Raghuveer Singh & Anr. vs State Of U.P.

Heard Shri Rajesh Kumar Vishwakarma, the counsel for the appellant and Shri Vikas Goswami, AGA-I for the prosecution.

The present Capital Appeal has been filed against the judgment and orders dated 21.12.2024 and 24.12.2024 passed by the Additional Sessions Judge (Fast Track Court)-I, Bareilly (hereinafter referred to as the trial court) convicting the appellants under Section 302 read with Section 34 IPC and sentencing them to Death and also fine. By the same judgement and order the trial court has also convicted and sentenced the Appellant no. 2 under Section 25 of the Arms Act, 1959 in Sessions Trial no. 246 of 2016 arising out of Case Crime No. 207 of 2015, registered at the same police station, which is also under challenge in the present appeal.

On 20.11.2014, appellant no. 1 submitted a written report at the Police Station stating that one Bhoop Singh, his maternal uncle, was issueless and had gifted his entire property to Somwati, the mother of appellant no. 1. Because of this gift, Harpal Singh, son of Bhagwan Singh (another maternal uncle of appellant no. 1), became inimical towards Charan Singh (the younger brother of the appellant no.1 and hereinafter referred to as the 'deceased') who was living with Bhoop Singh for the last eight years. It was alleged that at about 6:30 p.m. on 20.11.2014 the appellant no.1 and his brother Dharampal Singh, went to search for the deceased because he had not returned from the samadhi of Bhoop Singh and while searching for him, they, in the light of a torch, saw Harpal Singh and another person fleeing after murdering the deceased with a sharp-edged weapon. When appellant no. 1 and Dharampal Singh tried to stop them, they fled after firing in the air. The written report was transcribed by Jabar Singh, a resident of the same village. On the basis of the written report, Case Crime No. 666 of 2014 under Section 302 IPC was registered at about 8:10 p.m. The written report and the FIR were marked as Exhibit Ka-6 and Exhibit Ka-1, respectively, before the trial court.

The inquest proceedings were conducted on 21.11.2014 at about 8:30 a.m., after which the body was sent for post-mortem. The inquest report was marked as Exhibit Ka-9. Plain and bloodstained earth were also collected from the place where the dead body was found, and the recovery memo relating thereto was marked as Exhibit Ka-8.

The post-mortem was conducted at about 3:00 p.m. on 21.11.2014. The post-mortem report shows that the deceased had sustained two firearm entry wounds on the left side of the chest and two incised wounds, one on the scalp and the other on the left side of the shoulder extending to the right side of the chest cutting the neck almost completely. The post-mortem report was marked as Exhibit Ka-7.

The course of the investigation subsequently changed. The record indicates that Dharampal who had been named as a witness to the incident in the written report dated 20.11.2014, was later alleged to have expressed his suspicion that appellant no. 2, the son of appellant no.1, had murdered the deceased with the help of others. An affidavit dated 08.01.2015 was also attributed to Dharampal, alleging that the deceased had been killed by appellant no. 1 along with his sons, appellant no. 2 and Sonu. According to the affidavit, appellant no. 2 and Sonu had fired at the deceased, after which appellant no. 1 had assaulted him on the neck with a 'kanta’. It was allegedly stated in the affidavit that after firing at the deceased, the sons of appellant no. 1 had thrown away the pistol at the spot. Dharampal was also alleged to have stated that he had witnessed the incident but had not lodged a complaint earlier because the appellants had threatened him. The record further indicates that affidavits dated 08.01.2015 were also attributed to Somwati, mother of the deceased; Saroj, sister of the deceased; and Praveen Singh, brother-in-law of the deceased reiterating the version in the affidavit of Dharmapal but also stating that their knowledge regarding the occurrence was based upon what had been told to them by Dharampal. It is also alleged by the prosecution that, on 12.01.2015, Dharampal submitted an application before the Circle Officer, reiterating the version contained in the affidavit dated 08.01.2015. The affidavit attributed to Somwati, the application dated 12.01.2015 and the affidavit attributed to Dharampal, were marked as Exhibit Ka-3, Exhibit Ka-4 and Exhibit Ka-5, respectively.

