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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NOS.1460-1461/2010

KALI PRASAD SINGH ETC.                       Appellant(s)

                               VERSUS

STATE OF UTTAR PRADESH                   Respondent(s)

J U D G M E N T

1. Heard learned counsel for the parties.  

2. The appeals are preferred by the accused-appellants

against the conviction and sentence imposed by the Sessions

Court  and  affirmed  by  the  High  Court  vide  judgment  and

order(s) dated  09.10.2009 for  commission of  offence under

Section 302, IPC.   

3. Short facts of the case are that the first informant-

Rajendra Singh, resident of Baijnath, Police Station Ramgarh,

District Bhabhua, Bihar was preparing for civil services at

Allahabad and his brothers Surendra Singh and Abhinav Rathore

were residing at Varanasi.  A week prior to the incident, the

first informant had come to Varanasi from Allahabad.  His

younger  brother  Surendra  Singh-deceased  was  working  with

Topkan Opticals Rathyatra.  On 18.02.2000 at about 9 p.m.,

when his brother did not return from work place, Rajendra

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Singh went to look for him towards Mahavir temple.  At about

9.30 p.m. Surendra Singh met him near Mahavir temple and they

started walking towards their house. The deceased was walking

5-6 paces behind the complainant along with his bicycle.  At

about 10 p.m., near the house of Pramod Dubey, the accused-

Kali Prasad @ Paintol and Santosh Kumar Singh, armed with

country made pistol, came from the side lane, caught hold of

his brother-Surendra Singh and fired at his neck and temple

(Kanpati).  Hearing the shrieks of the complainant, constable

Nepal Singh (PW-3) who also resided in the same locality came

out  of  house  and  challenged  the  accused,  who  ran  away.

Surendra Singh died instantaneously.  A number of close by

residents arrived at the scene.  The complainant was able to

recognize the accused in the light of electric bulb.  Ram

Narayan  was  alleged  to  be  the  master-mind  behind  the

occurrence who had conspired with the accused to eliminate

the deceased.

4. The prosecution examined as many as eight witnesses.

Rajendra Singh was the only eye witness and was examined as

PW-1, Sanjay Kumar Rai was examined as PW-2, Constable Nepal

Singh as PW-3, Constable Uma Shanker Singh as PW-4, SI R.P.

Rai who performed the inquest report was examined as PW-5,

Inspector M.S. Chaudhary was examined as PW-6, SI Ashok Kumar

Pandey who investigated the matter under Section 25 of the

Arms Act was examined as PW-7 and J.P. Tripathi was examined

as PW-8.

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5. Recovery of one country made pistol of 12 bore and 12

bore cartridge was made on 22.03.2000 by the police party led

by Ashok Kumar Pandey along with SI Vinod Dubey. Constable

Raja  Ram  Ranjan  and  constable  Sanjay  Kumar  Ojha  received

information that one of the accused involved in the murder of

Surendra  Singh  was  present  in  the  court  campus.   He  was

arrested at 12.10 p.m. and unlicensed arm and cartridge were

recovered.  

6. The  Sessions  Court  vide  judgment  and  order  dated

29.01.2002 convicted both the accused under Section 302 IPC

and awarded life imprisonment along with a fine of Rs.5,000/-

each. In case of default of deposit of fine amount, they were

directed to further undergo six months’ imprisonment each.

Accused Kali Prasad was acquitted from the charges framed

under Section 25 of the Arms Act.

7. The  High  Court  vide  judgment  and  order  dated

09.10.2009, dismissed  the appeal(s)  of the  appellants and

upheld the conviction and sentence. Hence the appeals.

8. Shri  K.T.S.  Tulsi,  learned  senior  counsel  for  the

appellants  urged  that  the  entire  prosecution  story  was

concocted one and the incident has not been witnessed by PW-1

Rajendra Singh.  His presence at the spot is doubtful and his

deposition does not inspire confidence.  Being a solitary

witness, his deposition requires closer scrutiny and he is

not  a  truthful  witness.   He  submitted  that  there  is  no

corroboration of the version of complainant Rajendra Singh

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(PW-1).  Learned senior counsel also urged that there is

manipulation as to the time when the first information was

registered, it was ante timed.  Apart from that, whether the

police reached on the spot before the FIR was lodged or later

on, is also doubtful.  Learned senior counsel submitted that

the complaint has been reduced in the form of written report

in  his  house  by  PW-1  after  he  had  deliberations  and

consultation and thereafter he had lodged it at the police

station.  

