# Ratan Lal & Ors. (In Jail) v. The State of U.P

- **Citation:** (2020) 9 ILRA 840
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-10
- **Case number:** Criminal Appeal No.1905 of 2011
- **Bench:** Mrs. Sunita Agarwal, Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ratan-lal-ors-in-jail-v-the-state-of-u-p-46083
- **Pages:** 16

## Headnote

Criminal Law-Appeal against Conviction
U/S 147,148,396 r/w 149 and 412 IPC

Plea of Prejudice - The Courts are required to
examine both the content of allegation of
prejudice and its extent in relation to facts of
the case. Courts has to ensure that end of
justice are made. (Para 45)

Defect in framing of charges does not itself
vitiated the trial. (Para 46)

Punishment for the lesser offences than
charged - Permissible where offences are
cognate with commonality in their feature and
supported by evidence on record.

Minor Contradiction- Minor inconsistencies
and the variations in
the statement of
eyewitnesses could not affect the core of
prosecution.

Conviction upheld. Accordingly, Appeal
dismissed. (E-2)

List of Cases cited: -

## Text

_Characters 0–39,876 of 55,082. This is a partial read: ask again with offset=39876 for what follows._

840 INDIAN LAW REPORTS ALLAHABAD SERIES
difficult to be led. The duty on the prosecution is
to lead such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is necessary
to keep in mind Section 106 of the Evidence Act
which says that when any fact is especially
within the knowledge of any person, the burden
of proving that fact is upon him."

44. Rest of the argument of learned
counsel for the appellant with regard to the
dispute raised relating to the place of incident
mentioned in the site plan and the version of
deceased in her dying declaration recorded by
the Executive Magistrate seem to be flaw in the
investigation or may be a missing fact in the
statement of deceased recorded as dying
declaration, but the said discrepancy is not such
which would go to the root of the matter to
shake the very basis of the prosecution case.

45. Having carefully examined the
evidence on record and the reasoning given
by the trial court, we uphold the conviction
of accused-appellant Ravi Pratap Singh @
Tinku Singh under Section 302 I.P.C. As
the sentence awarded to the appellant is
minimum, the same cannot be interfered.

46. The appeal is, accordingly, dismissed.

47. The accused appellant is in jail.

48. Certify this judgement to the court
below immediately for compliance.

49. The compliance report be
submitted through the Registrar General,
High Court, Allahabad.
----------
(2020)09ILR A840
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DINESH PATHAK, J.

Criminal Appeal No.1905 of 2011

Ratan Lal & Ors. ...Appellants(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Pt. K.K.Dubey, Sri A.J. Pandey, Sri
Ajashatru Pandey,Sri Birendra Singh, Sri
Dileep Kumar, Sri R.K. Kaushik, Sri Rajrshi
Gupta, Sri Yogesh Srivastava, Sri Manish
Kumar, Ms. Shambhavi Gupta

Counsel for the Opposite Party:
A.G.A., Sri S.K. Singh, Sri Sunil Vashisth

Criminal Law-Appeal against Conviction
U/S 147,148,396 r/w 149 and 412 IPC

Plea of Prejudice - The Courts are required to
examine both the content of allegation of
prejudice and its extent in relation to facts of
the case. Courts has to ensure that end of
justice are made. (Para 45)

Defect in framing of charges does not itself
vitiated the trial. (Para 46)

Punishment for the lesser offences than
charged - Permissible where offences are
cognate with commonality in their feature and
supported by evidence on record.

Minor Contradiction- Minor inconsistencies
and the variations in
the statement of
eyewitnesses could not affect the core of
prosecution.

Conviction upheld. Accordingly, Appeal
dismissed. (E-2)

List of Cases cited: -

1. Shahid Khan Vs St. of Raj. reported in 2016
LawSuit (SC) 202,

2. Harbeer Singh, St. of Raj. Vs Sheeshpal & ors .
reported
in
2016
Law
Suit(SC)1031,
9 All. Ratan Lal & Ors. Vs. The State of U.P.
841
3. Jhandu & ors Vs St. of U.P. reported in
Criminal Appeal no.209 of 1983 decided on 25
April, 2018,

4. Shivlal & ors Vs St. of Chhatt. in Criminal
Appeal
no.610
of
2007
decided
on
19
September, 2011

5. Mahabir Singh Vs St. of M.P in Criminal
Appeal no.1141 of 2007

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

1. Heard Sri Rajrshi Gupta assisted by
Sri Manish Kumar and Ms. Shambhavi
Gupta learned Advocates for the appellants,
Sri L.D. Rajbhar and Sri Prem Shankar
Mishra learned A.G.A.(s) for the State.

