# Atar Singh & Ors v. State of U.P

- **Citation:** Criminal Appeal No. 4576 of 2009
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-07
- **Case number:** Criminal Appeal No. 4576 of 2009
- **Bench:** Naheed Ara Moonis, Anil Kumar -Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atar-singh-ors-v-state-of-u-p-46464
- **Pages:** 36

## Headnote

Criminal law- Indian Penal Code - Sections
302 and 148 - Appeal against conviction.

Held - Plea of alibi-must be proved with
absolute certainty. (Para 66)

Minor Discrepancies - Can be ignored unless,
completely
incompatible
with
prosecution
version. (Para 74)

Medical Evidence- Cannot over right medical
evidence ocular testimony. (Para 106)

Lapses
During
Investigation-
Not
to
discredit prosecution version in case supporting
evidence is consistent and dependable. (Para
127)

Relative Witnesses- The testimony cannot be
doubted in case of minor variation. (Para 130)

Appeal rejected. (E-2)
670 INDIAN LAW REPORTS ALLAHABAD SERIES
 List of Cases Cited:-

## Text

_Characters 0–39,926 of 123,260. This is a partial read: ask again with offset=39926 for what follows._

3-5 All. Atar Singh & Ors. Vs. State of U.P.
669
sentence awarded under Section 365 I.P.C.
is 7 years and appellants have already
served out the imprisonment of surplus
period as they are stated to be in jail for the
last more than 9 years, hence, the payment
of fine as has been ordered by this Court
under Section 365 I.P.C. and by the the trial
Court, the same shall be treated to be the
imprisonment against the fine imposed on
them, hence, they shall be released
forthwith, if they are not wanted in any
other case. The period of six months of
additional imprisonment which they
could have been required to undergo in
case of default of payment of fine of
Rs.10,000/-
each
has
also
been
undergone by them, hence, they are not
required to make any payment of fine.
The judgement and order of the trial
Court is modified to that extent.

67. Sri Gautam Kumar Banerjee,
learned Amicus Curiae on behalf of
appellant
no.2-Mazhar
be
paid
honorarium as per the Rules as he placed
his papers regarding his appointment as
Amicus Curiae by the Legal Service
Authority for arguing the appeal on
behalf of appellant no.2-Mazhar.

68. It is further directed that the
accused appellants shall furnish bail
bond with surety to the satisfaction of
the Court concerned in terms of the
provision of Section 437-A of Cr.P.C.

69. In view of the above, the appeal
stands partly allowed.

70. Let the lower court record be
transmitted to the trial Court concerned
along with the certified copy of this
order by the office for its information
and compliance forthwith.
----------
(2020)03-05ILR A669
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE ANIL KUMAR -IX, J.

Criminal Appeal No. 4576 of 2009
Connected with
Criminal Appeal No. 4664 of 2009

Atar Singh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.R.B. Kher, Sri Anvir Singh, Sri R.P.
Singh, Sri Rajeev Kumar, Sri S.F.A. Naqvi,
Sri S.P.S. Rathi, Sri S.V. Singh, Sri Prem
Shankar, Sri H.D. Singh

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

Criminal law- Indian Penal Code - Sections
302 and 148 - Appeal against conviction.

Held - Plea of alibi-must be proved with
absolute certainty. (Para 66)

Minor Discrepancies - Can be ignored unless,
completely
incompatible
with
prosecution
version. (Para 74)

Medical Evidence- Cannot over right medical
evidence ocular testimony. (Para 106)

Lapses
During
Investigation-
Not
to
discredit prosecution version in case supporting
evidence is consistent and dependable. (Para
127)

Relative Witnesses- The testimony cannot be
doubted in case of minor variation. (Para 130)

Appeal rejected. (E-2)
670 INDIAN LAW REPORTS ALLAHABAD SERIES
 List of Cases Cited:-

1. Moti Vs. St. of U.P. 2003 Law Suit (SC) 301,

2. Ram Narain Singh Jaggar Singh Vs. St. of
Punj. (1975 AIR SC 1727),

3. Mohinder Singh Vs. St.; 1950 SCR 821 (AIR
1953 SC 415-1953 Cri LJ 1761),

4. Rana Pratap Vs. St. of Har. (1983) 3 SCC 327,

5. St. of H.P. Vs. Jeet Singh 1999 (38) ACC 50
SC,

6. Ram Ghulam Chaudhary Vs. St. of Bihar;
2001 (43) ACC 929,

7. Nankaunoo Vs. St. of U.P.; 2016(1) SC Cr.R
237,

8. V.K. Mishra & anr. Vs. St. of Uttrakhand &
anr., 2015(2) SC Cr.R,

9. Appa Bhai & anr. Vs. St. of Gujarat; 1988
(25) ACC168 SC,

10. Nathuni Yadav & ors. Vs. St. of Bihar; 1997
(34) ACC 576 SC,

11. Karan Singh & ors. Vs. St. of M.P.,
Judgment Today 2003, Suppl. Vol. 2 SC 261,

12. Tahsildar Singh & anr. Vs. The St. of U.P.,
1959 SCR Supl. (2) 875.

13. Binay Kumar Singh Vs. The St. of Bihar,
1997 Vol. 1 SCC 283,

14. Bhagwan Singh Vs The St. of Punj., 1952
AIR 214,

15. Dalip Singh Vs. St. of Punj. AIR 1953 SC
364,

16. Veer Singh & ors. Vs. St. of U.P., (2014) 2
SCC 455,

(Delivered by Hon'ble Naheed Ara Monis,
J.)

