# Veerpal v. State of U.P

- **Citation:** (2023) 2 ILRA 528
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-31
- **Case number:** Criminal Appeal No. 3069 of 2015
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/veerpal-v-state-of-u-p-49710
- **Pages:** 15

## Headnote

A. Indian Penal Code, 1860 - Section 302 -
Murder case - prosecution case based
upon the testimony of P.W.-2, who is the
brother of the deceased - However,
presence of P.W.-2 at the place of
occurrence
not
established
by
the
prosecution beyond reasonable doubt -
Neither any scratch or a bruise on the
body of P.W. 2 nor blood stain found on
his clothes - P.W.-2 although claims that
he had accompanied the deceased but
neither he is a witness to the inquest
proceedings nor is he a witness to the
recovery of blood stained & plain earth as
well as empty cartridges - though it was
alleged that P.W. 2 was traveling on the
motorcycle but the motorcycle has neither
been produced nor any explanation has
been given as to where this motorcycle
has gone - None saw P.W. 2 grieving or
weeping - P.W.-2 is the only witness of
fact who has seen the incident and has
supported the prosecution case - A doubt
with regard to his presence at the place of
occurrence seriously creates a dent on the
prosecution version - Trial Court omits to
consider factors which creates a doubt
upon presence of P.W.-2 at the place of
occurrence (Para 53, 55)

B. Indian Penal Code, 1860 - Section 302 -
Evidence
Act,
1872
-
Section
3
-
Appreciation of Evidence - Omissions &
Contradictions in evidence of witness -
Murder case - statement of P.W.-2 (real
brother of deceased) is contradictory
inasmuch as at one place he states that
the incident occurred while they were on
way to Sadat Wadi Temple while he later
states that the incident occurred while
they were returning from the temple - at
one place P.W.-2 has claimed that there
were forest around the place of incident
while he later claims that there were
agricultural plots nearby - at one stage he
claims that there were large number of
people
working
around
and
later
contradicted himself by saying that there
were no persons available nearby
-
prosecution has not been able to establish
the guilt of the accused appellants beyond
reasonable
doubt
and
the
accused
2 All. Veerpal Vs. State of U.P.
529
appellants are entitled to benefit of doubt
in the matter (Para 55)

C. Indian Penal Code, 1860 - Section 302 -
Evidence
Act,
1872
-
Section
3
-
Appreciation of Evidence - Non production
of Independent witness - independent
witness to the incident as per the
prosecution case was Rukam Singh, who
was not produced at the time of trial -
Rukam Singh being an eye witness he
ought to have been produced by the
prosecution - no reason disclosed for non
production of Rukam Singh although he
was an important witness - Rukam Singh
is not a member of the family and to a
certain extent his testimony would have
carried greater weight - Non production of
Rukam Singh as a witness during trial
assumes greater significance as there was
an insinuation against this witness of
having authored the injuries on the
deceased - fact that Rukam Singh has not
been produced is also a circumstance to
be taken note of - scribe of the F.I.R.
Indrapal, also not produced (Para 42)

Allowed. (E-5)

## Text

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528 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused appellant caused almost at the
time of incident remains unexplained. The
recovery of button from the spot is also a
definite circumstance which implicates the
accused appellant with the commissioning
of offence. On the basis of elaborate
analysis of evidence led in the matter we
find no reason to disagree with the
conclusion drawn by the court below that
prosecution has established its case beyond
reasonable doubt.

39. So far as the punishment imposed
upon the accused appellant is concerned,
we find that the offence is brutal in nature
in which deceased has been done to death
by the accused appellant. The punishment
imposed by the trial court for transportation
of life, therefore, is found appropriate.

40. From the above discussions and
deliberations, we find that this appeal lacks
merit and is, accordingly, dismissed.
----------
(2023) 2 ILRA 528
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 3069 of 2015
with
Criminal Appeal No. 2339 of 2015

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

Counsel for the Appellants:
Sri Preetpal Singh Rathore, Abhilasha
Singh, Sri Ashutosh Yadav, Sri Shyam Lal

Counsel for the Opposite Party:
A.G.A.
A. Indian Penal Code, 1860 - Section 302 -
Murder case - prosecution case based
upon the testimony of P.W.-2, who is the
brother of the deceased - However,
presence of P.W.-2 at the place of
occurrence
not
established
by
the
prosecution beyond reasonable doubt -
Neither any scratch or a bruise on the
body of P.W. 2 nor blood stain found on
his clothes - P.W.-2 although claims that
he had accompanied the deceased but
neither he is a witness to the inquest
proceedings nor is he a witness to the
recovery of blood stained & plain earth as
well as empty cartridges - though it was
alleged that P.W. 2 was traveling on the
motorcycle but the motorcycle has neither
been produced nor any explanation has
been given as to where this motorcycle
has gone - None saw P.W. 2 grieving or
weeping - P.W.-2 is the only witness of
fact who has seen the incident and has
supported the prosecution case - A doubt
with regard to his presence at the place of
occurrence seriously creates a dent on the
prosecution version - Trial Court omits to
consider factors which creates a doubt
upon presence of P.W.-2 at the place of
occurrence (Para 53, 55)