The prosecution further alleged that on 13.06.2015, a pistol- said to have been used in the offence- was recovered at the pointing out of appellant no. 2. A recovery memo was prepared which records that after withdrawing the pistol from the place shown by him, the appellant no. 2 confessed that he had twice shot at the deceased with the pistol and, along with appellant no.1, had murdered the deceased. The recovery memo also notes that the appellant no. 2 pleaded ignorance regarding the empty cartridges. The recovery memo was marked as Exhibit Ka-18.

As appellant no. 2 could not produce the licence for the pistol allegedly recovered at his pointing out, Case Crime No. 207 of 2015 under Section 25 of the Arms Act was registered against him. The FIR was marked as Exhibit Ka-15.

On 14.6.2015, the Investigating Officer submitted the charge sheet against the appellants in Case Crime No. 666 of 2014. After taking cognisance, the case was committed for trial to the Sessions Court and Sessions Trial no. 245 of 2016 under Section 302 IPC was registered against the appellants. A charge sheet was also submitted against appellant no. 2 in Case Crime no. 207 of 2015, which was also committed for trial to the Sessions Court and Sessions Trial No. 246 of 2016 was registered against appellant no. 2. Both the cases were connected and tried jointly. The appellants were charged under Section 302 read with Section 34 IPC in Sessions Trial No. 245 of 2016, and appellant no. 2 was charged under Section 25 of the Arms Act in Sessions Trial No. 246 of 2016. The appellants pleaded not guilty and claimed trial.

The prosecution examined thirteen witnesses. PW-1 and PW-9 proved, inter alia, the chik FIR, inquest proceedings and the relevant G.D. entries. PW-8 was the doctor who proved the post-mortem report. The Chik FIR writer of Case Crime No. 207 of 2015 was examined as PW-12 and the Investigating Officer was examined as PW-13.

The prosecution case regarding the participation of the appellants substantially rested upon the allegation that Dharampal had witnessed the appellants assaulting and killing the deceased and had thereafter disclosed the occurrence to the mother, sister and brother-in-law of the deceased. Consequently, Somwati, Dharampal, Harpal, whose daughter was married in the village, Atar Singh, Nathu Lal and Jabar Singh, residents of the village, Praveen Singh and Saroj, were examined as PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-10 and PW-11, respectively.

In their testimony before the court, PW-2 to PW-6 did not support the prosecution case and denied having made the statements under Section 161 CrPC attributed to them implicating the appellants. The prosecution was permitted to cross- examine them and during their cross-examination PW-3 to PW-6 denied the suggestions that they were not speaking the truth either because of their relationship with the appellants, or because they belonged to the same community, were under pressure or because the appellants had threatened them. Additionally, in her evidence, PW-2 stated that the deceased, PW-3 and the appellant had cordial relations. PW-4 to PW-6, in their evidence, also denied any knowledge regarding any land dispute between the deceased and the appellants.

In her evidence, PW-2 denied any knowledge as to who had murdered the deceased and also denied that the appellants had committed the murder. She stated that, at the behest of the police, the villagers had obtained her thumb impression and photograph on a stamp paper. She was confronted with Exhibit Ka-3, but denied having got any such affidavit prepared. Although she admitted her photograph and thumb impression on the affidavit but stated that the police had forcibly obtained them on blank papers after threatening to send her to jail and implicate her in the murder of the deceased. She further stated that the affidavit had been prepared by the police during investigation, had never been read over to her, and that she did not know what had subsequently been transcribed on the blank papers.

PW-3 also denied knowing who had murdered the deceased. When confronted with Exhibit Ka-4 and Exhibit ka-5, he admitted his signatures thereon but stated that they had been forcibly obtained by the police and that he had neither submitted the affidavit to the police nor got the documents typed. PW-3 stated that, in the light of a torch, he had seen Harpal Singh coming from the place where the dead body of the deceased was found and admitted that appellant no. 1 had lodged a report in that regard. He further stated that about one month and twenty days after the incident, he, along with the mother, sister and brother-in-law of the deceased, had been taken to the police station, where the police obtained their photographs, signatures and thumb impressions on blank papers. According to PW-3, they were threatened that, if they refused, they would be sent to jail for the murder of the deceased. He further stated that the police had acted in concert with Harpal Singh, let him off and implicated the appellants.

