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Allahabad High Court
Jubli vs State Of U.P. on 14 August, 2025
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Judgment reserved on 23.07.2025 Judgment delivered on 14.08.2025 Neutral Citation No. - 2025:AHC:138817-DB Court No. - 45 Case :- CRIMINAL APPEAL No. - 393 of 1984 Appellant :- Jubli And Another. Respondent :- State of U.P. Counsel for Appellant :- Apul Misra, P.N. Misra Counsel for Respondent :- A.P. Tewari Hon'ble Salil Kumar Rai,J.
Hon’ble Sandeep Jain,J.
Per: Sandeep Jain, J.
1. This Criminal Appeal has been preferred by the convicted accused Jubli and Mihilal @ Bhagatji against the impugned judgment and order dated 03.02.1984 passed by Sri. B.D. Maurya, Additional Sessions Judge, Budaun in Sessions Trial No.37 of 1982 (State vs. Jubli and 7 others), arising out of Case Crime No.129 of 1981, Police Station Rajpura, District Budaun, whereby the appellants have been convicted under Section 302 I.P.C. and sentenced to undergo life imprisonment.
2. Factual matrix is that on 28.08.1981, first informant Dhan Singh (PW-1 at the trial) along with his son Shahzadey, his brother’s son Kishanlal(PW-3 at the trial), villagers Sheodan, Gendan Lal (PW-5 at the trial), and first informant’s brother Fateh Singh, were returning from animal market Babrala and when they reached in between village Pahalwada and Ji Nagla, then at about 5:00 PM, they met accused Jubli, Nawab, Mihilal @ Bhagatji, Ganga Sahai, Ompal, Surja, Palia and Gappoo, who after exchanging greetings, surrounded the first informant and the other persons accompanying him. After saying, that Fateh Singh was doing intense pairvi against Ram Singh in a case, jointly accused Jubli and Mihilal with intention to kill, pulled out ‘tamancha’ and fired two shots on first informant’s brother Fateh Singh, and when the first informant and the persons accompanying him, tried to save Fateh Singh, then the accused persons fired two more rounds and then accused Nawab, Ompal, Ganga Sahai, Palia, Gappoo and Surja also threatened them, by saying, that the fate of Fateh Singh has been decided and their fate would too, be decided. Thereafter, the first informant and other persons accompanying him, brought injured Fateh Singh on a cot to Police Station Rajpura for registering the first information report, where Dhan Singh (PW-1) gave an application (Ex.Ka-1 at the trial) scribed by Shafaat Ali.
3. On the basis of application Ex.Ka-1 given by Dhan Singh PW-1 at police station Rajpura, first information report regarding the incident was registered on 28.08.1981 at 21:35 PM being Case Crime No.129 of 1981, under Sections 147, 149, 307 I.P.C. against accused-appellants Jubli, Mihilal and their six accomplices and a corresponding entry was made in G.D. at serial No.20 at 21:35 hours on 28.08.1981. at P.S. Rajpura.
4. After registration of F.I.R., since the seriously injured Fateh Singh required treatment, as such, he was referred to District hospital Budaun. The investigation of the case was assigned to S.I. Hari Nath Sharma(PW-6 at the trial), who also recorded the statement of injured Fateh Singh under Section 161 Cr.P.C and later on, after his death, treating it as dying declaration, proved it as Ex.Ka-9 during trial, which reads as under:-
“फ़तेह सिंह पुत्र बिहारी थाना राजपुरा ने बताया कि आज मैं वह मेरा भाई धन सिंह बाजार बबराला पैंठ करने गए थे। वहां से हम वह गाँव के किशन लाल पुत्र संतराम, शिवदान पुत्र पाली, मेरा भतीजा शहज़ादा तथा तुमरिया घाट का गेंदन लाल पुत्र भांजन बबराला का बाजार करके घर आ रहे थे। जब हम सब पहलवाड़ा तथा जी नंगला के बीच के करीब आए तो हमें रास्ते में गाड़िया बगडोर के जुबली, नवाब, मिहिलाल जिसको भगतजी भी कहते हैं, जिसका बाप का नाम मुंशी है, गंगा सहाय पुत्र तोड़ी व ओमपाल पुत्र अरी सिंह, सुरजा पुत्र रामचंदर तथा हमारे गांव के पलिया पुत्र होली तथा गप्पू पुत्र राम सिंह गांव के बैठे,मिले,हमारे… … राम किशन कहने के बाद हम सबको चारों तरफ से घेर लिया और मुझसे कहा कि तू राम सिंह के मुक़दमे में खिलाफत कर रहा है। जुबली तथा मिहि लाल ने यह कहकर अपनी अपनी अंटी से तमंचा निकालकर जान से मारने के लिए मेरे ऊपर दो फायर किए। जब हमारे साथ वालों ने बचाने की कोशिश की तो दो फायर और किए तथा यह कहकर कि तुम्हारा सभी का इंतज़ाम होगा चले गए। मेरी कांख तथा कमर में गोली लगी है और मैंने अपने पेट पर पट्टी बाँध ली थी, तथा चारपाई पर रखकर थाना आया हूँ। ”
5. It is the case of the prosecution that when the injured Fateh Singh was being taken on cot for treatment from police station Rajpura to District Hospital Budaun, then, on the way at Babrala, he died. His dead body was taken to the nearest police station Gunnaur where, the Panchayatnama of his dead body was prepared by Hoshiyar Singh (PW-4 at the trial), which is Ex.Ka-3, on 29.08.1981, between 9:30 AM and 11 AM. PW-4 also prepared the necessary papers for conducting the autopsy of the dead body of Fateh Singh and thereafter, the dead body was sent to District Hospital, Budaun, for autopsy.
6. The autopsy of deceased Fateh Singh was conducted by Dr. V.K. Gupta (PW-2 at the trial) on 30.08.1981 at 12:00 noon. The following ante-mortem injuries were found on his body:
(i) Gun shot wound of entry 1cm x 1 cm on the posterior aspect and upper 1/3 part of left forearm, 6.5 cm below the left elbow joint. No blackening and tattooing present, margin lacerated and inverted, on dissecting both bone fractured ulna and radial artery lacerated.
(ii) Gun shot wound of exit 2.5cm x 2 cm on the anterior of middle of left forearm 9 cm beneath the middle of left cubital fossa, margin lacerated and everted and communicate with injury No.1.
