Case: KALI PRASAD SINGH Vs. THE STATE OF UTTAR PRADESH

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 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.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 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 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.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]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 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.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 ofperusal 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 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.