# Phool Singh & Anr v. State of U.P

- **Citation:** (2022) 5 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-29
- **Case number:** Criminal Appeal No. 5107 of 2003
- **Bench:** Mrs. Sunita Agarwal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-singh-anr-v-state-of-u-p-48429
- **Pages:** 21

## Headnote

Govt.
Advocate,
Sri
Mahesh
Chandra
Dwivedi

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,
1860-Sections
302/149,
324/149, 148-challenge to -convictionmodification
of
sentence-
offence
of
murder-five
appellants
convicted-Fires
opened by the appellants hit the head,
back, chest, hands and face of the victim
who fell down at the door of the house
and died-one child also sustained pellet
injuries-deceased was the witness in one
criminal case-appellants were having ill
will against the deceased on account of
his evidence-appellant served 20 to 21
years in jail-It is not permissible for the
Court to fix the period of life sentence to
certain years-period of life sentence is
commuted by appropriate Government in
terms of section 55 IPC and 433, 433-A of
Cr.P.C.-It is within the discretion of the
State Government to grant remission to
life convict after he has served minimum
14 years of sentence in jail-Apex Court
while commuting the death sentence to
life had fixed a cap so that the convicted
accused would not be entitled to seek
remission
prior
to
expiry
of
said
period.(Para 1 to 66)

The appeal is dismissed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,811 of 71,770. This is a partial read: ask again with offset=39811 for what follows._

5 All. Phool Singh & Anr. Vs. State of U.P.
145

52. On the basis of the aforesaid facts
and circumstances, the prosecution has
proved its case beyond reasonable doubt.
The allegations against the accused -
appellant under Sections 376 and 302 of the
Indian Penal Code stands proved by the
prosecution.

53. We do not find any infirmity in
the
impugned
judgement
dated
5
December, 2007 and sentence dated 6
December, 2007 passed by the trial court
convicting the accused - appellant for
offence under Sections 376 and 302 of
the Indian Penal Code. The sentence
awarded
by
the
trial
court
is
in
accordance with law and needs no
interference.

54. As a result, the present appeal
lacks merit and is dismissed.

55. Registrar General of this Court is
directed to pay an honorarium of Rs.
20,000/- to Ms. Abida Syed, learned
Amicus Curiae for rendering effective
assistance in the matter.

56. Let the lower court record be
transmitted back to court below along with
a copy of this order.
----------
(2022)05ILR A145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 5107 of 2003
&
Criminal Appeal No. 5642 of 2007
&
Criminal Appeal No. 4990 of 2003
Phool Singh & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri N.K. Mishra, Sri Apul Misra, Shilpa Ahuja

Counsel for the Resondent:
Govt.
Advocate,
Sri
Mahesh
Chandra
Dwivedi

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,
1860-Sections
302/149,
324/149, 148-challenge to -convictionmodification
of
sentence-
offence
of
murder-five
appellants
convicted-Fires
opened by the appellants hit the head,
back, chest, hands and face of the victim
who fell down at the door of the house
and died-one child also sustained pellet
injuries-deceased was the witness in one
criminal case-appellants were having ill
will against the deceased on account of
his evidence-appellant served 20 to 21
years in jail-It is not permissible for the
Court to fix the period of life sentence to
certain years-period of life sentence is
commuted by appropriate Government in
terms of section 55 IPC and 433, 433-A of
Cr.P.C.-It is within the discretion of the
State Government to grant remission to
life convict after he has served minimum
14 years of sentence in jail-Apex Court
while commuting the death sentence to
life had fixed a cap so that the convicted
accused would not be entitled to seek
remission
prior
to
expiry
of
said
period.(Para 1 to 66)

The appeal is dismissed. (E-6)
List of Cases cited:

1. Brajendra Singh Vs St. of U.P.(2012) 4 SCC
289

2. Ashok Debbarma @ Achak Debbarma Vs St.
of Tripura(2014) 4 SCC 747

3.
Sarat
Chandra
Rabha
&
ors..
Vs
Khagendranath & ors.. (1961) AIR SC 334
146 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Gopal Vinayak Godse Vs St. of Mah. & ors.
(1961) AIR SC 600