(iii) Gun shot wound of entry of 1 cm x 1 cm x cavity deep on the right side of abdomen in the middle of axillary line, 15 cm above the right illiac crest. Margin lacerated and inverted. No blackening and tattooing present. On dissecting of wound, muscle, peritoneum, small intestine and spleen lacerated, one litre clotted blood present in cavity.
(iv) Gun shot wound of exit 2 cm x 1.5 cm on the posterior axillary line on the left side of abdomen 17 cm above the left illiac crest communicate with injury No.3, margin lacerated and everted.
7. In the opinion of the Doctor PW-2, Fateh Singh died about one and a half day prior to the autopsy, due to shock and haemorrhage. The autopsy report is Ex.Ka-2 at the trial.
8. The Investigating Officer PW-6 collected blood stained and plain soil from the spot on 29.08.1981. The recovery memo of the above objects is Ex.Ka-11. The Investigating Officer also prepared the site plan of the spot of occurrence, which is Ex. Ka-10, at the trial. The Investigating Officer after completion of investigation submitted a charge sheet (Ex.Ka-12) against Jubli, Nawab, Mihilal @ Bhagatji, Ganga Sahai, Ompal, Surja, Palia and Gappoo under Section 147, 148, 149, 302 IPC, on which cognizance was taken.
9. The trial court framed charges against the accused Jubli and Mihilal under Section 147 and 302 IPC and against accused Nawab, Ganga Sahai, Ompal, Surja, Gappoo and Palia under Section 147 and 302/149 IPC on 01.10.1982, to which they pleaded not guilty and claimed trial. The trial court by impugned judgment and order dated 03.02.1984, acquitted the accused Ompal, Ganga Sahai, Surja, Nawab, Gappoo and Palia from the charges under Section 147, 302 IPC and convicted accused-appellants Jubli and Mihilal @ Bhagatji under Section 302 IPC, hence this appeal by the convicted accused.
10. The State has not challenged the acquittal of accused Ompal, Ganga Sahai, Surja, Nawab, Gappoo and Palia, by filing Government Appeal.
11. During trial, the prosecution examined the following witnesses, who proved the following documents/material objects:-
S.No.
Witnesses
Document proved
1.
Dhan Singh, first informant, examined as PW-1
Proved the Tehrir as Ex.Ka-1
2.
Dr. V.K. Gupta, examined as PW-2.
Proved the autopsy report of deceased Fateh Singh as Ex.Ka-2
3.
Kishanlal, eye witness, examined as PW-3,
Proved no document
4.
Inspector Hoshiyar Singh, examined as PW-4
(i)Proved the Panchayatnama of deceased Fateh Singh as Ex.Ka-3,
(ii)The prosecution papers prepared for conducting the autopsy of deceased Fateh Singh as Ex.Ka-4 to Ex.Ka-8.
5.
Gendan Lal, examined as PW-5
Proved no document
6.
S.I. Hari Nath Sharma, Investigating Officer, examined as PW-6
(i)Proved the statement of injured Fateh Singh under Section 161 Cr.P.C.,recorded in the case diary, as Ex.Ka-9
(ii)site plan of the spot of occurrence as Ex.Ka-10.
(iii)recovery memo of blood stained and plain earth as Ex.Ka-11.
(iv)charge sheet against the accused as Ex.Ka-12.
7.
Constable Netrapal, examined as PW-7
(i)Proved the check FIR as Ex.Ka-13 and the carbon copy of G.D. entry No.20 time 21:35 hours dated 28.08.1981 as Ex.Ka-14.
12. The accused appellant Jubli and Mihilal @ Bhagatji in their statement under Section 313 Cr.P.C. denied the prosecution story and stated that they have been falsely implicated.
13. The first informant, Dhan Singh (PW-1) stated in his examination-in-chief that about fifteen months back, he, his son Shahzadey, Kishanlal, his brother Fateh Singh had gone to Babrala market at about 10:00 AM. After selling the bullock of Shahzadey in the market, they started return journey at about 03:00 PM, then, in the way, Sheodan and Gendan Lal (PW-5 at the trial) met, who also accompanied them and when they reached between village Pahalwada and Ji Nagla, then they met accused Jubli, Mihilal, Ompal, Ganga Sahai, Surja, Nawab, Palia and Gappoo, who were sitting on the way, who after exchanging greetings, surrounded them, and they said to Fateh Singh that he was doing intense Pairvi against the case of Ram Singh. Then accused Jubli and Mihilal pulled out their ‘tamancha’ and both fired a single shot on Fateh Singh. They raised alarm. The accused persons thereafter, stated that the fate of Fateh Singh was decided and their fate will also be decided. Thereafter, they fired twice in the air. Fateh Singh collapsed on the ground and the accused persons fled towards east. He further deposed that he took his brother on a cot to police station Rajpura, where he got the application scribed from a person, known to his brother. The first informant proved the application given at police station Rajpura as Ex. Ka-1. He further deposed that his brother Fateh Singh died at Babrala.
14. PW-1 deposed in cross-examination that Fateh Singh had enmity with the accused, regarding the case pertaining to Ram Singh. Besides this, there was no other enmity. According to him, a dacoity occurred at Ram Singh’s house, about two to two and a half months prior to this incident. He admitted that, except accused Gappoo and Palia, the remaining accused had no concern with the above dacoity. In that dacoity, Bhure, Mahendra, Kalyan and Roshan were accused. He admitted that his brother Fateh Singh, was tried for murdering Lakhi, in which accused Jubli, was also an accused. He also admitted that his brother Fateh Singh and accused Jubli were acquitted in that murder case about two years back. He denied the suggestion that in a case of dacoity relating to village Bisangpur, P.S. Bahjoi, District Moradabad, Fateh Singh was tried and arrested.
15. PW-1 further deposed in cross-examination that he left his house for the market at about 10:00 AM., and reached the market at about 11:30 AM. Shahzadey sold his bullock for Rs.1,400/- to a shepherd of Islamnagar, the recitals of sale were recorded in the cattle market, Babrala. He further deposed that after selling bullock, they started the return journey at about 03:00 PM and in the way, Gendan Lal and Sheodan met them outside the Babrala market and they (including Kishanlal and Shahzadey) were all returning together. He further deposed that the spot of occurrence, is at a distance of 2-3/4 koos from Babrala and, 2-2 ¼ koos from the police station Rajpura, and it takes, about an hour, to reach the police station, on foot. He further deposed that in the journey between Babrala market and the spot of occurrence, they had not met any person. He further deposed that one can reach the spot from Babrala in about 1-1 ½ hours. He went from the spot of occurrence to police station Rajpura.
