an injured condition in the
field near the tubewell. The tubewell was
of Dori Lal. He stated that at that point of
time, his maternal uncle (Bhagwan Singh
Baghel-deceased) was not in a position to
speak. They took him to the police station.
At the police station, his maternal uncle
Mohan Lal had spoken to the police and the
police had advised that the injured be
immediately taken to the hospital. He stated
that they had reached the police station at
11 pm. He stated that when Mohan Lal had
gone to the hospital with the injured, he
scribed the report on the dictation of the
Station House Officer. He stated that the
report does not bear the signature of Mohan
Lal. He further stated that though Mohan
Lal had informed the police that his brother
Bhagwan Singh was shot at by some
miscreant but had not named any person,
But as the Station House Officer insisted
that till such time the name of the accused
is disclosed, report will not be written,
Mohan Lal in consultation with Munshi
Lal, had disclosed the name of Mahendra
Singh and Geetam Singh. He stated that at
that time, Bhagwan Singh was not in a
position
to
speak
rather
he
was
unconscious.

10. PW.3-Munshi Lal- stated that he
was there with Bhagwan Singh (the
deceased), Ranveer Singh, Mohan Lal and
various other fellow villagers at the dance
programme held in connection with the
marriage of Prem Singh's daughter, Manju.
The incident occurred at 1:30 am in the
night when dance programme was going
on. He stated that during the dance
programme Bhagwan Singh (the deceased)
went to urinate. There he was stopped by
Mahendra Singh (A1) and Geetam Singh
(A2) fired a shot at the deceased from a
country
made
pistol.
Thereafter,
the
accused ran towards west and Bhagwan
Singh, in an injured condition, ran towards
east and, thereafter, fell in the field of Dori
Lal. Whereafter, Mohan Lal and others
arrived and took the injured Bhagwan
Singh in a tractor. At that point of time, the
deceased was alive and fully conscious. He
stated that he saw the entire incident. He
identified the two accused in front of the
1 All. Mahendra Singh Baghel & Anr. Vs. State of U.P.
1249
court. He stated that at the time of the
incident there was light with the aid of a
generator. He stated that the incident was
an outcome of enmity on account of land
dispute as the field purchased by Mahendra
Singh (A1) was purchased by Bhagwan
Singh (the deceased).

PW3 was cross-examined by the
defence counsel on multiple counts such
as:

(a) That he was a witness
related to the deceased. He and the
deceased had common mother, inasmuch
as, after PW3's father's death, his mother,
Anaro Devi, had married deceased's
father.

(b) That the land purchased by
the accused was different from the one
purchased by the deceased Bhagwan
Singh because the accused had purchased
the land from Har Devi. The balance land
held by Har Devi was sold to her two
sons Chote Lal and Khacheru Singh.
Chote Lal, in turn, had sold it to Bhagwan
Singh (the deceased). Therefore, there
was no motive for the crime.

(c) That PW3 was not present
on the spot and was somewhere else
when the incident occurred; and that he
did not witness the incident.

(d) That he was telling a lie
because a report was lodged against his
family
at
the
instance
of
accused
Mahendra Singh (A-1).

In
addition
to
above,
a
suggestion was also given that the
incident occurred in some other manner
as one girl by the name Vineeta was
teased by Bhagwan Singh (the deceased),
who was a bachelor, and, in connection
with that, some other person had fired at
him.

In respect of his relationship
with the deceased i.e. with regard to him
and the deceased being born of the same
mother, he denied the suggestion.

In respect of the land dispute,
though he did not deny that Bhagwan
Singh had obtained sale-deed from Chote
Lal and that the accused had obtained
sale-deed from Har Devi but stated that
Har Devi had sold her entire land to
Mahendra Singh (A-1) therefore, there
was dispute and enmity. He also stated
that in respect of this dispute, earlier,
there had been an altercation between
Bhagwan Singh and Geetam Singh.
However, he could not disclose the date
and time of such altercation though he
stated that such altercation took place
about a month and a quarter before the
date of the incident.

In respect of the suggestion that
he was not present on the spot and had
not witnessed the incident, he denied the
suggestion but admitted that on the date
of the incident, he had gone to village
Nagla Kharga to purchase Buffalo.

In respect of the suggestion that
he was lying because his son had been sent
to jail on the report by Mahendra Singh,
though he did not deny the suggestion that
report was lodged by Mahendra Singh
implicating him and his sons but denied
that he was lying on that account.

