# Mahesh v. State of U.P

- **Citation:** (2019) 2 ILRA 29
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-18
- **Case number:** Criminal Appeal No. 288 of 1991
- **Bench:** Manoj Misra, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-v-state-of-u-p-44736
- **Pages:** 14

## Headnote

A. Indian Penal Code, 1860 - Section 302
read with Section 34 I.P.C- criminal
appeal - section 313 Cr.P.C - injuries
sustained by the deceased were very
serious - so much of chaff has been
mixed with the grain that it becomes
almost impossible to sift the grain from
the chaff. The benefit of which would
have to be extended to the accused -
prosecution has failed to establish the
30 INDIAN LAW REPORTS ALLAHABAD SERIES
guilt of the accused beyond the pale of
doubt- The appellant's conviction is
therefore
unsustainable-appellant
is
entitled to the benefit of doubt.
 (Para,32,41 & 43)

Held:-
Under
the
circumstances,
the
prosecution evidence has to be tested before
its acceptance and conviction is to be recorded
only when it is found reliable. Where doubts
arise about the truthfulness of the prosecution
evidence, the benefit of doubt would always
go to the accused (Para-42)

B. Code of criminal procedure 1973 -
Section
157
-
Procedure
for
investigation- no time-limit for a report
under section 157 Cr.P.C could be
specified as a rule - mere absence to
mention crime number in inquest report
or medical papers by itself is not
significant to discard the FIR as antetimed or to disbelieve the prosecution
case. (Para 31)

Held:- It is equally well settled that each case
would have to be tested on its own facts and
circumstances derived from the evidence led.
In cases where the substantive evidence led
throws questions that are left unanswered or
leaves out gaps in the prosecution story, such
latches, as noticed in Meharaj Singh's case,
may assume importance as to whether benefit
of doubt is to be provided to the accused.

Criminal Appeal allowed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,970 of 47,598. This is a partial read: ask again with offset=39970 for what follows._

2 All. Mahesh Vs State of U.P.
29

3. Where the Board after
preliminary assessment under section 15
pass an order that there is a need for trial
of the said child as an adult, then the
Board may order transfer of the trial of
the case to the Children's Court having
jurisdiction to try such offences."

51.

When
we
compare
the
provisions of Section 21 of Juvenile
Justice Act, 1986 with the provisions of
Section 18 of the Juvenile Justice (Care
and Protection of Children) Act, 2015, we
find that there exist similar provisions for
orders that could be passed in respect of a
juvenile in conflict with law including
direction to pay fine. Hence, by applying
the law laid down by the Apex Court in
Jitendra Singh's case (Supra) and by
keeping in mind the provisions of Section
18(1) (d) of the Act, 2015, we are of the
view that the appropriate punishment that
ought to be awarded to the appellant, who
was a juvenile on the date of the incident,
would be 'fine'. We find that the court
below while convicting the appellant has
not awarded any fine. As to what quantum
of fine is to be awarded can appropriately
be determined by the Juvenile Justice
Board after giving opportunity of hearing
to the appellant in the light of the
observations contained in the judgment of
the Apex Court in Jitendra Singh's case
(Supra). Accordingly, the appeal is
partly allowed. The conviction of the
appellant under Section 302 IPC is
upheld.
However,
the
punishment
awarded to the appellant by the court
below is set aside. The appellant who is
on bail need not surrender. The sureties
are discharged. The matter is remanded to
the
Juvenile
Justice
Board,
Agra
constituted under the Juvenile Justice
(Care and Protection of Children) Act,
2015 for determining the appropriate
quantum of fine that should be levied on
the appellant and the compensation that
should be awarded to the family of the
victim, as per the law. The appellant shall
cooperate in the proceedings in that
regard and shall put in appearance before
the Juvenile Justice Board, Agra by or
before 15th October, 2019.

52. Let the record of the court below
as well as the record of Juvenile Justice
Board, Agra be sent back.
--------

(2019)10ILR A 29

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 288 of 1991

Mahesh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri D. Dahma, Sri Divya Ojha, Sri Prem
Chandra, Sri Sangam Lal Keshwani.

Counsel for the Opposite Party:
D.G.A.