5. Maru Ram Vs UOI (1980) AIR SC 2147

6. Swamy Shraddananda (2) Vs St. of Kar.
(2008) 13 SCC 767

7. Sahib Hussain @Sahib Jan Vs St. of
Raj.(2013) 9 SCC 778

8. Gurvail Singh@ Gala Vs St. of Punj. (2013) 10
SCC 631

9. UOI Vs V. Sriharan @ Murugan & ors. (2016)
7 SCC 1

10. Vikas Yadav Vs St. of U.P & ors. (2016) 9
SCC 541

11. Jitendra @ Kalla Vs St. of Govt of NCT of
Delhi (2018) AIR SC 5253

12. Reference: Shankarlal Gyarasilal Dixit (1981)
2 SCC 35

13. Reference: Raju @ Balachandran & ors. Vs
St. of T.N. (2012) 12 SCC 701

14. St. of M.P. Vs Ratan Singh (1976) 3 SCC 470

15. Bhagirath Vs Delhi Admin.(1985) 2 SCC 580

16. Duryadhan Rout Vs St. of Ori.(2015) 2 SCC
783

17. Naib Singh Vs St. of Punj.(1983) 2 SCC 454

18. Askok Kumar Vs UOI (1991) 3 SCC 498

19. Subhas Chander Vs Krishan Lal (2001) 4
SCC 458

20. Mohd Munna Vs UOI (2005) 7 SCC 417

21. Raj Kumar Vs St. of U.P. (2019) 9 SCC 427

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Apul Mishra learned
Advocate on behalf of appellants Phool
Singh, Hari @ Harish Chandra and Charan,
Sri Vinod Kumar learned Advocate on
behalf of appellant Kallu and Sri Roopak
Chaubey learned A.G.A for the State.

2. These three connected appeals are
directed against the judgment and order
dated 30.9.2003 passed by the Sessions
Judge, Mahoba in Sessions Trial no.55 of
1998 arising out of Case Crime no.219 of
1997
P.S-Kulpahad
District-Mahoba
whereby five appellants namely Kallu,
Phool Singh, Hari @ Harish Chandra,
Charan and Jogendra have been convicted
for the offence under Section 302/149 I.P.C
and sentence for life imprisonment; under
Section 324/149 I.P.C they were sentenced
for rigorous imprisonment for three years
as also for the offence under Section 148
I.P.C. punishment for which is two years
rigorous imprisonment. All the punishment
are to run concurrently.

These three connected appeals are
filed by five accused persons, amongst
them one appellant Jogendra had died and
the appeal on his behalf has been abated.

3. The prosecution story unfolds with a
first information report lodged on 19.11.1997
at about 17.00 hours which was on a written
report given by Ratan Singh s/o Karore
Yadav resident of Kulpahad, Mahoba. As per
the written report, the brother of the first
informant namely Jai Singh while going to
his fields at about 3.00 p.m on 19.11.1997
was attacked by Kallu and Phool Singh by
their 12 bore gun and rifle. At that point of
time, the victim was near the house of Tikka
Ram and was heading towards "Arjun
Bandh" from his house. The fires opened by
Kallu and Phool Singh hit at the hands of Jai
Singh and he ran towards his house. At that
time appellants Jogendra, Hari and Charan
came out of the house of the Kallu carrying
5 All. Phool Singh & Anr. Vs. State of U.P.
147
12 bore guns and started firing at the victim
Jai Singh. These persons also fired at the back
of the victim Jai Singh. As per the version of
the first informant in the written report, the
fires opened by the appellants hit the head,
back, chest, hands and face of the victim who
fell down at the door of his house and died. In
the course of firing, one child Sunil s/o Kallu
Teli aged about four years had also sustained
pellet injuries in his Torso. The motive of
committing the crime had been assigned to
appellant Charan and Jogendra who were
accused in criminal case wherein the
deceased was a witness. It was stated that the
appellants were having ill will against the
deceased on account of his evidence. The
incident was witnessed by the younger
brother of the deceased namely Todan and
one person named Bhaiyan s/o Amar Singh
Yadav resident Ragauli P.S-Srinagar and
Mohan Singh s/o Balkhandi Sela.

4. Based on the written report, check
F.I.R was prepared by the Constable
Moharrir P.S-Kulpahad examined as P.W-3.
This witness had proved the check report as
Exhibit Ka-2 and the G.D entry no.25 dated
19.11.1997 at 17:00 hours as Exhibit Ka-3.
In cross, P.W-3 had proved that the written
report bears thumb impression of the first
informant and the copy of the check was
handed over to the Investigating Officer
before he proceeded to the spot. The
suggestion that the written report was
scribed and the check FIR was lodged after
the Investigating Officer had returned from
the spot had been categorically denied.