1. The abovementioned two appeals
have been filed on behalf of the appellants,
namely, Atar Singh, Mansha Ram, Phulwari
and Nawab Singh against the judgment and
order dated 22.7.2009 passed by the
learned Additional Sessions Judge, Court
No.2,
Farrukhabad
in Sessions Trial
No.327 of 1989 (State of U.P. Vs. Atar
Singh & others) arising out of case crime
no.158 of 1985 whereby they have been
convicted
and
sentenced
to
undergo
rigorous imprisonment for life and also to
pay fine of Rs.15,000/- under Section 302
IPC and three years rigorous imprisonment
for the offence punishable under Section
148 IPC. Both the sentences were directed
to run concurrently and in case of default of
payment of fine they were directed to
further undergo simple imprisonment of six
months.

2. The prosecution was launched
against seven accused persons, namely,
Atar Singh, Sughar Singh, Nawab Singh
(sons of Pyare Lal), Phulwari S/o Vijay,
Mansha Ram S/o Shankar, Kaptan Singh
and Deshraj (sons of Babu Ram) in
pursuance of the FIR lodged against them
registered by Bahaar Singh as Case Crime
No.158
of
1985,
under
Sections
147,148,149,302 IPC at police station
Kayamganj,
District
Farrukhabad
on
18.5.1985 at 6.50 P.M.

3. The Sessions Trial No.327 of 1989
pertains to the trial of accused appellants,
namely, Atar Singh, Sughar Singh, Nawab
Singh, Mansha Ram and Phulwari.The trial
of accused Sughar Singh was separated at
the fag end, on his plea of juvenility, who
was acquitted by the court below. Kaptan
Singh and Deshraj are the accused persons
of Sessions Trial No.129 of 1995.
3-5 All. Atar Singh & Ors. Vs. State of U.P.
671

4. Appellants, namely, Atar Singh,
Mansha Ram and Phulwari have preferred
appeal bearing Criminal Appeal No.4576 of
2009, Nawab Singh has preferred appeal
bearing Criminal Appeal No.4664 of 2009
against their conviction in Sessions Trial
No.327 of 1989. The appellant Kaptan
Singh and Deshraj have preferred separate
appeal bearing Criminal Appeal Nos.4639
of 2009 & 4404 of 2009 respectively
against their conviction in Sessions Trial
No.129 of 1995. As stated in opening
paragraphs all the accused persons were
convicted by the judgment and order dated
22.7.2009 passed by the learned Additional
Sessions Judge, Court No.2, Farrukhabad
and each were directed to undergo rigorous
imprisonment for life and also to pay fine
of Rs.15,000/- under Section 302 IPC and
three years rigorous imprisonment for the
offence punishable under Section 148 IPC.
Both the sentences were directed to run
concurrently and in case of default of
payment of fine they were further directed
to undergo simple imprisonment of six
months.

5. It is pertinent to mention here that
due to passing away of appellant Atar
Singh on 19.9.2018, the appeal on his
behalf has stood abated by order dated
3.12.2018.

6. The prosecution case in short
conspectus is that the First Information
Report was lodged on 18.5.1985 at 6.50
P.M. by Bahaar Singh S/o Ram Sahay in
respect of an incident occurred on the same
day at 4.30 P.M. which was registered as
Case Crime No.158 of 1985, under
Sections
147,148,149,302,201
IPC
at
police Kayamganj, District Farrukhabad.
He divulged in the FIR that his father Ram
Sahay
was
Pradhan
of
his
village
Lakhanpur for about 35 years. In the last
election, Chandrakali, the wife of Kaptan
Singh @ Kamta Prasad S/o Babu Ram
Yadav had contested election against his
father. His father had lost the election for
which a petition was filed which is
pending. About two & half years ago a
dacoity had been committed in the house of
Saudan Singh, who had named Atar Singh
S/o Pyarey Lal and Mansha Ram and two
others of which the case is pending.
Besides this, two years ago a case under
Section 396 IPC was filed by Sohan Lal
Nunre of village Lakhanpur in which two
persons were killed by dacoits. In the said
case, Mansha Ram, Atar Singh and
Deshraj, the brother of Kaptan Singh were
named in the FIR by Sohan Lal. Atar Singh
and
Kaptan
Singh
were
under
the
impression that the complainant's father has
implicated them in the case of dacoity.
About two years ago, Kaptan Singh,
Mansha Ram and Atar Singh had fired
upon his father and his brother Tahar Singh
with intent to kill them but luckily they had
escaped from there. In this case all the three
accused persons were challaned by the
police. On account of the above reasons,
Kaptan Singh and Atar Singh were bearing
enmity with his father. Two and half
months ago family member of Kaptan
Singh was murdered in the village in which
Kali Charan S/o Ram Naresh Yadav had
filed a false report against Vijayee and
Mansha Ram along with Tahar Singh who
is the brother of the complainant at the
instance of Kaptan Singh and on account of
which, his brother is in jail. After 2-4 days,
the dead body of Nahar Singh, the elder
brother of Atar Singh was found in a well
in which Atar Singh had implicated the
complainant, his father, Nanhey, Rajendra,
Tejram etc. of his village in the case, on the
basis of mere suspicion that they had
committed murder of Nahar Singh. A case
under Section 107 IPC was also filed by
Kaptan Singh and others, which is still
672 INDIAN LAW REPORTS ALLAHABAD SERIES
continuing and on account of these reasons
Atar Singh and Kaptan Singh were inimical
with his father Ram Sahay.