A. Indian Penal Code, 1860 - Section 302
read with Section 34 I.P.C- criminal
appeal - section 313 Cr.P.C - injuries
sustained by the deceased were very
serious - so much of chaff has been
mixed with the grain that it becomes
almost impossible to sift the grain from
the chaff. The benefit of which would
have to be extended to the accused -
prosecution has failed to establish the
30 INDIAN LAW REPORTS ALLAHABAD SERIES
guilt of the accused beyond the pale of
doubt- The appellant's conviction is
therefore
unsustainable-appellant
is
entitled to the benefit of doubt.
 (Para,32,41 & 43)

Held:-
Under
the
circumstances,
the
prosecution evidence has to be tested before
its acceptance and conviction is to be recorded
only when it is found reliable. Where doubts
arise about the truthfulness of the prosecution
evidence, the benefit of doubt would always
go to the accused (Para-42)

B. Code of criminal procedure 1973 -
Section
157
-
Procedure
for
investigation- no time-limit for a report
under section 157 Cr.P.C could be
specified as a rule - mere absence to
mention crime number in inquest report
or medical papers by itself is not
significant to discard the FIR as antetimed or to disbelieve the prosecution
case. (Para 31)

Held:- It is equally well settled that each case
would have to be tested on its own facts and
circumstances derived from the evidence led.
In cases where the substantive evidence led
throws questions that are left unanswered or
leaves out gaps in the prosecution story, such
latches, as noticed in Meharaj Singh's case,
may assume importance as to whether benefit
of doubt is to be provided to the accused.

Criminal Appeal allowed (E-7)

List of Cases Cited: -

1. Meharaj Singh (L/Nk.) Vs St. of U.P. (1994)
5 SCC 188

2. Mahmood Vs St. of U.P. (2007) 14 SCC 16

3. Jaishree Yadav Vs St. of U.P. (2005) 9 SCC
788)

4. Dinesh & anr. Vs St. of Har. (Criminal Appeal
No. 1076 of 2000, decided on Oct. 10 2001)
reported in (2015) 17 SCC 804

5. Shankarlal Gyarasilal Dixit Vs St. of Mah.
(1981) 2 SCC 35 (paragraph 35)
(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal has been filed by
Mahesh son of Dibbu Mehtar against the
judgment and order dated 13.02.1991
passed by the Ist Additional Sessions
Judge, Aligarh in Sessions Trial No. 662
of 1987 by which the appellant, along
with Gajendra Singh @ Gajpal son of
Girraj Singh Jat; and Jagdish son of Ram
Swarupa Mehtar, has been convicted for
offence punishable under Section 302
read with Section 34 I.P.C. and awarded
life imprisonment as well as fine of Rs.
2,000/- and, in case of default in payment
of fine, to undergo one year additional
rigorous imprisonment. The other two
convicted accused, namely, Jagdish and
Gajendra Singh, had jointly filed a
separate Criminal Appeal No. 232 of
1991 which stood abated as they expired
during the pendency of appeal. Thus, this
judgment deals with the appeal filed by
Mahesh only.

2. Briefly put the prosecution case is
as under. The deceased - Mahendra Singh
was working as a Homeguard attached to
Police Station (for short P.S.) Pisawa,
Aligarh. Like every day, on 11.07.1987,
at about 6.45 p.m., he, along with his
father Todar Singh (informant-P.W.1)
who had to sleep over night at the shop of
his other son (Mehtab Singh) at Pisawa,
was going on a bicycle to P.S. Pisawa to
attend his duty. As they reached near
Kumargarha Nala, four persons, namely,
Jagdish son of Swarupa Mehtrar; Mahesh
son
of
Dibbu
Mehtar
(appellant);
Gajendra Singh @ Gajpal son of Girraj
Jat; and an unknown person (later
disclosed as Biri Singh), who were all
hiding behind Patel bushes, came out and
surrounded them. Gajendra shouted at
Mahendra (the deceased) as to why he did
2 All. Mahesh Vs State of U.P.
31
not allow the pigs of Jagdish and Mahesh
to graze in his field. Upon which, the
deceased - Mahendra responded by saying
that they would have destroyed his maize
crop. On hearing the reply, Gajendra
exhorted the other accused persons to
finish
off
Mahendra
(deceased)
whereafter all four accused took out their
knives and after putting the deceased on
ground started assaulting him with knives,
as a result, the deceased received injury
on his neck. Witnessing attack on his son,
the informant (P.W.1) cried for help, upon
which, villagers, namely, Gulzar (P.W.2);
Girraj (not examined); Tara Singh (not
examined); and Harveer Singh (not
examined) arrived. On seeing them
coming, and sensing that the deceased had
died, the accused escaped. Thereafter,
Mahendra was brought in an injured
condition to P.S. Pisawa where the report
(Ex. Ka 1) was scribed by Kishan Singh
(not examined) on dictation of the
informant (P.W.1). After signing the
same, PW1 got the first information
report (FIR) (Ex Ka 2) registered at P.S.
Pisawa at 20:15 hours (8:15 p.m.) which
was entered by Head Moharir Ramvir
Singh (P.W.3) in the register on 11.7.1987
as case crime no.32 of 1987 for offences
punishable under sections 307/324 IPC.
Thereafter, P.W.5 - Rajendra Singh
Tomar,
Investigation
Officer
(I.O.),
proceeded to record the statement (Ex Ka
10) of Mahendra Singh (the injured),
under section 161 CrPC, at about 9.00
p.m. However, as the condition of the
injured was very serious he was taken to
Pisawa hospital. There no doctor could be
found. Hence, he was taken to J.N.
Medical College Hospital, Aligarh and
was admitted there at about 10.50 p.m.
However, he succumbed to his injuries at
the hospital at about 11.20 p.m. on
11.07.1987 itself. As the said hospital was
under
P.S.
Civil
Lines,
Aligarh,
information of Mahendra Singh's death
was given by the hospital to P.S. Civil
Lines, Aligarh, which prepared the
inquest report (Ex Ka 12). Thereafter,
upon
receipt
of
death
report,
on
12.7.1987, the offences were altered and
Sections 302 read with 34 IPC were
added.