5. The papers prepared during the
course of investigation had been proved by
the Investigating Officer examined as P.W-7,
who has deposed that he was posted as
Station House Officer in P.S-Kulpahad on the
date of the incident and the FIR was lodged
in his presence. The investigation was
received by him and he proceeded to the
place of the incident where the statements of
the first informant and other witnesses were
recorded. However, as by that time, the night
had set in and there was no sufficient light,
the dead body and other incriminating
material relating to the incident were kept
preserved by the police officials posted there.
On the next date, i.e 20.11.1997, the
inspection of the site of the incident was
made and the site plan was prepared which
was exhibited as Exhibit-Ka-
6. The blood stained and plain earth collected
from the spot was exhibited as Exhibit Ka-7
and six empty cartridges recovered from
different places of the incident were noted in
a recovery memo which is Exhibit-Ka-8. The
inquest of the body was made between 7.30
a.m to 8.30 a.m and the body was sealed and
sent for post mortem through two constables
after preparation of other related papers. The
inquest and other related papers were
exhibited as Exhibit-Ka-9 to Exhibit Ka-13.
On 24.11.1997, the accused Kallu, Charan
and Jogendra were arrested and their
statements were recorded. The accused Phool
Singh was arrested on 29.11.1997 and his
statement was recorded and the statement of
accused Hari was noted on 12.12.1997. After
recording statements of other material
witnesses, chargesheet was prepared and filed
as Exhibit-Ka-14. The blood stained, plain
earth and shoes of the two deceased were
exhibited as material Exhibit-1, 2 and 3;
respectively. P.W-7 had deposed that the case
property was sent to the forensic laboratory.

6. The doctor conducted post mortem
had been examined as P.W-6. He had
proved injuries on the person of the
deceased as under:

"(1) Fire arm wound of entry 2.5
cm x 2.0 cm over left temporal region 8 cm
above left tragus of ear, Shape oval, margin
148 INDIAN LAW REPORTS ALLAHABAD SERIES
abraded, Clean cut with fracture of left
temporal bone directing above and forward
toward right side, cork four one plastic tikli
recovered from right side cerebral cortics
and 19 pellets also.

(2). Fire arm would of entry 2 cm
x 2 cm size over left lower jaw, 1 cm below
left angle mouth, circular in shape, margin
inverted. Left side mandible bone fractured
in multiple pieces, directed forward and
upward to left side.

(2B). Fire arm wound of entry 3
cm x 5 cm in size over left side of cheek 2
cm...to left tragus of ear margin....oval in
shape.

(3). Contusion 7 cm x 4 cm right
side of maxillary prominence with fracture
of right side maxilla bone.

(4 a). Firearm would of entry 8
cm x 4.5 cm, gutter shape over left mid part
of upper area...lateral aspect of clavicle 12
cm below tip of left shoulder joint margins
inverted, direction upward and forward
anterior and posterior.

(4 b). Fire arm wound of exit 12
cm x 8 cm in size irregular shape left upper
arm 10 cm shoulder joint, margins
outward.

(5) Multiple abrasions of 2.5 cm x
2.5 cm in size, circular in shape 9 cm x 7
cm size area over left lateral aspect of chest
below posterior auxillary fold 13 in number
minimum aspect 7 cm above skin deep.

(6 a) Firearm wound of entry of 2
cm x 5 cm size over sternum 17 cm below
supra
sternal
notch
margin
inverted
circular in size direction anterior to
posterior.

(6 b). Firearm wound of entry 2.5
x 2.5 cm right side of back heart punctured
through and through right side of back of
chest 9 cm below right scapula bone, heart
punctured through and through.

On internal examination, it was
found that brain lining was punctured
pericardium punctured, heart empty, one
litre pasty food was present in the stomach,
gases in small intestine and gases and
faecal matter in large intestine. Liver and
spleen were congested.

7. The cause of death was indicated as
shock and hemorrhage due to ante mortem
injuries. The proximate time of death was
one day. As per the observation of the
doctor on the internal examination of the
body, it was found that pericardium and
brain lining were broken. Heart was empty.
One litre food was present in the stomach.
Gases in small intestine and gaseous and
feacal matter was present in the large
intestine. The rigour mortis had passed on
from the neck and present in the upper and
lower limbs. P.W-6 had opined that the
proximate time of death could be 3.00 p.m
on 19.11.1997. He has proved the post
mortem being in his handwriting and
signature, which is Exhibit Ka-5.

8. P.W-4, doctor Bhram Dutt Dwivedi
had proved the injury report of the child
Sunil wherein age of the injured has been
mentioned about 5 years. It was deposed
that the injured was brought to him by the
Constable of the Police Station-Kulpahad.
The injuries found on the person of the
child are:-

"(1). Six small wounds of gun
short measuring 0.2 cm x 0.2 cm x muscle
deep over an area of 12 cm x 9 cm over the
left side of the abdomen, blackening present
over the wound, advised X-ray AP and
lateral.

(2) 2 small wounds of gunshot
measuring 0.2 cm x 0.2 cm x muscle deep 4
cm apart from each other over the medial
aspect of the left foot 3 cm below the
medial..., blackening present over the
wound, advised X-ray AP and lateral.
5 All. Phool Singh & Anr. Vs. State of U.P.
149

The doctor has opined that both
the injuries had been caused by some fire
arm and had been kept under observation
and referred to Superintendent CHC for
radiological examination to determine the
nature of injury and management.