Similarly, PW-4, PW-5 and PW-6 also denied any knowledge as to who had murdered the deceased or how he had been murdered. PW-4 also denied that the appellants had made any extra-judicial confession before him or had sought his assistance in approaching the police. PW-5 denied having heard firearm shots or having seen appellant no. 2 aiming a firearm at PW-3.

PW-7, proved the written report dated 20.11.2014. He also expressed ignorance as to how the police had let off Harpal Singh and implicated the appellants in the crime.

PW-10, initially claimed that he had seen appellant no. 1 murdering the deceased with a 'kanta’ and a pistol. At another stage of his examination-in-chief, however, he stated that appellant nos. 1 and 2 had together murdered the deceased. PW-10 admitted having submitted an affidavit, marked as Paper Nos. 17-Ka/08 and 17-Ka/09. However, the affidavit was not exhibited. In his cross-examination, the witness admitted that paragraph 7 of the affidavit recorded that PW-3 had informed him that appellant no. 2 had fired at the deceased and had thereafter thrown away the pistol. Thus, while the version contained in the affidavit proceeded on information allegedly received from PW-3, before the Court PW-10 claimed personal knowledge of the occurrence as an eyewitness. When confronted with this inconsistency, PW-10 stated that the contents of the affidavit were incorrect and that what he was stating before the Court was true. PW-10 further stated in cross-examination that he had told the Investigating Officer that he had witnessed the occurrence, but could not say why it had not been recorded under Section 161 Cr.P.C.

PW-11, stated in her examination-in-chief that appellant no. 2 had fired at the deceased and that appellant no. 1 had thereafter assaulted the deceased on the neck with a 'kanta'. In the same testimony, however, she stated that she had reached the spot after hearing gunshots and the shouts of the villagers and had seen the accused fleeing from the place. In her cross-examination, PW-11 stated that PW-3 had informed her about the murder and that she had gone to the spot thereafter. PW-11 also spoke of previous disputes and threats arising out of a land dispute between the appellant no.1 and the deceased and stated that the deceased was unmarried and had been killed because he was planning to marry. She admitted her thumb impression and photograph on the affidavit attributed to her and stated that the affidavit had been given to the police to state the true facts. She further stated that the accused had threatened her also. In her cross-examination, the witness admitted that her affidavit had been prepared by the police and that she had affixed her thumb impression on it.

PW-12 proved the FIR relating to Case Crime No. 207 of 2015 under Section 25 of the Arms Act and the relevant G.D. entries. In cross-examination, he admitted that no copy of the recovery memo was recovered from the possession of appellant no. 2 at the time he was brought to the police station. The witness also admitted that the G.D. entry relating to the registration of the case did not record the recovery of any such copy from appellant no. 2.

The Investigating Officer was examined as PW-13. He proved the relevant G.D. entries, the steps taken during investigation and the recovery memo relating to the pistol. The witness stated that the involvement of the appellants in the crime came to light by the statements of PW-5 and PW-6 under Section 161 Cr.P.C. PW-13 further stated that the pistol had been recovered at the pointing out of appellant no. 2. The pistol was produced before the Court and marked as Material Exhibit No. 3. However, the witness admitted that the pistol had not been sent for ballistic examination. PW-13 stated that a copy of the recovery memo had been given to appellant no. 2 but admitted that when appellant no. 2 was lodged at the police station, no copy of it was recovered from his possession. He expressed ignorance as to what appellant no. 2 had done with the recovery memo. In his cross-examination, the Investigating Officer stated, in relation to the statements of PW-10 and PW-11 under Section 161 Cr.P.C., that the witnesses had "not stated that they had not seen the accused murdering the deceased." The answer, thus, was expressed in the negative in relation to a negative assertion.