3. The lodging of the FIR was
proved by P.W. 1 and P.W.-3. Dr. Mohd.
Arshad (P.W.4), who had examined the
deceased - Mahendra at the hospital,
proved the injury record (Ex Ka 5) and
confidential
memo
(Ex
Ka
6)
to
demonstrate that Mahendra (the deceased)
was brought by his brother Mehtab (not
examined) to the hospital at 10:50 p.m. on
11.07.1987 as a case of cut-throat (stab
injury neck), where he expired at 11:20
p.m.

4. The post mortem report (exhibit
Ka-13) was proved by Dr. R.P. Gupta
(P.W.6) of Malkhan Singh Hospital,
Aligarh. The post mortem examination
disclosed a solitary ante mortem injury as
follows:-

"An incised wound measuring 4
cm x 2 cm (in middle) muscle deep on left
side neck, 5 cm above the medial end of
left clavicle, oblique in direction. Spindle
shaped in figure. Margins are well
defined. On exposure, the wound runs
towards right side downwards, cutting
through
and
through
trachea
and
oesophagus,
reached
right
side
in
muscles. Great vessels of right side are
also cut."

5. The prosecution examined six
witnesses. Only two were witnesses of
fact, namely, P.W.1- informant -Todar
Singh (father of the deceased) and P.W.2
32 INDIAN LAW REPORTS ALLAHABAD SERIES
- Gulzar. P.W.-3- Ramveer Singh was
head moharir at the police station who
made GD entry of the first information
report; P.W.5 - Rajendra Singh Tomar
conducted the investigation; P.W.4-Dr.
Mohd Arshad is the doctor who examined
the deceased when he was brought to the
hospital in the night of 11.07.1987; and
P.W.6 - Dr. R.P. Gupta is the doctor who
conducted the post-mortem examination.

6. P.W.4 in his testimony stated that
the injured Mahendra Singh was brought
to the hospital by his brother Mehtab
Singh, where he died at 11:20 p.m. in the
night of 11.07.1987 and information of
his death was given to P.S. Civil Lines.

7. P.W.6-Dr. R.P. Gupta proved the
post-mortem report which disclosed that post
mortem examination was conducted on
12.7.1987 at about 3.30 p.m. and a solitary
incised wound was found on the neck region.
He stated that, according to his opinion, the
deceased died due to excessive bleeding
caused by the injury. He stated that it was
possible
that
the
deceased
died
on
11.07.1987 at 11:20 p.m.; that the injury was
caused by a knife; and that the injury might
have been inflicted at about 6:45 p.m. on
11.07.1987. On cross-examination, he stated
that after receipt of such injury though it was
possible that the injured might have been
able to speak but the probability that he
might not have been able to speak is higher.
He also stated that if he could have managed
to speak then such speech would not have
lasted for more than 5-10 minutes after such
injury. He stated that the possibility that the
injury was caused between 8:30 and 9 p.m.
of 11.07.1987 is there.

8. P.W.1-Todar Singh, who is the
informant, reiterated the story narrated in
the first information report except that in
his testimony he also named the fourth
accused, who was left unnamed in the
FIR, as Biri Singh. He stated that all four
had assaulted the deceased with knives
though the knife blow of Gajendra caused
the injury. He stated that he had raised
alarm, upon which, Gulzar, Tara, Harveer
and Girraj arrived. Seeing them, the
accused ran away. As his son was injured
and bleeding, he tied a Tahmat (headcloth) on the neck of his son. Thereafter
they arranged for a cot and carried the
injured Mahendra to P.S. Pisawa where
the FIR was written by Kishan Singh on
dictation of informant and thereafter
informant got it lodged after putting his
signature. He disclosed that the deceased
had been working as a homeguard and, on
the fateful day, he was going to attend his
duty at P.S. Pisawa. As regards the motive
for the crime, he disclosed that 5-7 days
before the incident, pigs of Jagdish and
Mahesh had entered the field of the
deceased and the deceased had scolded
them therefore they had a grudge against
the deceased. The fourth accused, namely,
Biri Singh, was disclosed as brother-inlaw (Behnoi) of Mahesh. P.W.1 stated
that he had taken his injured son
Mahendra to M.S. Hospital and there he
expired at about midnight. He stated that
at the time of the incident, there was
sunlight.