7. Today (on 18.5.1985) in the
evening at about 4.30 P.M. his father Ram
Sahay was sitting on a cot on the platform
situated in front of his baithak. Atar Singh,
his younger brother Sughar Singh, elder
brother
Nawab
Singh,
Phulwari
and
Mansha Ram of his village as well as
Kaptan Singh and Deshraj emerged out
from the house of Atar Singh and passed
through the baithak of Rajju and reached at
the platform. Atar Singh, Phulwari and
Mansha Ram were armed with rifle, Sughar
Singh, Kaptan Singh and Deshraj having
double barrel gun and Nawab Singh was
armed with countrymade pistol came over
chabootra. As soon as his father saw them
he got up and tried to run towards baithak,
at this Atar Singh, Mansha Ram and
Kaptan Singh had fired upon his father.
After receiving gun shot injury his father
ran towards baithak and fell down there.
Sughar Singh, Nawab Singh and Phulwari
went behind him and entered in the baithak.
There too, they had again fired upon him.
Atar Singh, Mansha Ram and Kaptan Singh
were firing indiscriminately outside which
had created reign of terror. His father had
succumbed to the injuries in the baithak.
All the accused persons thereafter dragged
the dead body of his father from baithak
and put him on the heap of wood of Arhar
kept in an open vacant land of Sahab Singh.
Atar Singh and Deshraj exerted that "Sale
Ko Jalakar Rakh Kar Do" (burn him to
ashes) and set the heap of wood of Arhar
on fire. Other persons put dry leaves (patai)
of sugarcane on fire. Thereafter they went
towards the house of Kaptan Singh
unleashing reign of terror by firing. This
incident was witnessed by his mother who
was standing at the door he himself, Sahab
Singh S/o Bhawani Singh of his village and
Brijender Singh who is the son of his
brother's 'Sarhu' Soney Lal who resides
there but they all were helpless seeing the
murder of his father due to fear of accused
persons armed with rifles and guns. The
dead body of his father burnt to some
extent has been lying on the spot, hence
action be taken by lodging the FIR.

8. On the basis of the aforesaid FIR
lodged by Bahaar Singh S/o Ram Sahai,
police swung into action. A case was
registered against Atar Singh, Sughar
Singh, Nawab Singh, Phulwari, Mansha
Ram, Kaptan Singh and Deshraj under
Sections 147,148,149,302,201 IPC as Case
Crime No.158 of 1985 on 18.5.1985 at
police station Kayamganj, which was
written by Constable Clerk Babu Ram
marked as Ext. Ka-8 & Ext. Ka-9. S.S.
Yadav, Inspector (C.B.C.I.D.) posted as
Sub-Inspector at police station Kayamganj
on 19.5.1985 had been entrusted to
investigate the case. He along with in
charge Inspector Jagdamba Prasad Mishra
and SSI K.L. Verma with police force
reached at the place of occurrence where
the deceased Ram Sahay was done to death
by firing upon him and his body was
burned by the accused persons which was
kept on the wood of Arhar. The inquest of
the deceased was conducted in the presence
of the witnesses and the inquest report was
marked as Paper No.16-A/1,16-A/2, 16A/3. It was duly signed by the SubInspector S.S. Yadav who proved his
signature and the same was marked as Ext.
Ka-3. Thereafter the dead body was sealed,
of which sample seal was prepared. He had
further prepared papers of challan nash,
police form no.13, letter to Chief Medical
Officer, I/C Fatehgarh, letter to R.I., photo
nash, chik FIR, copy of GD, site plan,
memo of empty cartridges, memo of ashes
3-5 All. Atar Singh & Ors. Vs. State of U.P.
673
of heap of Arhar, memo regarding search
and arrest of accused persons, recovery of
illegal firearm, memo of plain & blood
stained earth, which were marked as Ext.
Ka-4 to Ext. Ka-17. The recovery memos
as mentioned above were made in the
presence of Sahab Singh and Soney Lal
which were signed by them.