By the judgment impugned in the present appeal, the trial court convicted the appellants under Section 302 read with Section 34 IPC and appellant no. 2 additionally under Section 25 of the Arms Act. In arriving at its conclusion, the trial court relied upon Exhibits Ka-3, Ka-4 and Ka-5. The trial court further relied upon the testimony of PW-10 and PW-11, the medical evidence and the recovery of the pistol allegedly made at the pointing out of appellant no. 2. On the basis of this evidence, the trial court concluded that the appellants had committed the murder because they had their eyes on the property of the deceased. According to the findings recorded by the trial court, appellant no. 2 fired two shots at the deceased and, after he fell down, appellant no. 1 struck him on the neck with a 'kanta'. It further held the case to fall within the category of the rarest of rare cases and, accordingly, sentenced the appellants to death for the offence under Section 302 read with Section 34 IPC. Aggrieved by their conviction and sentences, the appellants have preferred the present appeal, while Reference No. 1 of 2025 has been submitted by the trial court under Section 366 Cr.P.C. for confirmation of the death sentence.

Challenging the judgment under appeal, counsel for the appellants submitted that the trial court had erred in law in relying upon Exhibits Ka-3, Ka-4 and Ka-5. It was argued that the testimony of PW-10 and PW-11 contained substantial inconsistencies and that their evidence did not establish that they had witnessed the occurrence. It was further submitted that Exhibit Ka-18 did not prove any information supplied by appellant no. 2 which led to the discovery of the pistol and that the pistol had not been scientifically linked with the offence. On these grounds, it was submitted that the conviction could not be sustained. It was additionally submitted that, in any event, the case did not fall within the category of the rarest of rare cases so as to warrant the death penalty. It was, therefore, submitted that the judgment of the trial court be set aside and the appeal be allowed.

On the other hand, the AGA-I, supporting the trial court's judgment, submitted that the appellants' participation in the crime was established by the testimony of PW-10 and PW-11. According to the AGA, their evidence was consistent and was further supported by the recovery of the weapon at the pointing out of appellant no. 2. The State, therefore, contended that the conviction was based upon the evidence on record, called for no interference and that the appeal was liable to be dismissed.

We have considered the rival submissions and carefully examined the record.

The homicidal nature of the death is not disputed. The post-mortem report, which is also not disputed, establishes that the deceased had sustained firearm as well as incised injuries. There is also no dispute regarding the place from which the dead body was recovered. The time of death, the time and place of occurrence as claimed by the prosecution, the time of registration of the FIR and the relevant G.D. entries have also not been disputed. Indeed, it was appellant no. 1 who lodged the FIR mentioning the time and place of occurrence. It is, therefore, unnecessary to examine these aspects.

The appellants stand convicted of murder and have been sentenced to death. Brutality does cause revulsion, but a court has to be cautious that it does not affect its assessment of the evidence. Suspicion or a strong moral conviction as to the guilt of an accused cannot take the place of proof. The burden of proving the charge is on the prosecution, and an accused is presumed innocent unless his guilt is proved beyond reasonable doubt by legally admissible and reliable evidence. The seriousness of the accusation, the brutality of the crime and the revulsion it causes do not permit any relaxation of these requirements or justify overlooking deficiencies in the prosecution evidence. On the contrary, the graver the charge and its consequences, the greater must be the care with which the evidence is examined before a finding of guilt is returned. Greater care is required where the accused has been sentenced to death, for any error in such a case has consequences which cannot be undone. The necessity of approaching the evidence with corresponding care and caution in such cases has repeatedly been emphasised by the Supreme Court in Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321; Mousam Singha Roy v. State of W.B. (2003) 12 SCC 377; Kashmira Singh v. State of M.P. (1952) 1 SCC 275; and Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116.

It is with these principles in mind that we proceed to examine whether the evidence brought on record, proves, beyond reasonable doubt, the charges against the appellants.

As noticed earlier, PW-2 to PW-6 did not support the prosecution case, and their cross-examination by the prosecution did not elicit anything in its support, except that PW-2 admitted her photograph and thumb impression on Exhibit Ka-3 and PW-3 admitted his signatures on Exhibits Ka-4 and Ka-5. The witnesses maintained their stand and denied having witnessed the occurrence as alleged by the prosecution. PW-3 reiterated the FIR version implicating Harpal Singh, while the other witnesses denied any knowledge as to who had committed the crime. PW-7 merely proved the written report submitted by appellant no. 1, which was marked as Exhibit Ka-6.