2. This appeal is directed against the
judgment and order dated 19.2.2011 passed
by the Special Judge Dacoity Prohibition
Area, Jhansi in Sessions Trial No.53 of
1998 arising out of Case Crime no.42 of
1998 under Sections 147, 148, 396 read
with Sections 149 and 412 IPC, as also in
the Sessions Trial No.46 of 1998 arising
out of Case crime nos.52 and 53 of 98
under Section 25 Arms Act, P.S-Punchh,
District Jhansi.

3. The appellants herein (7 in number)
have been sentenced for life imprisonment for
the offence under Section 396 taking aid of
Section 149 IPC along with Rs.3000/- as fine.
In case of default in payment of fine, the
appellants have to undergo six months of
additional rigorous imprisonment. They have
also been sentenced for three years simple
imprisonment for the offence under Section 148
IPC. Four appellants Ratan Lal, Khadak Singh,
Jitendra Kumar and Dinesh Kumar have been
sentenced for life imprisonment alongwith fine
of Rs.2000/- for the offence under Section 412
I.P.C. In case of default in payment of fine, they
have to undergo additional six months of
rigorous imprisonment. Appellants Ratan Lal
and Khadak Singh have been sentenced for
three years imprisonment along with fine of
Rs.2000/- under Section 25 Arms Act and in
case of default in payment of fine they have to
undergo three months additional imprisonment.
All the punishments are to run concurrently.

4. The prosecution story starts with
the written report dated 14.3.1998 given by
Jitendra Singh s/o Surendra Pal Singh
resident of Gram Fatehpur, P.S-Punchh,
District-Jhansi wherein it is averred that on
14.3.1998 at about 5.30 p.m, first informant
alongwith his maternal grand father Sri
Indrabhan Singh and Kishore Singh s/o
Ramdas, Veerpal Singh s/o Jai Karan
Singh, Rampal Singh s/o Veer Singh,
Kushal Pal Singh s/o Jagdish Singh went to
P.S Punch District Jhansi to register a First
Information report lodged by Kishore
Singh and to get release of the licencee
rifle/revolver and gun of Indra Bhan Singh
deposited in the Police Station during
elections.

5. After lodging of the report and
getting release of the rifle, they all were
coming back to the village on a tractor
No.UP 85 A 0902. When they reached on a
puliya about 9 kms away from the village,
all of them had seen the accused persons
standing on their way. Ratan Lal and
Dinesh sons of Karore were carrying guns
in their hands, Narendra was having farsa,
Jitendra was with Kulhari, Murat s/o
Dinesh was carring country made pistol in
his hand, Karan Singh was carrying farsa
and Ram Khilawan was having lathi
whereas Khadak Singh had gun in his hand.
They stopped the tractor and while using
abusive language, they told "you .... went to
the police station to lodge report against us.
The court will give its verdict later but we
842 INDIAN LAW REPORTS ALLAHABAD SERIES
would give your verdict today, just now."
Then Ratan lal opened fire upon Indrabhan
Singh with an intention to kill him, other
accused persons started hitting and cutting
Indrabhan Singh through farsa and kulhari
while yelling at deceased that "this ....
became leader" and all others had fired
from the country made pistol and guns on
him. Resultantly, Indrabhan Singh died on
the spot and Kishore Singh and Kushal Pal
Singh got injured.

6. It was further stated that the
accused persons keeping the dead body of
his grand father in the trolly took away the
tractor and trolley to Kashipura mod,
leaving the trolley with dead body there,
they took away the tractor towards the
river. This incident occurred at about 9.00
p.m and they all witnessed it in the torch
light and the light of the tractor. They all
recognized the assailants being the accused
persons named in the F.I.R. It was also
averred that the licencee revolver and gun
of Indrabhan Singh, maternal grand father
of first informant, was also looted by the
accused persons. Informing the police that
the dead body was lying in the trolly on the
spot
mentioned
above,
this
First
Information Report was drawn by Jitendra
Singh in his own hand writing.