The injury report contains left
thumb impression of the injured Sunil and
had
been
attested
by
the
doctor
concerned."

9. The two injuries found on the
injured were fire arm injuries according to
the doctor P.W-4. The nature of injuries
though could not be determined by him
because of the absence of X-Ray but P.W-4
stated that the injuries were fresh and the
possibility of them occurring on 19.11.1997
at about 3.00 p.m was very much there. The
injury report had been proved being in the
writing and signature of P.W-4 as Exhibit
Ka-'4'. He also proved that the injury report
contained identification mark and the
thumb impression of the injured.

10. Thus, formal witnesses had
proved the documents prepared by them
related to the case.

11. The forensic science laboratory
report is Exhibit-Ka-'15' wherein it is
mentioned that in large portion of the
clothes, shoes and ring of the deceased
blood was found and most of the blood was
in the item nos.1, 2 and 5 which were sadri,
safi and shoes of the deceased. The blood
found in these items was human blood. The
blood group of blood of item nos.1, 2, 4
and 5 was identified as Group-'O' and on
item no.3 and 7 the blood was found
disintegrated as such its blood group could
not be determined.

Amongst the witnesses of fact,
P.W-1 is the brother of the deceased; P.W-2
Todan Singh is another brother of the
deceased; P.W-5 Bhaiyan is also an eye
witnesses.

12. This is a case of eye witness
account of the incident which had occurred
during day hours. Challenging the order of
conviction passed by the trial court, it is
vehemently argued by Sri Apul Mishra
learned Advocate for the appellant that as
per own case of the prosecution, P.W-1 was
not an eyewitness. His testimony is a
hearsay evidence. Further, the presence of
P.W-2, another brother of the deceased is
found doubtful for various contradictions in
his version and improbabilities of the
circumstances put forth by him. P.W-5
Bhaiyan, a relative of the deceased is a
chance witness as he was resident of a
different village and the reason given by
him for his presence at the spot is not
convincing. One injured, boy of five years,
was a passerby who had received only
pellet injuries. As per own statement of the
prosecution witnesses, there was enmity
between the deceased and accused persons,
their false implication therefore, cannot be
ruled out. The whole prosecution story is
manufactured and it was not possible for
the witness to see entire incident from the
place of their presence indicated in the site
plan. The presence of P.W-1 is nowhere
indicated in the site plan and he had not
seen the incident.

13. From the statement of P.W-1, it is
pointed out by the learned counsel for the
appellants that this witness in the course of
deposition could not even remember the
name of an eyewitness and stated that the
eyewitness was a resident of Gram Ragauli.
P.W-1, in his examination in chief, deposed
that the incident was witnessed by three
persons namely Todan and Mohan and one
relative and that the entire details of the
150 INDIAN LAW REPORTS ALLAHABAD SERIES
incident was described to him by the
eyewitness. At the time of the incident, he
was in his field and reached the spot
hearing the sounds of fire. Mohan did not
enter in the witness box. Two witnesses
namely Todan and Bhaiyan were closely
related to the deceased and the possibility is
that the P.W-1 concocting the whole story
on the description given by the alleged
eyewitness had lodged the FIR. It is urged
that the motive assigned by P.W-1 was that
the deceased was a witness in a case of
marpeet against the accused person.

14. On a suggestion that the statement
of the deceased was already recorded and
the accused persons had been acquitted was
denied by the prosecution witnesses in a
vague manner. It was admitted by P.W-1
that in the case of the murder of father of
one of the appellant namely Jogender, P.W2 Todan, his father and other brothers were
named accused and the case was pending in
the Court.

15. Pointing out the above facts, it
was vehemently submitted by the learned
counsel for the appellants that it is a case of
false implication of appellant Jogendra and
his acquaintance on account of the fact that
the deceased and his family members were
arraigned as accused in a criminal case for
murder of father of Jogendra. P.W-1 had
admitted that he was present in his field at
the time of the incident and by the time he
reached at his house, his brother was
already dead and his body was inside the
house. The statement of P.W-1 is that when
he came besides the dead body of his
brother Jai Singh, other witnesses met him
there and after staying for about 20-25
minutes besides the dead body he went to
the police station alongwith some villagers
and injured Sunil. It took them about 11⁄2
hours to reach the police station. P.W-5
stated that the scribe of the written report
namely Lakhan Singh met him at Gondi
Chauraha, 200 paces from the police station
Kulpahad. After the report was scribed at
that place they both went to the police
station to lodge the same. The scribe of the
written report had not entered in the
witness box. In fact, the FIR is antetimed as
it was prepared by the Investigating Officer
for implication of accused persons after
deliberation. And for this the first informant
had given a vague statement as to how he
met Lakhan Singh near the police station
by chance and got the report scribed by
him.