16. He further deposed that after registration of F.I.R., the Investigating Officer had enquired from him, Gendan Lal, Sheodan and Kishanlal at the police station. He remained at the police station till 09:30 PM. Kishanlal went to the spot again, but he had not thereafter, visited the spot, because he remained with his brother. He disclosed that he was not aware, who scribed the Tehrir report, but it was written by someone, who was known to his brother. According to him, in his presence, the Panchayatnama was prepared by Sub-Inspector of police station Gunnaur. He obtained cot from Malkhan of Ji Nagla on which, he had taken his brother to the police Station Rajpura. The cot was not stained with blood, because he bandaged his dhoti on the wounds. He denied the suggestion that the first information report was registered ante-time on the advise of police.
17. He further deposed that they were surrounded, from all sides, by all the accused and at that time, they were at a distance of about 2-3 paces from one another. Accused Jubli was towards east of Fateh Singh and accused Mihilal was towards west of Fateh Singh. Both the above accused, fired from a distance of about 2-3 paces. He had not seen any weapon with other remaining accused. His brother was not having any licensed gun. When accused Mihilal and Jubli had pulled out their ‘tamancha’s, then he and Fateh Singh had not fled and at that place, the accused had surrounded them. They all were towards south of Fateh Singh. Kishanlal and Shahzadey were in front of Fateh Singh, he was towards west and Sheodan and Gendan Lal were behind Fateh Singh. The assailants fired from east-west, not from south. There was blood on the spot. They had not suffered any injuries, because the accused fired towards the sky. He had got scribed in his report, and also told the I.O. that the accused fired in the sky for threatening them, but if it is not mentioned in it, then he cannot tell its reason. He further deposed that no pellet etc. was found at the spot, because the accused had put the empty cartridges, in their pocket. He told this fact, to the Investigating Officer and also got scribed in his report, but, if this is not mentioned in it, then he cannot tell its reason. After firing, all the accused left. Due to fear, he had not attempted to apprehend the accused. He denied that he falsely implicated the accused Nawab and Jubli because in the Panchayat, they had given a verdict in favour of Fateh Singh. He further denied the suggestion that no murder took place at the spot of occurrence.
18. Dr. V.K. Gupta (PW-2) deposed in his examination-in-chief that on 30.08.1981, at 12:00 noon he conducted the autopsy of deceased Fateh Singh. The ante-mortem injuries found on the dead body have been mentioned previously in this judgment, hence, are not being repeated. This witness opined that Fateh Singh died about one and a half day prior to the autopsy, due to shock and haemorrhage, caused from ante-mortem injuries. This witness further opined that Fateh Singh could have died on 28.08.1981 after 5:00 PM. He proved the autopsy report of deceased Fateh Singh as Ex.Ka-2.
19. PW-2 stated in cross-examination, that the direction of injury no.1 was downwards, from back to front. Similarly, the direction of injury no.3 was upwards, from right to left. He admitted that both the above injuries were possible from two shots, which would have been fired from a distance of more than three feet. He further deposed that shape of entrance of both the wounds, was circular.
20. Kishanlal (PW-3) deposed in his examination-in-chief that two years and three months back, he, Shahzadey, Dhan Singh and Fateh Singh had gone to Babrala market, where a bullock of Shahzadey was sold. He had also taken his two bullocks for selling in the market, but they remained unsold. He, Fateh Singh, Dhan Singh and Shahzadey commenced their return journey at 3:00 PM from the market, then in the way, they met Sheodan and Gendan Lal, who also accompanied them. When they reached between Ji Nagla and Pahalwada village, then at 5:00 PM, they met accused Jubli, Mihilal, Ompal, Ganga Sahai, Surja, Gappoo, Palia and Nawab Singh. He knew all of them previously. Accused Jubli, Mihilal and Nawab Singh are real brothers, Ompal, Ganga Sahai and Surja are cousin brothers, Palia and Gappoo are also cousin brothers. He further deposed that, after having exchanged greetings with them, the accused surrounded them. The accused said to Fateh Singh that he was intensely opposing the case of Ram Singh. He disclosed that previously, a dacoity occurred at Ram Singh’s house, in which Bhure, Mahendra, etc. were accused, and Fateh Singh had bailed out accused Bhure. He further stated that Ram Singh is the uncle of accused Jubli, etc and father of accused Gappoo. He further deposed that, thereafter, accused Jubli and Mihilal pulled out their ‘tamancha’s and both fired a single shot at Fateh Singh, who collapsed after being shot. They raised alarm and then accused said that they had silenced Fateh Singh thereafter, accused Jubli and Mihilal, fired two rounds in air and fled towards east. He further deposed that PW-1 brought a cot from Ji Nagla and had also torn pieces from his dhoti and bandaged the wounds of Fateh Singh and thereafter, Fateh Singh was put on the cot and Dhan Singh, Shahzadey, Mahendra, etc. took the injured to police station Rajpura. He deposed that he proceeded to his house, thereafter, on the next day Investigating Officer had recorded his statement at the spot.
21. PW-3 deposed in cross-examination that the deceased Fateh Singh was his uncle, who was neither a litigant nor indulged in money transactions. Fateh Singh did not belong to any party and was facing trial in only Lakhi’s murder case alongwith, accused Jubli. He denied the suggestion, that in a dacoity that took place in Bisangpur village, police station Bahjoi, District Moradabad, Fateh Singh was apprehended and was identified in jail. He also admitted that Shahzadey was his cousin brother. He also admitted that in the dacoity that took place at Ram Singh’s house, Bhure, Mahendra, Kalyan and Roshan were accused, who all belong to Fateh Singh’s village, but in that dacoity, the accused of this case, were not involved. He also admitted that accused Palia is nephew of Ram Singh and the remaining accused, are cousin brothers of Gappoo and Palia. He admitted that he had not told the Investigating Officer that the accused were relatives of Ram Singh and Fateh Singh had bailed out Bhure, and was doing Pairvi against Ram Singh. He admitted that Fateh Singh had bailed out Bhure and was his(Bhure’s)surety. He also admitted that except Bhure Singh, Fateh Singh was not doing pairvi of any other accused in the dacoity case of Ram Singh. He also admitted that there was an enmity between Fateh Singh and Ram Singh and his family members, because Fateh Singh had bailed out Bhure.