7. The chik FIR was prepared and
registered at about 22.45 hours 10.45 p.m
under section 396 I.P.C for the offence of
loot and murder. Recovery of gun of Ratan
lal, Khadak Singh and Axe of Jitendra
Singh had been made on 2.4.1998 on their
own pointing out from the field of coaccused Dinesh. The items of recovery
were proved as material 'Exhibit Ka-2, Ka3 and Ka-4' by the constable Kamal Singh,
a witness of recovery. After recovery of the
illegal fire arm, First Information Report
under Section 25 of the Arms Act was
registered against Ratan Lal and Khadak
Singh on 2.4.1998 at about 20.10 hours.
The tractor was recovered from the Canal
on 2.4.1998. The recovery of it was proved
by P.W-5 and the memo of recovery has
been exhibited as Exhibit Ka-5 as P.W.-5
proved his signature on the same. Blood
stained and plain earth collected from the
spot were kept in the recovery memo as
Exhibit Ka-19 proved by the Investigating
Officer. Chaap (Belt) of SBBL gun and two
used 12 bore empty cartridges were
recovered from the place of incident and
kept in 'Exhibit Ka-20'. Two torches
belonging to Rampal Singh and Kushal Pal
Singh were handed over to the police and
have been exhibited as 'Exhibit Ka-21' and
'Exhibit Ka-22.' Recovery memo 'ExhibitKa-24' dated 2.4.1998 of recovery of
murder weapons records that when the
police party along with witnesses went to
the field of Dinesh, after recovery of two
guns and Axe belonging to the accused
persons, Ratan lal and Dinesh further lead
to the police party towards the northern
side of the field and after walking about 25
paces, they removed some hay covered on
the pit and the mud over it but nothing was
found there. Upon asking, the accused told
that looted gun and rifle of Indrabhan Singh
and rifle of Dinesh (used in crime) were
concealed there but probably some relative
got to know and took them away. Thus, by
means of the recovery memo, (Exhibit Ka24) it was sought to be presented by the
prosecution that the looted gun and rifle of
Indrabhan Singh were misplaced from the
custody of the accused persons.

8. At this juncture, it would be
relevant to mention here that the entire
prosecution case is silent about the
recovery of gun and rifle of deceased
Indrabhan. At one point of time, during
cross examination of P.W-2 Jitendra Singh,
9 All. Ratan Lal & Ors. Vs. The State of U.P.
843
he was shown a rifle no.315 Bore No.1665 from
material Exhibit, which was released by the
Court in favour of Aniruddha Singh s/o deceased
Indrabhan Singh. P.W-2 Jitendra Pal Singh
identified it as the looted gun of his maternal
grand father deceased Indrabhan Singh. Learned
counsel for the appellant vehemently argued that
the silence of prosecution about the place and
time of recovery of alleged looted gun of
Indrabhan Singh speaks volume about falsity of
the prosecution case.

9. Submission is that the offence of
loot of gun and rifle allegedly committed
by the accused persons is based upon a
concocted story. There is no recovery of
the looted articles (gun and rifle) either at
the pointing out of the accused persons or
from their custody or possession. The
above noted narration of concealment of
looted gun and rifle of Indrabhan Singh in
the field of accused Dinesh in the recovery
memo (Ka-24) is without any basis. The
narration in this regard in the recovery
memo 'Exhibit Ka-24' is of no consequence
as it does not add any credit to the
prosecution case. The said narration itself
cannot, by any stretch of imagination,
attribute the recovery (alleged) of the
looted gun to the accused persons. No one
knows as to when and from where or at
whose instance the looted gun rifle no.315
Bore No. 1665 (shown to P.W-2) was
recovered by the police. Learned counsel
has further drawn attention of the Court to
the deposition of P.W-1 and P.W-2,
wherein they had denied that the said gun
was released and handed over to Indrabhan
Singh at the P.S Punch, District Jhansi in
their presence. Submission is that in
absence of any evidence regarding the
recovery of looted articles i.e. licencee gun
and rifle of Indrabhan Singh, entire
prosecution case under Section 396 I.P.C
would fall.

10. It was further argued that as far as
tractor No.UP 85 A 0902 belonging to the
victim party, it was recovered from the
Canal as per own case of the prosecution,
the said recovery on the alleged pointing
out of the accused persons under the
recovery memo 'Exhibit Ka-5' is also of no
relevance. The entire prosecution case
based on the alleged loot of gun, rifle and
tractor falls apart and the conviction of
accused persons under Section 396 read
with Section 149 I.P.C is liable to be set
aside being without any basis.

11. It is further argued that the first
informant stated that two persons namely
Kushal Pal Singh and Kishore Singh got
injured
in
the
incident-in-question,
however, only one of the alleged injured
Kishore Singh was produced in the witness
box. As far as injured Kishore Singh P.W-1
is concerned, his injuries as per the injury
report are (i) a contusion in the right knee
and (ii) abrasion in the left leg lower outer
part. These injuries were minor in nature
and, moreover, from the deposition of P.W1, it is evident that these injuries had been
caused during the course of a previous
altercation which took place on the same
day at about 4.30 p.m. P.W-1 Kishore
Singh admitted in the cross examination
that an incident of 'Marpeet' (physical
assault) with him had occurred at about
4.30 pm on 14.3.1996, though he denied
having sustained any injury in the same.
The statement of P.W-1 that accused
Jitendra and Karan both hit him by Axe and
he sustained injuries from Axe at his back
is not proved from the injury report. His
deposition of having sustained injuries
during the course of occurrence of the
incident in question reported by Jitendra
Singh does not seem to be a true story.
Submission is that P.W-1 cannot be placed
in the category of an injured witness to
844 INDIAN LAW REPORTS ALLAHABAD SERIES
accord any credit for the same in the
present trial. Moreover, his deposition is
full of falsehood and cannot be taken as a
proof of his presence at the place of
incident.