9. The incident occurred on 18.2.2000.  The FIR has been

received by the concerned Magistrate on 21.2.2000, whereas

the distance of the Court from the police headquarters was

200 yards.  Intimation has been sent belatedly and the same

also buttresses the plea that FIR has been ante-timed and the

same was registered after giving desired shape to the story

later on. The version of the complainant cannot be relied

upon in the absence of any corroboration.  

10. Learned senior counsel also referred to the inimical

background between the parties. With respect to availability

of the source of light, there is doubt. The witnesses have

given  the  different  heights  of  walls.   As  such,  it  is

doubtful whether light was at all available and the same has

not been described in the inquest memo prepared by the IO. It

was approximately 10 p.m. in the night when the incident had

taken place.  In the absence of source of light, the entire

prosecution story falls down.  No test identification parade

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was  held.  It  was  necessary,  as  Nepal  Singh  had  seen  the

accused persons running from the spot. Blackening of skin was

not found on the entry wounds at injury Nos.1 and 3 on the

person of the deceased, according to the ocular evidence and

it appears from the nature of injuries that gun shots were

fired from a short distance.  Hence the guilt has not been

established  beyond  reasonable  doubt  and  the  appellants

deserve to be acquitted.

11. Mr. Garvesh Kabra, learned counsel appearing for the

State contended that there is nothing to doubt the version of

the complainant. The incident had taken place at 10 p.m. The

correction made in the FIR as to the time it was lodged has

been explained by PW-4 namely, Constable Uma Shanker Singh.

The correction was reflected in the carbon copy as well.

Thus, it was made at the time of recording of FIR and not

later  on  which  was  recorded  on  the  basis  of  the  written

report submitted by the complainant.  

12. With respect to the source of light also evidence

indicates that light was coming from the house of Pramod

Dubey.  There was sufficient light for the identification of

the  accused.  Rajendra  Singh  (PW-1)  had  deposed  that  his

brother was murdered at 1 or 2 steps north side of the plot

of Dr. S.N. Singh.  The height of boundary wall of the plot

of Dr. S.N. Singh has been stated to be about six to eight

feet in the version of different witnesses whereas the other

witnesses except PW-1 have not been cross examined as to the

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height of the boundary wall of the house of Pramod Dubey

which was stated to be the source of light. The height of

boundary wall was 2 ½ feet only.

13. The version of Nepal Singh supports to a great extent

the version of complainant PW-1, the fact that the incident

had taken place at the time when it was purported to have

taken place and presence of the complainant PW-1 at the spot,

and he had seen the dead body of the deceased also, namely,

Surendra Singh. The solitary eye witness PW-1 is a reliable

witness as supported by the other evidence on record.  The

shots were fired from short distance as stated by Rajendra

Singh  (PW-1).  As  regards  blackening  of  skin  not  being

present, the High Court has given a cogent reasoning for

holding that since a Jacket was put on by the deceased, mark

of blackening powder has not been found on the two entry

wounds. The fact remains that gun shots were fired from a

short distance and that fact is not disputed and is also

established by the nature of injuries caused to the deceased

and duly corroborated by medical evidence.

14. Firstly,  we  come  to  the  question  that  the  first

information report has been ante timed. The FIR had been

reduced to writing on the basis of the written report lodged

by  the  complainant  Rajendra  Singh  (PW-1).   Constable  Uma

Shanker Singh (PW-4) reduced it to writing. The PW-4 has

clearly  stated  that  he  prepared  Chik  No.48/2000  case

No.66/2000 under Section 302/120B, IPC.  Entry in the general

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diary of the police station was made by the SHO at 2305

hours. The carbon copy of the FIR also reflects the position

in FIR. The aforesaid documents were marked as Ex.KA-5 and

KA-6, respectively.  A bare perusal of the FIR indicates that

there is no correction as to the time of the offence i.e. 10

p.m. and as to date on which it has been recorded.  There is

correction in time in writing at 2205 hours or 2305 hours. It

appears that figure of 2205 hours has been corrected to 2305

hours.  However, considering the fact that carbon copy has

also been produced of the document, the same also indicates

that  2305  hours  was  corrected  at  the  time  when  KA-5  was

recorded. The time of 2305 is also supported by general diary

entry. Thus, it appears that correction had been made at the

time of reducing the FIR to writing at the relevant time and

no dent is caused to the prosecution cast as to the time of

incident. The date of recording of FIR was 18.02.2000.  There

is no scope for ante timing the FIR within two hours of night

available on 18.02.2000.  The FIR cannot be said to be ante

timed.