B. Indian Penal Code, 1860 - Section 302 -
Evidence
Act,
1872
-
Section
3
-
Appreciation of Evidence - Omissions &
Contradictions in evidence of witness -
Murder case - statement of P.W.-2 (real
brother of deceased) is contradictory
inasmuch as at one place he states that
the incident occurred while they were on
way to Sadat Wadi Temple while he later
states that the incident occurred while
they were returning from the temple - at
one place P.W.-2 has claimed that there
were forest around the place of incident
while he later claims that there were
agricultural plots nearby - at one stage he
claims that there were large number of
people
working
around
and
later
contradicted himself by saying that there
were no persons available nearby
-
prosecution has not been able to establish
the guilt of the accused appellants beyond
reasonable
doubt
and
the
accused
2 All. Veerpal Vs. State of U.P.
529
appellants are entitled to benefit of doubt
in the matter (Para 55)

C. Indian Penal Code, 1860 - Section 302 -
Evidence
Act,
1872
-
Section
3
-
Appreciation of Evidence - Non production
of Independent witness - independent
witness to the incident as per the
prosecution case was Rukam Singh, who
was not produced at the time of trial -
Rukam Singh being an eye witness he
ought to have been produced by the
prosecution - no reason disclosed for non
production of Rukam Singh although he
was an important witness - Rukam Singh
is not a member of the family and to a
certain extent his testimony would have
carried greater weight - Non production of
Rukam Singh as a witness during trial
assumes greater significance as there was
an insinuation against this witness of
having authored the injuries on the
deceased - fact that Rukam Singh has not
been produced is also a circumstance to
be taken note of - scribe of the F.I.R.
Indrapal, also not produced (Para 42)

Allowed. (E-5)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Shiv Shanker Prasad, J.)

1. These appeals are by the accused
appellants- Veerpal and Bhadrapal, who have
been convicted vide judgment and order dated
02.06.2015 passed by Additional Sessions
Judge, Chandausi, (Moradabad) in Session
Trial Nos. 629 of 2010 and 630 of 2010,
arising out of Case Crime Nos. 743 of 2009
and 22 of 2010, under Sections 302/34 I.P.C.
and Section 25 of Arms Act, Police Station
Bahjoi, District Moradabad and sentenced to
life imprisonment each under Section 302
I.P.C. along with fine of Rs. 25,000/-, in
default thereof, to further undergo two months
additional imprisonment each.

2. The prosecution case is based upon
a written report of the informant Vijaypal
(P.W.-2) son of Nawab Singh, who claims
to be a resident of Village Lehra Nagla
Shyam, Police Station Gunnaur, District
Budaun. It is alleged that the informant has
enmity with one Veerpal S/o Sipattar Singh
Yadav (accused appellant). The brother of
accused Veerpal namely, Munipal had
eloped with Sunita daughter of one Ganga
Sahay Sharma. The informant's brother
Mahipal (deceased) was a witness in the
F.I.R. lodged under Section 366 I.P.C.
against Munipal for enticing Sunita. On
account of this enmity firing had taken
place between the accused and the
informant sometime back. On 16.11.2009
the informant's brother Mahipal alongwith
the informant Vijaypal and one Rukam
Singh S/o of Nawab Singh Yadav left on a
motorcycle for offering prayers and served
water (Jal) at Sadat Wadi Mandir and for
purchasing fertilizer thereafter. While on
their way at about 02:30 p.m. a kilometer
before the Sadat Wadi Temple, the accused
namely Veerpal, Munipal sons of Sipattar
Singh and Bhadrapal son of Latoori Singh
stopped them and the three accused
dragged the informant's brother Mahipal
aside and indiscriminately fired on him.
Mahipal sustained fire arm injuries on his
head and chest. Mahipal died on the spot
and the dead body was lying there.

3. The contents of the above referred
written report were entered in the G.D. and
a first information report came to be lodged
in the matter and got registered as Case
Crime No. 743 of 2009 under Section 302
I.P.C. against accused appellant Veer Pal,
Munipal and Bhadrapal. The accused
Munipal has been declared a juvenile. The
two other accused namely, Veerpal and
Bhadrapal
have
been
convicted
and
530 INDIAN LAW REPORTS ALLAHABAD SERIES
sentenced under Section 302 I.P.C. and are
before this Court in the present appeals.