12. With regard to the deposition of
P.W.-2 first informant Jitendra Singh, it is
argued that admittedly a previous incident
of Marpeet (physical assault) had occurred
during the course of the day and as per
narration of P.W-2, seven (7) persons
accompanied Kishore Singh (appeared as
P.W-1) to lodge the First Information
Report whereas deceased Indrabhan Singh
went to the Police station for a different
purpose, P.W.-2, however, did not prove
either of the reason set up by the
prosecution to go to the police station in his
testimony. On one hand he denied that the
gun was released and handed over to his
maternal grand father in his presence and
on the other he also showed ignorance
about the contents of the F.I.R lodged by
Kishore Singh. Even the copy of the said
F.I.R has not been brought on record by the
prosecution. All these inconsistencies in the
deposition of the prosecution witnesses
make them highly unreliable. Atleast one of
the witnesses could come out with the clear
version about the genesis of the incident. If
the version in the F.I.R is to be believed,
the accused persons were annoyed from
deceased Indrabhan Singh as he led
Kishore Singh and others to the police
station to lodge report. It is not disclosed as
to
who
were
the
accused
persons
implicated in the said report and whether
the appellants herein have been assigned
any role in the said incident. Even if the
version of P.W-2 about the genesis of
incident is taken as true, there is no
question of bringing Section 396 I.P.C
which talks of offence of dacoity and
murder committed in the course of dacoity.
The narration in the First Information
Report and the deposition of P.W.-2 the
first informant, does not indicate any nexus
or any connection between death and
alleged loot of gun and tractor.

13.

Submission
is
that
when
prosecution failed to establish any nexus
between the death and commission of
dacoity, the prosecution case instituted
under Section 396 would automatically fall.
At the most the trial court could have
charged the appellants for committing
murder under Section 302 I.P.C which has
not been done. In absence of recovery of
gun and rifle of Indrabhan from the
possession of the accused persons, the
offence of loot or dacoity under Section
396 is not established.

14. It is urged that presence of both
P.W-1 and P.W-2 at the time of murder of
deceased
Indrabhan
Singh
is
highly
doubtful from their own statement in the
Court. Injuries of Kishore Singh (P.W-1)
are concocted and there is a clear
contradiction in his (ocular) version and
medical evidence on record. The previous
incident and the entire story of P.W-1
going to the police station Punchh to lodge
F.I.R along with deceased Indrabhan Singh
is a concocted story created to make his
presence natural with deceased at the time
of murder. Projection of P.W-1 as an
injured witness was nothing but a failed
attempt of the prosecution to add strength
to its case. First Information Report itself
becomes a suspicious document as it
narrates a different story. It is difficult to
sustain conviction as there are serious
doubts about the genesis of the incident and
the presence of witnesses. The injury report
of P.W-1 is also doubtful. Statements of
prosecution
witnesses
are
full
of
contradictions and inherent infirmities in
9 All. Ratan Lal & Ors. Vs. The State of U.P.
845
them are sufficient to discard the version of
prosecution witnesses as untruthful and
untrustworthy.

15. Further, it is urged that the F.I.R
is Ante-time and Ante dated. In fact, no one
had seen the incident. The dead body of
Indrabhan Singh was found near the place
of incident in the morning on 15.3.1998
and all appellants herein have been roped in
by framing a concocted story by the first
informant
in
the
report
lodged
on
15.3.1998. The lodging of First Information
Report at the time when the chik F.I.R is
prepared is not proved by the competent
witness. There were interpolations in the
general diary and, moreover, original
general diary was not brought by the
prosecution witness. The special report of
the incident was not sent. The prosecution
witness P.W-7, constable Mohiuddin who
had prepared the Chik F.I.R had admitted
that though it was written in the F.I.R that
report under Section 157 Cr.P.C was sent to
the higher official through post but there
was no receipt of C.A office nor any entry
with regard to the dispatch post was
brought by him to prove the same.
Submission is that intimation of registration
of FIR to the higher officials under Section
157 Cr.P.C ensures that the F.I.R was
lodged at the time mentioned in the Chik
report. This check and balance is provided
to rule out any interpolation by the police
authority. In fact, entire investigation is
tainted.