In respect of the suggestion that
Bhagwan Singh had teased Vineeta and the
incident occurred in some other manner,
PW3 stated that Vineeta is a girl of good
character and no such incident had
occurred. He, however, did not deny the
suggestion that Bhagwan Singh was a
bachelor.

11. PW.4- Nihal Singh- proved the
inquest proceeding and the inquest report
(Ex. Ka-2).

In
his
cross-examination,
he
stated that Munshi Lal (PW-3) and the
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased had common mother. He stated
that Bhagwan Singh's mother's name is also
Anaro Devi.

12. PW-5- Bhuri Singh- He is the
son of Munshi Lal (PW3). He proved that
he witnessed the lifting of blood-stained
and plain earth from the spot of which fard
(Ex Ka-3) was prepared.

In his cross-examination, Bhuri
Singh stated that the deceased Bhagwan
Singh, in relationship, was his uncle. He,
however, feigned ignorance whether PW3
and the deceased had common mother.

13.

PW-6-
Head
Constable
Pooranmal- proved the GD entry of the
FIR and proved that it was lodged on
25.05.2002 at 3.05 am. He also proved that
at
10:30
am
on
25.05.2002
upon
information that Bhagwan Singh had died,
section 307 I.P.C. was altered to section
302 I.P.C. vide GD report no. 11.

In
his
cross-examination,
he
stated that informant along with Bhagwan
Singh, Bhuri Singh, Yadram, Nepal Singh,
Munshi Lal, Ranveer Singh and others had
come to the police station to lodge report.
He stated that he saw the injured Bhagwan
Singh. He was not in a position to speak. At
that time, he was lying on the tractor. As
the condition of the injured was serious,
Chitthi
Majroobi
was
prepared
immediately and he was sent to the
hospital. He stated that the injured stayed at
the police station for as long as it took to
prepare Chitthi Majroobi which was
prepared in just 2-4 minutes. He stated that
the death information was received from
Gulab Singh who had accompanied the
deceased to the hospital. He stated that the
investigation was assigned to SI Dharm
Prakash Dwivedi (PW-8) and Nanha Ram
Kuril (PW-9). They both left the police
station immediately upon registration of the
first information report at 3.05 am.

14. PW-7 Dr. A.K. Anand- proved
the post-mortem report and the injuries
noticed therein and stated that the deceased
could have died half a day before the
examination.

In
his
cross-examination,
he
stated that 8th rib, right lung, liver, small
intestine were found ruptured. The injuries
were very serious which would bring the
injured
in
a
state
of
shock
and
unconsciousness and, most likely, he would
not be in a condition to speak. He also
stated that after receiving such injury,
injured would not be in a position to walk
or climb. He stated that the angle with
which the gun shot travelled across the
body suggested that the deceased and the
person who fired the shot at the deceased
were
not
at
the
same
level.
He
acknowledged
the
possibility
of
the
deceased dying earlier, say in the night of
previous day between 10-11 pm. He stated
that from the amount of blood found in the
cavity it could be said that the deceased
died within one half to one hour of
receiving injury.

15. PW-8 Dharm Prakash Dwivedi-
proved various stages of the investigation
and stated that he recorded the statement of
the injured Bhagwan Singh Baghel i.e. Ex.
Ka-8. He stated that the injured was sent to
the hospital with constable Gulab Singh but
died en route to the hospital. He stated that
he recorded the statement of the constable
who prepared the Chik FIR and thereafter
he recorded the statement of Mohan Lal
(informant) and the scribe of the FIR.
Thereafter, he went to the spot and
recorded the statement of Munshi Lal
Baghel and on the pointing out of the
1 All. Mahendra Singh Baghel & Anr. Vs. State of U.P.
1251
informant and Munshi Lal Baghel he
prepared the site plan (Ex. Ka-9). He also
collected blood-stained and plain soil and
prepared fard thereof (Ex. Ka-3). He
proved the inquest proceeding and other
stages of the investigation.