We have perused Exhibits Ka-3, Ka-4 and Ka-5. Exhibit Ka-3 purports to be an affidavit of PW-2 and attributes to her a statement that PW-3 had told her that the appellants, along with the other son of appellant no. 1, had murdered the deceased. It is thus not an account of the occurrence witnessed by PW-2. Exhibits Ka-4 and Ka-5 contain statements attributed to PW-3 that he had witnessed the appellants, along with the other son of appellant no. 1, killing the deceased. PW-2 and PW-3 did not testify before the Court to the facts attributed to them in these documents and, on the contrary, alleged that their thumb impression/signatures had been forcibly obtained by the police on blank papers after threats to implicate them in the crime. The trial court nevertheless relied upon these documents. The trial court did not deal with the assertion of PW-2 and PW-3 that their thumb impression/signatures had been forcibly obtained by the police on blank papers after threats to implicate them in the crime.

More importantly, the documents themselves attribute the murder to three persons—the two appellants and the other son of appellant no. 1. Thus, even if their contents are taken at face value, the trial court relied upon them to record a version which those very documents did not contain. Had PW-3 actually deposed before the Court to the version contained in these documents, this discrepancy itself would have required an explanation from the prosecution.

The core issue in the appeal, however, is whether the contents of these documents could at all have been treated as evidence of the facts stated therein. This issue has to be examined in the light of the law governing the use of a previous statement of a witness.

The law makes a clear distinction between using a previous statement to test the testimony of a witness and treating that statement as substantive evidence of the facts contained in it. It is the evidence given by the witness before the Court which constitutes substantive evidence. A previous statement does not acquire that character merely because its making or the document containing it has been proved. A previous statement may be used to contradict a witness in the manner contemplated by Section 145 of the Evidence Act. It may expose an inconsistency between what the witness stated earlier and what he has deposed before the Court. Such contradiction may be taken into account in assessing the creditworthiness of the witness, but the earlier statement cannot, merely on that account, be accepted as proof of the prosecution case. Such contradiction does not convert the previous statement into substantive evidence of the facts stated therein, nor does it follow that the earlier version stands established as true. In the case of a statement made to a police officer during investigation, its use is further subject to the statutory restriction contained in Section 162 Cr.P.C. Proof that a witness had made a previous statement is not proof of the truth of its contents. In this context, reference may be made to the decisions of the Privy Council in Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 and of the Supreme Court in Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405; Ch. Razik Ram v. Ch. J.S. Chouhan, AIR 1975 SC 667; Sat Paul v. Delhi Admn., (1976) 1 SCC 727; Hazari Lal v. State (Delhi Admn.), AIR 1980 SC 873; and Chinnammal v. State of T.N., (1997) 1 SCC 145.

Applying these principles, Exhibits Ka-3, Ka-4 and Ka-5 could at best have been used to discredit the testimony of PW-2 and PW-3 and justify disbelieving the witness but they could not have been treated as independent proof of the facts alleged. This would remain so even if it were assumed that the documents had been voluntarily executed by PW-2 and PW-3 and that their contents had been recorded at their instance. The trial court, however, treated the contents of the documents as independent proof of the facts alleged. This was contrary to the law governing the evidentiary use of previous statements.

Once Exhibits Ka-3, Ka-4 and Ka-5 are excluded as substantive evidence of the occurrence, the prosecution's case regarding the appellants' participation must necessarily be examined based on the other evidence brought before the Court. The principal evidence in that regard is the testimony of PW-10 and PW-11, which also do not help the prosecution case.

PW-10 claimed himself to be an eyewitness of the occurrence. However, there is material inconsistency in his testimony as to what he had witnessed and the source of his knowledge. At two different stages in his evidence, the witness gives two different versions regarding the manner of assault and the role of the accused. His first version is inconsistent with the prosecution case. Paragraph 7 of his affidavit, which the witness admitted, discloses that he derived his knowledge of the occurrence from PW-3. His evidence regarding the omission from his statement under Section 161 Cr.P.C. of his claim to be an eyewitness is a further circumstance relevant to the reliability of that claim. The trial court nevertheless held him as an eyewitness to the murder. In doing so, it did not consider the aforesaid inconsistencies in his evidence which were not minor discrepancies but went to the very basis of his claim to be an eyewitness and to what, if anything, he had actually witnessed.