9. The statement of the complainant
and other witnesses were recorded under
Section 161 Cr.P.C. The papers relating to
the inquest of the deceased were handed
over to Constable Lal Mani and Constable
Balram along with the dead body and sent
to the District Hospital for autopsy of the
deceased.
After
conducting
the
investigation by SSI K.L. Verma, the
charge sheet was submitted on 30.6.1985
against the accused persons, namely, Atar
Singh, Sughar
Singh, Nawab Singh,
Mansha Ram and Phulwari, under Sections
147,148,149,302,201 IPC. The charge sheet
was marked as Ext. Ka-18. The charge
sheet had been submitted separately on
13.2.1986 against Kaptan Singh and
Deshraj by SSI Bhanwar Pal Singh, under
Sections 147,148,149,302,201 IPC, which
was marked as Ext. Ka-20.

10. On submission of charge sheet, as
usual the cognizance was taken by the
concerned Magistrate and after compliance
of provisions of Section 207 Cr.P.C. the
case was committed to the court of
sessions. The case was transferred to the
Special Judge/Additional Sessions Judge,
Farrukhabad. The charges were framed
against Atar Singh, Sughar Singh, Nawab
Singh, Mansha Ram and Phulwari on
30.6.1990, under Sections 148,302/34 IPC
in Sessions Trial No.327 of 1989.

11. Against accused Kaptan Singh and
Deshraj the charges were separately framed
on 29.9.1995 by the Second Additional
Sessions Judge, Farrukhabad in Sessions
Trial No.129 of 1995. Both the trials were
consolidated on 17.9.1998.

12. The charges were read over to the
abovementioned accused persons who
abjured the charges and claimed to be tried.
Even though the accused persons Kaptan
Singh and Deshraj of Sessions Trial no.129
of 1995 were appearing intermittently in
Sessions Trial No.327 of 1989. but the
prosecution witness P.W-1 was again
examined and cross-examined in Sessions
Trial no.129 of 1995. The accused persons
were on trial for murder hence there was no
justification to have a criminal trial pending
for so long when the charges were already
framed against them.

13. To bring home guilt of the
accused persons, the prosecution has
examined Bahaar Singh (complainant) S/o
Ram Sahay as P.W-1, Brijendra Singh as
P.W-2, who is the son of maternal uncle of
informant, Dr. C.N. Bhalla who conducted
the autopsy of the deceased Ram Sahay as
P.W-3, S.S. Yadav (Retired Inspector) as
P.W-4 and Phool Chandra, Pairokar as P.W5.

14. Bahaar Singh who is the son of
the deceased and the informant of the case
was examined as P.W-1 on 17.1.2001. He
deposed that the name of his father was
Ram Sahay. The incident took place 15
years & 6 months ago. On the day of
incident i.e. 18.5.1985 when his father was
killed he was sitting in front of his baithak
at the platform. At about 4.30 P.M. Atar
Singh, Sughar Singh, Nawab Singh, who
are real brothers, Phulwari, Mansha Ram,
Kaptan Singh and Deshraj emerged out
from the house of Atar Singh and passed
through the baithak of Ragghu and
674 INDIAN LAW REPORTS ALLAHABAD SERIES
suddenly came at the platform of his house.
Atar Singh (since deceased), Mansha
Ram and Phulwari were armed with
rifle, Sughar Singh (declared juvenile),
Kaptan Singh and Deshraj armed with
gun and Nawab Singh was having
countrymade pistol. When the accused
persons climbed over his chabootra,
then after seeing them, his father stood
up to run towards inside baithak, at this
juncture Atar Singh, Mansha Ram and
Kaptan Singh fired upon his father
which hit him. On receiving firearm
injury his father fell down in baithak.
Thereafter Sughar Singh, Phulwari and
Nawab Singh entered into baithak and
there too fire was shot at his father. Atar
Singh, Mansha Ram and Kaptan Singh
were firing indiscriminately who had
created fear and terror. His father had
succumbed to the injuries
in the
baithak. Thereafter all the accused
persons dragged the dead body of his
father and brought in the open field of
Sahab Singh and had put the dead body
on the heap of wood of Arhar. Atar
Singh
and
Deshraj
after
using
vituperative words, exerted to burn him
to ashes (Sale ko Jala Kar Raakh kar
do) and set him on fire on the heap of
wood of Arhar. Other accused persons
picked up dry leaves of Sugarcane and
put over the fire and after unleashing
reign of terror by firing they went away
towards the house of Kaptan Singh.
This incident was witnessed by his
mother Nisar Devi who was standing at
the door. Besides her the complainant
P.W-1
himself,
Sahab
Singh
and
Brijendra Singh of his village and other
witnesses
were
present
who
had
witnessed the incident. No one could
dare to come forward to stop the
accused persons as they were having
rifle and gun. He reached near the half
burnt dead body of his father. He left
him at the spot and went to lodge the
FIR. After the incident, he had written
the report which was taken by him and
handed over to the police of police
station Kayamganj. The report paper
no.5-A was proved by him and was
marked as Ext. Ka-1.

15. He further deposed that his
father Ram Sahay was murdered as
there was deep rooted enmity between
the accused persons and his family,
detail about the enmity was written in
the report.

16. The witness was put to lengthy
cross-examination on behalf of the
accused persons, namely, Atar Singh
(since deceased), Mansha Ram and
Nawab Singh by the defence counsel. In
his cross-examination P.W-1 deposed
that his father Ram Sahay was Pradhan
of
Lakhanpur
which
consist
of
Akhunpur Lakhanpur, Nagla Akhunpur,
Karim Nagar, Pattiya, Eidgah Nagla,
Nagla Thakur. Since 1972 Babu Ram,
the father of accused Kaptan Singh who
contested the election of Pradhan was
defeated constantly. He does not know
as to whether Babu Ram had filed any
petition or not. He denied that any
parti-bandi is going on since long. In
1982 accused Kaptan Singh's wife
Chandrakali had contested the election
of Pradhan against his father, but
election was won by Chandrakali and
his father had lost the election. He was
not aware that Atar Singh, Nawab
Singh, Sughar Singh, Mansha Ram and
Phulwari had supported in the election.
He denied that those persons had
opposed his father. In his knowledge
Atar Singh and others were neutral in
the said election of Pradhan. He did not
3-5 All. Atar Singh & Ors. Vs. State of U.P.
675
know as to who were other persons,
except Babu Ram and Chandrakali,
contested election against his father. He
denied that other candidates were
opposing his father Ram Sahay. He also
denied that he is deliberately not
disclosing the name of the other
persons.

17. In his cross-examination P.W-1
further deposed that prior to the death of
his father 2 & 1/2 years ago there was
dacoity and murder in the house of Saudan
Singh. In that case a report was lodged
against accused Atar Singh, Mansha Ram,
Albele, who is the brother-in-law of Atar
Singh and one another person. He showed
his ignorance that in that case Tahar Singh
was a witness from the side of Saudan
Singh. The accused persons were acquitted.

18. The dacoity in the house of Sohan
Lal Nunre of village Lakhanpur happened
two years ago prior to his father's murder in
which two persons, namely, Data Ram and
Shripal were killed. In that case Atar Singh,
Mansha Ram and Deshraj were the accused
who were acquitted. He denied that his
father was involved in the dacoity in
conjunction with his associates. His father
had lodged an FIR under Section 307 IPC
against the accused Atar Singh, Mansha
Ram and others who had fired upon him. In
that incident his father had not sustained
any injury. In the said case his brother
Tahar Singh and Nanhey Singh S/o of
Saudan Singh were the witnesses. In this
case also they were acquitted.

19. He further deposed that in the
murder of Ram Naresh S/o Chiraunji of
Nagala Akhunpur, Kali Charan had lodged
the report in which his brother Tahar Singh,
Asharam, Vijayee and Janaki were made
accused. In this case his brother Tahar
Singh was convicted for life imprisonment
under Section 307 IPC and it is correct to
say that they had been falsely implicated in
the said case. He showed his ignorance that
a case under Section 107 Cr.P.C. was filed
against
his
father
at
police
station
Kayamganj and Akhunpur. His father was
living on rent in Kayamganj for a certain
period.
He
had
taken
contract
of
countrymade liquor in Kayamganj. He was
not aware about Rameshwar Sahay and
Vittan Lal had been in transport business
along with his father and it is wrong to say
that there was dispute regarding liquor and
transport with his father. He denied that his
father had any connection with any gang of
dacoits. He denied that any gang used to
take shelter at his place. He denied that his
father had illicit relation with the female of
the dacoit's family. Smt. Nisar is his mother
and was not concubine. She was not
muslim. Her father was Thakur named as
Bachan Singh who had expired. There is no
family alive in the family of Nisar. He
denied that his mother had came along with
gang and was kept by his father. He denied
that when his father was murdered gang of
Sultan Dhanuk was active and the gang
used to get shelter by him. He denied that
gang of Sultan used to take shelter at his
place. He also denied that on the arrival of
the police on the information of his
opponent, gang of Sultan escaped from
there. It is also wrong that they had offered
shelter to members of the gang and looted
booty and when gang of Sultan came to get
back Rajjo and looted booty, his father had
refused to return them. He denied that the
gang of Sultan had exerted pressure to get
back Rajjo and the booty and his father had
committed murder of Rajjo and burnt her
dead body. It is also wrong to say that his
father had not returned the looted cash,
jewelry and weapon with ill intention. He
deposed that he is not aware that the case of
676 INDIAN LAW REPORTS ALLAHABAD SERIES
murder of his father was committed to
sessions court in one time and rest case of
Kaptan Singh and Deshraj was committed
subsequently. He deposed that the date is
fixed today in respect of all the seven
accused persons in this Court. He cannot
say as to whether the statement is being
recorded for all the accused persons. He is
not being told whether his statement has to
be recorded on behalf of Kaptan Singh and
Deshraj.

20. P.W-1 in his cross-examination
further stated that the name of his
grandfather was Umrao and he had two
sons, namely, Ram Sahay and Bhawani
Sahay. Sahab Singh who is the son of
Bhawani is witness in this case. Tahar
Singh is his real brother who got married in
Silah not in Jasrathpur. Brijendra Singh
(P.W-2) is the son of Tahar Singh's Sarhu.
Brijendra
Singh
is
the
resident
of
Jasrathpur (now Dashrathpur) which is 2530 Km. away from his village. He further
deposed that beside Soney Lal several other
persons were residing in his village. The
nearest house is of Soney Lal, Raghu and
others are at a distance of 100-150 meters
towards north. At the time of incident his
mother, Sahab Singh and Brijendra Singh
came over there, thereafter 2 to 4 persons
also arrived there among them Ram
Prakash, Soney Lal and several women and
children were present. He remained at the
spot 10-15 minutes. Fire extinguished with
water by him, Ram Prakash, Soney Lal,
Brijendra and children. The inquest of the
dead body was conducted in the morning.
At the time of conducting inquest, he was
at his house and was not at the site. He had
not signed the inquest report at the time of
inquest. He had not seen that smoking was
coming out or not. Till 9-10 AM in the
morning the police remained there. The
dead body was taken by the police on the
bullock cart to Kayamganj. He did not go
to the police station along with the dead
body. Ram Prakash, Soney Lal and others
were present there. The police station
Fatehgarh was at the distance of about 4
Km from his village. He is not aware that
Fatehgarh was 30-40 Km. The dead body
came on a taxi from Fatehgarh at about
1.30 P.M. After postmortem of the dead
body cremation was done on the same day.
After cremation, he did not go to the police
station. He could not remember that the
police went to his village on the next day or
not.

21. The site plan was prepared by the
police on the next day after cremation. The
police had recovered empty cartridges, tikli
and shots in his presence. When the dead
body was sent for postmortem on the same
day, empty cartridges and blood stained
earth etc. were taken into custody by the
police. The police had not taken his
signature on any paper.

22. Main door of his house is situated
towards east. Platform is in front of the
door, which is about 10/12 feet in length
and width. Platform of Dabbu is adjacent to
the northern side of platform which is
towards north and south. There is one more
platform in the southern side of his house
which is about 15/12 feet wide. On this
platform, his baithak is towards west. One
window is also in the said baithak on the
northern side to this platform. On southern
side of his baithak one platform of two
brothers, namely, Ram Prakash and Soney
Lal is lying. The police had collected the
empty cartridges from the south-west
corner of platform of Ram Prakash as well
as on his platform and from inside the
baithak. The empty cartridges which were
lying at the platform of Ram Prakash was
at a distance of 5-6 feet. He showed his
3-5 All. Atar Singh & Ors. Vs. State of U.P.
677
ignorance about how many cartridges were
lying at the chabootra and inside the
baithak. Empty cartridges were of 12 bore
and 315 bore. The distance where the dead
body was recovered was 50-60 meters away
from this platform on the eastern side of the
baithak. He had also mentioned in the FIR place
from where the incident was seen. During the
entire incident he was at a distance of 20-25
meters away in the southern side from the place
where his father was sitting. He remained there
for 15-20 minutes after the incident. Earlier he
was in his house. Brijendra Singh was with him
prior to the incident. Brijendra Singh was along
with him and Sahab Singh was present on
southern side adjacent to the house of Ram
Prakash. He had himself seen the shots of 10-5
fire hitting to his father. When his father got up
and ran towards baithak he had received gun
shot which was hit at his chest. He could not
say as to which firearm hit his father first as
several shots were made simultaneously. When
his father was sitting on the cot he did not
receive any fire. When he was about to rise to
run from there then he received the fire. His
father ran towards baithak which is towards
west from the place where his father was sitting
on a cot. Baithak was at a distance of 3-4 feet
where he was sitting. His father received 2-4
fire which was fired from the northern side as
he was about to run. His father could not close
the door while entering into baithak. Three
accused persons entered into the baithak. He
could not say as to how many shots were fired
inside baithak. The place from where he was
seeing the firing, he was not able to see the fire
made inside the baithak. He showed his
ignorance as to how many fire were made at his
father inside the baithak.

23. P.W-1 was further cross-examined on
9.2.2001 who stated on oath that he did not ask
from anyone till he scribed the FIR as to how
many shots were fired upon his father. When
the first shot hit to his father the assailants were
towards north side of his father. At that time,
father was running towards western side. First
fire hit to his father on his chest. He could not
see that the fire was hit at the chest of his father
from right or left side. When firing took place
his father was sitting at his platform. 7-8 fire
was made from all around in which some fire
hit to his father, some at door step and some on
wall of the outer side of the baithak. Fire shot
also hit on the entrance of the upper side of the
door. Besides 7-8 fire at the platform, several
other shots were also made. 4-5 shots were
made so that nobody could dare to come
forward. The fire was made from north of the
door of the baithak. No fire was made upon him
or upon any witness. On receiving first shot his
father did not fell on the ground, later on he fell
in the baithak. Accused persons remained inside
4-5 minutes. When they came out from the
baithak then they did not fire. His father was
dragged from baithak 50-60 meters away.
When they dragged him at that moment they
had not fired. They put his father on the heap of
woods of Arhar and set him ablaze. Thereafter
again they fired. When his father was put on
fire, he was already dead. He died inside
baithak.

24. He had disclosed in his statement
the place from where he had witnessed the
incident. It is wrong to say that the place
has not been mentioned in his statement
from where he had seen the incident. In the
report also he had mentioned the place. He
had disclosed to the police that he used to
go Jasrathpur. Witness Brijendra Singh
(P.W-2) is the resident of Jasrathpur,
District Etah who is studying and residing
with him since last 8-10 years.

25. He denied that he and Brijendra
Singh were at Jasrathpur on the day of
incident and were not present at the time of
incident. He also deposed it is wrong to say
that mother Nisar was at Shamshabad and
678 INDIAN LAW REPORTS ALLAHABAD SERIES
was not at the place of incident. He also
denied that on account of fear of miscreants
his father mostly used to hide and did not
live in the house. It is also wrong to say
that miscreants on the day of incident had
traced out his father and when he entered in
the house miscreants chased him and his
father closed the door after entering into the
baithak. The miscreants pushed and broken
the door and thereafter they had committed
his murder and also wrong to say that in
order to take revenge they (miscreants)
dragged him from the baithak and set him
on fire. It is wrong to say that he received
information next morning in Jasrathpur that
miscreants had committed murder of his
father. It is wrong to say that people of his
village had given oral information in the
morning to the police station. It is wrong to
say that firstly inquest was conducted and
thereafter the report was lodged after
consultation. It is wrong to say that on
account of enmity he had named all the
accused persons falsely and they had not
committed murder. It is wrong to say that
he had not witnessed the incident and on
account of enmity he has falsely deposed
against them.

26. The P.W-1 Bahaar Singh was
again examined in Sessions Trial No.129 of
1995. His deposition is discussed in the
connected appeal filed on behalf of the
accused Kaptan Singh and Deshraj.

27. Brijendra Singh S/o Soney Lal was
examined as P.W-2 on 15.6.2001.Brijendra
Singh, P.W-2 affirmed on oath that Ram Sahay,
the father of his maternal uncle (Mausa) Tahar
Singh, was murdered 16 years ago who was the
resident of Akhunpur. At that time Tahar Singh
was in jail. He was residing in the house of his
maternal uncle Tahar Singh in Akhunpur. His
maternal uncle Tahar Singh and father of Tahar
Singh, Ram Sahay were inimical with Atar
Singh and his family members. On the day of
incident, he (P.W-2) and Bahaar Singh (P.W-1)
were coming from the field of muskmelon
(Kharbooja ). At about 4.30 P.M. in the evening
when they reached near the field of Soney Lal,
they saw that Ram Sahay Pradhan was sitting
on a cot on his chabootra (platform) at once
Atar Singh, his brother Sughar Singh, his elder
brother Nawab Singh, Phulwari, Mansha Ram,
Kaptan Singh and Deshraj emerged from the
house of Atar Singh and came through the
baithak of Ragghu and reached at the platform
of Ram Sahay. Atar Singh, Mansha Ram and
Kaptan Singh had fired upon Ram Sahay who
ran towards baithak chased by Sughar Singh,
Nawab Singh and Phulwari and they fired on
him while entering inside bhaitak. Atar Singh,
Mansha Ram, Kaptan Singh and Deshraj had
fired indiscriminately outside which had created
panic and terror. Pradhan Ram Sahay had
breathed his last in the baithak. The dead body
of Pradhan was dragged by Atar Singh and
Deshraj towards the open place of Sahab Singh
where the wood of Arhar was lying and kept his
dead body on the heap of wood of Arhar. Atar
Singh and Deshraj exerted, abusing to set him
on fire and burn him to ashes "Sale Ko Aag
Laga Kar Rakh Kar Do". Then Atar Singh had
ignited the fire. Rest of the accused had put dry
leaf on the fire. Thereafter all the accused
persons escaped towards the village of Kaptan
Singh. This incident was witnessed by him and
Bahaar Singh from the gher of Soney Lal.
Sahab Singh had witnessed from the
outside of the house of Ram Prakash and
Nisar had seen from her own door of the
house. They could not intervene to save on
account of fear and terror of the accused
persons. He had completed his education in
Akhunpur and he knew all the accused
persons since before.

28. P.W-2 was cross-examined on
16.6.2001 by the defence. He stated on oath
that Akhunpur village is 20-35 km. away
3-5 All. Atar Singh & Ors. Vs. State of U.P.
679
from Jasrathpur. His village is in district
Etah. He has four brothers and two sisters.
Elder brother are Raghvendra Singh and
Shail Singh. His brothers and two elder
sisters had their education in Jasrathpur.
His statement under Section 161 Cr.P.C.
was recorded by the police in respect of the
incident at about 9 A.M. 5-7 minutes before
the dead body was sent his statement was
recorded. He had deposed in his statement
that accused Deshraj had dragged the dead
body of Pradhan at the place where the
woods of Arhar was lying. He could not
disclose the reason as to why the police had
not recorded about dragging of dead body
by accused Deshraj. He had also disclosed
to the police that he had studied in village
Akhunpur. It is wrong to say that he did not
study at village Akhunpur and it is wrong
to say that to show his presence at the time
of incident he has disclosed that he was
staying for his study in village Akhunpur .

29. In his cross-examination he
deposed that the dead body was taken from
the place of incident at about 9 A.M. in the
morning. Bahaar Singh who is brother of
his maternal uncle (Mausa) and other
villagers had accompanied the dead body.
He did not go anywhere as there was no
one in the house hence he remained in his
village. After the incident police remained
there till 9.30 A.M. in the village. In his
presence in the morning, besides him the
statement of Bahaar Singh, Sahab Singh
and Nisar were recorded. Thereafter the
inquest was conducted. The police left for
police station along with the dead body.
Again he deposed that he is not aware that
the police went along with the dead body or
before, but two police personnel had
accompanied with the dead body. Later on
Bahaar Singh did not go along with the
police. Five police personnel remained
there after the dead body was taken away.
Bahaar Singh returned on the next morning.
On the next day police had reached there at
about 12 A.M. Site plan was prepared in his
presence on the day of incident.

30. In his cross-examination he
further deposed that at the eastern side of
platform of Ram Sahay there is an open
place which is 50 steps from east and 50
steps from door towards west. There is no
wall. Gher of Sahab Singh towards north
east about 50-55 meters. Open place of
Sahab Singh is about 40-50 yards east and
west. On the eastern side of field of Sahab
Singh after half Km. agricultural fields of
the village and the fields of Soney Lal,
Sahab Singh and others are located. 15
minutes prior to the incident he along with
Bahaar Singh had gone to see the field of
muskmelon. The field of muskmelon is
towards the east and south of the village.
There is no field of Soney Lal. The field of
Soney Lal is lying towards north and in
between there is a field of Ram Sahay
(Pradhan). P.W-2 was cross-examined at
length with respect to the different field of
the village situated near the place of
incident. Again he was exhaustively crossexamined with respect to the field of
villagers lying in the vicinity of the place of
incident. He had deposed about the field of
various villagers in a natural manner and he
further deposed that the platform where
Ram Sahay was sitting was 8-10 paces in
length and width. The door of his baithak
was towards east. His cot was closed to the
door. Ram Sahai was sitting on the cot
facing east. The cot was lying east to west.
When the first fire was shot from the
western side, at that moment Ram Sahay
was sitting on the cot. 3 shot hit to Ram
Sahay. Blood oozed out from the injury of
Ram Sahay which fell on the cot and also
on the ground. After 3 shots no fire was
made at the platform as Ram Sahay ran
680 INDIAN LAW REPORTS ALLAHABAD SERIES
inside baithak. After he entered in baithak
firing had taken place but he could not
count. At the platform 10-15 shots were
made in the air. After Ram Sahay entered
into baithak he heard 4-6 round of fire, but
he could not see. The fire made by the
accused persons in the air on the chabootra
and while running from the place. After 1015 minutes of firing by the accused persons
there was atmosphere of panic and terror.
He had deposed before the police that all
the accused persons ran towards house of
Kaptan Singh while firing in the air. After
burning the dead body no fire was shot.
The fire was doused by him, Bahaar Singh
after arrival of women and children. He had
stated about the said incident to the police,
but he could not say as to why the same has
not been mentioned by the police in his
statement. When the police saw the dead
body it was wet. No smoke was coming out
from the dead body. Wet ashes and half wet
wood lying there had been collected by the
police. He had seen 10-15 cartridges were
found at the place of incident. Cartridges
were found only at the place of chabootra
and baithak. The blood was only found
inside baithak and at the platform. It is
wrong to say that he had not seen the
incident. It is wrong to say that he received
the information about the murder of Ram
Sahay in the morning when he was in
Jasrathpur. It is wrong to say that on
receiving information he and Bahaar Singh
came from Jasrathpur to the place of
incident. He also denied that he is deposing
falsely about the incident on receiving
information.

31. After examining the two witnesses
of fact, the prosecution examined Dr. C.N.
Bhalla on 18.11.2002 as P.W-3. Dr. C.N.
Bhalla, Medical Officer Leprosy Control
Unit
Fatehgarh,
District
Farrukhabad
deposed on that he was posted on
19.5.1985
as
Pediatrician
in
District
Hospital, Fatehgarh. On that date, at about
5 P.M. he had conducted the autopsy of
Ram Sahay Yadav S/o Umarao. He was
aged about 60 years.