In
his
cross-examination,
he
stated that 6-7 people had come to the
police station. The informant had not met
him at the police station because PW-8, at
that time, was at his residential quarter. The
informant had met the clerk at the police
station. PW8 was informed by Santri that at
village Raspur there had been firing and
that the injured had come. Upon receipt of
information from Santri, he reached near
the tractor on which Bhagwan Singh was
lying. He enquired about the incident from
Bhagwan Singh and his brother Mohan Lal.
At that time, the FIR was not registered but
was in the process of being registered. He
stated that he did not enquire from the
tractor driver or the persons who were there
along with the injured, because the
condition of the injured was very serious
and, therefore, he sent the injured to the
hospital. He stated that when he visited the
spot, he received information from Gulab
Singh about the death of the injured. He
stated that though the injured was sent with
constable Gulab Singh but he did not
record the statement of Gulab Singh.

In his cross-examination, he also
stated that while recording the statement of
the injured Bhagwan Singh, he did not
follow the procedure provided under the
U.P. Police Regulation and did not obtain
the signature of the deceased on the
statement so recorded nor did he get
signature of any witness in whose presence
his statement was recorded. He admitted
that in the case diary he had not entered the
date and time of recording the statement of
Bhagwan Singh though the time of
recording the statement of other witnesses
is mentioned in the case diary. He also
stated that it is mentioned in the case diary
that Bhagwan Singh died on way at 5 am.

On a question whether he was
informed with regard to any previous
incident between the deceased and the
accused, he stated that Munshi Lal had not
given any information to him with regard to
any previous incident. He also stated that
he did not take possession of the generator
or other equipments that were there at the
place of the incident.

16. PW-9- Nanharam Kuril- proved
that he took over the investigation from
PW8
and,
after
completing
the
investigation, submitted charge-sheet and
tried to effect arrest of the accused persons
though, ultimately, they surrendered in
court.

In
his
cross-examination,
he
stated that at the time of inspection of the
spot, he did not notice abandoned footwear
such as slippers, sandals, shoes. He could
not discover any pellet, cartridge/ empties,
lathi or danda. He stated that he did not
move any application for taking custody of
the accused to recover the murder weapon.
He stated that he was not aware of the
statement made by Munshi Lal to the
previous investigating officer. He stated
that Munshi Lal is brother of the deceased.
He also admitted that during the course of
investigation he did not enquire from any
of the artists in the dance party as to the
manner in which the incident occurred.

In
his
cross-examination,
he
stated that though the deceased was
unmarried but he could not get any
information with regard to his involvement
with any women or girl nor could gather
any information that in the night of the
incident the deceased had teased a girl by
the name Vineeta. He stated that by the
time
statement
of
Munshi Lal
was
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded, information with regard to the
death of Bhagwan Singh had not been
received therefore, in the statement of
Munshi Lal there is no mention of his
death.

17. The incriminating circumstances
borne out from the prosecution evidence
were put to the accused while recording
statement under Section 313 Cr.P.C. The
accused though admitted that on the night
of the incident there was a function in
connection with the marriage of the
daughter of Prem Singh, namely, Manju,
but denied their presence in the marriage
function. They claimed that the prosecution
case is false; the FIR is ante-timed; and that
they have been falsely implicated. It was
also claimed by them that the witnesses are
all related to the deceased.

DEFENCE EVIDENCE

18. Defence examined three witnesses
to demonstrate that deceased had cases
against him and that PW3 on the date of the
incident had gone to purchase a buffalo and
in that connection had stayed overnight at a
place and, therefore, could not have
witnessed
the
incident.
These
three
witnesses are:

DW-1-Satya Prakash- He stated
that he was posted at police station
Pachokhara, Firozabad between 1988 to
2000. On 18.11.1999, Teekam Singh son of
Tilak Singh had lodged NCR No. 47 of
1999 against Ramveer Singh, Bhagwan
Singh, Nek Ram son of Nathi Lal. On the
basis of the said report, proceedings under
Section 107/116 Cr.P.C. were also initiated.

DW-2 Waish Ahmed- He stated
that he was posted at P.S. Pachokhara. He
brought the NCR register and proved NCR
No. 37 of 2003 which was marked as
Exhibit Kha-2. He also proved NCR No. 47
of 1999 and Chik FIR of Case Crime No.
55 of 1999. They were exhibited as Exb.
Kha-3 and Kha-4.

DW-3-Mahavir
Singh-
On
25.3.2009, he stated that about 6-7 years
back
Munshi
Lal
had
come
to
Champaram's house, who happens to be his
cousin, for purchase of buffalo. He had
arrived late and had stayed overnight at
Nagla Kharga.

In
his
cross-examination,
he
could not tell the date and time of the visit
of Munshi Lal.