16. Further, it is argued that the place
of incident has been shifted, none of the
documents containing F.I.R and crime
show that F.I.R was in existence in the
letter sent to the doctor, case particular has
not been given. There was not one but
several factors which show that the
prosecution has not come with true version
of the incident. There is no explanation as
to why seven (7) persons with different
work would go together to go to the police
station. Motive to commit the crime though
stated but has not been proved either
cumulatively or individually. The common
object to commit the crime is, thus, not
proved. Taking aid of Section 149 to
convict seven (7) accused of the offence of
loot and murder under Section 396 is a
patent error of law. The recovery of
weapons
cannot
be
related
to
the
transaction, in as much as, it was from an
open place and hence is a planted one.
Similarly, the recovery of tractor from an
open place namely canal though made after
arrest of the accused persons but cannot be
attributed to them for convicting for the
offence of loot, and murder caused in
commission of the loot.

17. Further from the evidence of
doctor, it is clear that fire shot was made
from a close range as scorching was present
around the gunshot wound. There is no
injury of Axe on the person of deceased
which has clearly been ruled out by the
doctor. There is no recovery of farsa,
alleged weapon allegedly used to injure the
deceased. As per opinion of the doctor, the
recovery of bloodstained Axe (kulhari),
therefore, cannot connect accused to the
crime. In any case, medical evidence also
rules out all possibility of the crime being
committed in the manner as narrated by the
prosecution. It is further pointed out that
the doctor has categorically stated that
there was no indication of gunshot in the
clothes
of
the
deceased,
which
is
impossible in light of the facts put forth by
the prosecution.

18. Lastly, it is argued that the
Investigating Officer, P.W-8 had admitted
that he did not collect blood from the trolly.
846 INDIAN LAW REPORTS ALLAHABAD SERIES
This shows that the dead body was not
found
in
the
tractor
trolly.
Thus,
appreciating all evidence cumulatively, it is
more than evident that the first informant
had not narrated the true story of the
incident. The entire story of going on the
tractor to the police station and the murder
having been committed at puliya when
victim party was going the tractor trolly is a
concocted story. In any case, offence of
dacoity and murder in connection with the
same under Section 396 I.P.C is neither
suggested nor proved to have been
committed by the accused party. The entire
prosecution case is liable to be discarded
and while setting aside conviction of the
appellants, appeal deserves to be allowed.

19. Learned counsel for the appellant
has placed reliance on the judgment of the
Apex Court in Shahid Khan vs State of
Rajasthan reported in 2016 LawSuit (SC)
202, Harbeer Singh, State of Rajasthan vs
Sheeshpal & Ors reported in 2016 Law
Suit(SC)1031, Jhandu and others vs State
of U.P reported in Criminal Appeal no.209
of 1983 decided on 25 April, 2018, Shivlal
and other vs State of Chhattisgarh in
Criminal Appeal no.610 of 2007 decided
on 19 September, 2011 and Mahabir
Singh vs State of M.P in Criminal Appeal
no.1141 of 2007 decided on 9.11.2016 to
lay thrust on various lapses pointed out in
the investigation and submit that delay in
recording statement of the first informant
under
Section
161
Cr.P.C
remained
unexplained. The report of crime was not
submitted to the Ilaka Magistrate as
mandated under Section 157 Cr.P.C. after
lodging of the First Information Report.
The time of registration of F.I.R. is, thus,
not
substantiated.
The
lapses
in
investigation coupled with the fact of non
sending of report about F.I.R to the
concerned Magistrate shows that the First
Information Report is Ante timed. It was,
thus, the result of embellishment and a
creature of an afterthought. That being the
position, entire prosecution would become
uncreditworthy.

20. Learned A.G.A, on the other hand,
submits that the First Information Report is a
prompt report of the incident and the recoveries
related to the incident clearly prove that the
looted tractor was concealed in the Canal by the
accused party. It was proved that licencee gun
and revolver of Indrabhan were looted by the
accused party. Above all, homicidal death of
Indrabhan Singh at the site of occurrence is
proved by the prosecution. There are three eye
witnesses who made their depositions before
the Court to clearly prove the place and time of
the incident and the involvement of the accused
appellant in the murder of Indrabhan Singh. All
material facts point towards the guilt of the
accused. All inculpatory materials put together
clearly established the prosecution version of
the incident and ruled out any other hypothesis
put forth by the defence.

21. Learned A.G.A placing reliance
on the judgment of Apex Court in case of
Umar Mohammad and others vs State of
Rajasthan reported in 2008 (4) SCJ 253
submits
that
the
non-recovery
of
incriminating material from the possession
of accused persons by itself would not
exonerate them of the charges when the eye
witnesses examined by the prosecution
prove their complicity with the crime. Mere
non-recovery of the incriminating material
from the accused would not be a ground to
throw the prosecution evidence with regard
to the presence of prosecution witnesses at
the time of occurrence or their knowledge
with regard to the incident.