4. Pursuant to the F.I.R. lodged in the
matter the Investigating Officer proceeded
on the spot and collected blood stained and
plain soil along with three empty cartridges
of 315 bore from the spot. The recovery
made from the spot has been exhibited as
Ka-2. One Mahendrapal and Chhatrapal are
the witnesses of this recovery. The police
also conducted inquest of the dead body
and its report is exhibited as Ka-1. The
inquest report contains an overwriting and
the time for receipt of information is shown
as 04:00 p.m. in place of 05:00 p.m. The
inquest witnesses are Mahendra Singh,
Chhatrapal, Manoj Kumar, Bharat Singh
and Chhote, who are all resident of
Village Sadat Wadi and Satnauli. None of
the inquest witnesses are from village
Lehra
Nagla
Shyam
to
which
the
informant or the deceased belonged. At
the last page of inquest the Investigating
Officer
has
recorded
the
time
of
completion of inquest as 05:30 p.m. As
per the opinion of the inquest witnesses
the deceased died due to fire arm injuries
and for ascertaining the cause of death
post mortem be conducted. The body was
accordingly sealed and was delivered to
constable Surendra Kumar and Veerendra
for being sent to the mortuary.

5. The post mortem on the dead body
has been conducted on the next day i.e. on
17.11.2009 at 03:00 p.m. by Dr. N.L.
Sharma (P.W.-6). As per the autopsy
surgeon, the deceased sustained following
ante-mortem injuries:-

" (I) Gun shot wound of entry 2
c.m. x 1.8 c.m. on the right side forehead of
lateral part just above lateral to lateral end
of right eyebrow.

(II) Gun shot wound of exit 11
c.m. x 4 c.m. on left side head behind left
ear pinna. Brain tissue coming out continue
with injury no. 1.

(III) Gun shot wound of entry 1 c.m. x 0.8
c.m. on the right side of face 3 c.m. below
lateral right angle of mouth.

(IV) Gun shot wound of entry 3
c.m. x 1 c.m. on the back of left side chest 4
c.m. below, medial lower end of scapula,
gun powder present around the wound;
direction oblique.

(V) Gun shot wound of exit 2 c.m.
x 1 c.m. on the right side frontal chest 6
c.m. above nipple at 11 o'clock direction
continue with injury no. 4.

(VI) Gun shot wound of entry 2
c.m. x 1 c.m. on the back of left shoulder
underlying bone blackening seen around
bone, gun powder present.

(VII) Gun shot wound of exit 2.8
c.m. x 1.8 c.m. on ante aspect of left
shoulder, continue with injury no. 6.

(VIII) Gun shot wound of entry
2.8 c.m. x 2 c.m. on the right anterior iliac
crest region.

(IX) Gun shot wound of exit 3.2
c.m. x 2.5 c.m. on the right buttock upper
part, continue with injury no. 8.

(X) Lacerated wound 3 c.m. x 1
c.m. x muscle deep on the right index finger
medial aspect middle part, blackening
present.

(XI) Lacerated wound 2 c.m. x 1
c.m. on the right middle finger lateral
aspect middle part, blackening present.
2 All. Veerpal Vs. State of U.P.
531

On deep dissection of injury no.
3-1 big metal bullet recovered from right
side. Neck muscle fractured, right side
mandible present. Margins of all entry
wound lacerated, inverted, and all exit
wound lacerated and everted."

6. The clothes wore by the deceased
along with blood stain and plain earth were
sent to forensic laboratory and its report
dated 22.02.2011 is on record as exhibit ka9.

7. It transpires that the Investigating
Officer arrested the two accused on
14.01.2010 vide recovery memo of the
same date (Exhibit Ka-6) while they tried
to flee and from their possession two
tamanchas (country made pistols) of 315
bore with two live bullets were recovered.
A First information report came to be
registered as Case Crime No. 21 of 2010,
under Section 307 I.P.C. as well as Case
Crime No. 22 of 2010, under Section 25 of
Arms Act in respect of accused Veerpal
and Case Crime No. 23 of 2010, under
Section 25 of Arms Act in respect of
accused Munipal.

8. The Investigating Officer sent the
recovered country made pistols as also the
empty cartridges recovered from the place
of occurrence for forensic examination and
report of the ballistic experts from the
forensic laboratory at Agra has been
produced as exhibit ka-8.

9. On the basis of the material collected
during the course of the investigation as also
after recording the statement of witnesses
under Section 161 Cr.P.C. the charge sheet
came to be submitted against the accused
appellants firstly on 17.01.2010 under
Section 25 of Arms Act and thereafter on
18.03.2010
under
Section
302
I.P.C.
Permission was also obtained from the
District
Magistrate,
Moradabad
for
proceeding under Section 25 of Arms Act.

10. The Magistrate took cognizance of
the charge sheet and committed the case to
the Court of Sessions.

11. Two separate sessions trial were
accordingly registered in the matter. Session
Trial No. 629 of 2010 was registered in
respect of offence under Section 302 I.P.C.
whereas Session Trial No. 630 of 2010 has
been registered in respect of offence
committed under Section 25 of Arms Act by
accused Veerpal. Both these session trials
have been held together and are decided
finally by the judgment and order of the
Court below dated 02.06.2015. So far as the
offence under Section 307/34 I.P.C. arising
out of Case Crime No. 21 of 2010 is
concerned, the Court of Sessions vide a
previous
judgment
dated
19.11.2010
acquitted the accused appellants. Relying
upon it the Court below has acquitted the
accused Veerpal of offence under Section 25
of Arms Act. The conviction and sentence of
the two accused is therefore under Section
302 I.P.C., which is amounted in this appeal.

12. The Sessions Court framed charges
against the accused appellants under Section
302/34 I.P.C. vide order dated 24.07.2010.
The charges were read out to the accused
appellants who denied it and demanded trial.

13. The trial commenced in which the
prosecution
has
adduced
following
documentary evidence, which have been duly
proved and consequently marked as Exhibits:

"First information report dated
16.11.2009 has been marked as Exhibit-Ka11; written report dated 16.11.2009 has
been marked as Exhibit-Ka-3; recovery
532 INDIAN LAW REPORTS ALLAHABAD SERIES
memo of blood stain & plain soil & three
bullets 315 bore dated 16.11.2009 has been
marked as Exhibit-Ka-2; Panchayatnama
dated 16.11.2009 has been marked as
Exhibit-Ka-1; Post mortem report dated
17.11.2009 has been marked as Exhibit-Ka10; F.I.R. dated 14.01.2010 has been
marked as Exhibit-Ka-19; Recovery memo
of two tamanchas 315 bore with two live
bullets dated 14.01.2010 has been marked
as Exhibit-Ka-6; Charge sheet dated
17.01.2010 has been marked as Exhibit-Ka21; Charge sheet dated 18.03.2010 has
been marked as Exhibit-Ka-4; Report of
forensic
science
laboratory
dated
23.08.2010 has been marked as Exhibit-Ka8; and report of forensic science laboratory
dated 22.02.2011 has been marked as
Exhibit-Ka-9."

14. In addition to the documentary
evidence the prosecution has produced
Mahendrapal (P.W.-1), who is resident of
Sadat Wadi, Police Station Bahjoi, District
Moradabad. P.W.-1 is a witness of inquest
and the recovery memo of blood stained
and plain earth as well as the empty
cartridges (exhibit ka-2). He has stated that
the place of incident is about 01 k.m. from
his village and the police arrived much
after he came to the place of occurrence.
He stated that large number of persons had
gathered at the spot and the informant
disclosed that the dead body is of his
brother Mahipal.

15. Before examining the testimony
of P.W.-2, who is the solitary eyewitness of
the incident it could be appropriate to
notice the testimony of two other witnesses
namely P.W.-3 and P.W.- 4 who are the
witnesses of inquest. P.W.-3 is a resident of
Village Sadat Wadi and has stated that the
incident is of around 04:00 p.m. and after
coming to know of it he arrived at the place
of occurrence by when police had already
arrived. The inquest was conducted and he
is one of the witness of it. In his crossexamination this witness has stated that he
does not know the informant and had also
not seen him at the place of occurrence.

16. P.W.-4 is one Chhatrapal S/o Hari
Singh, who claims that the incident is of
11:00 a.m. and by the time he arrived at the
place of occurrence the police had already
reached. He has proved the inquest which
contains his signatures. He has asserted that
P.W.-2 was not known to him and that
none was found grieving on the spot.

17. The prosecution case is essentially
based upon the testimony of P.W.-2, who is
the brother of the deceased. He has asserted
that the deceased was his brother and the
incident occurred at 02:30 p.m. on
16.11.2009 about 01 k.m. before Sadat
Wadi. He has supported the prosecution
case as per which P.W.-2 along with
deceased and one Rukam Singh had left on
a motorcycle to Sadat Wadi Temple for
offering prayers by pouring holy water on
the deity and for purchasing fertilizer from
Bahjoi. He claims that the accused Veerpal,
Munipal and Bhadrapal met them a
kilometre
before
Sadat
Wadi.
These
persons
stopped
the
motorcycle
and
dragged the deceased whereafter they fired
on him. On account of gun shot injuries the
deceased died on the spot. This witness has
identified the two accused appellants as
being the perpetrators of crime. He has
stated that the accused also extended
threats to him. Large number of persons
had later gathered at the place of
occurrence. He has stated that the written
report was got scribed by one Indrapal of
his village on which P.W.-2 affixed his
thumb impression and gave it to Police
Station Bahjoi. He has admitted that the
2 All. Veerpal Vs. State of U.P.
533
written
report
was
scribed
on
his
instructions and its content were read out to
him. The written report has thus been
verified by him. He has also stated that the
daughter of fellow villager Ganga Sahay
Sharma was enticed by accused Veerpal
and Munipal in respect of which a case was
pending and the deceased was a witness of
this incident due to which the accused party
maintained enmity with the informants. He
has also stated that for this reason alone the
deceased has been done to death. Injuries
had been sustained by the deceased in his
hands, eyes and chest.

18. In the cross-examination P.W.-1
has stated that the prayers by offering holy
water on deity could be made at any time
and it was not necessary that it be in the
morning only. He has stated that he does
not remember the registration number of
the motorcycle by which he had gone. He
has also stated that Rukam Singh had left
on the motorcycle from his residence and
that he had not gone to the Chakki (flour
mill). The distance between his village and
the place of occurrence is about 15-20 km.
The witness met none while on way. These
persons however stopped at Patariya
Chowki but he could meet none there. The
stay was for about half hour and was spent
in repairing the motorcycle which had
developed some defects. The witness was
going to the temple whereafter fertilizers
were to be purchased and there was no
altercation between P.W.-2 and the accused
Veerpal. The place of occurrence has been
described by the witnesses as being
surrounded by forest from all the sides. It is
stated that the accused persons stopped the
motorcycle 3-4 paces prior to the place
where they were standing. It is then alleged
that accused Veerpal had dragged the
deceased, who was at 2-3 paces from him.
All three accused fired on the deceased.
About 4-5 fires were shot. The first fire was
shot by accused Veerpal. The second fire
was shot by accused Munipal, which hit
near the eyes of the deceased. The third fire
was shot by accused Bhadrapal but he does
not remember the place where the bullet
hit. The witness says that while the
deceased was dragged by the accused he
raised an alarm but none responded even
after hearing the gun shot. It is also stated
that the people were working in the forest
area and he stayed there for about 10-15
minutes whereafter he left for Pathakpur
Chowki. The other companion namely
Rukam Singh also left with him for
Pathakpur Chowki. He claims that the
scribe Indrapal met him as he had also
come for offering the prayers to deity. In
his further cross-examination P.W.-2 has
stated that the Nanihal of Rukam Singh is
in his village. He also claims to know Udal
of his village, who is not a bad person. The
witness however, was not aware that Udal
had gouged out the eyes of Lakhan. No
report was lodged by deceased under
Section 307, 324 I.P.C. against Udal and
Banwari. He further stated that he had no
knowledge that there were about 10-12
cases against Udal and that proceedings
under the Gangster Act have been initiated
against him. He has further admitted that
when Kuanram was shot by Udal, the
deceased Mahipal was an informant.
Kuanram is the uncle of the witness P.W.-2
Vijaypal. He has denied the suggestion that
Mahipal and Mukesh had fired three
months thereafter on Kuanram after the
incident of firing by Udal. He has denied
the suggestion that he arrived late and was
not with the deceased at the time of
incident. It is further stated that when
Mahipal left he was carrying about
Rs.10,000/- for purchasing fertilizer. He
also claims that he was not aware whether
there is any police chowki at Pataria. He
534 INDIAN LAW REPORTS ALLAHABAD SERIES
further asserted that he has no knowledge
of the make of motorcycle by which he had
gone along with the deceased and Rukam
Pal. The colour of motorcycle was yellow
and
the
registration
number
is
not
remembered by him. He also stated that the
motorcycle was taken by the Police.

19. P.W.-2 in his cross-examination
held on 11.11.2011 however stated that he
had offered prayers at Sadat Wadi temple
but the time of his arrival is not
remembered by him since he had no watch.
It is stated that he had no mobile and that
mobile was with his brother but its number
and make is not known to him. He claims
that accused had taken out the mobile from
the deceased. He has admitted that this
recital is not made in the F.I.R. He claims
that he stopped nowhere after leaving the
house till Sadat Wadi. He further stated that
till date he is not aware as to whose
motorcycle was taken by Mahipal. It is then
alleged that the motorcycle was not
borrowed and belonged to Mahipal. He
claims that they had reached Sadat Wadi
Temple in about one and half hours. They
left from the temple for purchasing
fertilizers for Bahjoi but before reaching
there the deceased was done to death. He
claims that the place of incident is about
one and half to two k.m. from Sadat Wadi
Temple. It is further alleged that he has not
seen anybody working near the fields. He
has stated that at the time of firing he was
standing at a distance of 10-15 paces. The
fire continued for 2-3 minutes and P.W.-2
and Rukam Singh tried to save Mahipal. It
is further asserted that no injuries were
received by the witness himself but threats
were extended to him.

20. The witness has been confronted
with his statement under Section 161
Cr.P.C. where no such disclosure is made
by him to the police. He has also denied
that he had run away from the place of
incident. The witness further stated that the
accused had taken out Rs. 10,000/- from
the pocket of the deceased. As per him
about 2500/- Rs. were recovered from the
deceased which was given to him by the
police. He further stated that Rs. 25,000/-
was recovered from the deceased and was
given to him by the Investigating Officer.
This witness has been confronted with his
notarial affidavit given to the D.I.G.
exonerating the accused persons to which
he specifically denied. He stated that no
such affidavit was given by him. He has
further denied that the deceased was of
criminal nature or that he was not present at
the place of occurrence.

21. P.W.-8 is the first Investigating
Officer, who has proved the recovery. He
has
however
specifically
stated
that
possession of the motorcycle is not with the
police nor any recovery memo in respect of
motorcycle was prepared. He claimed that
at the time of his arrival at the place of
occurrence there was no motorcycle. He
has further admitted that the site plan has
been prepared on the basis of information
received from P.W.-2.

22. P.W.-5 is the second Investigating
Officer, who has proved the recovery of
fire arm and has also filed the charge sheet.

23. P.W.-6 is the autopsy surgeon
who has specified that the deceased had 11
wounds on his body. There were five entry
wounds of fire arm while four exit wounds
were present along with two other lacerated
wounds.

24. P.W.-8 has also stated that there
were no bushes around the place of
occurrence. He has also stated that P.W.-2
2 All. Veerpal Vs. State of U.P.
535
had not informed him that Rs. 10,000/-
were taken from the deceased by the
accused persons nor has he endorsed the
return of amount to P.W.-2, as alleged by
P.W.-2 in his testimony.

25. P.W.-9 is the Sub-Inspector, who
had conducted the inquest of the deceased.
This witness has clearly stated that he saw
none from the village Lehra Nagla Shyam
at the place of occurrence when he reached
there. P.W.-10 has proved the chik F.I.R.
lodged under Section 307 I.P.C. P.W.-11
has proved the chik F.I.R. lodged under
Section 302 I.P.C. P.W.-12, Swami Sharan
was the Investigating Officer of the case
lodged under the Arms Act.

26. On the basis of incriminating
material produced during the course of
trial against the accused appellants the
statement was recorded of accused under
Section
313
Cr.P.C.
The
accused
appellants denied their implication and it
was stated that the prosecution case has
been falsely instituted against them.
Accused Veerpal has further stated that
on account of enmity false accusation has
been made against him.

27. Defence in support of its case has
relied upon an affidavit allegedly given by
P.W.-2 to the D.I.G., Moradabad Range
wherein he has asserted that the deceased
was done to death by Rukam Singh and
another and that the F.I.R. version is not
correct. This affidavit has been brought on
record as exhibit Kha-1. In order to prove
the notarial affidavit the defence has
produced Kalyan Das (D.W.-1), who is an
advocate and has asserted that on the
instructions of P.W.-2 the affidavit was
prepared. Similarly, D.W.-2 is the Notary
who has verified the affidavit allegedly
given by P.W.-2.

28. On the basis of above evidence
led in the matter the Trial Court has found
the charges leveled against the accused
appellants to be proved beyond reasonable
doubt under Section 302 I.P.C. However in
respect of the offence under the Arms Act
the accused have been acquitted.

29. Sri Shyam Lal, learned counsel
appearing for the appellants submits that
the accused-appellants have been falsely
implicated in the present case on account of
enmity and that they have not committed
the offence as alleged by the prosecution.
He further submits that the independent
witness to the incident as per the
prosecution case was Rukam Singh, who
has not been produced at the time of trial
and no reason has been disclosed for non
production of Rukam Singh although he
was an important witness. He further
submits that the star prosecution witness
P.W.-2 was actually not present at the place
of occurrence for following reasons:-

(i) though it is alleged that three
persons were traveling on the motorcycle
but no injuries have been caused to the
other two persons namely P.W.-2 and
Rukam Singh, which creates a doubt on the
presence of P.W.-2 at the place of
occurrence. He further submits that being
the real brother, P.W.-2 was expected to
have resisted the move of accused to drag
him from the motorcycle and the fact that
no injuries were on him makes the
prosecution case improbable.

(ii) though it is alleged that three
persons were traveling on the motorcycle
but the motorcycle has not been produced
nor any explanation has been given as to
where this motorcycle has gone. Even the
registration number of the motorcycle or
it's make is not known. It is therefore,
536 INDIAN LAW REPORTS ALLAHABAD SERIES
contended that the plea of motorcycle has
been engineered only to show the presence
of P.W.-2 at the spot.

(iii) the presence of P.W.-2 is
belied by the fact that neither he is the
witness to inquest nor is he a witness to the
recovery of empty cartridges and blood
stained and plain earth.

(iv) the presence of P.W.-2 is also
doubtful on the spot since no blood stain
etc. has been found on his clothes.

(v) It is also urged that statement
of P.W.-2 is contradictory inasmuch as at
one place he states that the incident
occurred while they were on way to Sadat
Wadi Temple while he later states that the
incident occurred while they were returning
from the temple. Submission is that this
contradiction in his testimony renders it
untrustworthy. It is also urged that at one
place P.W.-2 has claimed that there were
forest around the place of incident while he
later claims that there were agricultural
plots nearby. Contradiction is also pointed
out in the testimony of P.W.-2 as at one
stage he claims that there were large
number of people working around and later
contradicted himself by saying that there
were no persons available nearby.

(vi)
Learned
counsel
further
submits that the affidavit given by P.W.-2
has been proved as per which the offence
was not committed by the accused but by
someone else along with Rukam Singh.
This affidavit also explains as to why
Rukam Singh was not produced in
evidence.

(vii) It is also argued that the
allegation of loot of mobile phone at the
stage of recording of statement is not
corroborated by any other material and is
contradicted by the witness himself later.
Similarly, the allegation of return of Rs.
25,000/- is not corroborated by any
independent material. It is also argued that
the inquest and other police papers contains
cutting and overwriting at different places
and in most of papers the time of
conclusion of inquest etc. is not mentioned.
It is also argued that the inquest concluded
in the evening whereas the post mortem
was conducted after 24 hours without
explaining as to where the body was kept
throughout the night.

30. In reply, learned A.G.A. submits
that contradiction pointed out by the
defence are minor and do not shake the
prosecution case. Submission is that
prosecution
witnesses
are
wholly
trustworthy and the Court below has rightly
placed reliance upon them. It is contended
that it is a case of broad day light murder
committed for a definite motive and the eye
witness account of P.W.-2 is rightly relied
upon by the Court below and the appeal
merits no interference.

Analysis of facts:-

31. From the facts as have been
placed on record it transpires that the
prosecution case pointedly is that the
deceased along with P.W.-1 and one
Rukam Singh were going towards Sadat
Wadi Temple for offering prayers and
while they were a kilometer before the
temple the accused persons ambushed the
informant team and the deceased was taken
a little away and then indiscriminately fired
by the three accused. The motive for the
offence as per the prosecution is the fact
that the accused Munipal had enticed the
daughter of one Ganga Sahai in which the
deceased, Mahipal was a witness and,
2 All. Veerpal Vs. State of U.P.
537
therefore, with an intend to remove the
hurdle so that the deceased may not stand
in trial or support the prosecution case that
he has been done to death. The trial court
has held that the prosecution has succeeded
in proving the incident. This Court,
therefore, is required to examine as to
whether the prosecution has proved its case
beyond reasonable doubt on the basis of
evidence adduced at the trial or not?

32. The answer to the above question
would then determine whether the court
below has rightly convicted the accused
and thereby determine the fate of this
appeal.

33. The prosecution case essentially
relies upon the testimony of P.W.-2 apart
from the documentary evidence which are
in the nature of inquest report; post mortem
report; report of forensic laboratory etc.

34. The post mortem report is on
record which clearly shows that the
deceased died on account of coma due to
ante mortem fire arm injuries. There are
five entry wounds and four exit wounds of
gun shot injuries apart from two other
injuries caused by blunt object. The inquest
report also shows that the deceased died on
account of gun shot injuries. It is, therefore,
not in issue that the death of the deceased
was homicidal. The fact that he was shot
dead remains undisputed.

35. The question primarily is as to
whether the prosecution has succeeded in
establishing that it was the accused who
fired on the deceased and the incident has
been witnessed by the prosecution witness?

36. P.W.-2 has been produced as the
sole eye witness and, therefore, his
testimony requires careful consideration.
The case of the appellants is that P.W.-2
was
not
present
and
therefore,
the
prosecution has not been able to establish
the incident in the manner alleged by it.
P.W.-2 is otherwise a related witness being
the brother of the deceased and enmity with
the accused is admitted. It is settled that
enmity can be the cause for committing the
offence and can also be a reason for false
implication. It has thus to be seen whether
testimony of P.W.-2 is trustworthy and
finds corroboration from other evidence
available on record.

37. The arguments advanced on
behalf of the appellants have already been
noticed above and we now proceed to
examine the same with reference to the
testimony of P.W.-2 and the attending
circumstances.

38. As per P.W.-2 he was going along
with the deceased and one Rukam Singh to
offer prayers at Sadat Wadi Temple and
they were then to go to Bahjoi for
purchasing fertilizers. This witness in his
testimony has clearly stated that they were
on way to Sadat Wadi Temple when the
three accused ambushed them and shot
dead the deceased. The place of incident
has been specified as being a place which
was a kilometer before the temple. In his
examination-in-chief
this
witness
has
clearly stated that the three accused stopped
them a kilometer before the temple
whereafter the deceased was dragged aside
and was fired upon by the accused persons.
Relevant portion of his statement is
extracted hereinbelow:-

"मृतक महीपाल मेरा भाई था। घटना
दिनाांक 16.11.2009 की दिन के ढाई बजे की है।
घटना सािात बाडी से एक दकलोमीटर पहले
जांगल की है। उस दिन मेरा भाई महीपाल और
538 INDIAN LAW REPORTS ALLAHABAD SERIES
मैं तथा हुकम दसांह एक ही मोटर साईदकल से
सािात बाडी जल चढाने तथा बहजोई खाि लेने
घर से साथ चले थे। वीरपाल मुनीपाल व भद्रपाल
सािात बाडी से एक दकलोमीटर पहले दमले।
मोटर साइदकल मेरा भाई महीपाल चला रहा था।
इन लोगो ने मोटर साइदकल रोक कर और मेरे
भाई महीपाल को खीच कर जान से मारने की
दनयत से फायर दकये। फायर लगने से मेरा भाई
महीपाल की मौके पर मृत्य हो गयी।"

39. However in the cross-examination
the witness has come up with a different
version that they had reached the temple in
about one and half hours, offered prayers
and then proceeded to buy fertilizers but
before they could reach Bahjoi for
purchasing fertilizer the deceased was done
to death. The utterances of P.W.-2
contradicting his earlier statement in his
examination-in-chief is extracted herein
below:-

"गाांव से सािात वाडी मांदिर लगभग
एक डेढ घांटे में पहुुँच गये थे। मुझे नही मालुम
पूजा करने और जल चढाने में दकतना समय
लगा होगा। दफर मांदिर से वहजोई खाि लेने गये
थे। बहजोई खाि लेने नही पहुुँच पाये थे उससे
पहले ही महीपाल को मार दिया था।"

40. P.W.-2 has then stated that three
of them had left by a motorcycle but he
does not remember its registration number.
He also stated that he does not remember
the make of the motorcycle either. It is
merely stated that the colour of the
motorcycle was yellow. What is relevant is
that this motorcycle has neither been
recovered from the spot nor was it made a
case property. P.W.-2 has stated that the
motorcycle was taken away by the police.
However, P.W.-8 i.e. the Investigating
Officer in his testimony has clearly stated
that there was no motorcycle found on the
spot by him. The circumstance relating to
the motorcycle not being traced is also a
circumstance, which has not been proved
by the prosecution. In the event the
deceased along with P.W.-2 and Rukam
Singh were going on a motorcycle and the
deceased was ambushed, it was expected
that some explanation would be put forth
with regard to the motorcycle on which
they were traveling. P.W.-2 also stated in
his cross-examination at one stage that he
left by the motorcycle to the police station
but then he returned on foot. This apparent
contradiction in the statement of P.W.-2 as
also the fact that the motorcycle was not
recovered is thus a circumstance to be
noticed at this stage of deliberation.

41. The next circumstance highlighted
on behalf of the appellants is with regard to
the surroundings of the place of incident.
P.W.-2 has stated that at the place of
occurrence there existed jungle on all the
four sides, however in the site plan no
jungle is shown to exist around the place of
occurrence. P.W.-2 towards later stages of
his cross-examination has supported the
site plan by taking names of tenure holders
mentioned in the site plan. His information
however is restricted only to the disclosures
previously made in the site plan. We find
some substance in the contention that the
place of occurrence could either be near the
jungle or it could be near the agricultural
fields. Both cannot co-exist. The statement
of P.W.-2 in giving contradictory narration
of the surroundings of the place of
occurrence is also a circumstance to be
noticed.

42. We may also at this stage notice
the contention of learned counsel for the
appellants that Rukam Singh was the third
person travelling with the deceased and
P.W.-2 and being an eye witness he ought
2 All. Veerpal Vs. State of U.P.
539
to have been produced by the prosecution.
The records reveal that statement of Rukam
Singh was recorded under Section 161
Cr.P.C. and although in the list of witnesses
annexed along with the charge sheet his
name was mentioned but subsequently he
has been got discharged by the prosecution
from appearing before the court below.
There
is
no
explanation
from
the
prosecution side as to why Rukam Singh
has not been produced. It may also be
noticed that while P.W.-2 is the brother of
the deceased and is a related witness,
Rukam Singh is not a member of the family
and to a certain extent his testimony would
have carried greater weight. The fact that
Rukam Singh has not been produced is also
a circumstance to be taken note of.

43. We may at this stage refer to
another piece of evidence led by the defence
which is the photo copy of a notarial affidavit
allegedly sent by P.W.-2 to the Deputy
Inspector General of Police, Moradabad
Range. This document has been exhibited as
Ex. Kha-1 and the same contains a recital that
in fact the murder has been committed by
Rukam Singh and the averments made in the
F.I.R. about the appellants being the author of
injuries is incorrect. Attempt has been made
to prove Exh. Kha-1 by producing the
Advocate, who had prepared the affidavit i.e.
D.W.-1 and the notary, who had attested his
thumb impression on the affidavit as D.W.-2.

44. Learned A.G.A. has made attempts
to impeach this document on the ground that
original or the certified copy of this affidavit
has not been produced and that neither the
stamp papers contain proper seal of the stamp
vendor nor any date of its issuance is
mentioned and, therefore, this document
cannot be relied upon particularly when
P.W.-2 has denied its existence.

45. As against the contention of learned
A.G.A., learned counsel for the appellants
submits that the original of this affidavit was
submitted before the Deputy Inspector
General of Police, Moradabad and therefore,
the original cannot be produced by the
defence as the document itself was not
expected to be available with them. It is also
urged that its certified copy also could have
been issued only by the state authorities, who
were opposed to them. It is contended that the
only manner in which this document could
have been proved as a secondary piece of
evidence was by producing the Advocate
who had prepared the affidavit and by
producing notary, who had authenticated the
thumb impression of the witness. Both of
whom have been produced.

46. We are not inclined to enter into
the debate with regard to genuineness or
otherwise of this affidavit. The limited
purpose for which we take note of the
affidavit is that there was a plea by the
defence that the author of the injuries was
not the accused but it was Rukam Singh
and Rup Kishore.