TRIAL COURT FINDINGS

19. The trial court, found the
prosecution evidence, in particular, the
testimony of PW-3, wholly reliable and
unshakeable even though he might have
been related to the deceased. The trial court
observed that, according to the prosecution,
the informant could not appear as a witness
because he was abducted in respect of
which a case was lodged by wife of the
informant against Mahendra Singh (A-1)
and others in which charge-sheet was
submitted. Under the circumstances, it was
quite natural that no resident of the village
could come and give evidence. It also
observed that even if no strong motive
could be proved for the crime but, as there
was ocular evidence, absence of motive
was inconsequential. It found that the place
and time of occurrence was duly proved
and the FIR was promptly lodged,
therefore, as the ocular account found
support from medical evidence, the accused
were liable to be convicted for the charge
framed against them. While holding as
above, the trial court also noticed the
conduct of the accused appellant in trying
to evade arrest for few days to infer
existence of guilty mind.
1 All. Mahendra Singh Baghel & Anr. Vs. State of U.P.
1253

20. We have heard Sri Kamlesh
Kumar Tripathi for the appellants; Sri
Virendra Singh Rajbhar, the learned
A.G.A., for the State; and Sri Brij Raj
Singh from the victim's side.

SUBMISSIONS ON BEHALF OF
THE APPELLANTS

21. The contention of the learned
counsel for the appellants is as follows:-

(a) The informant of the case was
not examined as a witness. P.W.2, the
scribe of the FIR, specifically stated that
the same was not written on the dictation of
the informant; that the informant was not
able to name the accused; and that the FIR
was not being registered, without names,
therefore, names were given. This seriously
dents the credibility of the prosecution
case.

(b) According to the FIR, the
incident was witnessed not only by Munshi
Lal (PW-3) but by Mohan Lal (not
examined) and Ranveer Singh (PW-1),
amongst others. Ranveer Singh (PW1),
who happens to be the own nephew of the
deceased, stated on oath that he had not
witnessed the incident but was at home
when he received information that the
deceased had received injuries. This also
seriously dents the credibility of the
prosecution case.

(c) PW-2, during his crossexamination by the counsel for the accused,
had stated that at the time of the incident,
that is at about 10 pm, he was sitting with
his maternal uncle Mohan Lal (informant)
and Munshi Lal (PW-3) when they were
informed that somebody had shot Bhagwan
Singh. On receiving this information, PW-2
along with Mohan Lal (informant) and
Munshi Lal (PW-3) and Ranveer Singh
(PW-1) had gone together to find out
Bhagwan Singh lying injured in the field.
He also stated that they had reached the
police station at around 11 pm but as
condition of Bhagwan Singh was serious
the Station Officer had directed that the
deceased be taken to the hospital and when
Mohan Lal had taken the deceased to the
hospital, the first information report was
written on the instruction of the police
station incharge. He also stated that the FIR
does not bear signature of Mohan Lal. This
testimony of PW2 shakes the foundation of
the prosecution case and renders the
testimony of PW3 unreliable as, according
to PW2, when the deceased was shot at,
PW3 was with PW2.

(d) The testimony of PW-3 is not
reliable because not only his presence at the
spot is belied by the statement of PW-2 but
also because he has deliberately tried to
hide his identity that he is the step-brother
of the deceased, born out of common
mother. Apart from that PW-3 is an
interested witness as he had admitted in his
cross-examination that after the incident, he
and his sons had gone to jail at the instance
of Mahendra Singh (A-1). It has also been
submitted that from the statement of PW-3,
during
his
cross-examination
on
08.04.2004, it appears, within 2 minutes of
Bhagwan Singh having gone to attend
nature's call gun shot was heard by him
which suggests that upon hearing the gun
shot he visited the spot but was not there
from before to notice the actual firing. This
statement was, however, immediately,
improved by PW3 by adding that he was
also attending nature's call and was there at
the spot. Whereas, no such statement was
made earlier. It has also been submitted
that the ocular version that after receipt of
gun shot injury the deceased ran a few
paces towards east is not probable and is
neither supported by medical evidence nor
by presence of blood at any other place
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
except where he, the deceased, was lying
injured. Therefore, it appears, PW-3 did not
witness the incident but was set up or it
might be that he reached the spot on
hearing the gun shot.