22. Heard learned counsel for the
parties and perused the record.
9 All. Ratan Lal & Ors. Vs. The State of U.P.
847

23. To deal with the arguments put
forward by the counsels for the rival
parties, we may note at the beginning that
the incident-in-question had occurred on
the fateful day at about 9.00 p.m. The first
report of the incident was given by Jitendra
Singh in writing which was proved as
'Exhibit Ka -1'. The said report was
registered in P.S-Punchh District Jhansi as
Chik No.15 of 1998 at 22.45 hours (10.45
p.m). Eight persons were named as accused
in the First Information Report. The first
informant narrated the place of incident and
the manner in which the murder was
executed as also the motive to cause
murder of Indrabhan. However, it appears
that because of loot of licencee gun and
rifle of Indra Bhan Singh, the First
Information Report was registered for an
offence under Section 396 I.P.C which
deals with the offence of committing
Dacoity/Robbery coupled with the murder
in so committing Dacoity/Robbery. The
inquest was done at about 7.00 a.m on
15.3.1998. It is recorded in the report that
the inquest was done on the spot in the
morning and the body was found lying in
the trolly of a tractor near Kashipura mod
on a kachha rasta. As there was no sun
light, the inquest could not be done before
7 a.m. The post mortem report indicates
fatal injuries of gunshot and sharp-edged
weapon on head, neck and abdomen of
deceased. It was a brutal and cold blooded
killing of 65 years old man.

24. Three eye witnesses produced by
the prosecution are Kishore Singh (P.W.-1)
Jitendra Singh (P.W-2) and Veer Pal Singh
(P.W.-3). The first witness (P.W-1) Kishore
Singh was produced as an injured witness
and in the words of learned counsel for the
appellants he was falsely projected as an
eye witness and was given the colour of
being injured witnesses so as to add
strength or give credit to the testimony of
other eye witnesses namely P.W.-2 and
P.W-3, whose presence on the spot also is
doubtful. Submission is that in crossexamination of P.W.-1, he admitted that he
sustained injuries in the previous incident
which occurred at about 4.30 p.m, the
report of which was lodged by him at about
5.30 p.m. when P.W-1 went along with
Indrabhan and others to the P.S Punchh,
District Jhansi. Submission is that the act of
the prosecution to project P.W-1 as an
injured witness itself demolishes the whole
prosecution case being untruthful as this
witness is proved to be a liar.

25. Having said that, it was
vehemently contended by learned counsel
for the appellants that this witness (P.W-1)
had a previous enmity with one of the
accused Dinesh and, therefore, entered in
the witness box to depose against the
accused party, whereas another alleged
injured person Kushal Pal Singh did not
enter in the witness box. As per the
prosecution story, seven persons without
any reason or purpose had joined at one
place in order to execute the crime, i.e.
killing of deceased Indrabhan Singh. The
victim party consisted of seven persons
who according to the prosecution were
coming back from the P.S-Punchh District
Jhansi on a tractor no.UP 85 A 0902. One
of them, Kishore Singh went to lodge the
First Information Report of a previous
incident of assault occurred during day
time whereas deceased Indrabhan Singh
had joined them to get his rifle and gun
released from the police station. It is the
same rifle and gun which was projected as
items of loot/dacoity by the prosecution.

26. It is vehemently contended that
from the narration of the incident by the
first informant itself, atleast this much is
848 INDIAN LAW REPORTS ALLAHABAD SERIES
clear that it was not a case of commission
of
dacoity
or
loot.
None
of
the
incriminating material suggesting loot or
dacoity was recovered from the possession
of the accused persons. The entire story of
loot had been created at the behest of the
victim party to grant severe punishment to
five persons of the accused party with
whom they had previous enmity. The
recovery of looted articles namely rifle and
gun
of
Indrabhan
Singh
from
the
possession of accused persons has not been
proved
by
the
prosecution.
In
fact
prosecution is silent over the issue. As far
as tractor is concerned, the same was
recovered from an open place and not from
the possession of the accused persons and
that too the recovery of it is a planted one
and has illegally been shown to be at the
pointing out of the accused. With these,
learned counsel for the appellant has
pointed out various discrepancies in the
statements of the three eyewitnesses which
would be dealt in this judgment at the
relevant juncture.