16. It is contended that noticeable is
that the scribe did not enter in the witness
box to explain as to how and when he had
written the report and lodged it with the
first
informant
P.W-1.
Another
circumstance which makes the FIR ante
time is that the inquest was conducted on
the next day in the morning and the
explanation offered by the Investigating
Officer for delay in the inquest is not
convincing, inasmuch as, the body was
found in the house of the deceased. It is
nobody's case that electrification of the
village was not done, so the reason given
by the Investigating Officer that it was dark
and because of insufficient light inquest
was conducted in the morning is not
acceptable. This fact itself shows the
murder had occurred in the dead of night
and no one had seen the occurrence. In fact
the police had filled the blanks and the
correct sequence of investigation was not
followed. The above explanation offered by
the Investigating Officer is nothing but an
effort to present the FIR as a truthful
document.

17. It is argued that the version of
P.W-1 itself negates the presence of other
5 All. Phool Singh & Anr. Vs. State of U.P.
151
two eyewitness at the spot. It is vehemently
contended that from the deposition of P.W1 as also the written report and the
statement of P.W-2-Todan Singh, the
presence of P.W-2 at the spot is found
doubtful, inasmuch as, in his deposition,
this witness stated that he had witnessed the
entire incident while standing at the
Chabutra of the house of Bhagwan Das and
two other witnesses namely Mohan Singh
and Bhaiyan, who were introduced by the
first informant (P.W-1) and P.W-2, were
also present with him. These three persons,
according to the prosecution had witnessed
the entire incident while standing at the
said place; whereas P.W-2 in his statement
under Section 161 Cr.P.C., had stated that
he witnessed the incident while standing at
the door of his house and other two
witnesses were also present with him. This
contradiction in the statement of P.W-2
clearly prove that the place of incident was
not the same as narrated by the prosecution
witnesses; otherwise, there was no reason
to shift the place of witnessing the entire
scene. In all probability, the deceased was
killed while he was sitting at the door of his
house and some unknown assailants had
killed him. As per P.W-1, he reached the
spot hearing the sounds of the fire and the
body of the deceased was inside the house.
It is urged that in view of this version of
P.W-1, when P.W-2 could not explain his
position ie his presence at the door of his
house while making deposition in the Court
in consonance with his statement under
Section 161 Cr.P.C., he had shifted his
position conveniently. This shift in the
statement
of
P.W-2
is
a
material
improvement and impeach the credibility of
this witnesses.

18. P.W-2 also proved enimity
between the deceased and the accused
persons, false implication of the accused in
a blind murder, therefore, cannot be ruled
out.

19. It is further contended that P.W-1,
the first informant, in the written report and
in his examination in chief, had assigned
rifle in the hands of accused Phool Singh
whereas P.W-2 who was projected as an
eyewitness had assigned gun in the hands
of Phool Singh. This contradiction in the
statement
of
P.W-2
is
material
improvement in the prosecution case,
inasmuch as, the prosecution had changed
its version as no injury on the person of
deceased could be related to rifle.

20. Further, it was argued that P.W-5
had been introduced by the prosecution on
deliberation. This witness is brother-in-law
of son of the deceased and a resident of
Village Ragauli which was at a distance of
5-6 Kose from the village of the deceased.
P.W-5 stated that he came to the house of
the deceased to meet him without any
reason, whereas P.W-2 on a question put to
him stated that Bhaiyan (P.W-5) came to
the village to bring his sister. In fact, P.W-2
admitted that there was no reason for P.W-5
to be at the spot. Further, P.W-1, the first
informant, could not even recollect the
name of this witness (P.W-5) while making
his deposition, in the examination in chief.
In cross of P.W-5, it has come that the body
was sent for post mortem on the date of
incident on 19.11.1997 as he stated that the
body was taken by the Investigating Officer
within one hour of going at the spot, after
completion of necessary formalities and the
day on which this process was completed
was the day of the incident. From the
inquest report and the deposition of the
Investigating Officer, it is evident that the
inquest was done on the next day i.e
20.11.1997. The falsity in the statement of
P.W-5 is proved from the circumstances
152 INDIAN LAW REPORTS ALLAHABAD SERIES
reflected from the record and was sufficient
to discard his presence at the spot. Further,
P.W-5 even denied his statement under
Section 161 Cr.P.C by saying that the
Investigating Officer did not interrogate
him nor recorded his statement. This denial
also prove that P.W-5 was not an eye
witness and had been introduced by
brothers of the deceased in order to project
a so called independent witness in a case of
false implication of the accused persons.