22. PW-3 further disclosed that he and Shahzadey both had taken two bullocks each, for selling in the market, but only one bullock of Shahzadey was sold. When they were returning from the market they had three bullocks. He admitted that he had told the Investigating Officer that they had taken four bullocks for selling in the market, but only one was sold out and 3 remaining bullocks were with them, but, if this is not recorded in his statement, then he cannot tell its reason. He further deposed that around 1-1:30 PM the bullock was sold, to a shepherd for Rs.1,400/-, it’s receipt was prepared, which was given to the purchaser.
23. PW3 further deposed that they all proceeded from their house together and were also returning together. He further deposed that they remained in the market till 3-3:30 PM and thereafter, started their return journey. The incident occurred on thoroughfare and at that time, none was present. He further deposed that, 4 of them were walking together and in the way, they met Sheodan and Gendan Lal, who were also walking with them, at the time of the incident. They met Sheodan and Gendan Lal at a distance of about 8-10 paces, after exiting from the market, who were not having bullock with them, who have purchased something from the market. It took about one and a half hours to reach the spot of occurrence, from the market. He further deposed that it was a month of Bhadon(Bhadrapada) and at that time, it was not raining. It rained 5-10 days before the incident. Millet(bajra) crop was in the field.
24. PW3 further deposed that he saw the accused from a distance of 2-3 paces, but they were not afraid of being killed. Even Fateh Singh was also not afraid. The accused persons were sitting on the road side, towards west, in a field, which was ploughed for rabi crop. The movement on this road is in the north-south direction. The accused were not sitting on both sides of the road. He had not told the Investigating Officer that the accused were sitting on both the sides i.e. east and west of the road, and if, the Investigating Officer has shown this in the site plan, then he cannot specify its reason. He further deposed that the accused surrounded Fateh Singh, but had not caught him. The accused fired in all, four rounds, after surrounding him(Fateh Singh) which were fired by only two persons. At the time of firing, accused Jubli was towards east and accused Mihilal was towards west of Fateh Singh, Fateh Singh was in between them. When Fateh Singh was shot, at that time, he(Fateh Singh) was facing north, the accused fled towards east. When Fateh Singh was shot, he was in between Jubli and Mihilal, who collapsed on the ground instantaneously after being shot, but had not become unconscious and was speaking, who stopped speaking at Babrala. This witness was asked whether Fateh Singh was speaking till reaching Babrala and previously also at police Station Rajpura, but this question was disallowed by the trial court, by recording that since the “witness did not accompany the injured Fateh Singh to the police station Rajpura, Babrala and Budaun. He is not expected to give answer to this question because the answer will be based on hearsay knowledge.”
25. PW-3 further deposed in the cross-examination that when the injured Fateh Singh was brought to the police station, then he was conscious, who was speaking a lot, who had also seen the assailants, who had a conversation with him, after being injured. He further deposed that the accused fired from a distance of about one and a half yards. Two rounds were fired in the sky and two rounds were fired at Fateh Singh. He told the Investigating Officer that two rounds were fired in the sky but, if this is not mentioned in his statement, he cannot tell its reason. He further clarified that after firing two rounds at Fateh Singh the accused threatened them and then fired, two more rounds. He denied the suggestion that he neither saw the incident nor went to Babrala market for selling bullocks. He admitted that except Jubli and Mihilal, the other accused were unarmed. He further admitted that when Fateh Singh was shot dead, he was at a distance of 2-3 yards and they were also surrounded on all sides, by the accused. He was holding his bullocks, but after firing, the bullocks got released. He further claimed that he remained till about an hour after the incident and the cot was brought from Ji Nagla, from where, many persons arrived. Till he remained at the spot, neither anybody brought any paper-pen nor any recital were prepared. He disclosed that the police station is at a distance of about 5-6 miles from the spot, which is traversed in 2-2:30 hours and Fateh Singh was taken in the night on cot, on foot, and it would have taken about 2-2:30 hours to reach the police station Rajpura. He further admitted that when he left the spot for his house, till then, Fateh Singh etc. had not proceeded towards the police station, who went thereafter. He further admitted that except Fateh Singh, neither any of them nor any bullock was injured from pellets. He further disclosed that at the spot, blood was found on two places, which were in close proximity. He further disclosed that shots were fired from ‘tamancha’, from the front.
26. Inspector Hoshiyar Singh PW-4 deposed in examination-in-chief that on 29.08.1981, he was posted as SHO at police station Gunnaur, then it was informed by Constable Ram Ji Lal, of P.S. Rajpura, that he was taking injured Fateh Singh from police station Rajpura for treatment, then in the way at Babrala, Fateh Singh died. This information was recorded in GD No.12 at police station Gunnaur and thereafter, he prepared the Panchayatnama of deceased Fateh Singh, which was proved as Ex.Ka-3. This witness also prepared the other prosecution papers required for conducting the autopsy of deceased Fateh Singh and proved them as Ex.Ka-4 to Ka-8, at the trial. He further proved that after Panchayatnama, the dead body was sent for autopsy. In cross-examination he admitted that at the time of Panchayatnama proceedings, he had FIR in his possession. He stated that the information of the death of Fateh Singh was received at police station Gunnaur at 00.45 hours on 29.08.1981 and Panchayatnama proceedings were started on 29.08.1981 at 09:30 AM. He further admitted that he told from his memory, that Constable told him that Fateh Singh died at Babrala. He denied the suggestion that till the Panchayatnama proceedings were conducted, the FIR was not registered.
27. Gendan Lal, the alleged eye witnesss of the incident, was examined as PW-5, who deposed in his examination-in-chief that he had not seen the murder of Fateh Singh. In cross-examination, this witness denied his previous statement under Section 161 Cr.P.C. He admitted that he had earlier returned alone, from the Babrala market.
28. S.I. Hari Nath Sharma PW-6 deposed in examination-in-chief that on 28.08.1981 he was posted as SHO, Rajpura, then in his presence, the FIR of this case was registered, and thereafter, he commenced the investigation. He recorded the statement of Constable Netrapal, first informant Dhan Singh and injured Fateh Singh in the case diary. This witness further deposed that since the condition of Fateh Singh was serious, he was sent for treatment to the hospital. This witness proved the statement of injured Fateh Singh recorded under Section 161 Cr.P.C., as Ex.Ka-9, the site plan of the spot of occurrence as Ex.Ka-10, the recovery memo of blood stained soil and plain soil as Ex.Ka-11 and the charge sheet submitted against the accused as Ex. Ka-12.
29. PW-6 in cross-examination deposed that the deceased Fateh Singh was also brought to the police station and that time, he was in a fit mental condition, was speaking and he had not thought, that he would die. He saw the bodily injuries of Fateh Singh, which were serious, and he opined, that if Fateh Singh had received appropriate treatment, then he could have been saved.
30. PW-6 further deposed that at the time of registration of FIR, Fateh Singh was lying on a cot, in front of his office and when the FIR was being written, then Fateh Singh was listening. At that time 2-4 persons were also present near Fateh Singh, who brought him on a cot and they remained present, when he recorded the statement of Fateh Singh. He denied the suggestion that at the time of registration of FIR, Fateh Singh was unconscious.
31. PW-6 further deposed in cross-examination that since case crime number, section of offence, etc. was mentioned in the Panchayatnama, it appeared that Sub-Inspector conducting the Panchayatnama, obtained the first information report either from the complainant or the injury memo. He admitted that he had not seen any cartridge or pellet on the spot, and had only collected blood stained soil in the morning of 29.08.1981, and Fateh Singh was probably, dead by then. He admitted that till the time he had enquired from witnesses, on 29.08.1981, he was not aware that Fateh Singh has died. He admitted that witness Kishanlal told him that both the accused fired a single shot, but had not told that two rounds were fired in the sky, but this witness told him that both the accused had subsequently fired a single shot and had also threatened.
32. Constable Netrapal (PW-7) proved registration of the check F.I.R. and the carbon copy of the corresponding G.D. No.20 time 21:35 hours dated 28.08.1981 of police station Rajpura regarding registration of F.I.R. as Ex.Ka-13 and Ex.Ka-14, respectively. This witness also admitted in cross-examination that injured Fateh Singh was brought to the police station, and he also admitted, that in the above G.D., the injuries of Fateh Singh were mentioned.
33. Learned counsel for the accused-appellants submitted that Fateh Singh was seriously injured in the alleged incident, who was not in a fit mental and physical condition to give any statement, in fact, he was unconscious at the time when he was taken to the Police Station Rajpura, as such, he could not have given any statement to the Investigating Officer, PW-6. Even if, it is assumed that Fateh Singh gave any statement to the Investigating Officer, then, it was not recorded by him in the manner, in which statement under Section 164 Cr.P.C is recorded. The prosecution has not examined any independent witness to prove that Fateh Singh had ever given such statement to the Investigating Officer. It was further submitted that before recording any dying declaration, it is mandatory to get a certificate of doctor that such person is in a fit mental and physical condition to make statement, but in this case, no such certificate of doctor was taken, before recording statement of Fateh Singh. It was further submitted that even if any such statement was given by Fateh Singh, then it was a tutored statement, which is not credible. He further submitted that the first informant Dhan Singh PW-1 and PW-3 Kishanlal are not the eye witnesses of the incident, whose testimony is not credible. There are many contradictions and inconsistencies in their testimony. It was further submitted that the prosecution failed to prove any motive of the crime. There was delay of about five hours in recording the FIR, which was not explained, which renders the whole prosecution story doubtful. It was further submitted that there is no evidence on record to prove at what time Fateh Singh died. It was further submitted that the time of death of Fateh Singh mentioned in the autopsy report does not match with the ocular evidence. It was further submitted that the trial court disbelieved the testimony of PW-1 and PW-3 regarding six other co-accused and, as such, acquitted them. In view of this, their entire testimony becomes doubtful and, as such, the appellants could also not have been convicted on that evidence. Learned counsel further submitted that the prosecution failed to prove its case beyond reasonable doubt and, as such, the appeal deserves to be allowed.
34. Learned A.G.A. submitted that the incident took place on 28.08.1981 at about 5:00 PM and thereafter a cot was arranged, to take the injured Fateh Singh, to Police Station Rajpura, on foot. Fateh Singh was taken on cot to Police Station Rajpura, where FIR was registered on 28.08.1981 at 21:35 hours and, at that time, he was alive, speaking and was in a fit mental and physical condition, to make a statement, which is proved from the evidence of PW-1, PW-6 and PW-9. Learned A.G.A. further submitted that the prosecution case is based on direct evidence and, as such, it is not required to prove motive, for the commission of crime. Learned A.G.A. further submitted that since Fateh Singh sustained gunshot injury in his abdomen, he did not die instantaneously, but remained alive for about 7 to 8 hours, after the incident, which is proved from the testimony of prosecution witnesses. He further submitted that since Fateh Singh died after making statement under Section 161 Cr.P.C., his statement became a dying declaration, which is corroborated from the ocular testimony of PW-1 and PW-3. The injuries sustained by Fateh Singh are proved by ocular evidence and corroborated by medical evidence. It was further submitted that in the facts and circumstances of the case, there was no delay in recording the FIR and the prosecution evidence is credible. He admitted that there were some minor improvements and inconsistencies in the testimony of eye witnesses but, according to him, they were not of such nature, that would make the whole prosecution case doubtful. With these submissions, it was prayed, that the appeal be dismissed.
35. We have heard the learned counsel of both the parties and perused the trial court record.
36. From the evidence of PW-1 Dhan Singh and PW-3 Kishanlal, it is evident that on the date of the incident, they along with Shahzadey and Fateh Singh had left their house for going to Babrala market at about 10:00 AM for selling four bullocks, had reached the market and after selling one bullock of Shahzadey, they commenced their return journey at about 3:00 PM, from the market, with three unsold bullocks, then in the way, they met Sheodan and PW-5 Gedan Lal, who also accompanied them to the spot of occurrence. It was further proved that when they reached in between village Pahalwada and Ji Nagla, at about 5:00 PM, then they met accused Jubli, Mihilal, Ompal, Ganga Sahai, Surja, Nawab, Palai and Gappoo, who after exchanging greetings with them, surrounded them. It is further proved that the accused said to Fateh Singh that he was doing intense pairvi against the case of Ram Singh and then, accused Jubli and Mihilal pulled out their ‘tamancha’ and fired one round each on Fateh Singh from close distance. Thereafter, the accused claimed that they had decided the fate of Fateh Singh and the fate of the remaining accused will also be decided. Thereafter, the accused fired two more rounds in the sky and fled. It is also proved that after being shot, Fateh Singh collapsed on the ground, who was taken on a cot, on foot, by PW-1 and others to police station Rajpura where the first informant PW-1 scribed the application, on the basis of which, subsequently F.I.R. was registered. PW-1 proved the tehrir as Ex. Ka-1.
37. From the evidence of PW-1, it is further proved that the application Ex.Ka-1 was scribed outside the Police Station Rajpura, from a person who knew Fateh Singh. PW-1 remained at the Police Station till the FIR was registered and the statement of Fateh Singh was recorded by PW-6. It is also proved that the cot on which Fateh Singh was taken to the police station, was obtained from one Malkhan, belonging to village Ji Nagla. It is also proved that PW-1 and PW-3 knew all the accused, prior to the incident. It is also proved that a piece of dhoti was applied as bandage on the wounds of Fateh Singh and he was taken to the Police Station Rajpura on foot, on a cot, by PW-1, Shahzadey, etc. but PW-3 had not accompanied them. From the evidence of PW-1 and PW-3, it is also proved, that they were all returning together from Babrala market and were proceeding towards their house, then at about 5 PM the incident occurred. They proved that the incident took place on a thoroughfare but, at that time, besides them and their fellow villagers and accused, none other was present. They also proved that, in the way Sheodan and Gendan Lal met them, who also accompanied them, but this fact was denied by PW-5 Gendan Lal. They further proved that they had taken about one and half hours to reach the spot from the market and at that time, it was not raining. They further proved that all the accused were sitting on the roadside, in a ploughed field, who surrounded them. They also proved that both the accused Jubli and Mihilal, fired one round each, from their ‘tamancha’, and after the incident, two rounds were fired in the sky. They also proved that the accused Jubli was towards east and Mihilal was towards west of Fateh Singh, who was standing in between the two accused, when he was shot. They further proved that after being shot, Fateh Singh remained conscious and was speaking, who had stopped speaking at Babrala. PW-3 further proved that after the incident, Fateh Singh had a conversation with him and Fateh Singh had also seen the assailants.
38. PW-1 and PW-3 also proved that the accused fired 2 rounds on Fateh Singh from a distance of about 5-6 feet and remaining two rounds were fired in the sky. According to the medical evidence on record, no blackening and tattooing was found on the two entry wounds, during autopsy of deceased Fateh Singh, which proves that he was shot from an effective distance (actual distance between deceased and muzzle of ‘tamancha’ ) of more than three feet. According to doctor PW-2, two exit wounds caused by firearm were found on the dead body of Fateh Singh, which communicated with two entry wounds caused by firearm, which is also corroborated from the ocular testimony of PW-1 and PW-3.
39. We are of the considered view that the manner in which PW-1 and PW-3 proved that Fateh Singh was shot, is corroborated from the testimony of doctor PW-2, and also, by the medical evidence on record. It is true that there are certain improvements in the testimony of PW-1 and PW-3 that they did not tell the Investigating Officer that after the incident, two rounds were fired in the sky by the accused and also that the accused put the empty cartridges in their pocket. In our opinion, these are minor improvements, which do not affect the core of the prosecution case. As such, they do not make the prosecution story doubtful.
40. We are also of the opinion that the prosecution has proved the place of occurrence, beyond reasonable doubt. The Investigating Officer, PW-6, recovered the blood stained soil from the spot, the recovery memo of which was proved as Ex.Ka-11.
41. It is also proved from the testimony of PW-1 and PW-3 that there was an enmity of accused with Fateh Singh regarding a dacoity that took place in the house of Ram Singh about two to two and half months, prior to the incident, in which Bhure, Mahendra, Kalyan and Roshan were accused, and the accused Bhure was bailed out by Fateh Singh. It is also proved that Ram Singh is uncle of accused Jubli, Nawab and Mihilal, Palia is nephew of Ram Singh, and accused Gappoo is the son of Ram Singh. It is also proved that Fateh Singh was doing intense pairvi against Ram Singh in that dacoity case and due to this, the accused were annoyed and aggrieved, being the family members of Ram Singh. It is also proved that just before Fateh Singh was shot, even then the accused had verbally expressed their displeasure that he was doing intense pairvi against Ram Singh, in that dacoity case and due to this reason, accused Jubli and Mihilal shot him dead. We are of the opinion, that although it is a case of direct ocular evidence, in which the prosecution is not required to prove the motive of the crime, but still in this case, the prosecution has successfully proved the motive of the commission of crime.
42. It is also evident that previously Fateh Sigh was tried in a murder case, in which he was acquitted, but even then, he could not have been murdered by the accused.
43. From the evidence of PW-1 and PW-3, it is also proved that the incident took place at about 5 PM on 28.08.1981. Thereafter, a cot was arranged from village Ji Nagla to carry injured Fateh Singh to the Police Station Rajpura, on foot, which was about 7 Kilometers from the spot of occurrence. It took time to arrange cot and for bandaging the wounds of Fateh Singh and, thereafter, he was carried on cot, on foot, to Police Station Rajpura. According to PW-3, it could have taken about two to two and half hours on foot in the night to carry Fateh Singh on cot to Police Station Rajpura. PW-1 further proved that he remained on the spot for about one hour after the incident, and till then PW-1 had not proceeded with injured to the Police Station, which proves that it took time in arranging the cot and other things. It is also proved that Ex.Ka-1 was scribed outside the Police Station, which should also have taken considerable time.
44. It is proved by PW-7 that first information report regarding the incident was registered on 28.08.1981 at 21:35 hours, on the basis of written application Ex.Ka-1 submitted by PW-1. In view of the above evidence on record, it cannot be said that the first information report was deliberately lodged belatedly by the first informant.
45. It is proved from the evidence of PW-1 and I.O. Harinath Sharma PW-6 that when Fateh Singh arrived at police station Rajpura in an injured condition, he was conscious and was speaking. It is proved by PW-6 that an injury memo was prepared and Fateh Singh was sent for medical help to the hospital. PW-7 also proved that in the GD entry No.20 dated 28.08.1981, the injuries of Fateh Singh were noted. It is also proved from the evidence of Hoshiyar Singh (PW-4) that Constable Ramjilal of P.S. Rajpura informed him at police station Gunnaur, that when injured Fateh Singh was being taken by him from police station Rajpura for treatment, then he died at Babrala and the information of his death, according to PW-4, was recorded in the general diary of police station Gunnaur at Serial No.12 and thereafter, PW-4 conducted the Panchayatnama of Fateh Singh, outside the police station Gunnaur, in the next morning. From the perusal of Panchayatnama Ex.Ka-3, it is evident that the information of death of Fateh Singh was received at police station Gunnaur on 29.08.1981 at 00:45 hours and thereafter, the Panchayatnama of his dead body was performed on 29.08.1981 between 9:30 to 11:00 AM. From the evidence of PW-1, and other documentary evidence, it is proved that injured Fateh Singh was taken to police station Rajpura on 28.08.1981 at 21:35 hours, and after completing formalities, which included registration of FIR, recording GD, preparing injury memo and recording his statement under Section 161 Cr.P.C, when he was being taken for treatment to the District Hospital Budaun on cot, then he died at Babrala, at about midnight of 28/29.08.1981.
46. In this case, after registration of first information report, the Investigating Officer (PW-6) recorded the statement of injured Fateh Singh under Section 161 Cr.P.C. which was proved by him as Ex.Ka-9 during trial. What is the evidentiary value of this statement, needs to be examined.
47. The Apex Court in the case of Dharmendra Kumar @ Dhamma vs. State of M.P. (2024) 8 SCC 60, while examining, whether statement of deceased recorded under Section 161 Cr.P.C., can be treated as dying declaration, when the Investigating Officer, did not take any certification from the doctor, regarding the mental fitness of the deceased, held as under:
“65. Section 161 CrPC empowers the police to examine orally any person who is acquainted with the facts and circumstances of the case under investigation. The police may reduce such statement into writing also. Section 162(1)CrPC, nonetheless, mandates that no statement made by any person to a police officer, if reduced to writing, be signed by the person making it, nor shall such statement be used in evidence except to contradict a witness in the manner provided by Section 145 of the Evidence Act. However, sub-section (2) of Section 162CrPC carves out an exception to sub-section (1) as it explicitly provides that nothing in Section 162 shall be deemed to apply to any statement falling within the ambit of clause (1) of Section 32 of the Evidence Act. In other words, a statement made by a person who is dead, as to the cause of his death or to the circumstances of the transaction which resulted in his death, to a police officer and which has been recorded under Section 161CrPC, shall be relevant and admissible, notwithstanding the express bar against use of such statement in evidence contained therein. In such eventuality, the statement recorded under Section 161CrPC assumes the character of a dying declaration. Since extraordinary credence has been given to such dying declaration, the court ought to be extremely careful and cautious in placing reliance thereupon. There are a catena of decisions of this Court which lend support to the interplay between the provisions of CrPC and the Evidence Act, as explained above [ See : (i) Mukeshbhai Gopalbhai Barot v. State of Gujarat, (2010) 12 SCC 224 : (2011) 1 SCC (Cri) 318; (ii) Sri Bhagwan v. State of U.P., (2013) 12 SCC 137 : (2012) 4 SCC (Cri) 197; (iii) Pradeep Bisoi v. State of Odisha, (2019) 11 SCC 500 : (2019) 4 SCC (Cri) 249] .
66. As regards the assessment of mental fitness of the person making a dying declaration, it is indubitably the responsibility of the court to ensure that the declarant was in a sound state of mind. This is because there are no rigid procedures mandated for recording a dying declaration. If an eyewitness asserts that the deceased was conscious and capable of making the declaration, the medical opinion cannot override such affirmation, nor can the dying declaration be disregarded solely for want of a doctor’s fitness certification. The requirement for a dying declaration to be recorded in the presence of a doctor, following certification of the declarant’s mental fitness, is merely a matter of prudence. [Koli Chunilal Savji v. State of Gujarat, (1999) 9 SCC 562 : 2000 SCC (Cri) 432]
67. The Constitution Bench in Laxman v. State of Maharashtra [Laxman v. State of Maharashtra, (2002) 6 SCC 710 : 2002 SCC (Cri) 1491] has authoritatively ruled that : (SCC pp. 713-14, para 3)
“3. … But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. … What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”
68. It is important in this case to appreciate that the investigating officer recorded the statement instantly, a day after the incident. He has categorically stated that the medical report did not mention that the condition of the declarant, Tularam, was serious in nature. More importantly, Tularam was able to convey his statement properly. Furthermore, on perusal of the statement, it is clear that the declarant Tularam was in a fit condition as not only did he properly explain the incident but has also markedly specified the role of the appellant. That apart, the injuries found during the post-mortem examination conducted by PW 13 and PW 15 have duly corroborated the statement of deceased Tularam.
69. From the above discussion, it is manifest that the mere non-obtainment of a medical fitness certificate will not deter this Court from considering a properly recorded statement under Section 161CrPC to be a dying declaration.”
(emphasis supplied)
48. From the law laid down by the Apex Court in the case of Dharmendra Kumar @ Dhamma (supra), it is evident that the statement recorded under Section 161 Cr.P.C. assumes the character of a dying declaration, after the death of the person, whose statement was so recorded. It is also evident that the Court should be extremely careful and cautious in placing reliance on such statement. It is also evident that absence of medical fitness certificate will not deter the court from considering such dying declaration. In view of the above law, the statement of Fateh Singh, recorded under Section 161 Cr.P.C., after his death, has assumed the character of a dying declaration, whose veracity needs to be examined.
49. We have carefully gone through the dying declaration of Fateh Singh, proved as Ex.Ka-9 by PW-6. In this statement Fateh Singh mentioned that on the day of incident, he along with his brother Dhan Singh (PW-1) went to Babrala animal market and when they were returning home from the market, with Kishanlal, Sheodan, his nephew Shahzadey, Gendan Lal, then between village of Pahalwada and Ji Nagla, they met accused Jubli, Mihilal, Ompal, Nawab, Ganga Sahai, Surja, Palia and Gappoo, who after exchanging greetings with them, surrounded them and said that he was doing pairvi against the case of Ram Singh and after this, accused Jubli and Mihilal pulled out their ‘tamancha’ and fired one round each at him, with the intention to kill him and when his companions tried to save him, then two more rounds were fired by them, and they fled. He further stated that the accused said that similarly, all the others would be taken care of. He also stated that he sustained injuries in his axilla and waist and bandaged his injury on the abdomen and was brought on a cot to the police station.
50. The manner in which the incident took place as per the dying declaration of Fateh Singh, is also corroborated from the ocular testimony of PW-1 and PW-3. There is absolutely no material improvement in the manner in which PW-1 and PW-3 proved the occurrence of incident.
51. Although, the trial court has not relied upon the dying declaration of Fateh Singh for convicting the accused-appellants, but it is legally admissible, which stands corroborated from the credible ocular testimony of PW-1 and PW-3, and the medical evidence of PW-2.
52. We are also conscious that six co-accused Ompal, Ganga Sahai, Surja, Nawab, Gappoo and Palia have been acquitted by the trial court, but only on this ground, the whole testimony of PW-1 and PW-3 cannot be discarded. We reiterate the well settled law, that the maxim “falsus in uno, falsus in omnibus” is not applicable in India.
53. The Apex Court in the case of Mahendran vs. State of Tamil Nadu (2019) 5 SCC 67 while considering the maxim “falsus in uno, falsus in omnibus”, held as under:
“38. It is argued that, the prosecution has put on trial twenty-four accused, but presence of A-11 and A-16 to A-24 was doubted by the learned trial court and they were acquitted on benefit of doubt. Five accused, A-10, A-12, A-13, A-14 and A-15 have been granted benefit of doubt in appeal as well. The argument that the entire case set up is based on falsehood and thus is not reliable for conviction of the appellants, is not tenable. It is well settled that the maxim “falsus in uno, falsus in omnibus” has no application in India only for the reason that some part of the statement of the witness has not been accepted by the trial court or by the High Court. Such is the view taken by this Court in Gangadhar Behera’s case(2002)8SCC381, wherein the Court held as under:-
“15. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana. Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of “falsus in uno, falsus in omnibus ” (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno, falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno, falsus in omnibus ” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory rule of evidence”. (See Nisar Ali v. State of U.P.) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. and Ugar Ahir v. State pf Bihar.) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. and Balaka Singh v. State of Punjab.) As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar. Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned.”
39. Therefore, the entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed.
42. All these judgments are in respect of appreciation of evidence of witnesses in the facts being examined by the Court. The general principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded.”
54. The Apex Court in the case of Ramesh Harijan vs. State of Uttar Pradesh (2012) 5 SCC 777 reiterating the principles on appreciation of evidence, held as under:
“26. In Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] , this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of M.P. [(1952) 2 SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ 230] and held as under : (Balaka Singh case [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] , SCC p. 517, para 8)
“8. … the court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.”
27. In Sukhdev Yadav v. State of Bihar [(2001) 8 SCC 86 : 2001 SCC (Cri) 1416 : AIR 2001 SC 3678] this Court held as under : (SCC p. 90, para 3)
“3. It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment–sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account.”
28. A similar view has been reiterated in Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696] (SCC pp. 246-47, para 13) wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
29. In Sucha Singh v. State of Punjab [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697 : AIR 2003 SC 3617] (SCC pp. 113-14, para 51) this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.”
55. In view of the law laid down by the Apex Court in the case of Mahendran (supra) and Ramesh Harijan (supra), the whole testimony of PW-1 and PW-3 cannot be discarded because the maxim “falsus in uno, falsus in omnibus” is not applicable in India and as such the acquittal of six co-accused by the trial court, does not make the whole prosecution case doubtful.
56. We are of the considered opinion that the ocular evidence of PW-1 and PW-3 is reliable, which is corroborated by the dying declaration of Fateh Singh and also from the medical evidence on record.
57. It was also feebly submitted by learned counsel for the appellants that the time of death of Fateh Singh calculated on the basis of time mentioned in the autopsy report, is not in consonance, with the ocular testimony of the eye witnesses.
58. According to the ocular testimony of PW-1 and PW-3, the incident occurred on 28.08.1981 at about 05:00 PM and according to PW-1 and PW-4, Fateh Singh died at Babrala around midnight of 28/29.08.1981, when he was being taken on a cot for treatment. The autopsy of Fateh Singh’s dead body was conducted on 30.08.1981 at 12:00 noon by PW-2, who opined that Fateh Singh could have died about one and a half day prior to the time of autopsy, which comes to mid night on 28/29.08.1981, which is corroborated by the testimony of PW-1 and PW-4.
59. In view of the above, we are of the opinion that there is no contradiction between the ocular and medical evidence, regarding the time of death of Fateh Singh.
60. To conclude, from the evidence on record, it is proved, that the accused-appellants had the motive to commit the offence and in furtherance of that, they shot and grievously injured Fateh Singh, who later on succumbed to his injuries. It is also proved that the incident was witnessed by PW-1 Dhan Singh and Kishanlal PW-3. We find that there is no material contradiction between eye witness account rendered by PW-1 and PW-3, regarding the manner in which the incident took place, which is also corroborated by the dying declaration of Fateh Singh, which was recorded and proved by I.O. Hari Nath Sharma, PW-6. The injuries proved in ocular evidence were found on the dead body, which is also corroborated from the medical evidence, proved by doctor PW-2. The spot of occurrence, as well as, the prompt registration of FIR, is also proved. It is also proved that the accused-appellants had indeed shot and grievously injured Fateh Singh, who died subsequently.
61. We are of the opinion that the prosecution has proved its case beyond reasonable doubt, against the appellants, as such, this criminal appeal deserves to be dismissed.
62. Accordingly, this criminal appeal is dismissed.
63. The impugned judgment and order dated 03.02.1984 passed by the trial court in Sessions Trial No.37 of 1982 (State Vs. Jubli & 7 others) insofar, as it relates to, conviction of accused-appellants, for offence under Section 302 I.P.C., is affirmed.
64. The minimum sentence of life imprisonment imposed by the trial court on the appellants under Section 302 I.P.C., is also affirmed.
65. Since, both the accused-appellants are on bail, they are directed to surrender in the trial court, within a period of one month from today, to undergo the remaining sentence, failing which, the trial court is directed to adopt coercive measures for securing their presence, in accordance with law.
66. A copy of this judgment be sent to the concerned trial court, through Registrar (Compliance), forthwith.
67. Office is directed to send back the trial court record. The trial court is directed to submit it’s compliance report, within 3 months.
Date: 14.08.2025
Jitendra/Himanshu
(Sandeep Jain, J.) (Salil Kumar Rai, J.)
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