# Aidal Singh (In Jail) v. The State of U.P

- **Citation:** (2021) 9 ILRA 607
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Case number:** Criminal Appeal No.319 of 1985
- **Bench:** Anjani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aidal-singh-in-jail-v-the-state-of-u-p-47454
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section Sections 147, 148, 149 &
302 - The Code of criminal procedure,
1973 - Section 161,313- appeal against
conviction

(P.W.-3) wife of complainant (PW-2) & daughter
of deceased - living in her Mayaka at the time
of murder of her father - Appellant no. 1(uncle
of PW-3) forbid, his brother to keep his
daughter and son-in-law in his house and
wanted to eliminate him - in the night at 12:00
p.m. - father of PW-3 sleeping under the
Chhappar of the house - (P.W.-3) sleeping
inside the house - appellant no. 2 fired a gun
shot on deceased with a country made pistol -
hit his left chest - fell down on the ground and
died - witnesses saw and identified the accused
in the light of Dibbi (kerosene lamp) - (P.W.-3)
came outside, her father was lying dead - Trial
court convicted accused appellant no. 1(died)
and appellant no. 2 for charge under section
302 only - Hence appeal.

HELD:-Incident has occurred in the night while
all were asleep and a single shot was fired by
someone who made good his escape from the
spot before anyone can notice the incident. Sole
testimony of complainant (P.W.-2) is not
reliable and there is no other witness to
corroborate his oral version. Trial court failed to
appreciate the evidence properly and the finding
of conviction recorded by it is not sustainable.
Conviction of the appellant no. 2 under Section
302 IPC and consequent sentence of rigorous
imprisonment is set aside.(Para - 16,17,18)

Criminal Appeal allowed.(E-7)

## Text

9 All Aidal Singh Vs. The State of U.P.
607
----------
(2021)09ILR A607
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No.319 of 1985

Aidal Singh ...Appellant(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pt. Mohan Chandra, Sri Rajesh Singh,
Sri Yogendra Misra, Sri Yogesh Kumar
Srivastava

Counsel for the Opposite Party:
D.G.A., A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section Sections 147, 148, 149 &
302 - The Code of criminal procedure,
1973 - Section 161,313- appeal against
conviction

(P.W.-3) wife of complainant (PW-2) & daughter
of deceased - living in her Mayaka at the time
of murder of her father - Appellant no. 1(uncle
of PW-3) forbid, his brother to keep his
daughter and son-in-law in his house and
wanted to eliminate him - in the night at 12:00
p.m. - father of PW-3 sleeping under the
Chhappar of the house - (P.W.-3) sleeping
inside the house - appellant no. 2 fired a gun
shot on deceased with a country made pistol -
hit his left chest - fell down on the ground and
died - witnesses saw and identified the accused
in the light of Dibbi (kerosene lamp) - (P.W.-3)
came outside, her father was lying dead - Trial
court convicted accused appellant no. 1(died)
and appellant no. 2 for charge under section
302 only - Hence appeal.

HELD:-Incident has occurred in the night while
all were asleep and a single shot was fired by
someone who made good his escape from the
spot before anyone can notice the incident. Sole
testimony of complainant (P.W.-2) is not
reliable and there is no other witness to
corroborate his oral version. Trial court failed to
appreciate the evidence properly and the finding
of conviction recorded by it is not sustainable.
Conviction of the appellant no. 2 under Section
302 IPC and consequent sentence of rigorous
imprisonment is set aside.(Para - 16,17,18)

Criminal Appeal allowed.(E-7)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri Y.K. Srivastava, learned
counsel for the appellants and Sri Devendra
Kumar Singh, learned AGA.

2. This criminal appeal has been filed
against the judgment and order dated
30.1.1985 passed by Vth Additional
Sessions Judge, Agra in Sessions Trial No.
348 of 1983 (State of U.P. Vs. Aidal Singh
& others), Case Crime No. 67, Police
Station - Tundla, District - Agra convicting
and sentencing the appellants Aidal Singh
and Ram Charan under Sections 302 IPC
for life imprisonment.

3. During pendency of this appeal, the
appellant no. 1, Aidal Singh has died.
Therefore, the appeal stands abated against
the appellant no. 1, Aidal Singh.

4. The prosecution case is that on
8.3.1983 at 9:15 a.m., complainant - Nathi
Lal son of Chiranji Lal gave an oral
information at police station - Tundla,
district - Agra that he is resident of village -
Garhi, police station - Tundla,. His sasural
is in the house of Jagjit son of Chetram,
resident of village Nagla Asha. Jagjit has
no other issue except his wife Bohri and
due to this, he along with his wife and
children are living with his father-in-law in
608 INDIAN LAW REPORTS ALLAHABAD SERIES
his house since seven to eight years and
doing agriculture. The real brother of his
father-in-law Aidal Singh do no like this
and on many occasions there was an
altercation between them. Aidal Singh and
others were afraid that Jagjit, his father-inlaw will transfer the land about 20-25
Bighas to him and his wife. Aidal Singh
forbid, his father-in-law Jagjit to keep his
daughter and son-in-law in his house and
wanted to eliminate him. The previous
night at about 11:00 p.m., cousins of his
wife, Naimichand, Gyaniram, his wife
Bohri and his father-in-law Jagjit were
siting in his house under a Chhappar and
were talking. Dibbi (Kerosene lamp) was
burning, meanwhile, Aidal Singh, Bhagwan
Singh holding Lathi in their hands and Ram
Jit Lal holding Ballam, Pratap Singh,
Dariyav Singh and Ram Charan armed with
country made pistols came there and Aidal
said that today Jagjit will be taught a lesson
for keeping his daughter and son-in-law
with him and all of them surrounded us.
Ram Charan fired a gun shot upon my
father-in-law with a country made pistol
which hit his left chest and he fell down on
the ground and died. We all made a noise,
Aidal Singh and others ran away towards
ravine
(Beehad)
in
the
South.
The
witnesses saw and identified the accused in
the light of Dibbi (kerosene lamp). In the
night, he could not come to the police
station due to fear and after sunrise have
come at police station leaving family and
villagers near the dead body.

5. On the aforesaid oral information
Case Crime No. 67 under Sections 147,
148, 149 and 302 IPC was registered
against all the six accused named in the
FIR.
Investigation
commenced,
investigating officer visited the place of
occurrence and took blood stained and
plain soil from the place of occurrence,
sealed it in separate containers, also took in
possession Dibbi (kerosene lamp) and
prepared memo thereof and also prepared
site plan. Panchayatnama and post-mortem
of
the
deceased
was
conducted.
Investigating
officer
recorded
the
statements of complainant and other
witnesses
and
after
completion
of
investigation submitted the charge sheet
against all the six accused persons under
Sections 147, 148, 149 and 302/34 IPC.

6. Learned trial court framed charges
against Aidal Singh, Bhagwan Singh, Ram
Ji Lal, Pratap Singh and Darab Singh under
Section 302 read with Section 149 IPC
against the accused, Aidal Singh and
Bhagwan Singh under Section 147 IPC,
against the accused Ramji Lal, Pratap
Singh, Darab Singh and Ram Charan under
Section 148 IPC and against the accused -
Ram Charan under Section 302 IPC.
Accused denied the charges and claimed
for trial. Four witnesses were produced by
the prosecution and ten prosecution papers
have been Exhibited. Statements of accused
were recorded, under Section 313 Cr.PC.
Accused denied the prosecution case and
stated that they are innocent and have been
falsely implicated due to enmity. One
defence witness, Gyani Singh - D.W.-1 has
also been examined by the accused.

7. Learned trial court by the
impugned judgment acquitted accused -
Bhagwan Singh, Ramji Lal, Pratap Singh
and Darab Singh from all the charges and
convicted accused - Aidal Singh and Ram
Charan for charge under Section 302 IPC
only
and
sentenced
them
for
life
imprisonment.

8. Post-mortem of the Jagjit was
conducted by Dr. Keshaw Singh on
9.3.1983 at 1:00 p.m.. According to the
9 All Aidal Singh Vs. The State of U.P.
609
post-mortem report, Exhibit Ka-1 rigor
mortis present, eyes half open, the
following anti-mortem injuries were found
on the body (i) gun shot wound of entry 4
cm x 4 cm cavity deep on the left side of
the chest and 3 cm below and lateral to the
nipple. Blackening and tattooing present.
Margins inverted.

In internal examination, left lung
and pericardium were lacerated, heart was
punctured and empty, clotted blood was
present in chest cavity, stomach was empty,
semi digested food material present in
small intestine, faecal matter present in
large
intestine,
liver
was
lacerated.
Duration of death is about one and a half
day and cause of death was due to shock
and haemorrhage as a result of anti-mortem
injury. The post-mortem report has been
proved as Exhibit Ka-1 by Dr. Keshaw
Singh P.W.-1.

9. The prosecution case is based on
direct evidence and there are two eye
witnesses, namely Nathi Lal and Bohri.
According to the prosecution, Nathi Lal
(P.W.-2) is the complainant. In his
examination-in-chief, he has narrated the
version of the first information report and
has supported it and has also proved the
FIR as Exhibit-Ka-2. He has also said that
police station is 5 to 6 kms away from his
village. He being alone could not go the
police station in the night.

10. Bohri (P.W.-3) is the wife of the
complainant and the daughter of the
deceased. In her examination-in-chief, she
has said that she was living in his Mayaka
(village - Nagla Asha) at the time of
murder of her father. Her father's name is
Jagjit and Aidal Singh is her uncle. Near
one year and nine months ago at 12:00 p.m.
in the night her father Jagjit was sleeping
under the Chhappar of the house. She was
sleeping inside the house. The house is
built at thar. When she came outside, her
father was lying dead. She has not seen
anyone. She knows all the six accused,
namely Bhagwan Singh, Ram Charan,
Pratap Singh, Ramji Lal, Aidal Singh and
Daryav Singh. They are present in the
court. She has not seen them at the spot.
This witness has not supported the
prosecution case and on request of the
prosecution, the witness was declared
hostile
and
cross
examined
by
the
prosecution. In her cross-examination, the
witness has denied her statement under
Section 161 Cr.PC. She has further said
that she was sleeping and no Dibbi
(kerosene lamp) was burning. She woke up
after hearing the sound of gun shot. She has
also contradicted the suggestion given by
the prosecution that she has entered into a
compromise with her uncle and due to this
she is not giving correct statement. On
further examination by the defence, she
again reiterated that she was sleeping inside
the house and her husband was sleeping at
the door. She and Naimichand and
Gyaniram came outside after hearing the
sound of gun shot and till then no one told
the name of the person who fired the gun
shot. It was dark night.

11. Constable - Nahar Singh, P.W.-4
is a formal witness who has proved the
other prosecution papers, like Chik FIR,
copy of the G.D., Panchayatnama and
related papers, the site plan and charge
sheet by secondary evidence.

12. Out of the two eye witnesses
examined by the prosecution, one witness,
P.W.-3 Bohri has become hostile and has
not supported the prosecution case and now
the prosecution case rests on the sole
testimony of eye witness - Nathi Lal (P.W.-
610 INDIAN LAW REPORTS ALLAHABAD SERIES
2). Although, he has supported the
allegations of the FIR, but his oral
testimony is not inspiring. The prosecution
case is that deceased along with his son-inlaw, Nathi Lal (P.W.-2) and his wife and
Nemichand and Gyan Chand were sitting
under the Chhappar which is outside the
house and were talking. It does not seem
natural and probable because the village
people believes in the principle of early to
bed and early to rise. They take their dinner
just after sun set and go to bed early. It is
also pertinent to mention that incident is of
first week of March, the winter season. It
has also come in evidence that the house of
deceased, Jagjit is one furlong away from
the village and after some distance the
ravines begin. So sitting and talking under
Chhappar outside the house at 11:00 p.m.
does not appear to be probable. It is also
the prosecution case that the accused
persons armed with lathi, ballam and
country made pistols came there while
deceased, her two brothers, son-in-law and
daughter were sitting under the Chhappar.
Accused, Ramcharan fired a single shot
which hit the deceased and all accused ran
away. None of the persons present on the
spot even tried to pacify or intervene or
save the deceased. No scuffle has taken
place. No other person has received any
kind of injury and all accused made good
there escape just thereafter without causing
any harm to the complainant or his wife.
This story also not seem probable. There
are other contradictions also in the oral
statement of Nathi Lal (P.W.-2). In his
cross examination, he has said that Dibbi
(kerosene lamp) was kept in tidwall of the
northern wall while in the site plan
(Exihibit Ka-7), it is shown in the eastern
wall and not in the northern wall as stated
by Nathi Lal (P.W.-2). The witness has
further stated in his cross examination that
there was no other cot in the south of
Jagjit's cot but in the site plan (Exibit Ka-7)
three cots have been shown in the south of
cot where dead body of the deceased was
lying.

13. Gyan Singh named as Gyani in
the FIR has been produced by the accused
in defence as D.W.-1 and who is the cousin
of the deceased. He has said that Jagjit was
murdered two years ago in midnight in the
fields. He also went there. Nemi, Nathi,
Bohri and brothers of Jagjit also reached
there. We all reached there after the
murder. No one has seen the occurrence.
Nathi went to lodge a report in the morning
and till then name of the culprits were not
known. In cross examination, this witness
has contradicted his statement recorded by
the investigating officer under Section 161
Cr.P.C. and has also denied the suggestion
that he is giving false evidence due to
compromise.

14. P.W.-3, Bohri is the daughter of
the
deceased
and
the
wife
of
the
complainant Nathi Lal although she has not
supported the prosecution case and has
become hostile but her oral statement
cannot be ignored on this ground. She has
said that when her father was murdered,
she was living in her Mayaka. She has
further said that it was 12:00 p.m. in the
night her father was sleeping under the
Chhappar at the door of the house and she
was inside the house. In her cross
examination, she has said that on hearing
the sound of fire, she came out. She has
also said that she was sleeping and no
Dibbi (kerosene lamp) was burning, she
woke up on hearing the sound of fire. She
has further said that her husband was also
sleeping at the door. So the statement of
this witness appears to be natural and
probable and from the evidence on record it
appears that the incident has occurred in the
9 All Chhotey Vs. The State of U.P.
611
dead of night in darkness when all were
asleep. It is a hit and run case and no one
had opportunity to see and identify the
assailant. The statement of defence witness
gets support from the oral statements of
P.W.-3, Bohri and statements of these
witnesses contradict and belie the oral
testimony of P.W.-2, Nathi Lal. There are
major contradictions and discrepancies in
the statement of Nathi Lal. His oral
testimony is not reliable. Learned trial court
has erred in placing reliance on sole
testimony of Nathi Lal (P.W.-2).

15. Learned AGA contended that oral
evidence of Nathi Lal(P.W.-2), complainant
and eye witness is consistent and is also
supported with medical evidence. Bohri
(P.W.-3) has become hostile and has not
supported the prosecution case due to fear so
it will not adversely affect the prosecution
case and reliability of Nathi Lal (P.W.-2).
These arguments are not convincing. As
discussed above, the oral testimony of Nathi
Lal (P.W.-2) is not inspiring and reliable.
Bohri is the wife of Nathi Lal (P.W.-2), who
has lodged the FIR and has named accused
persons and also deposed against them in
Court. Hence, it cannot be considered that
wife of Nathi Lal out of fear has become
hostile and has not supported the prosecution
case. Contrary to it, from material on record,
it appears that her statement is more natural
and probable and it also gets support from
defence witness - Gyan Singh who is named
as eye witness in the FIR.

16. From appreciation of evidence on
record, it appears that incident has occurred
in the night while all were asleep and a single
shot was fired by someone who made good
his escape from the spot before anyone can
notice the incident.

17. From the aforesaid discussion, it is
clear that the sole testimony of Nathi Lal
(P.W.-2) is not reliable and there is no other
witness to corroborate his oral version. The
learned trial court has failed to appreciate the
evidence properly and the finding of
conviction recorded by it is not sustainable.
The appeal is liable to be allowed.

18. The criminal appeal is allowed. The
conviction of the appellant no. 2, Ramcharan
under Section 302 IPC and consequent
sentence of rigorous imprisonment is set
aside. Appellant no. 2 / accused, Ramcharan
is acquitted from charge under Section 302
IPC. Appellant / accused is in jail. Appellant /
accused be released forthwith if not wanted
any other case.

19. Lower court record along with
copy of the judgment be transmitted to the
learned trial court immediately.
----------
(2021)09ILR A611
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE SUBASH CHANDRA SHARMA, J.

Criminal Appeal No. 1362 of 1983

Chhotey ...Appellant(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri N.K. Shukla, Sri Mohammad Waseem,
Sri B.D. Sharma

Counsel for the Opposite Party:
A.G.A.

(A)
Criminal
Law
-
appeal
against
conviction under Section 307 - Indian
Penal Code, 1860 - Section 307 , 323 -
The Code of criminal procedure, 1973 -
Section 313 - motive loses all its