21. With the above facts, it was
further argued that as per the case of the
prosecution witness firing had started in
front of the house of Tika Ram which has
been shown in the site plan as place (B).
Eye witness (P.W-2 and P.W-5) had fixed
their presence at place marked as (E). The
distance between these two places as is
evident from the description in the site plan
is about 100 paces. P.W-5, in cross,
admitted that the distance between the
house of Tika Ram at place (B) (where
firing had started) and house of Bhagwan
Das (E) was 100 paces and all the
witnesses had witnessed the incident sitting
at the door of Bhagwan Das. It is argued
that the place where allegedly the firing had
started was quite far from the place where
the witnesses were allegedly present. It,
therefore, cannot be accepted that the
witnesses could have seen the incident so
accurately as described in the FIR.

22. It is contended that a further
perusal of the site plan indicates that the
deceased ran for his life from place (B) to
(A) and he had received first shot at place
(B). The distance between (A) and (B) as
indicated in the site plan is 88 paces. The
injury no.5 on the person of the deceased
was such a large injury which makes it
impossible to believe that the deceased
could have run for such a long distance.
Further, the injury nos.4A, 4B as also
injury nos.6A and 6B are on such places
that the deceased could not have run after
getting those shots. The story narrated by
the prosecution witnesses, thus, that the
firing had started by the accused persons at
place (D) while the deceased was at place
(B) and he ran from the place (B) to (A)
when other accused persons joined in firing
at place (F) and he finally fell down and
died at place (A), is highly improbable. The
prosecution has not been able to furnish
any explanation of the above query.
Further, no blood was found between place
(B) to (A), i.e on the road where the
deceased was first hit and ran for his life
which also dispels the manner of the
incident as per the narration of the
prosecution witnesses. More and highly
probable version of the defence that the
deceased was hit by someone else while he
was sitting at the door of his house is
worthy of acceptance.

23. Further, though rifle had been
allocated to one of the accused there is no
shot of rifle typically. Injury no.3 seems to
have been caused by a blunt object. The
witnesses projected by the prosecution are
not natural witnesses. No one had seen the
incident. The motive for false implication is
proved from the version of the prosecution
witnesses itself. The massive discrepancies
in the statement of prosecution witnesses
and documentary evidence, placed by the
police show that the prosecution had
suppressed the true version of the incident.

24. Lastly it is argued that there is no
explanation
for
12
hours
delay
in
conducting the inquest when the body was
found in the house of the deceased. This
show that the family members of the
deceased were not sure as to who were the
assailants and they bought time with the aid
5 All. Phool Singh & Anr. Vs. State of U.P.
153
of police to introduce the accused persons
and the place of the incidents. It is, thus,
argued that the entire prosecution story is
cooked up and is full of contradictions,
deliberations and apparent inconsistencies.
In
the
totality
of
the
facts
and
circumstances of the case the conviction of
the appellants cannot be sustained.

25. Sri Apul Mishra learned counsel
on behalf of the appellant Hari further
submits that this appellant had taken a
categorical plea of alibi in his statement
under Section 313 Cr.P.C by saying that he
was in the Court of Civil Judge/J.D for
recording his evidence and was not present
at the spot. This plea was illegally rejected
by the trial court by saying that looking to
the distance of the place of incident from
the District Court Mahoba, the presence of
the accused appellant Hari at the spot
cannot be discarded.

26. Sri Vinod Kumar learned
Advocate for the appellant Kallu submits
that no motive had been assigned to
appellant Kallu by any of the eyewitnesses.
Only suggestion of enmity with appellant
Kallu as has come up in the cross of P.W-2
relates to an incident of murder of grand
father of Kallu that too in the year 1965
wherein father of P.W-2 was an accused.
Looking to the remoteness of the motive
suggested
for
appellant
Kallu,
his
involvement in the crime is false. While
adopting all other argument placed by Sri
Apul Mishra, Sri Vinod Kumar learned
Advocate appearing for the appellant Kallu
submitted that appellant Kallu is in jail for
more than 20-21 years. Section 57 I.P.C
prescribes that imprisonment of life is to be
reckoned as equivalent to imprisonment for
20 years. The period of incarceration of
appellant Kallu, therefore, is sufficient for
his release from jail, even in case his
conviction is upheld. While arguing on the
issue of sentence, it is submitted by the
learned counsel for the appellant Kallu that
in view of the decision of this Court in
Criminal Appeal no.2135 of 2013 (Savir vs
State of U.P) dated 5.2.2021, the life
sentence of the appellant has to be
reckoned to 20 years, as in that case, this
Court had fixed the term of life as 14 year
and six months. In similar circumstance,
the Apex Court in Criminal Appeal no.1044
of 2012 (Shekhar vs State of M.P.) ;
Criminal Appeal no.1563-1564 of 2018 had
commuted life sentence to 15 and 18 years
of the period undergone by the appellants
therein. The judgment of the Apex court in
Brajendra Singh vs State of U.P1 has been
placed before us to assert that the Apex
Court while commuting the death sentence
had fixed the term of life imprisonment as
21 years. In Ashok Debbarma alias Achak
Debbarma vs State of Tripura2 in the case
of Armed Extremists death was commuted
to 20 years of life imprisonment. The
submission, thus, is that the High Court is
empowered to put a cap/ceiling of keeping
the accused behind the bar and commute
the life sentence to a fixed term. In view of
the circumstance of the case, keeping the
accused Kallu in jail further is against the
spirit of the decisions of the Apex Court.

27. Learned A.G.A, in rebuttal,
submits that there is no suggestion to P.W1, first informant with regard to the FIR
being ante time. P.W-3 is a natural witness.
There is no suggestion of enmity with this
witnesses. The injured was examined on
the date of the incident itself and it was
proved that he was brought to the doctor by
a police constable with Majrubi Chitthi. It
was a broad day light murder and sequence
of events established by the prosecution
witnesses gives details of the occurrence. In
the FIR if some details are not provided,
154 INDIAN LAW REPORTS ALLAHABAD SERIES
that would not lead to an inference that the
prosecution had presented a concocted
story. The eye witnesses of the occurrence
are natural witnesses. Minor contradictions
in
their
version
rather
prove
their
truthfulness as they did not bother about
corroborating
their
evidence
while
narrating the occurrence. The reason why
blood was not found between the place (B)
and (A) is explained from the manner in
which the deceased was shot. The entire
occurrence between two points could have
been completed within 15-20 seconds and
further the inquest report and the forensic
report indicate that large amount of blood
was found on the clothes and shoes of the
deceased. It was winter time and dress like
Sadri could soak a lot of blood. The blood
found in the shoes of the deceased further
supports the prosecution case that the
deceased ran for his life from place (B). In
the FSL report also human blood was found
on the clothes, shoes and other articles.

28. It is further argued that the version
of P.W-1 also shows the truthfulness of the
prosecution story discarding all hypothesis
of false implication. Had P.W-1 concocted
the story he could have very conveniently
included himself as an eyewitness. The
contention that P.W-5 was a chance
witnesses is not acceptable rather he was a
natural witness who had proved his
presence in the house of the deceased from
about 2-3 days prior to the date of incident.
The reason given by P.W-5 to come to the
house of the deceased could not be
successfully disputed by the defence.
However, even if P.W-5 is taken as a
chance witness as per the version of the
defence, his testimony cannot be discarded
as a whole by the mere fact of him being a
chance witnesses. The settled law is that if
a witness is found to be present on the
place of the incident by chance, his
testimony has to be carefully scrutinized by
the Court with due care and circumspection
and not that it must be discarded. The
contradictions shown in the statements of
P.W-1 and P.W-5 were not put to P.W-5.
The arguments of the learned counsel for
the
appellants,
therefore,
cannot
be
accepted.

29. It is further argued by learned
A.G.A that it was a prompt report of the
occurrence and the statements of the
witness under Section 161 Cr.P.C. were
recorded on the same day. P.W-1, P.W-2
and P.W-5 fixed their presence at the time
of the incident in their first version before
the Investigating Officer. P.W-5 had no
personal enmity with the accused persons.
Other two witnesses namely P.W-1 and
P.W-2 though are related but cannot be said
to be inimical. Their testimony is natural.
The motive that the deceased was a witness
against Jogendra, a named accused, in a
criminal case had been proved from the
statement of the prosecution witnesses.
Further, when the accused had fired
together at the deceased, only inference that
can be drawn is that they had prosecuted
the common intention of the unlawful
assembly. The medical evidence on record
corroborates the occular version and the
injuries. No witness had stated that the
deceased was shot from close range and
none of the injuries suggest otherwise.
Injury no.3 had been explained by the
doctor by saying that it could occur due to
fall. In the ocular evidence it has come that
the deceased fell down at the door of his
house having received injuries between
point (B) to point (A). The pieces of stones
collected from place 'A' were found stained
in the FSL report with human blood. Injury
4A is a gutter shaped wound which could
have been caused due to rifle. All the
discrepancies pointed out by the learned
5 All. Phool Singh & Anr. Vs. State of U.P.
155
counsel for the appellant, therefore, stood
explained and in the light of the evidence
on
record,
it
is
evident
that
two
eyewitnesses
were
present
from
the
beginning of the incident and promptness
of the first information report show that
there was no scope of deliberation. The
conviction of the appellant, therefore,
cannot be set aside.

30. On the submission of Sri Vinod
Kumar learned Advocate for appellant
Kallu for fixing the period of sentence of
imprisonment for life, it is argued that the
submissions of the learned counsel for the
appellant
Kallu
is
based
on
misinterpretation of the judgment. In all the
decisions of the Apex Court relied upon by
him,
the
situation
was
that
while
commuting sentence of death to life, the
Apex Court put a ceiling fixing the
minimum term for which the accused
therein had to remain in confinement
without remission. The idea was that the
accused therein may not get remission prior
to the tenure fixed by the Apex Court as
after 14 years of life sentence, an accused
may be granted remission by the State
Government as per its policy. In none of the
cases, the Apex Court has held that the
High Court is empowered to fix an upper
ceiling or cap on the period of life
imprisonment.
The
sentence
of
imprisonment of life as held by the Apex
Court is till the natural life of the accused
which cannot be fixed in years by this
Court.

31. Reliance has been placed on the
judgments of the Apex Court in Sarat
Chandra
Rabha
and
others
vs
Khagendranath
and
others3,
Gopal
Vinayak Godse vs State of Maharastra
and others4 Maru Ram vs Union of
India5, Swamy Shraddananda (2) vs State
of Karanataka6, Sahib Hussain Alias
Sahib Jan vs State of Rajasthan7, Gurvail
Singh Alias Gala vs State of Punjab8,
Union of India vs V.Sriharan Alias
Murugan and others9, Vikas Yadav vs
State of U.P and others10 and Jitendra
alias Kalla vs State of Govt, of NCT of
Delhi11.

32. Having heard learned counsel for
the parties and perused the record, noticing
that the police papers and the report
prepared by the doctors were proved with
the deposition of the relevant witnesses, it
is pertinent to record at the inception that
this is a case of eyewitness account and the
murder was committed in the broad day
light. The P.W-2, an eyewitness said to
have seen the whole occurrence from the
beginning of the firing till the deceased had
succumbed to his injuries. The ocular
version of P.W-2, the manner in which the
deceased was assaulted, is supported from
the
injuries
found
in
the
medical
examination. As per the statement of P.W-2
when first fire was opened on the deceased
by the accused Kallu and Phool Singh, he
ran for his life towards his house. In
between point '(B)', (where the deceased
was first hit at point) and '(A)', (the house
of the deceased), at place '(F)' house of
Kallu has been shown in the site plan
which is undisputed. As per the version of
P.W-1, other three accused persons namely
Jogendra, Charan Singh and Hari pounced
from place '(F)' (house of Kallu) and started
firing at the deceased who finally fell at the
door of his house but the accused persons
continued to fire at him. This version is
corroborated from the number and nature
of injuries sustained by the deceased. P.W-2
is the natural occupant of the house where
the deceased was residing. He fixed his
presence at place '(E)' which is in front of
the house of Bhagwan Das, near the house
156 INDIAN LAW REPORTS ALLAHABAD SERIES
of the deceased. The presence of P.W-2 at
place (E) cannot be discarded by the mere
fact that in his statement under Section 161
Cr.P.C, it was recorded that he was present
at the door of his house. The said statement
of
this
witnesses
was
recorded
on
19.11.1997 whereas site plan was prepared
on 20.11.1997 at the instance of P.W-2 who
had fixed his presence at place (E). The
distance between place (A) and (E)
indicated in the site plan is 18 paces only.
The version of P.W-2 in his statement under
Section 161 Cr.P.C that he was present at
the door of his house and in his cross
examination that he was sitting at the
Chabutra in front of the house of Bhagwan
Das cannot be said to be contradictory.

33. Moreso, the statement of P.W-2
was recorded on the date of the incident
itself soon after the Investigating Officer
had reached the spot after registration of
the FIR, we cannot loose sight of the fact
that when the statement under Section 161
Cr.P.C of P.W-2 was recorded, he was
overwhelmed by the manner in which his
brother was assaulted, chased by the
accused and then brought to death at the
door of his house.

34. A witness of the incident like this
where murder of his own brother had been
caused by five persons in such a daring
manner, cannot be expected to give each
and every detail on the same day. However,
it can be seen that on the very next day
when the site plan was prepared by the
Investigating Officer on the pointing of this
witness, P.W-2 had clearly fixed his place
at (E) which is in corroboration with his
oral testimony in the Court. We may also
take notice of the fact that looking to the
distance between two places (A) and (E), if
P.W-2 stated that he was at the door of his
house, he cannot be said to have given any
contradictory statements, inasmuch as, in
common parlance a person standing outside
his house or near a place outside his house,
would normally say that he was at the door
of his house (घर के दरवाजे पर था).