9. In his cross-examination, he
stated that before inflicting knife blows,
the accused persons had exhorted each
other and all four had caught hold the
deceased and, after putting him down, had
inflicted knife blows. He stated that while
they
were
inflicting
knife
blows,
Mahendra Singh was trying to get up and
was twisting and moving sideways. He
stated that he did not make any attempt to
catch hold any of the accused persons
2 All. Mahesh Vs State of U.P.
33
while they were inflicting knife blows
because he was standing 2-3 paces away
and the entire incident just lasted two
minutes. He stated that only a single blow
was received by the deceased although all
four were trying to inflict blows. He
stated that he is not in a position to
disclose about the length of the knife.
P.W.1 also stated that as soon as
Mahendra received knife blow, he had
raised alarm. Immediately, thereafter, he
stated that he raised alarm the moment
Mahendra was pinned down. He stated
that Tara Singh and Harveer Singh had
arrived before infliction of knife blow
whereas rest arrived later. He stated that
the field of Gulzar - P.W.2 is at a distance
of 60-70 paces from the spot. He stated
that the injured was taken on a cot. The
cot was brought from Pisawa. He stated
that
Mahendra
got
unconscious
on
receiving knife blow but later regained
consciousness and was conscious at the
police station. He stated that in the FIR he
had specifically disclosed about receipt of
solitary knife blow by Mahendra but he
does not know as to how it has been
written that all four had inflicted knife
injuries on the neck. He further stated that
he had told the scribe to write that knife
blow of Gajendra had caused the injury to
his son but the scribe told him that it
would result in death penalty. He also
stated that the accused Gajendra is a Jat
whereas the other accused are Bhangi.

10. In his cross-examination, at the
instance of Mahesh and Biri Singh, he
stated that he had seen Biri Singh earlier
but he was not aware of his name and
relationship with Mahesh, though, later,
after two days, he became aware of his
name and relationship on being told by
the investigation Officer. In his crossexamination, he stated that the witnesses
took 3-4 minutes to arrive after he had
raised the alarm. Upon suggestion that
Mahesh was falsely implicated because he
had refused to lift night soil, he stated that
Mahesh and his father never used to clean
his toilets. He denied the suggestion that
he had not seen the incident or that he had
falsely implicated the accused only
because they had stopped cleaning his
toilets. He stated that after the incident,
about 10 minutes were taken to arrange a
cot as from the spot Pisawa was about a
kilometer away. He also stated that
Harveer, Tara had accompanied him to
the Hospital.

11. P.W.2 - Gulzar Singh stated that
he arrived at the spot upon hearing shouts
of Gajendra Singh. When he reached
there, he found that Gajendra Singh;
Jagdish; Mahesh; and Biri Singh were
inflicting knife blows on Mahendra Singh
(deceased). He stated that he was just 5-7
paces away from the spot but he could not
notice as to whose blow caused the injury
to the deceased. He stated that at that time
Tara, Harveer and Girraj Singh all had
arrived and Todar Singh (informant) was
shouting. He stated that upon seeing them,
the accused escaped. In his crossexamination, he stated that his field is 5060 yards away; that before his arrival,
Todar Singh had arrived; that he, Harveer
and Tara arrived simultaneously from
different directions; that Girraj arrived
later from the village. Harveer and Tara
arrived on a Buggy (cart). He stated that
when he had arrived there all four accused
had put the deceased on the ground and
were inflicting knife blows. He stated that
he had seen all the accused inflicting
knife blows but he is not sure as to who
caused
the
injury.
He
stated
that
Mahendra was brought on a cot to P.S.
Pisawa. The cot was called from Pisawa.
34 INDIAN LAW REPORTS ALLAHABAD SERIES
He stated that the distance between
Pisawa and the place of occurrence is
about four furlongs and that Pisawa is
about six furlongs from his village. He
stated that about 15-20 minutes were
spent in arranging for the cot. He stated
that he had been with the deceased till 10
p.m. He denied the suggestion that he has
falsely implicated the accused on account
of party bandi.

12. In his cross-examination, he stated
that he knew Biri Singh from before as Biri
Singh happens to be the Behnoi (brother in
law) of Mahesh. However, his name was not
known, which came to be known on the next
day. He also stated that Todar Singh had
dictated the first information report in his
presence and he had informed Todar Singh at
that time that Mahesh's brother in law is also
one of the persons involved. In his crossexamination, he admitted that Mahesh had
been cleaning toilets though he claimed that
he never used to clean his toilets. He denied
the suggestion that Mahesh was implicated
because he refused to lift his toilet's night soil.