27. Coming to the testimony of P.W1, Kishore Singh, we find that purpose of
him joining the victim party to the police
station Punchh was to lodge a first
information report. In cross, this witness
has stated that a report was lodged by him
under Section 307 I.P.C on the fateful day
at about 5.30 p.m and after that while
returning from the police station they
stayed on way to Sirsa village for a short
duration. They reached at the place of the
incident at about 8.30 pm. He states that the
persons
of
accused
party
attacked
Indrabhan Singh while yelling at him that
they would teach him lesson for becoming
leader of the villagers. All accused persons
were armed with deadly weapons such as
gun, farsa, Axe (kulhari), country made
pistol and lathi. According to P.W-1,
Dinesh Kumar fired a shot at the deceased
and others had attacked him by farsa and
kulhari. With regard to his own injury,
P.W-1 states that he was hit by Jitendra and
Karan by Axe (kulhari) whereas the injury
report clearly proved that there was no
injury corresponding to the weapon Axe
(kulhari). P.W.-1 suffered two injuries of
which one was a contusion on the back side
of right knee joint and another was an
abrasion of 2cm x 2 cm on the left side of
leg upper 1/3 area of Fibula bone. Both
these injuries cannot be said to have been
caused by Axe (kulhari), moreso, when
P.W-1 stated that he was hit on his back by
kulhari and clot of blood was created. The
cross examination of this witness (P.W1)gives a clear suggestion that his injuries
in all likelihood had been caused during the
previous altercation occurred at about 4.30
p.m, which was reported by P.W-1
(Kishore Singh) with the allegation of
offence under Section 307 I.P.C. We, thus,
find force in the arguments of the learned
counsel for the appellants that P.W-1
cannot be placed in the category of an
injured witness as projected by the
prosecution so as to attach credibility to his
version of necessarily present at the scene
of occurrence. However, by saying so we
do not mean to say that we can discard the
whole testimony of this witness being an
eye witness for the above reason only. It is
settled principle of appreciation of evidence
that falsity in the statement of witnesses on
some point would not make his whole
testimony untrustworthy, in as much as, it
is proved that Kishore Singh (P.W-1) went
to the police station on 14.3.1998 with P.W
-3 Veerpal Singh and lodged a First
Information Report under section 307
I.P.C. It is stated by P.W-3 Veer Pal Singh
in his examination-in-chief that they went
to lodge the report of the altercation which
took place between Dinesh and Kishore
9 All. Ratan Lal & Ors. Vs. The State of U.P.
849
Singh. Dinesh and his son are accused in
the present trial. The statement of P.W-1,
P.W.-2 and P.W-3 for going to the P.SPunchh on the fateful day and being present
at the place and time of incident is
consistent. They categorically stated in
their testimony in examination-in-chief that
they went to the police station to lodge the
report by Kishore (P.W-1). Nothing could
be elicited from their cross examination so
as to discard this version. The presence of
P.W-1, Kishore Singh as one of the
members of the victim party at the place of
incident is, thus, proved.

28. As far as Jitendra Singh, P.W-2 is
concerned, he is grand son of deceased
Indrabhan. Three eye witnesses (P.W-1,
P.W-2, P.W-3) proved in their testimony
that Indrabhan went to the police station to
get his gun and rifle released, which were
deposited during the course of election.
Various questions were put to these
witnesses as to whether the licencee gun
and rifle of Indrabhan Singh were handed
over to him in their presence but no
plausible answer could be given by anyone
of them. Their shaky answers have been
placed before us to vehemently contend
that they were making a story on their own
and were actually not present with
deceased Indrabhan Singh. In our opinion,
the minor inconsistencies in the statement
of
eye
witnesses
regarding
the
return/release of rifle and gun to the
licencee
Indrabhan
Singh
and
their
presence at the relevant point of time inside
the police station is immaterial and does
not discredit the prosecution story.

29. Further noticeable is the fact that
P.W.-2 was cross-examined over the stretch
of a period of one year. His examination in
chief was recorded in October, 2003
whereas cross was completed in April,
2004. He was again recalled in the year
2005. When one witness is examined on
different dates for different accused persons
over a long period of one year, some
discrepancies in his statement are bound to
occur. However, nothing much could be
elicited from his statement recorded on
recall.

30. As far as another injured witness
Kushal Pal Singh is concerned, it has come
on record that he could not enter in the
witness box as he died after 4-5 months of
the incident. In this case, the oral testimony
of the prosecution witnesses commenced
only in the year 2001, i.e. after about three
years of the incident.

31. Thus, analysing the testimony of
P.W-2 the first informant, it is proved that
he left the spot of crime at about 9.30 p.m
to lodge the First Information Report.
There is no doubt about the report being
registered at 10.15 p.m. No circumstance
could be placed before us to establish that it
was an Ante-time report. The prompt report
of the incident by P.W-2 who himself was
driving the tractor carrying seven members
of the victim party is proved by the
prosecution and is an assurance of earliest
reporting of the crime without any
embellishment or cooked up story.