(e) The statement of the deceased
alleged to have been recorded by the
investigating officer before his death
appears to be totally fabricated as the
deceased had suffered very serious injury
and was not in a condition where he could
speak. PW-6, who made GD entry of the
FIR, clearly stated that the deceased was in
a precarious condition and was just lying
on the tractor and not speaking. He also
stated that as soon as the FIR was
registered, after preparation of Chithi
Majroobi, the deceased, who was then
lying injured, was sent to the hospital.
Thus, there was no opportunity for PW8 to
record the statement of the deceased.
Moreover, the statement of the deceased
was not recorded as a dying declaration and
as per the procedure for recording such
statement,
mandated
by
U.P.
Police
Regulations. Further, signature of the
deceased was not obtained on the alleged
dying declaration. Even the time of
recording the dying declaration was not
mentioned.
Thus,
the
alleged
dying
declaration is nothing but a waste paper.

In a nutshell, the submission on
behalf of the appellants is that the
prosecution story is not supported by any
reliable testimony; and the trial court has
not properly examined, considered and
appreciated the evidence. Hence, the
judgment of the trial court is liable to be set
aside and the appellants are entitled to be
acquitted. In the alternative, it was
submitted that in so far as Mahendra Singh
(A-1) is concerned the only evidence
against him is of stopping the deceased and
not of exhortation or catching hold the
deceased whereas the role of firing at the
deceased is attributed to Geetam Singh,
therefore, Mahendra Singh could not have
been convicted under section 302 IPC with
the aid of section 34 IPC, particularly,
when no pre-meditated plan to kill the
deceased was proved.

SUBMISSIONS ON BEHALF OF
THE PROSECUTION

22. Per contra, the learned A.G.A. as
well as learned counsel for the victim
submitted that there was serious threat to
the life of the witnesses and therefore PW-1
and PW-2 turned hostile. PW-3, who is an
aged person, considering his responsibility
to stand by the truth stood up bravely to
depose with regard to the involvement of
the accused-appellants and his testimony
stood the test of cross-examination and is
also corroborated by medical evidence and
the circumstances such as prompt lodging
of the FIR, proving of the place of
occurrence,
existence
of
light,
etc.
Therefore, as it is well settled that
conviction
can
be
recorded
on
the
testimony of a solitary witness, it is a fit
case where the appeal be dismissed and
conviction of the accused-appellants be
upheld.

ANALYSIS OF THE
PROSECUTION EVIDENCE

23. We have considered the rival
submissions and have perused the record
carefully.

24. Before we proceed to analyse the
evidence, at the outset, we would like to
observe that the trial court while analysing
the evidence and returning its finding on
the guilt of the accused has, inter alia,
observed (a) that the informant Mohan Lal
was abducted of which report was made by
1 All. Mahendra Singh Baghel & Anr. Vs. State of U.P.
1255
his wife against several persons including
Mahendra Singh (A-1) and, therefore, there
would not be many willing villagers to
depose against the accused; and (b) that
from the testimony of PW9 it appears that
despite efforts/ raids the accused could not
be promptly arrested which is suggestive of
a guilty mind. To test whether those
observations
had
foundation
on
the
evidence on record and had a legal basis,
we have carefully perused the record. Upon
a close scrutiny of the record, we find that
neither the police witnesses nor the alleged
eye-witnesses have deposed about the
criminal antecedents of the two accused.
PW1 and PW2, who were declared hostile,
were not specifically questioned in respect
of their fear to tell the truth on account of
abduction of Mohan Lal (informant).
Further, PW3 also did not make any such
statement which may indicate that any
threat was extended to him though he stated
that he and his sons amongst others were
implicated in a case in which they had to go
to jail. Under the circumstances, the trial
court appears to have taken note of that
aspect on the basis of oral submissions
which, in our considered view, is not
appropriate. In respect of conduct of the
accused in evading arrest, we may observe
that it has not come in the testimony of
PW9, who allegedly made efforts on
several dates to arrest the accused, that any
declaration under section 82 CrPC was
obtained. Moreover, from his testimony it
appears that the accused surrendered in
court on 01.07.2002 and that no application
was moved by PW9 to take them into
police custody for recovery/ discovery of
any incriminating material. Even otherwise,
mere abscondence of an accused does not
lead to a firm conclusion of his guilty mind.
An innocent man may also abscond in
order to evade arrest, as in light of such a
situation, such an action may be part of the
natural conduct of the accused. Otherwise
also, abscondence by itself is not sufficient
to prove the guilt. At best, it may lend
weight to other evidence establishing the
guilt (vide Raghav Prapanna Tripathi vs
State of Uttar Pradesh, AIR 1963 SC 74;
Sunil Kundu and another Vs State of
Jharkhand, (2013) 4 SCC 422; Bipin
Kumar Mondal vs State of West Bengal,
(2010) 12 SCC 91; and Paramjeet Singh
@ Pamma vs State of Uttarakhand,
(2010)
10
SCC
439).
Under
the
circumstances, keeping in mind the nature
of the testimony of PW9, we do not
consider that mere delay in the arrest of the
accused-appellants, without there being any
declaration under section 82 CrPC, is an
indica of their abscondence suggestive of
their guilty mind and, therefore, the
observation to the contrary made by the
court below is uncalled for. More so, when
such circumstance has not been put to the
two
accused
while
recording
their
statement under section 313 CrPC.