The argument of AGA that PW-10 was, in any event, consistent regarding the participation of appellant no. 1 also fails. PW-10 initially stated that appellant no. 1 had assaulted the deceased with both a pistol and a kanta, whereas the prosecution case attributes the firing to appellant no. 2 and the assault with the kanta to appellant no. 1. The consistency sought to be relied upon materially contradicts the prosecution case itself of how the assault took place and does not lend assurance to the prosecution case.

In her evidence, PW-11 did not specifically state that she had seen the crime being committed but states that she saw the appellants fleeing. She also stated that PW-3 had informed her about the murder and that she thereafter went to the spot. She further admitted that her affidavit had been prepared by the police. The trial court nevertheless treated her evidence as proving the occurrence. The presence of PW-3 at the place of occurrence, even if admitted, could not establish that PW-11 had witnessed the assault. Nor could her attribution of the acts to the appellants be treated as direct evidence without examining the source of her knowledge.

The AGA sought to draw support for the testimony of PW-10 and PW-11 from the evidence of PW-13, the Investigating Officer. In his cross-examination, PW-13 stated that PW-10 and PW-11 had “not stated that they had not seen the accused murdering the deceased.” The carefully framed answer of PW-13 does not support the prosecution case. If PW-10 and PW-11 had stated during investigation that they had seen the appellants committing the murder, nothing prevented the Investigating Officer from saying so directly. He did not. To say that a witness did not state that he had not seen the murder is not to say that the witness stated that he had seen it. Verbal acrobatics are not evidence. This becomes important in light of the evidence of PW-10 regarding the omission from his statement under Section 161 Cr.P.C. of his claim to be an eyewitness, and the fact that PW-11 did not specifically state even before the Court that she had witnessed the incident. The linguistic play by PW-13, to avoid a direct answer, cannot fill these evidentiary gaps or lend support to the prosecution case.

PW-13 further stated that the names of the appellants came to be included in the investigation on the basis of the statements of PW-5 and PW-6 recorded under Section 161 Cr.P.C. However, the very witnesses from whom the information implicating the appellants was said to have originated disowned the statements attributed to them. This circumstance went to the genesis of the investigation against the appellants and required consideration by the trial court, which proceeded without examining its significance.

On an overall consideration of the oral evidence, we do not find any reliable ocular evidence establishing the guilt of the appellants. The conclusion of the trial court that the ocular evidence established the participation of the appellants in the murder is, therefore, unsustainable and cannot be affirmed.

What remains for consideration is the alleged recovery of the pistol at the pointing out of appellant no. 2. The incident occurred on 20.11.2014. The alleged recovery of the country-made pistol was made on 13.06.2015. The details of the recovery have already been stated earlier in the judgment. In his deposition, PW-13 did not state that appellant no. 2 had made any disclosure to him regarding the pistol or the place where it was kept, nor did the witness depose to the substance or the exact words of any information allegedly supplied by appellant no. 2 which led to its recovery. The record also does not disclose that any separate disclosure memo recording such information was prepared by the Investigating Officer. On this evidence, the trial court held that Exhibit Ka-18 showed that the pistol used by appellant no. 2 in committing the murder had been recovered at his pointing out. It also noticed the signatures of appellant no. 2 on the recovery memo and accepted the evidence of the Investigating Officer that a copy thereof had been furnished to him. On that basis, the trial court held the recovery to be a relevant circumstance against appellant no. 2 under Section 27 of the Evidence Act.

Whether the recovery could be treated as such a circumstance has to be examined in the light of Sections 25, 26 and 27 of the Evidence Act. Section 25 provides that no confession made to a police officer shall be proved against a person accused of an offence. Section 26 similarly provides that no confession made by a person while in the custody of a police officer, unless made in the immediate presence of a Magistrate, shall be proved against such person. Section 27 carves out a limited exception to these provisions and reads as follows: