1

Reserved

AFR

CRIMINAL APPEAL NO.846 of 1982

Munendra and others ….......... Appellants

Versus

State of U.P. …....... Opposite Party

Hon'ble Vinod Prasad, J.

Hon'ble Surendra Kumar, J.

(Delivered BY Hon’ble Vinod Prasad J.)

This appeal has emanated against the judgment and order dated

31.3.1982 passed by 4

th

Additional Session's Judge, Muzaffarnagar in S.T.

No.231 of 1981, State Vs. Munendra and others, by which, the two real

sibling brothers Munendra (A-1) and Vijai Singh (A-2), both sons of

Bhagirath and Rajpal (A-3) son of Shyam Singh, all resident of village

Bhaiswal, police station Shamli, district Muzaffarnagar have been convicted

and sentenced under section 302/34 I.P.C. for life imprisonment.

Prosecution has divulged its entire story through the depositions of

the informant Ram Kishan, P.W.3, coupled with orally dictated F.I.R. Exhibit

Ka-1. From the perusal of both the aforesaid evidences it is discernible that

both informant and deceased on the one side and accused on the other had

the same lineage. Narrated pedigrees indicate that one Ram Singh, r/o

village Bhaiswal, P.S. Shamli, district Muzaffarnagar, had two sons Jagdish

and Ram Kishan (informant). Jagdish had three sons Desh Pal (deceased),

Jasvir and Ram Autar, whereas informant Ram Kishan had two issues Satbir

(who had taken the injured/deceased along with others to hospital on his

tractor) and Udaiveer. Collateral and co-villager Shibba and his wife Zikor

also resided in the same village. They had only a daughter Atli (deceased in

cross case). Bhagirath was the husband of Smt. Atli, whereas Munendra (A-

1) and Vijai Singh (A-2) are their sons. Thus what is admitted is that both

Neutral Citation No. - 2012:AHC:168505-DB

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prosecution side and accused had common ancestors. Rajpal (A-3) is stated

to be the associate of (A-1) & (A-2). Houses of Jagdish and accused were

adjoining to each other having a common boundary wall.

Bhagirath and Munendra (A-1), father and son, had affixed a passage

door on a pedestal in the premises of Jagdish and for it’s removal Jagdish

had filed a civil suit before the competent Munsif court, which was being

looked after by Desh Pal (deceased). Five or seven days prior to present

incident, which occurred on 25.12.1979 in the early hours of the morning,

the aforesaid civil suit was decreed in favour of Jagdish wherein Munsif

Court had ordered judgement debtors, Bhagirath and Munendra (A-1) to

remove their passage door within a month, failing which, plaintiff decree

holder was authorised to block it. However, on the very next day of the

judgement, Jagdish and Desh Pal (deceased), blocked the said passage

door-way by erecting a brick wall obstruction.

Prosecution further alleged that because of hostile feelings and malice

intent, (A-1) along with his father and four brothers, had shot at informant’s

mother and had belaboured his father regarding which informant had

lodged a FIR through his father at the police station and in the said crime

accused had to get themselves bailed out. Criminal trial regarding that

incident was pending on the date of the present incident.

On 25.12.1979 at 7/7.15 a.m. deceased and his maternal uncle Brahm

Singh were going to attend natures call. Informant Ram Kishan, P.W.3 along

with Ilam Chandra Singh (P.W.1), Hans Raj (P.W.2), and Bijja too were going

for the same purpose, when accused appellants surrounded injured/

deceased near the house of Baljit Chamar. Both injured/deceased and

Brahm Singh raised rescue calls attracting informant and other witnesses. All

the accused then uttered that injured/ deceased had tormented them

enough, and thereafter opined murderous gun fire shots at him from their

country made pistols. Sustaining grievous fire arm injuries, deceased fell

down on the erected pedestal (Chabutara) in front of Baljit’s house. In this

shooting incident Hans Raj, PW2, had also sustained pellet injury in his

ankle. Committing the crime, all the assailants escaped from the incident

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scene towards their houses as terror stricken witnesses could not muster

any courage to apprehend them.

Informant Ram Kishan transported both the injured to Shamli Hospital

at a distance of four miles, in his tractor trolley driven by his son Satbeer,

accompanied by Desh Pal, Hardeva and others and got them admitted in the

hospital. From the hospital, informant, PW3 proceeded to P.S. Shamli, where

he dictated his FIR, which was recorded as crime no. 574 of 1979, u/s 307

I.P.C., by head constable Bhanwar Singh, P.W. 5, same day at 8.45 p.m. by

preparing chik FIR Ext. Ka-1. Corresponding GD entry, vide rapat no.17, was

prepared by the same witness which is Ext. Ka-5. This GD entry also

contains a reference of a memo, which was brought by Ward boy Om

Prakash, from the hospital and was handed over to S.I. S.N. Khan.

Subsequently, after demise of the deceased, on 25.12.1979 at 1p.m.in the

Safdarjang Hospital, New Delhi, crime was converted u/s 302 I.P.C. by SI

S.N. Khan on 27.12.1979 at 6.30 p.m. vide rapat no. 40. Conversion GD,

prepared by I.O. P.W. 14, is Ext. Ka-24.

SI S.N. Khan, in whose presence the crime was registered at the

police station by P.W.5,commenced investigation into the offence, came to

the hospital and recorded 161 Cr.P.C. statement of the deceased, which by

virtue of the demise of the testator, is now his dying declaration, which is

Ext. Ka-19. Statement of injured Hans Raj was recorded thereafter in the

hospital, copy of which has been proved as Ext. Ka-20.Thereafter informant

Ram Kishan and Dr. S.C. Gupta were interrogated and their statements were

recorded. I.O. thereafter came to the incident spot in village Bhaiswal where

he recorded statement of witness Ilam Chand, which is Ext. Ka-21. He

conducted spot inspection and prepared site plan Ext. Ka-22. Blood stained

joot bag and soil were recovered vide recovery memo Ext. Ka-23. All the

recovered articles were put in the police station cloak room.

Two sibling brothers Munendra (A-1) and Vijai Singh (A-2)

surrendered in the Court on 10.1.1980.

Papers from Safdarjang Hospital, New Delhi in respect of medical

treatment and demise of the deceased as well as medical treatment of the

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injured were got requisitioned by the I.O., through constable Durga Lal and

were made a part of the case diary. On 27.1.1980, witness Sukhbir was

interrogated, and subsequent thereto statement of all the accused persons

were recorded on 1.3.1980 and concluding investigation, on the said date,

I.O. charge sheeted them vide Ext. Ka-25.

When the injured were brought to the Government Hospital Shamli,

Medical Officer Dr. S.C. Gupta, P.W. 4 had examined them. Injured deceased

was examined at 8.15 a.m. and his medical examination report Ext. Ka-2

was prepared by the doctor. Thereafter, statement of the injured, Ext. Ka-4,

was recorded by the same doctor at 9 a.m., which is his first dying

declaration, because of his death. According to P.W. 4, he had recorded the

dying declaration in the language of injured deceased Desh Pal and after

recording it, he had read out it to him and thereafter had got his thumb

impression. At the time of recording of the said dying declaration, doctor

had satisfied himself that the deceased was in a fit condition to give the

statement. At that time except the doctor and the injured nobody else was

present inside the room as everyone else was sent out side. This first dying

declaration is transliterated herein below:-

“stated that today in the morning at dawn I from my house along

with my maternal uncle Brahma Singh was going to ease, when I reached in

front of Baljit Chamar house then co-villager Raj Pal son of Shyam Singh,

Munendra and Vijai Singh son of Bhagirath Jat resident of village Bhaiswal

rounded me up. I raised shout then all the three shot at me. On my shouts

my uncle Ram Kishan, co-villager Ilam Chand , Vijai Singh and Hans Raj

Chamar etc. many people collected, who have seen these people shooting

at me. I fell down sustaining injury and Hans Raj Chamar also sustained

gunshot injury. From these people I have old enmity over land.

Time 9

Date 25.12.1979

LTI

Above statement was given by Sri Desh Pal of his free will in my

presence and I certify that the patient was fully conscious. On 25.12.79, Dr.

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S.C. Gupta, M.B.B.S, D.M.I.E (seal) note - Sri Desh Pal was being transfused

Hemaseal saline and therefore could not sign.”

According to the doctor, injured deceased Desh Pal had sustained

following injuries on his person:-

“Examined Desh Pal aged about 25 years S/o Jagdish R/o Bhaiswal

P.S. Shamli, District Muzaffarnagar on 25.12.1979 at 8.15 am B/B

Naipal Singh S/o Raghuveer R/o vill. Bhaiswal P.S. Shamli, District

Muzaffarnagar and found following injury.

M.I. :- (i) L.T.I. (ii) A black mole on the front and left side of neck.

Injuries :- (i) A lacerated wound 14.5cm x 7.0cm x bone deep

on left x front extending from back and lower 1/3 of left leg to

middle of left foot on the inner side bleeding present.

(ii) A lacerated wound 2.0cm x 3/4 cm x muscle deep on the front

of (Rt.) forearm with lower 1/3 bleeding present.

(iii) A circular gunshot wound of exit 2-1/2cm x 1.0cm x depth

cannot measure on the lower part of chest on the front and

middle. Margins are inverted.

(iv) A circular gunshot wound of entry 2-1/2 cm x 2 cm on the (Rt.)

side of back under lying post. Axillary line 9 cm back to the axillary.

The (Anterio) bleeding margins are everted.

G.C. of patient poor pulse feeble 120 /mt. Lumber. Respiration 20/

mt. Regular B.P. 100/70 per minute. General condition poor. Pts.

fully conscious. Case is referred to Delhi for treatment please.

Duration fresh.

Opinion:- Injury nos. 3 and 4 are caused by gun shot. Injury nos.

(i) and (ii) are kept U.O. Advised X-ray of the left part.

AP + Lat. (Rt.) forearm and chest.”

General condition of the patient was poor, his pulse was feeble 120

per minute. His respiration was 20 per minute and blood pressure was

110/70. His general condition though was poor but patient was fully

conscious. P.W. 4 had referred him to Delhi for treatment. Injuries sustained

by the injured were fresh. Injuries 3 and 4 were caused by gunshot whereas

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injury nos. 1 and 2 were advised for X-ray. Injuries of this injured were

noted by the doctor in private medico legal register. Naipal Singh had

brought this injured before the doctor. In the opinion of the doctor, injury

could have been sustained by the injured at 7 or 7.30 a.m., the same day.

Hans Raj, injured, PW2 was examined at 9.15 a.m. same day and on

his person following injuries were found by the doctor P.W. 4:-

“Examined Hans Raj aged about 30 years S/o Dhanu R/o vill.

Bhaiswal P.S. Shamli, Muzaffarnagar on 25.12.79 at 9.15 am B/B

Naipal Singh S/o Raghuveer R/o vill. Bhaiswal, Shamli District

Muzaffarnagar and found following injury.

M.I. :- (i) L.T.I., (ii) A old scar ½ cm x ½ cm on the left side of

forehead. 3-1/2 cm above the left eye brow.

Injury :- (1) A lacerated wound 4.0 cm x 2.0 cm x bone deep

on the front and upper 1/3 of left leg. Bleeding 3-1/2 cm below

the left knee.

Duration : fresh

Opinion :- Injury no. 1 is kept U.O. and Advised X-ray of the left

leg. AP + Late. About the weapon opinion will be given after X-ray

examination.”

The said injury was kept under observation and could have been

caused by some firearm discharge. However final opinion was reserved by

the doctor in that respect. Medical examination report of Hans Raj is Ext.

Ka-3.

Statement of injured Desh Pal, u/s 161 Cr.P.C. recorded by the I.O.,

which statement by virtue of his death is now his second dying declaration,

is as follows:-

“ Desh Pal s/o Jagdish Jat r/o Bhaiswal, P.S.Shamli, injured above

confirming FIR stated that today at dawn I from my house along with my

mama Brahma Singh was going to ease. When I reached in front of Balbir

Chamar house on the way then co-villagers Munendra, Vijai Singh, and Raj

pal all of a sudden came from side road and surrounded me who were

armed with country made pistols. Seeing ourselves surrounded I and my

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mama yelled out and hearing our shrieks my village uncle Ram Kishun

Imam Chand, Bijja, Hans Raj Harijan came from nearby locality that these

three accused uttered that ‘this sala had tormented us enough and kill him’

that all the three fired upon me with an intention to kill. Munendra and Vijai

Singh had gyrating weapons and their shots caused injuries on my body and

I fell down on chabutara of Baljit. Meanwhile Hans Raj came to rescue me

and then one shot fired by accused hit him also. On challenge by the

witnesses all the accused escaped towards their houses. To both of us our

family members brought to Shamli hospital on a tractor and then my uncle

Ram Kishun had gone to police station to lodge the FIR. Corroborating the

incident further stated that in between me and accused a case in respect of

a door was going on before Munsif since last year because of which enmity

accused Munendra along with four brothers and father had shot at my

mother and had assaulted my father regarding which I had lodged a report

in police station through father and that trial is pending and accused are on

bail. The civil suit was won by us from the court on 18

th

of this month and

on 19

th

we blocked the door of the accused by erecting a brick wall and

since then accused hostile feeling was further aggravated. I am rifle licensee

and hence accused felt more danger from me. Because of above enmity

these people had fired at me with an intention to murder from their country

made pistols. My condition cannot improve and I am proceeding to Delhi for

treatment.”

Translating the above statement it becomes evident that besides facts

sketched in the FIR, Desh Pal, had stated that he had fallen down on the

erected pedestal of Baljit and that his family members had brought the

injured to Shamli hospital on a tractor and got them admitted and thereafter

informant, Ram Kishan, had gone to the police station to register the FIR.

On inquiry he had disclosed to the I.O. that with the accused he had enmity

of civil suit since last many years because of which appellant (A-1) along

with his four brothers and father had shot at his mother and had assaulted

his father regarding which a report at the police station was lodged by the

father of the injured (Desh Pal). Aforesaid criminal trial was also pending in

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Court and the accused persons were on bail. The civil suit was decreed in

their favour on 18

th

of the same month and on 19

th

they had erected a brick

wall closing the door opened by the accused and since then the hostility

amongst them had aggravated. Injured has also stated that he had a

licensed riffle and because of this the accused persons felt terror from him.

Because of aforesaid enmity accused had shot at him from their country

made pistols and he is going to Delhi for further management of his injuries.

This 161 Cr.P.C. statement is the second dying declaration of the deceased

recorded only a few minutes apart and is Ext. Ka 19, dated 27.2.1980.

Both the injured were admitted in Safdarjang Hospital, Delhi on

25.12.79 at 12.45 P.M. and police station Vinay Nagar, Delhi was accordingly

informed about it through constable Ramesh Chand, which intimation was

recorded in the general diary. S.I. Rampal Singh, P.W.6, of P.S. Vinay Nagar

had gone to Safdarjang Hospital along with a written report prepared by him

to record statement of injured Desh Pal, but at 12.45 P.M., Dr. D.K. Chug,

declined the said request in writing as Desh Pal was not in a fit condition to

give his statement. The note given by the Doctor is Ext. Ka-7. Desh Pal

expired same day at 1 p.m., regarding which an intimation was received at

P.S. Vinay Nagar. S.I. Rampal Singh P.W.6 entered the message received

from the hospital in GD vide rapat no.9 and then along with constable

Tejveer and Kamal Dev came to Safdarjang Hospital where he found the

cadaver of the deceased in the hospital mortuary. After seizing the corpse,

S.I. conducted inquest proceedings on the cadaver of the deceased and

prepared inquest memo Ext. Ka 6. Sealing the dead body, it was handed

over to the aforesaid constables to be carried to AIIMS for autopsy

purposes. P.W.6 had also written a letter in the name of the doctor for

conducting post mortem examination on the corpse of the deceased which

is Ext. Ka-8. In the hospital, Satya Vir and Veer Sen had identified the dead

body before P.W.6 regarding which their statements were recorded by the

said S.I. who had attested them. The attestation signature on these

statements are Exts. Ka-9 and Ka- 10. On 21.1.1980 from A.I.I.M.S. in a

sealed bottle, blood stained pellet and wads, were collected by P.W.6,

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regarding which he had sketched a recovery memo, which is Ext. Ka-11.

Both the bottles and material are Exts.1 and 2.

Constable Tejpal, P.W.7 had carried sealed dead body from Safdarjang

Hospital to A.I.I.M.S., without getting it tampered, and had identified it

before the post mortem doctor.

Satyavir Singh, P.W.8, had identified the dead body before S.I. Ram

Pal P.W.6 on 25.12.1979 and post autopsy examination had received it on

26.12.1979. Extract of his statement is Ext. Ka-12.

Ram Lal, record clerk, Safdarjang Hospital, New Delhi had proved

medico legal register from 22.12.1979 to 29.12.1979. At page 5330 injuries

of injured Hans Raj, who was brought in the said hospital by Jagdish was

noted. Casualty number of the said injured was 112765. Original copy

attached with the said register, made by Dr. R.C. Chatwal, was taken out

from the register and was filed in the court by PW8.

Dr. Y. Singh, Radiologist, Safdarjang Hospital, P.W.10, had X-rayed

njured Hans Raj vide X-Ray film no. 4022 on 25.12.1979. The X-ray was

performed by technician Ramesh Chand. Many metallic pellets round in

shape were found embedded in upper one-third of the leg of the said

injured by P.W.10, which resembled pellets. Tibia bone at the site of the

injury had fractured. X-Ray of injured Hans Raj is Ext. Ka-13.

Dr. Rakesh Kumar Chatwal, CMO (casualty) Safdarjang Hospital had

examined Hans Raj on 25.12.1979 at 12.30 p.m., who was brought to him

by Jagdish. X-ray of the aforesaid injury vide Ext. Ka- 13, was done by Dr. Y.

Singh. After examining the X-ray report and X-ray plate, Dr. Chatwal P.W.11,

had given his finding and his report as Ext. Ka-14, and his signature on the

said report is Ext. Ka-15. The aforesaid injuries could have been caused by

firearm on 25.12.1979 at 7-7.30 a.m. Medico legal register containing the

said examination report is Ext. Ka-14. Another injured deceased Deshraj was

examined by another Doctor D.K. Chug P.W.12, at serial number 5329 on

the same day. The said doctor had noted following injuries on his person,

after examining the said injured Desh Pal at 12.30 p.m.:-

“1. Clear lacerated wound medial side of left foot and ankle extending

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backwards about 6” x 3”, irregular margin charring around margin present.

2. Clear lacerated wound right wrist 1” x 1/2” charring around irregular

margin present. No wound of exit (probing not done).

3. Clear lacerated wound 2” below right scapula, oval in shape 1” x 3/4”

approximately, margins lacerated (probing not done).

4. Clear lacerated wound 2” below xiphy sternum 1” x 1” charring

around irregular margins (probing not done).”

Desh Pal had informed the doctor, the manner in which he had

sustained the injury, which has also been noted by the doctor P.W.12 in the

medical examination report of the said injured. According to the said noting

he had sustained the injury in a scuffle with the appellants. He was

conscious at the time of making the disclosure statement. His pulse was

very feeble and 120 per minute. His body had gone pale and his general

condition was poor. At 12.45 p.m. the patient started gasping and therefore,

was given artificial respiration, cardiac massage and resuscitation but he

could not survive and lost his breath and at 1p.m. was declared dead, as his

heart beat and pulse vanished. X-ray report of the deceased injured is

Exhibit Ka-16 prepared by this doctor. Jagdish, father of the deceased was

present besides him at the time of his examination by P.W.12. Death

certificate issued by the doctor was handed over to Jagdish, which is Exhibit

Ka-17.

Doctor B.L. Meel, M.O. AIIMS, Delhi had performed autopsy on the

cadaver of the deceased on 16.12.1979 between 2.30 to 4.30 p.m. which

was brought to him by Constable Tejpal Singh and Kamal Dev of P.S. Vinay

Nagar, New Delhi. Body was received on 26.12.1979 at 11 a.m. along with

inquest papers. Deceased was 28 years of age and had an average

physique. Rigor mortis was present on both upper & lower limbs and post

mortem staining on the back side of chest & abdomen were present. No

sign of putrefaction was present on the body. Eyes and mouth were closed

and pupil dilated. According to the noting in the post-mortem examination

report, deceased was alleged to have sustained gunshot injury on

25.12.1979 at 7.30 a.m. and was admitted in S.J. Hospital same day at

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12.30 p.m. and had expired the same day at 1p.m. In doctor's estimation,

he had died due to shock as a result of laceration of the lungs and liver.

Injuries sustained by the deceased were ante-mortem in nature and injuries

numbers 1 and 2 were sufficient to cause death in ordinary course of nature

and likely to be produced by firearm weapon. In the post-mortem

examination report doctor had noted following ante-mortem injuries

sustained by the deceased:-

“1.Entrance gunshot wound on right side back of the chest, 4.5 cm medial

to post axillary line, 10.5 cm from mid line (...paper torn) 15 cm above the

iliac crest & 25 cm below the acromion, measuring in size 2.7 x 2.5 cm with

abraded collar & 2.3 x 2 cm. Without abraded collar, rounded shaped, the

edges of the wound are inverted & ecchymosed, one wad discovered from

the wound subcutaneously, No scorching, No tattooing, No blackening & no

singing of hair seen. There is lacerated wound, underneath tissue, the

wound tract going towards right lung, via perforating diaphragm, right lower

lobe of the lung get lacerated, at lateral & under surfaces, measuring 5 x 3

x 2.5 cm in size. About 500 cc of semi clotted blood has found collected

inside right pleural cavity, then coming out after laceration of right lobe of

the liver 11 x 8 x 6 cm in size. There is about 900 cc of blood, semi clotted

in nature present in peritoneal cavity then tract going towards.

2. Exit wound at epigastric region 5 cm below the Xiphi stenum in mid line,

measuring in size 2.8 cm x 2.6 cm with abraded collar & 1.9 x 1.6 cm

without abraded collar. The edge of the wound are everted & ecchymosed,

one wad below the subcutaneous tissue & abdominal muscle discovered in

the line of the tract.

3. Lacerated wound on anterior aspect of right forearm at the region of

wrist 3.5 x 2.5 x muscle deep in size present, lodging one waded bullet,

impacted in tendon, with one & a piece of wad recovered from the wound

separately near the bullet.

4. Lacerated wound on medio lateral & posterior aspect of left heel 12 x 6 x

7 cm in size present. There is fracture of calcaneus and talus bones present.

Cut on Baniyan & Bandi but there is no cut on the shirt present. Size

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on baniyan cut No. (B1)- 5 x 2.6 cm. At injury No.(1) & No. (B2) cut 2 x 1

cm in size at injury (2) size on Bandi cut No. (A1) 3 x 2.5 cm in size at injury

No. (1) & cut (A2) 2.4 cm linear in nature vertical, parallel to button hole

No.(1) from above.

The Direction of the tract was forwards, downwards and medially. The case

was consulted with Dr. G.R. Prasad Assistant Director Ballistic C.F.S.L. Delhi.”

The post-mortem examination report of the deceased is Exhibit Ka-18.

The injuries, which are mentioned in Exhibit Ka-18 corresponds to the

injuries noted in the medical examination report of the deceased conducted

at Safdarjang Hospital vide Exhibit Ka-16.

On the basis of the charge-sheet submitted by the I.O. P.W.14 case

number 886/9 of 1981, State Vs. Munendra and others, was registered in

the committal court of C.J.M., Muzaffarnagar on 2.3.1981. Learned C.J.M.

found charge-sheeted offences triable by Court of Sessions and therefore,

on 23.6.1981, had committed the case of the appellants to the Session's

Court for trial where it was registered as S.T. No.231 of 1981, State Vs.

Munendra and others, and was transferred to the 4

th

Additional Sessions

Judge, Muzaffarnagar for trial.

Learned trial Judge charged all the appellants on 30.9.1981 with

offences under Section 302/34 and 307 I.P.C. Both the charges were read

out and explain to the accused in Hindi, who refuted the same, by pleading

not guilty, and claimed to be tried and resultantly, to bring home their guilt,

their trial commenced by observing Session's trial procedure.

Prosecution relied upon oral testimonies of fourteen of it’s witnesses

including three fact witnesses Ilam Chand P.W.1, injured Hans Raj P.W.2 and

informant Ram Kishan P.W.3. The doctors, who had examined the injured

and the deceased at various stages were examined as doctor S.C. Gupta

P.W.4, Radiologist doctor Y. Singh P.W.10, Dr. Rakesh Kumar Chatwal, C.M.O.

Safdarjang, who had examined injuries of Hansraj P.W.11, Dr. D.K. Chug,

who had examined injuries of injured Desh Pal in Safdarjang Hospital P.W.12

and Post-mortem doctor B.L. Meel P.W.13. The police personnels, who were

examined where the Head Constable Bhanwar Singh P.W.5, who had

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prepared the Chik FIR and GD entry, S.I. Ram Pal Singh P.W.6 who had

deposed regarding admission, demise and inquest proceedings conducted

on the cadaver of the deceased in Safdarjang Hospital, Constable Tejpal,

who had taken the body for post-mortem examination P.W.7, Record Clerk of

Safdarjang Hospital P.W.9 and I.O. S.N. Khan P.W.14. Satyaveer Singh P.W.8

had identified and received the dead body of the deceased. No other

witness was examined during trial by the prosecution, but it also relied upon

various documentary evidences marked as exhibits and some of the material

exhibits, which have already been detailed herein above and hence are

eschewed from being repeated.

In their statements u/s 313 Cr.P.C., a common defence of false

implication was taken by all the accused, who also set up a cross version,

which they had already put to the informant P.W.3 as well as Head

Constable Bhanwar Singh P.W.5. It was from PW5, that the accused had got

proved the GD entry of the cross case, which was recorded on the same day

25.12.1979 at 2.30 p.m. vide rapat no.27 as Exhibit Kha-2. From the

Investigating Officer also it has been got elicited, by the defence counsel,

that he had also investigated the cross case vide crime no. 574-A and in that

case had charge sheeted Jasvir, Udaivir, Ram Kishan and Jagdish. In the

cross FIR Desh Pal (deceased) was also one of the named accused. In that

cross version, it was alleged that Smt. Atli, mother of appellants (A-1) and

(A-2) Munendra and Vijai Singh, was shot dead. Site plan prepared in the

said case was also got proved. It was also got elicited, that on the front

door of the house of appellant Munendra (A-1) I.O. had found gun fire shot

signs, which were fired from the rifle of Jasvir. Portion of the rifle bullet was

also recovered from a tin box from inside house of appellants in which,

bullet had pierced. In the cross FIR, it was alleged that Desh Pal had caught

hold of Smt. Atli, when she was shot dead. Site plan of the cross case was

got proved as Ext. Kha-2. Thus according to the defence case, at the date

and time of the incident, Ram Kishan, Jagdish, Udaivir entered into the

house of the appellants, armed with gun, rifle and lathi and had assaulted

his mother Smt. Atli inside the house and had shot her dead and in that

14

melee Desh Pal had sustained injuries because he had caught hold of the

deceased Smt. Atli. From the house of the appellants, injured Desh Pal was

taken with the help of lathi whereas cadaver of deceased Atli was dragged

and was thrown in front of the house of Mange. To save their persons

prosecution had cooked up a false case in connivance with the doctor and

the police in which they had falsely implicated the appellants. In nut shell,

therefore, the appellants had narrated a cross version about the incident.

As noted in the opening paragraph of this judgment, learned Trial

Judge after analysing prosecution and defence case had held the appellants

were guilty only under section 302/34 I.P.C. and, therefore, had sentenced

them with life imprisonment, which conviction and sentence is under

challenge in the instant appeal. However, the Trial Judge opined that the

appellants were not guilty of the charge under section 307/34 I.P.C. because

the injury to Hans Raj was not caused voluntarily but he had sustained

injury when shot was fired on Desh Pal and, therefore, acquitted accused

appellants of that crime under section 307/34 I.P.C.

The appeal was filed in the year 1982 and was got passed over time

and again. At last when nobody appeared to argue the appeal, we appoint

Sri Arun Kumar Srivastava as amicus curiae to argue the appeal. Later on,

he was joined by Sri G.P. Dixit, learned advocate. We have heard both of

them in support of the appeal. Sri Akhilesh Singh, learned Government

Advocate has been heard in opposition. We had reserved the judgment,

which is now being delivered.

Castigating the impugned judgment, appellants' counsel submitted

that the entire prosecution case is a bundle of lies and full of fabrication

and, therefore, cannot be considered to be credible and truthful. FIR is ante

timed and was later on cooked up. Dying declarations were fabricated and

are sham documents. Incident had not occurred as alleged by the

prosecution but happening of the incident was in a totally different manner,

which has been spelt out by the accused in their defence version. Deceased

was a named accused in the murder case of Smt. Atli, which was registered

same day at the same police station at 2.30 p.m. Perusal of autopsy report

15

of Smt. Atli, which was filed as defence paper/Exhibit clearly indicate that

the said deceased had sustained firearm injuries and had died because of

that. None of the dying declarations narrated correct version about the

incident and is the outcome of fabrication and manipulation by the doctor

and the police in conspiracy with the informant and hence does not inspire

any confidence. The first two witnesses examined by the prosecution P.W.1

and P.W.2 turned hostile and did not support the prosecution case at all.

P.W.2 was an injured witness, but he too had not supported the prosecution

case, which makes a deep inroad in the truthfulness of the prosecution

allegations, incisively harangued both the counsel. Conduct of Dr. S.C. Gupta

is condemnable as he had tried to bolster up the prosecution case by

charging money for medical examination in a government hospital, which

fact he had admitted in his cross examination. Although the police station

was adjacent to the hospital but the doctor had not cared to call the police

for recording of the dying declaration nor had summoned the Magistrate for

such a purpose. He fabricated the first dying declaration and kept it with

him for two weeks without any valid reason and when pushed against the

wall, furnished a totally bogus and false explanation for withholding such a

vital and important piece of material evidence with him and hence first D/D

is unworthy of any credence. Subsequent to the recording of that first D/D,

when I.O. had arrived in the hospital to record the statement of the injured

u/s 161 Cr.P.C., even then neither injured informed him that he had already

given a statement to the doctor nor the doctor had produced his recorded

D/D before the I.O. All this indicate that D/D was not in existence at all and

the same is a sham document, which was fabricated later on, just to lend

credence to the prosecution story. P.W.4 had not informed the I.O. that he

had recorded statement of injured. It was further submitted that no

certificate was appended by the doctor prior to recording of the dying

declaration that the deceased was in a fit state of mind to give the

statement. His condition was stated to be serious and he was advised to be

carried to Delhi, which fact also indicates that deceased was not in a fit

mental condition to give statement to the doctor. The entire dying

16

declaration is on a plain sheet of paper and it is evident from the necked eye

that signature on it was put much below after a long gap which indicates

that it was manufactured as the doctor had signed on it after slashing a

line. Time of starting of recording and when it was finished is not mentioned

but only 9 is written. Doctor had also not noted as to whether family

relatives of the deceased injured were present or not when he was

recording the dying declaration. It was, therefore, submitted that dying

declaration Ext. Ka-4 is fabricated and accused had challenged it as a sham

piece of evidence. Doctor P.W. 4 was so much interested in taking the sides

with the prosecution that although memo sent by him to the police station

existed on the record, he never cared to prove it nor the prosecution got it

elicited from him as to when and in what manner, he had sent it and not

waited for the police next door to arrive. Doctor had noted the injuries of

the deceased and injured in a private medico legal register after charging

fees. It was next submitted that 161 Cr.P.C. statements alleged to have been

recorded by the I.O. is also a fabrication and in fact I.O. never recorded the

same. Injured and the deceased were brought to the hospital by Naipal

Singh but none of the prosecution witnesses had stated that the said person

had accompanied the injured and the deceased to the hospital in the tractor

and hence presence of Naipal Singh in the hospital is suspect. Testimony of

P.W.3 on the said aspect of the matter is completely silent. The statement of

P.W. 2 that he was carried to the hospital by his brother Hardeva has been

proved by the informant P.W.3 also, as during his cross examination he had

admitted that Hardeva had also accompanied injured Hans Raj to the

hospital. It is further submitted that no explanation has been offered by the

prosecution witnesses nor any of the dying declaration gives an explanation

as to how and in what manner Smt. Atli was shot dead at the same time

and date and, therefore, none of the prosecution witnesses nor the dying

declarations are reliable and convincing as it all suppressed the real genesis

of the incident and the actual manner in which it had occurred. For this

submission, learned counsels had relied upon some of the Apex Court

decisions to which we will refer to in the later part of this judgment. Since

17

injured/deceased was conscious and was at all times in the company of his

family relatives and, therefore, all his statements(dying declarations) are

tutored and fabricated in connivance with the police and the doctor just to

save punishment from murdering Smt. Atli. Non explanation of injuries

sustained by Smt. Atli, who died in the same incident, is enough to discard

the entire prosecution story as being false and fabricated. The statement

given by the injured to the doctor in Delhi is the outcome of tutoring and

cannot be relied upon as the deceased/injured was conscious at all times

and could have been tutored, midway, while he was being transported to

the hospital and to Delhi. Injury sustained by the deceased/injured do not

support ocular version as situs of those injuries is incongruent vis-a- vis

medical evidences. Out of three, two of those injuries were caused from

point blank range on non-vital parts of the body- one on the wrist and other

on the ankle, and none of those injuries cumulatively or singularly were

sufficient to cause death and if vetted pragmatically it rules out any assault

with an intention to commit murder by three assailants. It is difficult to

perceive that three miscreants, armed with pistols will surround the

deceased to annihilate him and then two of them will cause injuries on right

wrist and left ankle with charring and blackening present. If, these injuries

are analysed in the proper prospective, at least two of the accused, who had

caused those injuries to the deceased on such non vital parts with the body

from closest possible range, they cannot be said to carry an intention to

commit murder. It was further submitted that first informant is not a truthful

witness and no credence can be attached to his depositions. He is related,

partisan, inimical and therefore, on his solitary testimony appellant should

not be held guilty, especially when prosecution has failed to offer any

explanation regarding shooting down of appellant's mother in the same

incident. It was further argued that Munsif had permitted one month time to

the accused persons to remove the passage door fixed by them and

therefore, there was no occasion for the prosecution side to block it by

erecting a brick wall very next day of the judgement and hence it was the

prosecution side who had motive to start the assault and it was the

18

prosecution side, who had created the mischief. Neither informant nor his

brother Jagdish were innocent and simple persons but they had criminal

proclivities and background and were involved in many criminal cases, which

fact is clear from the cross examination of the informant P.W.3, wherein he

has admitted that Jasvir, real brother of deceased, was incarcerated in jail

and that police had searched his house twice for the reason that he had

concealed a stolen gun. He also admitted that along with Raja Singh, he

was booked u/s 107/117 Cr.P.C. and was incarcerated in jail for a month.

He had also admitted that his brother Jagdish had remained in penitentiary

for one and quarter months. He has also admitted that his son Udaiveer was

also jailed along with him under section 107/117 Cr.P.C. Thus, the argument,

which has been raised is that the prosecution side was prone to commit

crime and therefore, the defence theory that they shot dead Smt. Atli inside

her house is quite probable when analysed on the anvil of preponderance of

probabilities. Learned counsel had referred to the post mortem examination

report of Smt. Atli arguendo their submissions to which we refer herein

below:-

“ 1. Gunshot wound of entry an interior lateral side of left

shoulder region midline …........ 1/4” x 1/4” x connecting to the

injury no. 2, the margins were lacerated ….......

2. Wound of gunshot of exit lower end of angle of …..... part on

left axilla lacerated 1/2” x 1/2” x connecting with injury no. 1.

3. Lacerated wound gunshot of exit on the middle of scapula, left

side 2” x 3/4” x muscle deep, the margins of the wound lacerated

…..... marrow.

4. Gunshot wound of entrance 1” below …..... of the sternum

epigastric region 1/2” x 1/2” x abdomen cavity deep, the margins

…..... inverted.

5. Gunshot wound of exit …... below the middle ….. right rib …..

6. Deep abrasion at 5 'O'clock position right nipple 1/2” x 1/2”

…... left nipple.”

Primarily on the above submissions, it was contended that the solitary

19

prosecution witness is not reliable and learned trial Judge committed a

manifest error of law in accepting prosecution case. He has totally

misguided himself in relying upon oral testimonies as well as dying

declarations. Appellant's appeal be allowed and they be set at liberty

concludingly submitted learned amicus curaie as well as Sri Dixit, learned

counsel.

Arguing conversely, Sri Akhilesh Singh, learned Government Advocate

submitted that prosecution case is consistent right from the very beginning

that it were the appellants, who had caused injuries to the deceased as well

as injured Hans Raj and therefore, they cannot escape from their offence

liability. Admittedly, the incident had occurred during the day time and

presence of the informant and the deceased during the incident is not in

doubt as even according to the defence version they had participated in the

incident. It was further submitted that the date and time of the incident

from the both the versions is also proved as none of the two sides are at

discord on the said issues. During the incident gun shots were fired is also

established. It was also established that the deceased Desh Pal and injured

Hans Raj had sustained injuries in the same incident and therefore,

prosecution has established his case beyond all reasonable doubt. Presence

of appellants (A-1) and (A-2) during the incident is also proved by reliable

evidences. Since the prosecution story is consistent and corroborated by

medical evidence, it cannot be discarded and resultantly the appellant's

appeal is devoid merits and deserves to be dismissed submitted learned

government advocate.

We have considered the arguments raised by both the sides and have

pondered over the rival submissions in the light of tendered evidences. A

critical examination of the entire evidences and attending the circumstances

indicates that on some vital issues about the incident both the parties are

not at variance with each other and therefore, those aspects are established

beyond any reasonable manner of doubt and ab- initio we register them.

Firstly, presence of informant and the deceased during the incident is

admitted. Secondly, in the incident fire arm weapons were used. Thirdly that

20

during the incident firearms injuries were sustained by Desh Pal and Hans

Raj. Fourthly, that there is a cross version lodged from the appellant’s side

against informant, deceased and others regarding murder of Smt. Atli, which

trial was also pending in the same court as a cross case. Fifthly date, time

and place of the incident in the cross version is the same as alleged by the

prosecution. Sixthly, murder of Smt. Atli same day has not been disputed by

the prosecution side and hence is an admitted fact. In the back drop of

above non disputed facts it is evident that happening of the incident is

admitted to both the sides, who have got their own versions regarding the

manner in which incident had occurred. Thus what remains to be

adjudicated firstly is, as to whether story of prosecution side is correct or

the defence version is probabilised, when tested on the anvil of

preponderance of probabilities, and secondly that if the prosecution does

not offer any explanation regarding shooting down Smt. Atli dead, what will

be it’s effect? The supplementary question which automatically arises for

determination is, because of non-explanation of injuries from the side of the

accused, whether prosecution witnesses are reliable or not or whether they

had suppressed the real genesis of the incident and actual manner of

assault.

Law relating to none explanation of the injuries from the side of the

accused has always attracted attention of the courts, since decades, and has

been subjected to many judicial decisions. It no longer remains res Integra

and has achieved a certain degree of trite law. To recapitulate them briefly

we aptly and benefittigly refer to some of the apex court decisions on the

said aspect. In Lakshmi Singh and others v. State of Bihar:AIR 1976 SC

2263 it has been held by the apex court as under:-

“11. PW. 8Dr. S. P. Jaiswal who had examined Brahmdeo deceased and

had conducted the post-mortem of the deceased had also examined the

accused Dasrath Singh, whom he identified in the Court, on April 22, 1966

and found the following injuries on his person :

"1. Bruise 3" x 1/2" on the dorsal part of the right forearm about in the

middle and there was compound fracture of the fibula bone about in the

21

middle.

2. Incised wound 1" x 2 m. m. x skin subcutaneous deep on the lateral part

of the left upper arm, near the shoulder joint.

3. Punctured wound1/2" x 2 m. m. x 4 m. m on the lateral side of the left

thigh about 5 inches below the hip joint."

According to the Doctor injury No.1 was grievous in nature as it resulted in

compound fractureof the fibula bone. The other two injuries were also

serious injuries which had been inflicted by a sharp-cutting weapon. Having

regard to the circumstances of the case there can be no doubt that Dasrath

Singh must have received these injuries in the course of the assault,

because it has not been suggested or contended that the injuries could be

self-inflicted nor it is believable. In these circumstances, therefore, it was

the bounded duty of the prosecution to give a reasonable explanation for

the injuries sustained by the accused Dasrath Singh in the course of the

occurrence. Not only the prosecution has given no explanation, but some of

the witnesses have made a clear statement that they did not see any

injuries on the person of the accused. Indeed it the eye-witnesses could

have given such graphic details regarding the assault on the two deceased

and Dasain Singh and yet they deliberately suppressed the injuries on the

person of the accused, this is a most importance circumstance to discredit

the entire prosecution case. It is well settled that fouler the crime, higher

the proof, and hence in a murder case where one of the accused is proved

to have sustained injuries in the course of the same occurrence, the non-

explanation of such injuries by the prosecution is a manifest defect in the

prosecution case and shows that the origin and genesis of the occurrence

had been deliberately suppressed which leads to the irresistible conclusion

that the prosecution has not come out with a true version of the

occurrence. This matter was argued before the High Court and we are

constrained to observe that the learned Judges without appreciating the

ratio of this Court in Mohar Rai v. State of Bihar, (1968) 3 SCR 525 = (AIR

1968 SC 1281) tried to brush it aside on most untenable grounds. The

question whether the Investigating Officer was informed about the injuries

22

is wholly irrelevant to the issue, particularly when the very Doctor who

examined one of the deceased and the prosecution witnesses is the person

who examined the appellant Dasarath Singh also. In the case referred to

above, this Court clearly observed as follows :

"The trial Court as well as the High Court wholly ignored the significance of

the injuries found on the appellants. Mohar Rai had sustained as many as

13 injuries and Bharath Rai 14. We get it from the evidence of P.W.15 that

he noticed injuries on the person of Mohar Rai when he was produced

before him immediately after the occurrence. Therefore the version of the

appellants that they sustained injuries at the time of the occurrence is

highly probabilised. Under these circumstances the prosecution had a duty

to explain those injuries ......... In our judgement the failure of the

prosecution to offer any explanation in that regard shows that evidence of

the prosecution witnesses relating to the incident is not true or at any rate

not wholly true. Further those injuries probabilities the plea taken by the

appellants."

This Court clearly pointed out that where the prosecution fails to explain the

injuries on the accused, two results follow : (1) that the evidence of the

prosecution witnesses is untrue; and (2) that the injuries probabilise the

plea taken by the present case has not correctly applied the principles laid

down by this Court in the decision referred to above. In some of the recent

cases, the same principle was laid down. In Puran Singh v. The State of

Punjab, Criminal Appeal No. 266 of 1971 decided on April 25, 1975 =

(reported in AIR 1975 SC 1674) which was also a murder case, this Court,

while following an earlier case, observed as follows :

"In State of Gujarat v. Bai Fatima (Criminal Appeal No. 67 of 1971 decided

on March 19, 1975) = (reported in AIR 1975 SC 1478) one of us (Untwalia,

J.,) speaking for the Court, observed as follows :

"In a situation like this when the prosecution fails to explain the injuries on

the person of an accused depending on the facts of each case, any of the

three results may follow :

(1) That the accused had inflicted the injuries on the members of the

23

prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the

charge against the accused cannot be held to have been proved beyond

reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four corners of either of

the first two principles laid down by this judgement. In the instant case,

either the accused were fully justified in causing the death of the deceased

and were protected by the right of private defence or that if the prosecution

does not explain the injuries on the person of the deceased the entire

prosecution case is doubtful and the genesis of the occurrence is shrouded

in deep mystery, which is sufficient to demolish the entire prosecution case."

It seems to us that in a murder case, the non-explanation of the injuries

sustained by the accused at about the time of the occurrence or in the

course of altercation is a very important circumstance from which the Court

can draw the following inferences :

(1) That the prosecution has suppressed the genesis and the origin of the

occurrence and has thus not presented the true version.

(2) that the witnesses who have denied the presence of the injuries on the

person of the accused are lying on a most material point and therefore their

evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the

person of the accused it is rendered probable so as to throw doubt on the

prosecution case.

The omission on the part of the prosecution to explain the injuries on the

person of the accused assumes much greater importance where the

evidence consists of interested or inimical witnesses or where the defence

gives a version which competes in probability with that of the prosecution

one. In the instant case, when it is held, as it must be, that the appellant

Dasrath Singh received serious injuries which have not been explained by

the prosecution, then it will be difficult for the Court to rely on the evidence

of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have

24

lied by stating that they did not see any injuries on the person of the

accused. Thus neither the Sessions Judge nor the High Court appears to

have given due consideration to this important lacuna or infirmity appearing

in the prosecution case. We must hasten to add that as held by this Court in

State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on

March 19, 1975 : (Reported in AIR 1975 SC 1478) there may be cases

where the non-explanation of the injuries by the prosecution may not affect

the prosecution case. This principle would obviously apply to cases where

the injuries sustained by the accused are minor and superficial or where the

evidence is so clear and cogent, so independent and disinterested, so

probable, consistent and credit-worthy, that it far outweighs the effect of

the omission on the part of the prosecution to explain the injuries. The

present, however, is certainly not such a case, and the High Court was,

therefore, in error in brushing aside this serious infirmity in the prosecution

case on unconvincing premises.”

The above view has been affirmed by the apex court since then in

innumerable judgements. In Surendra and Anr. v. State of

Maharashtra:AIR 2006 SC 3063 it has been held by the apex court as

under :-

“26. We are not unmindful of the fact that in all circumstances injuries on

the person of the accused need not be explained but a different standard

would be applied in a case where a specific plea of right of private defence

has been raised. It may be true that in the event prosecution discharges its

primary burden of proof, the onus would shift on the accused but the same

would not mean that the burden can be discharged only by examining

defence witnesses.

27. The learned courts below committed a manifest error of law in opining

that the Appellants had not discharged the initial burden which is cast on

them. Even such a plea need not be specifically raised. The Courts may only

see as to whether the plea of exercise of private defence was probable in

the facts and circumstances of the case.

In State of Rajasthan versus Rajendra Singh:1998 CR.L.J

25

3628, under somewhat identical facts, it has been held by the apex court

as under:-

“8. All the witnesses had categorically stated that they had not beaten

the respondent and seen any injury on the accused. But the evidence

establishes that the respondent had two contused lacerated wounds : one

on his face and one on his head. The injuries were bleeding injuries and

visible and yet the witnesses stated that they had not seen any injury on

the person of the respondent. That would mean that neither the family

members of Harveer nor the two independent witnesses were willing to give

a true version and had tried to suppress the part played by some of them

which had resulted in causing injuries to the respondent. The High Court

was, therefore, justified in not placing reliance on their evidence.”