15. Coming to the question of reliability of solitary eye

witness  Rejendra  Singh  (PW-1).  We  have  gone  through  the

entire deposition  anxiously with the help of learned senior

counsel for the appellants.  We find that his version is

quite truthful.  He has clearly stated that one week before

the incident he had come from Allahabad to Varanasi.  He went

out strolling to search for his brother and when he reached

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near Mahavir temple he met his brother Surendra Singh and

they both started walking towards home.  While they were

returning  back,  he  was  5-6  paces  ahead  of  Surendra,  his

brother.  When they reached in front of the house of Pramod

Dubey at about 10 p.m. Kali Prasad and Santosh appeared from

the Western side street. Both of them were having pistols in

their hands.  They caught his brother Surendra and fired at

his temple and neck. His brother fell down. Thereafter on

hearing the hue and cry Constable Nepal Singh came out of the

house. He challenged the accused persons and ran towards them

to catch them but the accused persons fled away towards north

side and disappeared.  His brother died on the spot.  He went

to his house and immediately, reduced the report to writing,

then went to the police station and lodged the report in the

night itself.   In the cross examination, it has been deposed

that the reason for killing was that there was enmity between

them and the accused Kali Prasad had a doubt that deceased

was also involved in murder of his brother. On further cross

examination, he has clearly stated that there was a case

pending regarding beating incident between the parties also

under Section 107, IPC.  He has also stated that Pramod Dubey

and several other persons came out of their houses after

hearing hue and cry. There is nothing brought in the cross

examination as to doubt the version given by the witness that

is medically corroborated also and substantially corroborated

by the version of Nepal Singh (PW-3), who came to the spot

immediately after gun shots were fired.

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16. When we consider the statement of Nepal Singh (PW-3),

he  has  clearly  stated  that  he  knew  complainant  Rajendra

Singh. He used to live in the house adjacent to the house

where he lived.  Rajendra Singh was studying at Allahabad but

occasionally he used to stay at Varanasi.  The incident took

place at about 10 p.m., on 18.2.2000.  He was in his house,

when he distinctly heard the sound of gun fire, he came out

shouting and saw Rajendra Singh (PW-1) was running towards

his house and on seeing him complainant, came to him and

started narrating the incident.  He saw two people running

away to the North side.  Body was lying in the pool of blood

in front of the house of Pramod Dubey.  A bicycle was also

lying near the body. Thus, he has corroborated version of

complainant.  He has narrated about the presence of Rajendra

Singh at the spot.  

17. Coming to the question whether there was any source

of light, we find that the height of the house of Pramod

Dubey was 2-1/2 feet whereas the height of boundary wall of

plot of Dr. S.N. Singh was 6-8 feet as is apparent from the

depositions of witnesses. The height of house boundary wall

of Dr. S.N. Singh is hardly material for the purpose of the

case.  The fact remains that there was source of light from

the house of Pramod Dubey and boundary wall was stated to be

2-1/2  feet  which  could  not  have  obstructed  the  light  as

suggested in cross examination. Thus, as to the visibility

and source of light, we have no doubt as to the version of

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complainant.

18. It  was  further  submitted  that  intimation  of  first

information report has not been sent promptly to the police

station.  A perusal of the first intimation report dated

18.02.2000  and  its  receipt  indicates  that  it  has  been

dispatched on 19.2.2000 as it had been sent by post to the

Magistrate and received on 21.2.2000.  In the circumstances

of the case, it cannot be said to be a case of belated

intimation particularly, when it was sent by post.  In the

facts of the case, it cannot be said that the shape has been

given  to  the  story  later  on  or  that  there  was  delay  in

receipt of the intimation of the report by the Magistrate.

The submission on behalf of accused has no legs to stand in

the aforesaid factual matrix of the case.   

19. Coming to the submission with respect to the non-

presence of the blackening powder, it appears that gun shots

have been fired from a close range but exact distance has not

been put to Rajendra Singh(PW-1) who is eye witness of the

incident.  It is apparent and was not disputed rightly that

considering the nature of injuries the gun shots were fired

from a close range; what was the exact distance has not been

brought out.  Apart from that, since the deceased was wearing

a hooded Jacket, obviously the absence of blackening on the

skin could not be found.  In the case of hooded Jacket, there

may be blackening of the Jacket portion only but at the same

time the skin may not have marks. That explains the version

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of the doctor that no blackening marks were found on injuries

Nos.1 to 3.

20. Thus, we find that the prosecution has proved case

beyond reasonable doubt and the High Court and trial Court

have  rightly  convicted  the  appellants  for  offence  under

Section 302, IPC.  

21. Considering the facts and circumstances of the case,

we find that no case is made out to interfere in the impugned

judgment and order(s).  

22. The  appeals  are  dismissed.  The  conviction  and

sentence imposed by the Courts below are confirmed.

……………………...J. [ARUN MISHRA]

……………………...J. [NAVIN SINHA]

NEW DELHI; MARCH 28, 2019.