25. Now we shall proceed to analyse
the evidence led by the prosecution. Apart
from the testimony of formal witnesses,
there are essentially two types of evidence
to support the prosecution case. One is the
alleged dying declaration (Ex. Ka-8),
recorded by PW8, and the other is the
ocular account rendered by PW3.

26. We shall deal with the dying
declaration first. The dying declaration (Ex.
Ka-8) recites that the deceased with great
difficulty could speak that in the previous
night in connection with the marriage of
Manju, the daughter of Prem Singh, Baraat
had come and a dance programme was on.
He (the deceased) along with fellow
villagers was part of the audience. Sitting
near him were Munshi Lal (PW3); and his
nephew Ranveer (PW1). At about 1.30 am,
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
in the night, he left to urinate. As soon as
he got up after urinating, Mahendra Singh
(A-1) and his brother Geetam Singh (A-2),
who had also come to witness the dance
programme,
arrived.
Mahendra
Singh
stopped him and Geetam Singh fired at him
with country made pistol. The shot hit him
on the right side of his rib cage. Upon
being hit, he cried /shouted. Hearing his
cries and the sound of gun shot, Munshi Lal
(PW3), his nephew Ranveer Singh and
others came running and tried to arrest the
two accused but they ran away towards the
west. In his narration, the deceased
proceeded to disclose his enmity with
Mahendra Singh (A-1) on account of land
dispute. He also added that after hearing
gunshot complete panic had set in and the
dance programme had stopped.

27. The alleged recording of the
statement of the deceased prior to his
death by PW8 does not appear to be
probable for two reasons. Firstly, from
the testimony of PW-6, it appears that the
injured stayed at the police station only
for 2 - 4 minutes till the first information
report
was
registered
and
Chitthi
Majroobi was prepared and no sooner the
Chitthi Majroobi was prepared, the
deceased was rushed to the hospital.
Thus, there was not sufficient time for
PW8 to record the statement of the
deceased. Secondly, the condition of the
deceased was extremely serious. Whether
he was in a condition to speak is
anybody's guess, because, according to
PW6, the deceased was just lying on the
tractor and was not speaking. Admittedly,
his right lung and liver was ruptured, rib
was fractured and blood was there in his
abdomen. According to the doctor (PW7),
in such a state, it would be very difficult
to expect that he would be in a position to
speak.

28. Apart from the above, the dying
declaration
was
not
recorded
after
lodging the FIR and in the form in which
it ought to be recorded as per the U.P.
Police Regulations. According to PW8 he
was called from his quarters and while
the FIR was being lodged he spoke to the
injured i.e. the deceased Bhagwan Singh.
Neither the time nor the date of recording
of the dying declaration is entered. The
dying declaration is also not witnessed.
Further, no signature of the injured was
obtained. Taking a conspectus of all the
facts i.e. the manner in which the alleged
dying declaration was recorded, the
statement of PW6 that the injured was
just lying on the tractor and not speaking,
the short duration of time during which
the injured was at the police station and
the
medical
evidence
negating
the
probability of the injured being in a
position to speak, leads us to the
conclusion that the so-called dying
declaration is wholly unreliable and has
to be discarded.

29. Coming to the ocular account, no
doubt, the prosecution examined three eyewitnesses but, out of the alleged three eyewitnesses, two were declared hostile.
However, from the testimony of those two
hostile witnesses it is proved that the
deceased had gone to witness dance party
in a marriage and that the FIR (Ex. Ka-1)
was scribed by PW2.