Thus from the above exposition of law, which has been reiterated

time and again by the apex court it is discernible that where prosecution

suppresses genesis of the incident or it fails to offer any explanation of the

injuries sustained by the accused side, which were neither insignificant nor

minor nor could have been self-suffered, then, in that eventuality, the only

inescapable conclusion which can be drawn is that prosecution has failed to

discharge it’s initial burden of proof and was un-successful in bringing

accused guilt home. The golden rule of criminal jurisprudence is that it is for

the prosecution to establish accused guilt beyond all reasonable doubts by

tendering admissible, reliable and confidence inspiring evidences which

should be compatible only with one hypothesis of accused being guilty of

the crime and no other. In cases where any reasonable doubt creeps in, it is

better to err in favour of accused than to adhere pedantically to the

prosecution story. Here we would hasten to add that every doubt,

howsoever fanciful or insignificant it may be, will not come to the rescue of

the accused but the doubt has to be reasonable and pragmatic view of a

prudent man, which should be capable of shaking the veracity of the

prosecution edifice. Here we would like to recollect the words of the apex

court in Sucha Singh versus State of Punjab: AIR 2003 SC 3617 wherein

apex court has observed as under:-

26

“20.Exaggerated devotion to the rule of benefit of doubt must not

nurture fanciful doubts or lingering suspicion and thereby destroy social

defence. Justice cannot be made sterile on the plea that it is better to let

hundred guilty escape than punish an innocent. Letting guilty escape is not

doing justice according to law. (See Gurbachan Singh v. Satpal Singh and

others (AIR 1990 SC 209). Prosecution is not required to meet any and

every hypothesis put forward by the accused (See State of U.P. v. Ashok

Kumar Srivastava (AIR 1992 SC 840). A reasonable doubt is not an

imaginary, trivial or merely possible doubt, but a fair doubt based upon

reason and common sense. It must grow out of the evidence in the case. If

a case is proved perfectly, it is argued that it is artificial; if a case has some

flaws inevitable because human beings are prone to err, it is argued that it

is too imperfect. One wonders whether in the meticulous hypersensitivity to

eliminate a rare innocent from being punished, many guilty persons must be

allowed to escape. Proof beyond reasonable doubt is a guideline, not a

fetish. (See Inder Singh and another v. State (Delhi Admn.) (AIR 1978 SC

1091). Vague hunches cannot take place of judicial evaluation. "A Judge

does not preside over a criminal trial, merely to see that no innocent man is

punished. A Judge also presides to see that a guilty man, does not escape.

Both are public duties." (Per Viscount Simen in Stirland v. Director of Public

Prosecutor (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR

1988 SC 1998). Doubts would be called reasonable if they are free from a

zest for abstract speculation. Law cannot afford any favourite other than

truth.”

Analysing facts of the present appeal on the anvil of above exposition

of law with all supplementary submissions, in the very beginning, we find

that FIR, Ext. Ka-1, seems to be ante timed and cooked up. This conclusion

can be arrived at by scanning prosecution documents itself and we take

stock of those facts. It is admitted case of prosecution that injured Hans Raj

was examined in the hospital at 9.15 a.m. by doctor PW4. After examination

doctor had referred to him to Delhi for management of his injuries. After this

doctor had dispatched a note to the police station about it which exist on

27

the trial court record and reads as under-

“Mr. Station Officer

Shamli,Mu.Nagar.

Mr.

One patient whose name Sri Desh pal s/o Sri Jagdish resident of village

Bhaiswal Police station Shamli district Mu. Nagar who has been brought by

Sri Naipal Singh he has gunshot wound on chest. Case has been referred.

-One another patient whose name Hansraj s/o Dharmi resident of

Bhaiswal also had injury in ankle left leg. He has been sent to

Delhi.

-For information sent

(S.C.Gupta)

Medical Officer

Govt. Hospital Shamli.

District Muzzafarnagar,U.P.”

A reference of this note is found in the FIR registration GD entry. How

come then that the FIR was registered at 8.45 a.m., half an hour before

examination of Hans Raj. This is possible only in two circumstances. Firstly

that either FIR is ante timed or doctors had fabricated medical examination

report of injured Hans Raj. This castes a serious doubt on the veracity of the

prosecution version. Learned trial Judge while conducting the trial and while

examining prosecution case completely ignored this aspect and had not

dealt with it all. Assailing of FIR as a sham document by the accused

appellant is therefore not without force and has some substance in it.

Consequently the earliest and very first prosecution version is hazy and

doubtful.

Next we find that the testimonies of three fact witnesses suffer from

serious infirmities and do not inspire any confidence. So far as Ilam P.W.1 is

concerned he had turned hostile and did not support prosecution case at all.

Prosecutor also failed to elicit any corroborative evidence from him. He had

completely denied witnessing any incident, as alleged by the prosecution, in

his examination-in-chief. The only fact-in- issue admitted by him is the

28

relationship between Desh Pal, Jagdish and Ram Kishan. He deposed that

he very well knew the accused, who were his co-villagers and he had heard

that Desh Pal was murdered but does not know where he was done to

death. When cross examined by the prosecution he had deposed that he

does not know whether the I.O. had recorded his statement or not. He has

entirely denied his 161 Cr.P.C. statement and also negated public

prosecutor’s suggestion that he had colluded with the accused and

therefore, had given false evidence.

Injured witness Hans Raj P.W.2, too, turned hostile, but on some

aspects had supported the prosecution case, as he had deposed that at 7

a.m., on the date of the incident, he had received gunshot injury when it

was fog and while he was going to attend natures call. Probably the fire was

made from village abadi side. Thus he had admitted time and date of the

incident and factum of his sustaining gun- shot injury. Besides above he had

completely resiled from his earlier statement u/s 161 of the Code and had

testified that in his witnessing nobody had murdered Desh Pal and when he

had sustained the injury, he was all alone, one furlong away from down

town village and could not spot the shooter. He thus denied presence of the

informant and other witnesses at the spot. When cross examined by the

public prosecutor regarding his 161 Cr.P.C. statement he denied having

made any such statement to the I.O, but also failed to offer any reason how

his such a statement was recorded. He too denied public prosecutor’s

suggestion that he had sided with the accused and therefore was deposing

falsely. He, further refuted prosecutor’s suggestion that he had sustained

injury during the incident in front of house of Baljit Chamar from the fires

made by an appellant from his pistol, when they had shot at Desh Pal. PW2

further stated that his brother Hardeva had brought him to Shamli Hospital

for his medical treatment and it was his another brother Mora, who had

brought him from the place where he had sustained the injury. Thus he

denied having gone to the hospital on the tractor of the informant. He had

also deposed that it was Hardeva who had taken him to Delhi for his

medical treatment. He admitted that he himself had not lodged any FIR

29

regarding sustaining of gunshot injury and did not know whether Hardeva

had lodged any such report or not. His further evidence is that he had

informed the doctors, at both the places, that when he was returning after

attending nature's call then he had received injury in his leg. He expressed

his ignorance about filing of an affidavit in favour of the accused. Thus

regarding factum of actual assault he had not supported the prosecution

case at all. From the supportive evidence of informant P.W.3, there remains

little doubt that Hardeva had accompanied this injured to the hospital.

Prosecutor had not specifically asked 161 Cr.P.C. statement from him so as

to contradict him in tune with proviso to section 162 of the Code read with

section 145 of the Evidence Act and therefore, his testimony does not lend

any credence to the prosecution case regarding murder of the deceased by

the appellants. It is cardinal rule of evidence that if a witness is to be

contradicted from his previous statement, his attention has to be drawn to

the said previous statement, if already reduced in writing, and he has to be

asked specifically about it. Since that having not been done by the public

prosecutor, we cannot give any latitude to the prosecution in that respect

and confer any benefit to it.

What is strikingly significant to note is that neither of the two

witnesses PW1& PW2, stated anything regarding death of Smt. Atli and

thus her murder remained to be a mystery from their testimonies, which is

of no help to us in deciphering the truth and separating grain from the chaff.

Now turning towards the evidence of star solitary witness of the

prosecution, informant P.W.3.From his depositions it is evident that he is

related, partisan, and inimical witness but for those reasons alone his

evidence cannot be discarded nor can he be treated to be a untruthful

witness. However his evidence has to be scanned with caution and

circumspection as had been mandated by the apex court in innumerable

decisions and therefore we have vetted his evidence with myopic scrutiny.

At the outset it comes to the light that he is a resident of different

place than his brother Jagdish and deceased Desh Pal and he also seems to

be chance witness. It is his categorical deposition that-

30

“Jagdish has 50 bighas of land. I live separately from Jagdish. My

house is opposite side of water channel towards west of village plateau in a

corner. From the house of Baljit Chamar towards west of the plateau are the

houses of Chamar and Gararias. In front of their houses there is a vacant

land and then there is a water channel. After leaving some open land there

is a johad. After johad there are three other premises and thereafter I have

my house. In between johad and first premises is also some vacant land. In

front of my house is plateau and towards west is jungle. My house is far

away from Jagdish house at a distance of 150 yards.”

Thus what is clear is that this witness is not a resident of same

locality. His presence at the spot was denied by injured witness Hans Raj,

who had deposed that he was all alone when he sustained injury in his leg

as has already been mentioned herein above. PW 3 also admits that he had

seen the incident while he was proceeding to attend nature’s call and thus

he is also a chance witness. Regarding civil suit and blocking of the passage

door he had reiterated same facts which have already been described herein

above, while unfolding the prosecution story. He had admitted that house of

Manga is three houses away from house of Baljit towards east. He further

stated that in his presence corpse of Smt.Atli was not recovered from the

front of house of Manga but the same day, in the evening, he had come to

know that Smt.Atli was also murdered. In the same breath he had stated

that he had heard that corpse of Smt.Atli was recovered from near the

house of Manga Bhangi. He has further deposed that he had carried injured

in a tractor to the hospital and had reached there in half an hour but very

significantly had not mentioned the name of Naipal Singh as his companion

in the tractor, whose name find mentioned in the injury reports of the two

injured. He stated that police station is at a distance of two furlongs from

the hospital.

He further admitted that Desh Pal was conscious all through the way

and was conversing. Parents of Desh Pal had also accompanied him. From

the police station he had returned to the hospital along with the I.O. and

waited there for 5-7 minutes. In the hospital I.O. had recorded statements

31

of both the injured and thereafter when they left for Delhi, informant

returned to his village. He confirmed that he was informed regarding

Smt.Atli’s murder same day of the incident at 4 p.m., in which crime he

along with his son Udaiveer, brother Jagdish, deceased Desh Pal and Jasvir

were being prosecuted in the same court. Thus this witness had suppressed

factum of murder of Smt. Atli same day and the manner in which she was

done to death. He is not an injured witness, secondly his name does not

find mention in the hospital record also as the person who had brought the

injured to the hospital and on the contrary name of one Naipal Singh is

mentioned, thirdly, neither from P.W.1 nor from P.W.2, prosecutor got it

elicited that informant was also present at the spot. So much so that P.W.2

Hans Raj had denied his presence by making a categorical assertion that

when he had sustained the injury then nobody was present along with him,

fourthly that FIR lodged by him seems to be ante timed, fifthly he is a

resident of a different place and he is also a chance witness and sixthly

injured PW2 denied that informant had carried him to the hospital in the

tractor when he stated that it was Hardeva, who had brought him to the

hospital. Thus testimonies of PW3 is not confidence inspiring. He is an

accused in the cross version and therefore on his solitary evidence without

any corroboration it is difficult to act. In our view we further find support

from the fact that although Brahm Singh, who was none else but the

maternal uncle of the deceased, who is also alleged to be present with the

deceased at the time of the incident had not come forward to support claim

of PW3. No acceptable reason has been spelt out for his non examination

and hence what is writ large on the record is that even close relative is not

ready to lend credence to the prosecution version. Brahm Singh would have

been the star prosecution witness to narrate the real truth but the courts

are robbed off of his supportive evidence.

Another significant reason for doubting evidence of PW3 is that his

ocular version seems to be inconsistent with medical evidences and injuries

sustained by the deceased. According to his deposition injured was rounded

up by all the three assailants, who shot at him from a very close range,

32

which fact is also evident from the nature of injuries sustained by the

deceased. However, two of the injuries sustained by the injured/deceased

were on most non vital parts of his body, on the wrist and on the ankle

joint. Only one injury is on his chest. We have not been able to appreciate

that in a murderous assault, with intention to cause death, from such point

blank rage shooting, two murderers will shoot the injured on such non vital

parts with out repeating it. If true , this will negate prosecution allegations

that all the accused had an intention to commit murder. How and in what

manner deceased had sustained injuries on wrist and ankle joint and how

Hans Raj sustained injury on his leg, when he was not near by the deceased

are all very unconvincing aspects of the whole occurrence. In the site plan

Hans Raj was shown to be standing at place 'C', which is quite far off at a

good distance from the site, where deceased was shot at from point blank

range. I.O. deliberately eschewed mentioning distances between the place

‘A’ and ‘C’. In our view Hans Raj could not have suffered injury in the

manner alleged by the prosecution and he seems to have received it in

some other manner. It transpires that, probably, because of aforesaid reason

that he (Hans Raj) had absolved appellants of the crime.

Another important aspect which remains unexplained is that in the

site plan no place has been shown by the I.O. from where the accused

persons had fired at the deceased. This seems to be so because the accused

persons were in the closest proximity with the deceased, which possibility is

very imminent looking to the nature of the injuries. In such fact scenario

damage to the pedestal by gunshot injuries fired by the accused also does

not inspire any confidence as this could not have occurred in the manner

alleged by the prosecution and seems to have caused in a different manner.

Another unconvincing aspect denting the credibility of informant's

testimony is, that in both the injury reports of Hans Raj as well as Deshraj

presence of informant is not recorded. Exhibits Ka-2 and Ka-3 prepared by

Doctor PW4, records that both the injured were brought to him by one

Naipal Singh son of Raghuvir. None of fact witnesses nor even the informant

has named him (Naipal Singh) as one of the persons who had accompanied

33

him and the injured in the tractor to the hospital. We do not know who this

Naipal Singh is. In absence of any evidence in this respect we are not

inclined to accept the prosecution story pedantically, without examining it

with close quarters that it was informant who had brought the injured to the

hospital. Thus from on an overall analysis we find informant PW3 to be an

unreliable witness.

Now coming to the most significant aspect of the appeal. None of the

prosecution fact witnesses, especially the informant PW3, have explained

how and in what manner Smt. Atli was murdered. He (PW3) had not stated

even a word as to how and in what manner she was shot dead. He offered

an unconvincing and evasive answer that he was informed about her murder

at 4 p.m. on the date of the incident itself, while admitting the fact that he

was one of the named accused in her murder case as a cross version, which

was pending in the same court. Not even one sentence of explanation was

tendered by the informant regarding her murder nor he had stated any

other manner in which she was done to death. It would be appropriate to

mention transliteration of depositions of the informant PW3 in this respect,

which are as follows:-

“One the day of the incident itself at 4 in the evening I had come to

know that mother of Munendra accused Smt. Atli was done to death same

day in day. Case of that murder is going on against me, my son Udaiveer,

Jagdish and his son Desh Pal and Jasveer.”

(Page 5, PW3)

“House of Manga is three houses away from the house of Baljit towards

east. In my presence near the house of Manga corpse of Atli was not

recovered. That day in the evening I had come to know that Atli had been

murdered. I had heard that corpse of Smt. Atli was recovered near the

house of Manga.”

( Page 6 last/Page7 top)

“It is wrong to say that same day at 7 a.m. , my son Udaiveer, Jagdish and

his son Desh Pal and Jasveer armed with rifle, pistol and lathi went to the

34

house of Munendra and there her mother Smt. Atli who was sitting in Aagan

was caught hold of by Desh Pal and Jasveer instigated that she be

murdered and Jasveer fired upon her and other people fired upon her with

their Kattas. It is also wrong to say that one of shots hit Desh pal as well. It

is also wrong to say that we had carried Smt. Atli and injured Desh Pal firing

because of which Hans Raj also sustained injury by pellets. It is also wrong

to say that we have fabricated this story in connivance with the police and

made our relatives witnesses.”

(Pages 13/14 of PW3)

Thus the impression which we gather from his evidence is that

he(informant) is deliberately and consciously trying to suppress actual

incident and manner of assault and death of Smt.Atli. Defence exhibits, copy

of GD Ext. Kha -2, Site plan, Ext. Kha 2, Carbon copy post mortem

examination report of Smt. Atli, Ext. Kha-3 and copy of Charge sheet, Ext.

Kha-4,all proved and exhibited by PW4,PW15 and DW1, unerringly, without

any doubt, established that she was murdered by gun shots. Informant

himself was a named accused in that murder case and therefore, he is

definitely trying to suppress the manner in which Smt. Atali had sustained

gunshot injuries and had died. Accused has pleaded a cross version

regarding murder of Smt.Atli, wherein they had alleged that she was shot

dead same time, same day in the same village by the informant, deceased

and their sons, and hence it was incumbent upon the informant/

prosecution to explain that murder as to who and in what manner she was

murdered. In absence of any explanatory reasons coming forth from the

prosecution witnesses, we have no other alternative but to accept that

whatever defence had pleaded may be true or in any event prosecution

witnesses are not stating actual truth and are trying to conceal real genesis

of the incident .Once prosecution is not coming out with true version we

cannot rely upon it. Opining thus, we are not at all hesitant to observe that

the informant, P.W.3, does not seems to be a wholly truthful and reliable

witness and hence, on his testimonies, no implicit reliance can be placed.

Tested on the anvil of preponderance of probabilities, at least this much can

35

be said that genesis of the incident stated by the prosecution does not

inspire confidence whereas defence of the accused on that score may be

true and thereby accused has succeeded in creating an inroad in the

prosecution version, the benefit of which they are entitled to reap.

Adverting to the three dying declarations, on which learned trial judge

has placed heavy reliance as supporting and corroborating evidences, we

find them suffering from many vices but first of all a quick resurrection of

law relating to the dying declarations needs to be looked into. A dying

declaration is just like any other piece of evidence and can be accepted or

discarded in the same manner as any other oral or documentary evidence. It

does not stand on a better or higher footing than oral testimonies of a

witnesses. If it is found to be un-tutored, unembellished, reliably

documented in the words of the dying man, at the earliest opportunity and

does not suffer from vices of failing memory or critical condition of the

deceased then, even without corroboration, it is sufficient for holding an

accused guilty. Since admissibility of dying declaration is an exception to the

rule of hearsay evidence it should be approached by the courts very

cautiously, in the given facts and surrounding circumstances, especially

because it is seldom made in the immediate presence of the accused who

also does not have any opportunity to test the veracity of the maker of such

a statement through cross examination. It is because of these reasons that

the apex court has to dilate and deliberate on these facets of law, succinctly

and lucidly, in Khushal Rao v. State of Bombay: AIR 1958 SC 22

decades ago. Hon’ble Supreme court has lucidly adumbrated in that decision

some guide lines for acceptability of dying declarations in the following

words:-

“16. On a review of the relevant provisions of the Evidence Act and of the

decided cases in the different High Courts in India and in this Court, we

have come to the conclusion, in agreement with the opinion of the Full

Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down

as an absolute rule of law that a dying declaration cannot form the sole

basis of conviction unless it is corroborated;

36

(2) that each case must be determined on its own facts keeping in view the

circumstances in which the dying declaration was made; (a) that it cannot

be laid down as a general proposition that a dying declaration is a weaker

kind of evidence that other pieces of evidence; (4) that a dying declaration

stands on the same footing as another piece of evidence and has to be

judged in the light of surrounding circumstances and with reference to the

principles governing the weighing of evidence; (5) that a dying declaration

which has been recorded by a competent magistrate in the proper manner,

that is to say, in the form of questions and answers, and, as for as

practicable, in the words of the maker of the declaration, stands on a much

higher footing than a dying declaration which depends upon oral testimony

which may suffer from all the infirmities of human memory and human

character, and (6) that in order to test the reliability of a dying declaration,

the Court has to keep in view, the circumstances like the opportunity of the

lying man for observation, for example, whether there was sufficient light if

the crime was committed at night; whether the capacity of the man to

remember the facts stated, had not been impaired at the time he was

making the statement, by circumstances beyond his control; that the

statement has been consistent throughout if he had several opportunities of

making a dying declaration apart from the official record of it; and that the

statement had been made at the earliest opportunity and was not the result

of tutoring by interested parties.

17. Hence, in order to pass the test of reliability, a dying declaration has to

be subjected to a very close scrutiny, keeping in view the fact that the

statement has been made in the absence of the accused who had no

opportunity of testing the veracity of the statement by cross-examination.

But once, the Court has come to the conclusion that the dying declaration

was the truthful version as to the circumstances of the death and the

assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the dying declaration in all

its aspects, and testing its veracity, has come to the conclusion that it is not

37

reliable by itself, and that it suffers from an infirmity, then without

corroboration it cannot form the basis of a conviction. Thus, the necessity

for corroboration arises not from any inherent weakness of a dying

declaration as a piece of evidence, as held in some of the reported cases,

but from the fact that the Court, in a given case, has come to the conclusion

that particular dying declaration was not free from the infirmities, referred

to above or from such other infirmities as may be disclosed in evidence in

that case.”

Again in a full Bench decision in Thurukanni Pompiah and another v.

State of Mysore:AIR 1965 SC 939 apex court, while disbelieving the

dying declaration as truthful piece of evidence, on the facts and

circumstances of that case, was pleased to observe as under:-

“9. Under cl. (1) of S. 32 of the Indian Evidence Act, 1872, a statement

made by a person who is dead, as to the cause of his death or as to any of

the circumstances of the transaction which resulted in his death is a

relevant fact in cases in which the cause of that person's death comes into

question, and such a statement is relevant whether the person who made it

was or was not, at the time when it was made, under expectation of death,

and whatever may be the nature of the proceeding in which the cause of his

death comes into question. The dying declaration of Eranna is, therefore,

relevant and material evidence in the case. A truthful and reliable dying

declaration may form the sole basis of conviction, even though it is not

corroborated. But the Court must be satisfied that the declaration is truthful.

The reliability of the declaration should be subjected to a close scrutiny,

considering that it was made in the absence of the accused who had no

opportunity to test its veracity by cross-examination. If Court finds that the

declaration is not wholly reliable and a material and integral portion of the

deceased's version of the entire occurrence is untrue, the Court may, in all

the circumstances of the case, consider it unsafe to convict the accused on

the basis of the declaration alone without further corroboration.”

In yet another decision Harbans Singh versus State of

Punjab :AIR 1962 SC 439 it has been observed by the apex court as

38

under:-

“18. In view of this latest pronouncement of this Court - which it should

be stated in fairness to the Trial Judge was made long after he gave his

judgment - it must be held that it is neither a rule of law nor of prudence

that a dying declaration requires to be corroborated by other evidence

before a conviction can be based thereon. The evidence furnished by the

dying declaration must be considered by the Judge, just as the evidence of

any witness, though undoubtedly some special considerations arise in the

assessment of dying declaration which do not arise in the case of assessing

the value of a statement made in court by a person claiming to be a witness

of the occurrence. In the first place, the Court has to make sure as to what

the statement of the dead man actually was. This itself is often a difficult

task, specially where the statement had not been put into writing. In the

second place, the court has to be certain about the identity of the persons

named in the dying declarations - a difficulty which does not arise where a

person gives his depositions in court and identifies the person who is

present in court as the person whom he has named. Other special

considerations which arise in assessing the value of dying declarations have

been mentioned by this Court in 1958 SCR 552; (AIR 1958 SC 22) and need

not be repeated here.”

Now applying the guide lines to facts and circumstances of the

present appeal, we at the very outset, record that none of the alleged three

dying declarations mentions about the murder of deceased Smt. Atli and her

sustaining gunshot wounds in the same incident and thus all the three dying

declarations suffer from the same criticism as that of PW3 and therefore, for

concealing injury to the defence side it becomes unworthy of credence.

For separate analysis of each one of them we now turn towards the

first dying declaration to check it’s authenticity and in that endeavour we

find that the same has been proved as Exhibit Ka-4 by Dr. S.C. Gupta, P.W.4.

The said dying declaration does not inspire any confidence and seems to be

an outcome of fabrication at a later stage. Our reasons are as under-

Doctor,PW4 had not admitted the injured patient for the management

39

of his injuries in his hospital and therefore had not made any entry in the

admission register. He had examined both the injured as private medico

legal cases and has admitted that he had charged money for examining

them. Firstly we do not know how much money he had charged as he had

not given any receipt nor prosecution has tendered any such receipt and

secondly why he examined injured as private medico legal case when police

station Shamli was next door, according to his own statement, which

conduct of the doctor does not inspire any confidence. According to his own

statement police station Shamli was adjacent to the hospital having a

common boundary wall. He had not informed the police next door

immediately nor had made arrangements for a Tahsildar Magistrate to

record dying declaration. Further he had deposed that he had started

recording of D/D after a great delay of 45 minutes after examination of the

injured deceased. He had examined the injured at 8.15 a.m. and, according

to his own deposition, he had started recording the dying declaration at 9

a.m. and thus time gap, in our view, was more than sufficient to call the

police, through a memo, either through a ward boy or through Naipal Singh,

which he did not do. Further this alleged dying declaration was retained by

the doctor for an un-reasonable period of time for days together, from

25.12.79 to 7.1.80, and was neither given to the police/I.O., when he had

arrived in the hospital to record 161 statement of the injured nor was sent

to the court forthwith. Doctor had informed the I.O. about it also that he

had recorded such a statement of the injured/ deceased. He concealed it

from the I.O. although he had certified that deceased was in a fit state to

give statement to the I.O. Doctor PW4 also offered a false and an

afterthought bogus explanation for retaining the document with him before

filing it in the court of CJM, Muzzaffarnagar on 8.1.80. Why he did all this is

not known and the only reasonable prognosis can be that the alleged dying

declaration is a sham document prepared subsequently on a plain sheet of

paper only to bolster up the prosecution case. We refer the testimonies of

doctor P.W.4, in this regard which is as under:-

“On 8.1.1980 I had sent dying declaration to C.J.M. I have not

40

informed about this dying declaration to the police of P.S. Shamli and I

cannot state the reasons for the same. Reason for sending dying declaration

to C.J.M. with delay was that from 23.12.1979 to 31.12.1979 there was

winter vacation and the court was closed and from 1.1.1980 to 7.1.1980

because of general election the courts were closed. It is wrong to say that

during election CJM court was not closed. Dying declaration was brought to

C.J.M. by myself because it was an important document and therefore I

myself had carried it. In the court I had given the dying declaration to CJM.”

Such a deposition by this doctor makes him a perjurer. We can take

note of the fact that during winter vacations district courts are closed from

25

th

December to 31

st

December and even during this period a Remand

Magistrate is always available on each day to give remands. During election,

the courts are never closed for a long period of a week and only on the

polling day there is a public holiday. False explanation offered by Dr. S.C.

Gupta for retaining the dying declaration with himself from 25.12.1980 till

7.1.1980 is wholly unacceptable and erodes the credibility of his depositions

and makes first dying declaration suspect anointed with sever doubts about

it’s genuineness. Doctor could have sent the dying declaration to the SSP or

in a sealed cover could have sent it to the C.J.M. on the date itself through

the police of police station Shamli just behind the boundary wall. He is the

only witness of recording of said first dying declaration without any further

corroboration and since whole conduct of the doctor is suspect and

uninspiring we reject first dying declaration as a sham document. Further

we find the conduct of the doctor wholly unacceptable and we are of the

opinion that he has prevaricated the said dying declaration and, that is why

he had, intentionally and deliberately, concealed it from the I.O. P.W.14,

when he had arrived in the hospital to record the statement of the two

injured subsequent to said recording. Why this doctor indulged into such an

insalubrious practice is not known to us, but we are unable to place any

reliance on his testimonies. The defence argument that the first dying

declaration was got manufactured subsequently seems to be quite probable

when tested on the preponderance of probability. It cannot be said at all

41

that the said argument is fictitious or not borne out from the evidences on

record. In our this view, we are also supported by the fact that although I.O.

interrogated injured Desh Pal subsequently, but he too did not intimate him

that doctor had already penned down his statement. Moreover, the doctor

had not even informed the C.M.O. about recording such a dying declaration

and concealed it from the whole world for more than ten days. Such a

document does not inspire any confidence nor lend credence to the

prosecution story and, therefore, we discard Ext. Ka-4 as being a sham

document to which no authenticity can be attached. Conduct of the doctor

gives an inkling that probably he connived with the prosecution for the

reasons best known to him and on this aspect we would not like to dwell

any further.

Additionally P.W. 4, in no uncertain terms, had said that in the medical

examination report of Desh Pal, he had scored out p.m. and had written

a.m. and in injury no.3, he had scored out word “entry” and had written

word “exit”. He had further admitted that he has not recorded the dying

declaration in question answer form and he had also not got injured

identified by anybody. Further we note that no certificate was appended by

the doctor prior to the recording of the dying declaration showing the

urgency to record to such a declaration. Nowhere it is mentioned in the

dying declaration that the condition of the deceased was such that recording

of dying declaration was an un-eschewable necessity. He has also not

deposed that when the dying declaration was recorded then Naipal was

present inside the room or not. Further it is his categorical deposition that

along with the injured only one person Naipal Singh had come to him.

Firstly, this rules out the presence of the informant in the hospital and

secondly that the doctor had not asked Naipal to call the police from the

adjacent police station. Doctor S.C. Gupta, PW4 does not seems to be a

reliable doctor also for the reasons that he stated that he had not referred

injured Hans Raj to Delhi, which statement of his is a patent lie, as has

already been noted herein before. Memo sent by the doctor was concealed

from the court and was not got proved fromPW4 by the prosecution for the

42

reasons that it does not contain any mention of the two injuries on the wrist

joint and ankle of the deceased. It does not mention that injured also had

gunshot injury. It is evident from the writing that it was prepared only after

injured were already referred to Delhi. So much is the analysis of the first D/

D.

Turning towards the second one, which is statement under section

161 Cr.P.C., we are of the opinion that the same has been prepared by the

I.O. on his own. When cross examined, I.O had stated that he had reached

Shamli Hospital at 9.30 a.m. and in the hospital, he became aware that the

condition of injured Desh Pal was serious. He admitted that in the hospital

he was made aware of the fact that doctor PW4 had already written a dying

declaration. Whey then the I.O. did not take the dying declaration from the

doctor and made it a part of the case diary. He had not obtained any

certificate from the doctor that the injured Desh Pal was in a fit mental state

to give statement although he himself had deposed that injured condition

was serious. What was the condition of the injured at the time when his

alleged 161 Cr.P.C. statement was recorded is not known to us. I.O. had

further stated that when he was recording the dying declaration then in that

room, hospital workers and the attendants of the patient were present.

Doctor Gupta was also present inside the room. This does not rule out

possibility of tutoring of the deceased by his relatives. Since the attending

circumstances create suspicion about recording of statement of the injured/

deceased, we cannot rely upon 161 Cr.P.C. statement, which could have

been penned down even later on by the I.O. Perusal of it also indicates that

is a verbatim reproduction of the FIR. In his 161 Cr.P.C. Statement, he had

tried to exonerate Raj Pal as he had stated that Munendra and Vijai Singh

had rifle in their hands whose shot had hit him. He had not said that the

shot made by Raj Pal also hit him. Since we suspect recording of aforesaid

statement of the deceased, we cannot place any reliance in it. In our this

view, we also take support from the fact that at 12.30 a.m.

injured/deceased was already admitted in Safdarjang Hospital, New Delhi as

is mentioned in his post mortem examination report. If the I.O. had reached

43

the hospital at Shamli at 9.30 a.m. he must have taken at least half an hour

to record such a long declaration. It is impossible to reach Delhi in two and

half hours covering a distance of 200 kilometres as was deposed by doctor

P.W.4 and get the patient admitted in Safdarjang Hospital, New Delhi. The

person, who had carried the injured to Delhi for treatment was not

examined by the prosecutor and was withheld, therefore, defence was

denied the opportunity to cross examine the prosecution on such an

important aspect of the matter, which further create doubts.

Coming to the third declaration made before Dr. Chug as is mentioned

in Ext. ka-16 we are of the view that the said declaration is not acceptable

for the reasons that it mentioned a different story. The exact words noted by

the doctor are “ Alleged to have sustained gunshot injuries in a quarrel with

the Munendra Singh, Vijai & Raj Pal around 7.30 a.m. today at his village

Bhaiswal Muzzafar Nagar”. Further it is not known who made this disclosure

statement to the doctor because it is not mentioned in Ext. Ka-16 as to who

gave this information and more over it was recorded long after the incident

and meanwhile the injured was always in the company of his relatives, who

had already lodged the FIR meanwhile, and hence deceased could have

been tutored. It is not the earliest version and could have been tutored

midway to the hospital at Shamli as well as to Delhi. Moreover in this

statement also there is no reference about murder of Smt. Atli. Moreover

the noting is not a dying declaration but it is only an information to the

doctor. It is not in the words of the deceased. As mentioned earlier one of

the significant reason for discarding dying declarations is that in none of the

dying declarations, deceased had disclosed regarding murder of Smt. Atli

from gunshot injury, which had occurred at the date and time of the

incident. The deceased also, thus, had tried to suppress the real genesis of

the incident and therefore, his declarations suffers from the same criticism

as that of any other witness. On the basis of his declarations, without any

convincing corroborative evidence, we find it wholly unsafe to sustain the

conviction of the appellants. It is trite law that dying declaration is just a

piece of evidence like any other evidence and can be criticised in the same

44

manner in which the oral testimony of a witness can be snipped. The

accused do not get an opportunity to cross examine the maker such a

declaration. It is considered to be reliable because normally it is expected

that a man under the cloud of his death will not speak falsehood and is

based on a legal maxim “Nemo moriturus praesumitur mentiri”. This,

however, does not mean that a dying declaration is always reliable

howsoever, inconsistent or unconvincing it may be.

Coming to the impugned judgement by the learned trial court we find

that on dying declarations and as well as on other aspects of the case,

which we have referred to herein above, we are constraint to observe, that

the analysis by the learned trial court is wholly one sided and learned trial

Judge has not made any endeavour to separate the grain from the chaff.

Although, accused/defence had convincingly brought on record, through

their pleas and various defence exhibits, that in one and the same incident

Smt. Atali was murdered, but the learned trial Judge, by fetching out a third

case, without any evidence on record, observed that she had sustained

injuries in any other manner. It was neither pleaded by the prosecution nor

by the defence that Smt. Atli died in some other manner. On what evidence

such an observation was made by the learned trial Judge is not born out

from the record. Time of incident and place and date in both the cross FIRs

are the same. We remind ourselves that accused is not required to establish

it’s case beyond all reasonable doubt. His defence plea is to be tested on the

anvil of preponderance of probabilities only. It is alien to our criminal

jurisprudence that accused is required to establish his defence to the hilt.

Instead of critically appreciating the evidence of the informant P.W.3, and

the three dying declarations, learned trial judge has accepted them on their

face value, without fathoming out intrinsic inherent improbabilities into it.

The aforesaid exercise in our opinion is erroneous.

Coming to the question as to which of the two versions are

convincing, we are of the opinion that primarily the burden of proof never

shifts from the shoulders of the prosecution. It is for the prosecution to

establish it’s case beyond all reasonable doubt pointing out the guilt of the

45

accused. It is only in case that they discharge their initial burden of proof

beyond all reasonable doubt that the defence of the accused can be looked

into to test the veracity of the prosecution case. It is only when prosecution

has discharged it’s initial burden of proof and anoints accused guilt

successfully that the burden shifts on the shoulders of the accused to

establish, on preponderance of probability, that his defence version may be

true. If the accused succeeds in that attempt he discharges his burden. It is

only in cases where prosecution proved accused guilt with no other

hypothesis that the accused can be convicted. If prosecution fails the benefit

has to accrue to the accused. In the event where both prosecution version

and defence of accused are false even then there is no escape than to err in

favour of accused because in that eventuality it cannot be said that guilt has

been proved to the hilt. Once the case of the prosecution itself was found

wanting, indefensible and unworthy of credence, the benefit has to be

reaped by the accused. Weakness of defence does not establish prosecution

case. Prosecution cannot derive any benefit out of it. Here in the present

case on the preponderance of probability defence has successfully

discharged it’s burden of establishing that Smt. Atli was shot dead on the

date and time of the incident. Their cross story is quite reasonable on the

evidence tendered in the case. Solitary prosecution witness had not offered

any explanation regarding the murder of Smt. Atli as to how and in what

manner and at what time, she was done to death. He had tried to suppress

that factum of the incident and therefore, we are of the opinion that the

entire prosecution story is incredible and suffers from unreality and an

attempt was made to supress genesis of the incident. In the net result, we

find that the conviction and sentence of the appellants, as is recorded in the

impugned judgment, is indefensible and unsustainable. At last we only refer

to some of the apex court decision as exemplars only support our derived

conclusions. In MAHENDRA PRATAP SINGH VERSUS STATE OF U.P:

(2009) 11 SCC 334 it has been held as under:-

“47. The High Court has found the evidence of PW Laxman Dass,

PW Matin Khan, PW Prahlad Babu, PW Vimal Kumar Tiwari and PW

46

Shikhar Chand Naik believable and satisfactory on all material

aspects and observed that as the few contradictions appearing in

their evidence were of very trivial nature, therefore, the appellant

could not be given benefit of doubt on the basis of those minor

contradictions. Three dying declarations recorded by the Sub-

Divisional Magistrate were rejected by the High Court on the ground

that they were not recorded correctly and honestly. We are afraid to

agree with the findings of the High Court in setting aside the order

of acquittal of the appellant passed by the trial Judge. On

independent analysis of the evidence of the material witnesses

discussed hereinabove, we find that the High Court has failed to

appreciate the same in proper perspective.

48. The discrepancies coming on record in the evidence of PWs 4,

8, 9, 10 and 13 in no circumstances can be termed to be minor in

nature which in our view, are vital for disbelieving and discrediting

the evidence of the eye witnesses. The High Court discarded the

important pieces of evidence on the basis of surmises and

conjectures. On the day and time of the incident none of the eye

witnesses including the injured witnesses had seen the appellant

travelling on Bus No. MPR 5393. It is their evidence/ testimony that

there were some more persons present at the bus-stand, who took

the luggage of the appellant after the same was unloaded from the

rooftop of the bus. It has come in the evidence of these witnesses

that one person hit PW Laxman Dass. The investigating officer has

not cared to find out the identity of those persons who were

accompanying the appellant on the scene of occurrence and took his

luggage or out of those persons who hit PW Laxman Dass with a

stone.

49. It appears that the prosecution has suppressed the genesis of

the incident…..”

In another decision State of M.P. versus Gopi:AIR 1992 SC

1878 apex court has countenanced conclusion arrived at by the high court

by observing thus:-

“7. As mentioned above the occurrence took place on June 30, 1977.

Investigating Officer recorded the statement of Ramvishal P.W. 3 and Halku

P.W. 4 on September 30, 1977 and October 7, 1977 respectively. The

statement of Kalidin P.W. 6 was also recorded on July 30, 1977. No

satisfactory, explanation, according to the High Court was given for this

delay in recording the statements specially of P.W. 3 and P.W. 41 who were

the alleged eye-witnesses.

8. Rajju-accused, according to the prosecution, was armed with a gun. It is

47

highly improbable that in an attack with the intention of causing fatal

injuries Rajju would not have used his gun and permitted others to use less

effective weapons. Even after Rajju had received grievous injuries the gun

was not used by Rajju.

9. We are of the view that the High Court was justified in reversing the

findings of the trial Court and acquitting the respondents. We see no

infirmity in the High Court judgement. We agree with the reasoning and the

conclusions reached therein. We, therefore, dismiss the appeal.”

In the present case also we found that the deceased could not sustained

wrist and ankle injury as alleged by the prosecution from point blank range

as that would indicate that all the accused had no intention to commit

murder of the deceased otherwise why they will shoot him on most non vital

part of the body without any repetition. In yet another decision Hem Raj

versus State of Punjab:AIR 2003 SC 4259 it has been held by the

apex court as under:-

“Though a person of the defence party was injured, the prosecution had no

explanation for the same. There was doubt as to manner in which according

to prosecution the occurrence took place and its time. In the facts of the

case it was not possible to outright reject the defence case. Consequently,

the accused persons were acquitted by the trial Court. In the state of

evidence on record, the view taken by the trial Court is also a possible

reasonable view of the evidence on record. The evidence adduced by the

prosecution is rather inconsistent and creates a serious doubt about the

truthfulness of the prosecution case. Even if it may be possible to take a

different view, it could not be said that the view taken by the trial Court is

not a reasonable view of the evidence on record and therefore, the High

Court should not have reversed the order of acquittal passed by the trial

Court.”

In another decision State of Rajasthan versus Madho and

another:AIR 1991 SC 1065 apex court has affirmed acquittal of

accused for the reasons that prosecution version was incredible. It was held

thereunder as follows:-

48

“2. According to the prosecution, on April 13, 1973, around noon time when

PW 1- Gouri Lal was getting a well dug, the dug- up earth was thrown on

the adjoining land to which the accused protested. The two respondents

abused PW 1 and thereafter Kanwari attacked him and gave lathi blows to

PW 1. On hearing an alarm, PW 2 - Lal Chan(i anti the deceased rushed to

the site. The respondent Madho struck a farsi blow on the leg of PW 2

which resulted in fracture. The deceased removed PW 2 to the house of

Bapu Chamar at a short distance from the field. The prosecution case is

that the two respondents and the other four acquitted accused persons

followed the deceased and PW 2 the two respondents entered the house of

Bapu Chamar and gave farsi blows on the head of the deceased to which he

ultimately succumbed. Thus the prosecution case is divided in two parts,

namely, the incident which took place in the field where PW 1 was getting a

well dug and the incident which took place at the house of Bapu Chamar.

So far as the first part of the incident is concerned, both the Courts came to

the conclusion that the prosecution version that Kanwari launched the

assault on PW 1 and the other three ladies also attacked him is not worthy

of acceptance. As regards the second part of the incident the trial Court

came to the conclusion that the two respondents were not entitled to any

right of private defence because they had actually followed PW 2 and the

deceased when the latter was removed by the former to Bapu Chamar's

house and had belaboured the deceased there. Therefore, even though the

respondents had sustained injuries they were not entitled to right of private

defence as they were the aggressors. In this view that the trial Court took

it convicted the two respondents as stated earlier. The High Court on a re-

appreciation of the evidence came to the conclusion that the prosecution

witnesses were guilty of shifting their stand and had failed to explain the

serious injuries on the two respondents. So far as PW 1 is concerned, the

High Court noticed that he had changed his version from the one stated in

the First Information Report as well as his evidence before the committing

Court. Before the committing Court he had stated that after he received

injuries he became unconscious and had not noticed the assault on PW 2 as

49

well as the deceased. The High Court further noticed that on his own

showing he has gone to his residence from the field for drinking water and

by the time he reached Bapu Chamar's house the deceased had fallen on

the ground with injuries. In other words PW 1 cannot be said to be an eye-

witness of the second part of the incident. So far as PW 2 is concerned we

find that according to his version he received an injury on the leg when he

went to the rescue of PW 1. His version that PW 1 was belaboured by the

ladies has not been accepted by both the Courts. Even in regard to that

version he is found to have shifted his stand. He deposes that after he was

lifted to the house of Bapu Chamar the respondent and their companions

followed them and belaboured the deceased after he was laid on the 'otle'.

According to his statement thereafter the deceased went over to the road

where he was belaboured by the respondents. Now this witness was

engaged to the daughter of the deceased. As stated earlier his evidence

regarding the involvement of the ladies has been rejected by both the

Courts and in our opinion rightly. In his cross:-examination he stated that

he could not say if the accused persons kept on following and throwing

stone, a statement which casts a doubt on his version that the accused had

followed the deceased after the latter had lifted him to the 'otle' of Bapu

Chamar and had thereafter belaboured him. He was unable to explain how

the two respondents sustained injuries. If we turn to the injuries sustained

by the two respondents which have been set out in paragraph 25 of the trial

Court judgment, we find that the respondent Kishna had sustained as many

as six injuries, five of them on the skull region. The respondent Madho too

had sustained six injuries, two on the skull region, two on the scapular

region, one on the forehead and one on the right index finger. Thus some of

the injuries were on exposed parts of their bodies and we would expect the

prosecution witnesses to explain how the two respondents sustained the

said injuries. No explanation worth the name is forthcoming The trial Court,

however, brushed aside this infirmity by pointing out that in the cross case

filed at the behest of the respondent Kishna the evidence disclosed that

there was no farsi blow and, therefore, the defence theory was not

50

acceptable. Counsel for the respondents, however, questioned the

admissibility of the said evidence. Be that as it may, mere acquittal of the

accused (prosecution side herein) in that case does not render the defence

version false. The defence version has to be evaluated on the basis of the

prosecution evidence tendered in the present case. The fact remains that

both the respondents had sustained serious injuries, Kishna mainly on the

skull whereas Madho on the skull as well as scapular region. If the

prosecution witnesses shy away from the reality and do not explain the

injuries caused to the respondents herein it casts a doubt on the genesis of

the prosecution case since the evidence shows that these injuries were

sustained in the course of the same incident. It gives the impression that

the witnesses are suppressing some part of the incident. The High Court

was, therefore, of the opinion that having regard to the fact that they have

failed to explain the injuries sustained by the two respondents in the course

of the same transaction, the respondents were entitled to the benefit of the

doubt as it was hazardous to place implicit reliance on the testimony of the

injured PW 2.

3. The High Court also examined the evidence of the other prosecution

witnesses including PW 10 - Bai Kali and came to the conclusion that their

evidence did not enhance the prosecution case. In fact Bai Kaii gave out a

version which was neither the case of the prosecution nor that of the

defence. The High Court, therefore, brushed aside her evidence as

unworthy of credence.

4. In view of the above, we do not think that the High Court had committed

any error in the evaluation of the prosecution evidence. The view taken by

the High Court cannot be said to be against the weight of evidence or one

which has resulted in gross injustice. In our view the evaluation of the

prosecution evidence by the High Court in the context of the injuries

sustained by the two respondents is quite proper and does not call for

interference by this Court.”

Armed with above supportive views the net result of our marshalling

exercise is that we allow the appeal, set aside the impugned judgment of

51

conviction and sentence order dated 31.3.82, recorded by IVth Additional

Session's Judge, Muzaffarnagar in S.T. No.231 of 1981, State versus

Munendra and two others, under section 302/34 I.P.C., and acquit the

appellants and set them at liberty. All the appellants are on bail, they need

not surrender, their personal and surety bonds are hereby discharged.

Let a copy of this judgment be certified to the trial Court for it's

intimation.

Dt.21.12.2012

Rk/Arvind/ Tamang/-