32. As far as the discrepancy in the
statement of P.W-1 and P.W-2 as to who
had opened the first fire on Indrabhan, we
may note that the members of the victim
party were taken by surprise and when
Indrabhan was attacked, all of them rushed
to save their life. P.W-2 was driving the
tractor, he stated that he jumped from the
tractor and hid to save himself, others
followed the suit. In this scenario, it is not
possible for the prosecution witness to
describe the manner of assault vividly. The
850 INDIAN LAW REPORTS ALLAHABAD SERIES
discrepancy which has occurred in the
statement of eye witnesses (P.W-1 to P.W3) as to which of the assailants first
assaulted deceased and how, was natural
and was bound to occur. Atleast this much
is proved that only person of the victim
party namely Indrabhan came in the hands
of the accused persons as he was first hit on
the trolly of the tractor and could not run to
save his life. Further, the accused party
attacked Indrabhan and while assaulting
took him on the tractor with trolly to
another place and caused his death. It,
therefore, could not be ascertained clearly
as to how many shots were fired by whom
or actually who killed deceased by
inflicting fatal injuries.

33. The post mortem report indicates
that there were seven injuries on the person
of deceased and all of them were on his
vital parts:-

(i) Injury no.1, is Incised wound
of 1 cm x 7 cm bone deep on the neck with
bone cut in the middle.

(ii) Injury no.2 is Incised wound
3 cm x 2 cm skin deep on chin deep with
bone cut.

(iii) Injury no.3 is lacerated
wound 11 cm x 5 cm skull bone deep, brain
cut. Brain matter was coming out.

(iv) There is one gun shot injury
(entry wound) (Injury No.5) on the
abdomen left side below ribs corresponding
to which an exit wound (Injury no.6) was
found at the back, scorching present around
the entry wound (Injury no.5).

34. Internal examination revealed that
Riotal occipetal bone of skull was broken
below injury no.3. Brain & its membranes
were damaged. Rib no.9 was broken below
injury no.5. Bronchea was cut below injury
no.1. Heart was empty. Gases present in
small intestine. Faecal matter was present
in large intestine. Cause of death was shock
and
hemorrage
due
to
Ante-mortem
injuries.

35. This shows that deceased was hit
from the front while he was on the trolly.
Since P.W-2 was driving the trolly he could
not have seen as to how the attack was
made. And further, as he and other
members of victim party hid to save their
life, they could not give the details as to
how murder was caused.

36. There is one more argument
which was placed to dispute the presence of
the eye witness, that is the entry wound of
gunshot, which was inverted and scorching
was
present
around
the
same.
The
submission of learned counsel for the
appellants is that it was a close range firing
which is in clear contradiction to the
statement of eyewitnesses that Indrabhan
Singh (deceased) was fired first while he
was on tractor and then was assaulted with
sharp-edged weapons. As per the witnesses
the members of the accused party were on
the road. In that event, the injury no.5 entry
wound of gun shot could not be a close
range firing as it could not have occurred
from the distance mentioned in the
narration of the eye witnesses.

37. To deal with the same, we may
reiterate that it was not possible for the
prosecution in an incident diabolical
planned to explain each and every injury
suffered by the victim. Eye witnesses, in
the instant case, consistently stated that
attack on deceased was made in the trolly
and accused party took the tractor and
trolly to another place while attacking him.
9 All. Ratan Lal & Ors. Vs. The State of U.P.
851
The deceased Indrabhan Singh could not
left the trolly. Such consistent evidence can
not be discarded on the ground that the oral
depositions of eye witnesses do not match
with the medical evidence regarding the
distance from which deceased was fired.
Rather, in the facts and circumstances of
the instant case, looking to the nature of
assault it was natural that the witnesses
missed the details of attack and when they
were cross examined for a long period of
seven years from the incident. The
statement of P.W-3 was recorded in the
year 2005.

38. Moreover, scorching around the
firearm wound would also depend upon the
constituent of the propellant charged. Some
discrepancies as to the distance of gun shot
on the facts of this case would not weaken
the prosecution case. The medical evidence
cannot be given primacy to discredit the
value of the eye witness testimony when
their presence at the time of the incident
otherwise has been established.

39. From the above analysis of
evidence of the prosecution witnesses, this
much is clear that deceased was brought to
death at the time and the place narrated in
their testimony, by the accused persons
from the weapons carried by them.

40. It is also proved that deceased was
challenged by the accused persons when
the victim party expressed their annoyance
for the support given by him to Kishore
Singh (P.W-1).

41.