13. P.W.3- Ramveer Singh, Head
Moharir (clerk), who made the GD entry
of the FIR at P.S. Pisawa, though proved
the lodging of the FIR but, during crossexamination, upon suggestion that FIR
was ante-timed and was lodged after
death of Mahendra, after denying the said
suggestion, admitted that on that day
other than the concerned FIR only a noncognizable report was registered at 6:40
am in the morning. He also stated that
information / special report of the
concerned FIR was sent on 13.7.1987 at
about 8.00 am in the morning as in the
night no vehicle was available.

14. P.W.5- Rajendra Singh Tomar,
who conducted the investigation, stated
that he first recorded the statement of the
injured Mahendra Singh; thereafter of the
informant Todar Singh and of the scribe
Ramveer
Singh
and,
thereafter,
he
proceeded to the spot, collected samples
of blood stained and plain earth and
prepared site plan. On his return, on
receipt of information regarding death of
the injured, the case was converted into
one under section 302 / 34 IPC on
12.07.1987. He stated that inquest was
carried out by P.S. Civil Lines. He stated
that after completing the investigation the
charge-sheet
was
filed
under
his
signature.

15. In his cross examination, he
stated that along with informant and the
injured several others had come to the
police station. He stated that although the
condition of the deceased was serious
when he was brought to the police station
but he could speak therefore, after lodging
of the first information report, his
statement was recorded and thereafter he
was sent to the hospital. He stated that
Mahendra was sent to Pisawa hospital but
there the doctor was not available and
therefore he was taken to Malkhan Singh
Hospital. He stated that the informant had
stayed back at the police station whereas
the rest had gone to the hospital with the
injured. He stated that the injured had a
cloth tied around his neck of which
possession was not taken by him. He
stated that the informant had gone with
him to the spot and had remained with
him till about 6.30 am (next day
morning). He stated that he had reached
the spot at about 10.30 p.m. on the night
of the incident. The site plan was prepared
next day morning, at about 5:45 am. He
stated that blood stained earth was found
at that spot where, as per the site plan,
knife blow is stated to have been inflicted,
2 All. Mahesh Vs State of U.P.
35
and at no other place. He stated that the
deceased Mahendra was Home Guard
posted at P.S. Pisawa and his duty hours
were from 6 pm to 4 am. He admitted that
he had not noted the location of the fields
of Gulzar and Girraj in the site plan.

16. Upon recall, he stated that the
statement of Mahendra (deceased) had
been recorded by him. The statement was
thereafter exhibited as Ex Ka 10.

17. In his cross-examination, upon
recall, he stated that he had recorded the
statement of the injured at about 9 pm and
that he took about 20 minutes to record
the statement. He stated that he had not
taken adequate precaution while recording
statement and that he did not take the
signature of the injured on his statement.
He stated that when he recorded his
statement no other person was present. He
stated that the injured was in a fit
condition to give his statement. He denied
the suggestion that the injured was not in
a position to give his statement and that
the recorded statement is bogus.

18. The accused were confronted
with the prosecution evidence. They
denied the prosecution case in their
statement recorded under section 313
CrPC and claimed that they have been
falsely implicated.

19. The trial court on the basis of the
evidence produced by the prosecution
convicted Jagdish; Mahesh (Appellant)
and Gajendra Singh but acquitted Biri
Singh by giving him benefit of doubt on
the ground of non disclosure of his name
or identity in the first information report
even though his identity as Behnoi of
Mahesh was known. The trial court also
discarded the alleged dying declaration
recorded by the Investigating Officer by
observing that from the medical evidence
it becomes clear that the deceased was not
at all in a condition to get his statement
recorded.

20. We have heard Sri Sangam Lal
Kesarwani and Sri Prem Chandra Yadav
for the appellant; the learned A.G.A. for
the State; and have perused the record.

21. Sri Sangam Lal Kesarwani,
learned counsel for the appellant, has
submitted
that
according
to
the
prosecution case all four accused were
armed with knives and they had put down
the deceased on the ground and had
inflicted several knife blows and that the
incident lasted for about two minutes but
the post mortem report of the deceased
reveals a solitary incised wound. This
would suggest that the incident was not
witnessed by the witnesses and the story
was subsequently developed.

22. He submitted that the presence
of P.W.1 on the spot becomes doubtful
for the following reasons: (a) his son was
being assaulted in front of his eyes yet he
makes no attempt to save him; (b) no
bloodstained clothes of PW1 have been
collected to demonstrate that he had been
with the deceased at the time of the
incident and had carried the deceased to
the hospital; (c) that the medical papers
suggests that the deceased was brought to
the hospital by his brother - Mehtab Singh
and not by PW1, whereas Mehtab Singh
has not been examined as a witness.
Moreover, it has not been disclosed as to
how Mehtab Singh was with the deceased
at the time of his medical examination.

23. He submitted that FIR appears to
be ante-timed for the following reasons:
(a) no chitthi majroobi (letter for medical
36 INDIAN LAW REPORTS ALLAHABAD SERIES
examination of injured) was prepared and
produced by the police and the medical
papers also do not disclose that the
injured was taken to the hospital with a
letter from the police station concerned,
which suggests that at the time when the
deceased was taken to hospital, no report
was in existence and registered at the
police station and that after receipt of
information
about
the
death,
first
information report was lodged and the
story was developed; (b) the inquest was
conducted by a different police station; (c)
the inquest papers do not disclose about
prior registration of case, rather, it
discloses that information was received
from the hospital; and (d) that report
under section 157 CrPC was given not on
12.07.1987 but on 13.07.1987, that is,
after the post mortem examination of the
deceased.

24. He also submitted that from the
statement of P.W.1 it appears that Tara
and Harveer, who were not examined as
witness, had arrived earlier whereas the
remaining witnesses arrived later, which
suggests that Gulzar had not witnessed the
incident and had arrived later upon getting
information about the incident.

25. It has been submitted that the
nature of the incident suggests that some
unknown assailant had inflicted injury
upon the deceased and had escaped and
the story was set up on the basis of
suspicion and guess work.

26. It has been submitted that neither
the weapon of assault nor bloodstained
clothes, if any, of the accused have been
recovered. The prosecution has therefore
not been able to establish its case beyond
the pale of doubt. He further submitted
that the very fact that the police had
shown that a dying declaration was
recorded when, in fact, the deceased was
not at all in a condition to even speak,
would go to show that there was an effort
to falsely implicate persons to solve out
the case as a Home Guard had been the
victim.

27. It was also argued that if the
deceased, who was Home Guard deputed at
P.S. Pisawa, been brought injured at the
police station, it is but natural that a police
constable would have accompanied him for
medical examination/treatment. But, from
medical papers, it appears, he was brought
to the hospital by his brother who has not
been produced as a witness. He thus
submitted that the prosecution has left many
questions unanswered, which leaves a lot of
doubt about the truthfulness of the
prosecution case, hence, the appellant is
entitled to the benefit of doubt.

28. Per contra, learned A.G.A. has
supported the judgment of the court below
by submitting that the first information
report was lodged promptly; the doctor in
his cross-examination has admitted that
the incident could have occurred on or
about the time at which it is purported to
have occurred; that the presence of eyewitnesses cannot be doubted as they have
appeared from adjoining fields; and that
there is no cogent reason brought on
record as to why the witnesses would be
lying. It has also been submitted that there
is no such serious conflict between ocular
and medical evidence as very often blows
may miss the body of the victim and,
therefore,
under
the
circumstances,
merely because a solitary injury has been
found, the involvement of four persons in
the
incident
cannot
be
ruled
out.
Moreover, they have been convicted with
the aid of section 34 IPC.
2 All. Mahesh Vs State of U.P.
37

29. We have given thoughtful
consideration to the rival submissions and
have perused the record carefully.

30. Upon consideration of the rival
submissions, one of the issues that falls
for our consideration is whether the FIR
was ante-timed. To find out whether the
FIR has been ante-timed certain external
checks are there. Some of these checks
have been noticed by the apex court in
Meharaj Singh (L/Nk.) v. State of U.P.,
(1994) 5 SCC 188, where, in paragraphs
12 and 13 of the judgment, as reported, it
was observed:

12. FIR in a criminal case and
particularly in a murder case is a vital
and valuable piece of evidence for the
purpose of appreciating the evidence led
at the trial. The object of insisting upon
prompt lodging of the FIR is to obtain the
earliest
information
regarding
the
circumstance in which the crime was
committed, including the names of the
actual culprits and the parts played by
them, the weapons, if any, used, as also
the names of the eyewitnesses, if any.
Delay in lodging the FIR often results in
embellishment, which is a creature of an
afterthought. On account of delay, the
FIR not only gets bereft of the advantage
of spontaneity, danger also creeps in of
the introduction of a coloured version or
exaggerated story. With a view to
determine whether the FIR was lodged at
the time it is alleged to have been
recorded, the courts generally look for
certain external checks. One of the checks
is the receipt of the copy of the FIR,
called a special report in a murder case,
by the local Magistrate. If this report is
received by the Magistrate late it can give
rise to an inference that the FIR was not
lodged at the time it is alleged to have
been recorded, unless, of course the
prosecution can offer a satisfactory
explanation for the delay in despatching
or receipt of the copy of the FIR by the
local Magistrate. Prosecution has led no
evidence at all in this behalf. The second
external check equally important is the
sending of the copy of the FIR along with
the dead body and its reference in the
inquest report. Even though the inquest
report, prepared under Section 174
CrPC, is aimed at serving a statutory
function,
to
lend
credence
to
the
prosecution case, the details of the FIR
and the gist of statements recorded during
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in an embryo state and had
not been given any shape and that the FIR
came to be recorded later on after due
deliberations and consultations and was
then ante-timed to give it the colour of a
promptly lodged FIR. In our opinion, on
account of the infirmities as noticed
above, the FIR has lost its value and
authenticity and it appears to us that the
same has been ante-timed and had not
been recorded till the inquest proceedings
were over at the spot by PW 8.

13. It appears that it was a blind
murder and none of the eyewitnesses were
actually present at the scene. The antetiming of the FIR was obviously made to
introduce eyewitnesses to support the
prosecution case.................."

 (Emphasis Supplied)

31. Though in several subsequent
decisions the apex court has held that no
time-limit for a report under section 157
CrPC could be specified as a rule and that
mere absence of mention of crime number
38 INDIAN LAW REPORTS ALLAHABAD SERIES
in inquest report or medical papers by
itself is not significant to discard the FIR
as ante-timed or to disbelieve the
prosecution
case,
if
otherwise
the
substantive evidence brings home the
charge without reasonable doubt (vide
Mahmood v. State of U.P., (2007) 14
SCC 16; Jaishree Yadav v. State of UP,
(2005) 9 SCC 788), but, it is equally well
settled that each case would have to be
tested on its own facts and circumstances
derived from the evidence led. In cases
where the substantive evidence led throws
questions that are left unanswered or
leaves out gaps in the prosecution story,
such latches, as noticed in Meharaj
Singh's case (supra), may assume
importance as to whether benefit of doubt
is to be provided to the accused.

32. In the instant case, we find that
the injuries sustained by the deceased
were very serious inasmuch as his
Trachea as well as Oesophagus, including
the main vessels, were cut which, in
ordinary course, would result in heavy
bleeding and severe pain as well as shock.
The doctor (P.W.6) who carried out the
post mortem examination was of the view
that with such an injury ordinarily the
victim would not be in a position to speak
and, if he could, that capacity would not
last beyond 5 to 10 minutes from the time
of infliction of the injury. The doctor
(P.W.6) accepted the possibility that the
injury sustained by the deceased might
have been caused between 8.30 p.m. and
9.00 p.m. of 11.7.1987, though he did not
rule out the possibility of the injury being
caused at the time stated by the
prosecution. What assumes importance is
that the nature of the injury suffered by
the deceased was such that the normal
course of human conduct, particularly, of
father or close relative of the injured,
would be to rush the injured to the
hospital straight away for immediate
medical attention rather than to take him
to the police station and wait there for
over an hour. The medical papers disclose
that the injured was brought to the
hospital by Mehtab Singh and not by the
police, without any chitthi majroobi,
which is suggestive of the possibility that
the injured was rushed to the hospital
straight away. This possibility gets
credence
from
other
circumstances
noticed herein after. The deceased was a
home guard posted at P.S. Pisawa. If he
had been brought in an injured condition
at that police station, the least that was
expected is that a constable would have
been deputed to accompany him to the
hospital. As per medical papers/ evidence,
deceased's
brother,
Mehtab
Singh,
brought him to the hospital. Though the
I.O. (P.W.5) stated that a constable had
gone to the Pisawa hospital and he
returned because doctor could not be
found there, but neither the name of that
constable is disclosed nor Mehtab, whose
name finds mention in medical papers,
has been examined. Interestingly, the
inquest proceeding was conducted at the
hospital by the police of P.S. Civil Lines
on information given by the hospital. Had
there been information to the hospital that
FIR has already been lodged at P.S.
Pisawa there was
a possibility of
information being provided to that police
station. Neither any one from police
station Civil Lines nor any of the
witnesses of inquest proceeding has been
examined. Importantly, PW1 and PW2
are not Panch witnesses.

33. From the testimony of the doctor
(P.W.6) the possibility of recording the
statement of the injured by P.W.5 is ruled
out, if the incident had occurred at 6.45
2 All. Mahesh Vs State of U.P.
39
p.m. because the deceased could not have
had sustained his speaking capacity beyond 5
to 10 minutes post the incident so as to
enable the I.O. (P.W.5) to record his
statement at about 9.00 pm. and, that too, for
about 20 minutes, as is the claim of P.W.5.
This circumstance is suggestive of two
possibilities. One that the incident did not
occur at 6.45 p.m., as alleged, and the other
is that the dying declaration is bogus. What
was the reason to show that the statement of
the injured was recorded. Perhaps, the
answer of that can be found in the alleged
statement of the injured (Ex. Ka 10), which
has been discarded by the court below.

34. On perusal of Ex Ka 10, the
alleged statement of the injured made
before his death, we find that it makes an
effort to explain the absence of more than
one injury on the injured as also to bring
out the name of the fourth unnamed
person, namely, Biri Singh. This clearly
signifies that the I.O. had tried to fill in
the gaps in the prosecution case, after
getting information, by setting up the
statement of the deceased.

35. Further, we may observe that if
the I.O. had recorded the statement of the
deceased and had come to know about the
identity of the fourth person there was no
reason for him not to disclose this fact to
the informant then and there at the police
station
itself
on
11.07.1987.
The
informant (P.W.1), on the other hand, in
his cross-examination, at the instance of
Mahesh, stated that he came to know
about the involvement of Biri Singh
through the I.O. about 2 days later. This
discrepancy not only throws doubt about
recording of the dying declaration but is
also suggestive of the probability that the
I.O. filled up the police papers some time
later to suit the prosecution case.

36. Another feature which is worthy
of notice is that the I.O. (PW5) stated that
the informant stayed with him till next
day morning and in the night of 11.7.1987
itself he went to the spot and took blood
stained earth and plain earth samples. The
fard (Ex-Ka-7) of that recovery discloses
Chhido Nath and Vijendra Singh as
witnesses of recovery. Both of them have
not been examined. Interestingly, PW1
states that from P.S. Pisawa he had
brought the injured Mahendra to M.S.
Hospital. If that was so, then how could
he have stayed back at the police station
as claimed by the I.O. so as to enable him
to visit the spot and collect blood stained
earth, etc in the night of 11.07.1987.

37. When we see the prosecution
evidence in its entirety and the aspects
discussed above, ante-timing of the FIR
or the incident cannot be ruled out. The
statement of P.W.3 that prior to the
registration of the concerned FIR only one
non cognizable report had been entered in
the morning of that day (11.07.1987) at
the police station concerned shows that
there was sufficient scope in the General
Diary to make entries without the
necessity of overwriting or interpolation.

38. Now, we shall proceed to
examine the reliability of the ocular
evidence. P.W.1 is the father of the
deceased. He claims himself to be an eye
witness. He, in his FIR as well as
statement in court, states that four accused
surrounded the deceased, pinned him
down, took out knives and inflicted him
blows. As against multiple knife injuries a
solitary incised wound has been found.
Even assuming that few blows may have
missed but when some one is pinned
down and his entire body is available for
attack it is quite unbelievable that all the
40 INDIAN LAW REPORTS ALLAHABAD SERIES
blows would miss. This discrepancy,
PW1 sought to explain by stating that he
tried to tell the scribe of the FIR that only
the blow of Gajendra had caused the
injury but the scribe retorted that it would
result in death penalty. If P.W.1 had seen
the incident and was convinced about
what he saw why would he agree to dilute
the case against Gajendra. Further, P.W.1
stated that after infliction of injury the
deceased stood up, ran few paces and then
fell down unconscious and, thereafter,
regained consciousness and was also able
to speak. Interestingly, I.O. (PW 5) stated
that he could find blood at only one spot.
When we appreciate the statement of
P.W.1 in the light of the statement of the
doctor that the deceased could not have
sustained his speech faculty for more than
5 to 10 minutes after the injury, the
statement of P.W.1 does not at all inspire
confidence.
Doubts
as
regards
the
presence of P.W.1 at the place of
occurrence also surface from the medical
papers which indicate that Mehtab Singh,
son of P.W.1, who has not been
examined, brought the deceased to the
hospital. P.W.1 did not make any effort to
save his son and has suffered no injury.
Link evidence such as blood stained
clothes of the informant to show that he
has been with the deceased have not been
collected and produced. No doubt, every
person may react differently to a given
situation and therefore absence of effort
on the part of informant to save his son
may not be a clinching circumstance to
discredit
him
but
when
all
the
circumstances are put together, including
attribution of role of inflicting knife blows
on the deceased to four persons as against
solitary injury found on his body, they
throw a serious doubt about the presence
of P.W.1 on the spot at the time of
occurrence. Further, it may be noticed that
though P.W.1 states that he had been to
the hospital with his son (injured) but the
Investigating Officer states that P.W.1
had stayed at the police station. Under the
circumstances, the statement of P.W.1
does not inspire confidence to enable us
to uphold conviction of the accused
persons.

39. The statement of P.W. 2 falls in
the same category. More over, he appears
to be a chance witness who came to the
spot on hearing cries. He has neither
accompanied the deceased to the hospital
nor has been an inquest witness.