# Basant Singh and others (In Jail) v. State of U.P

- **Citation:** (2003) 2 ILRA 324
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-03-01
- **Case number:** Criminal Appeal No. 399 of 1997
- **Bench:** M.C. Jain, K.N. Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/basant-singh-and-others-in-jail-v-state-of-u-p-40092
- **Pages:** 7

## Headnote

Indian Penal code-section 374 - element
of doubt-circumstances show that the
murder was committed only by Bharat
Singh and participation of Basant Singh
and Udai Singh by catching hold of Kripal
Singh is some what doubtful. As is well
know the element of doubt would go in
favour of the concerned accused. (Held
in Para)
Case Law Referred:

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
324
application for renewal. Chapter-II of the
Rules provide for right of tenure of the
lease holder where lease was granted in
accordance with the provisions of the
Rules. The order rejecting the petitioner
application for renewal was passed on a
policy which subsequently withdrawn. He
has also challenged the grant in favour of
petitioner on the ground that he is also
operating a lease in other area of the
district.

8. After considering the submission,
as aforesaid, I find that respondent no. 4
had not challenged the orders dated
31.05.1999
passed
by
the
District
Magistrate
rejecting
his
renewal
application and the notification dated
01.03.2001
under
Rule
72
inviting
applications for grant of lease under
Chapter-II. It is true that by Government
Order dated 31.12.2000 the mining policy
of 1998 vide G.O. dated 16.03.1999 was
withdrawn, but it did not effect those
areas where renewal as not granted during
the period when the policy under G.O.
dated 16.03.1999 was operative, and the
areas became available for fresh grant
vide notification under Rule 72. Bharat
Lal was fully aware of this position and
such he made an application for grant of
lease
in
pursuance
of
G.O.
dated
01.03.2001. His application for renewal
did not survive to be revived by his
application dated 17.5.2001 where the
areas were brought under Chapter II vide
notification under Rule 72, and were
made available for fresh grant of lease.
The application of Bharat Lal for renewal,
therefore, could not survive and could not
be considered. His lease expired on
01.07.1999 and did not have awaited
renewal up-to 17.05.2001, when he
wanted to press his renewal application.
Vinod Kumar was the first applicant in
pursuance of
the notification dated
01.03.2001 but since he did pursue the
matter further, the grant in favour of Ram
Jai Shri cannot be questioned or set aside.
Bharat Lal was not left with any surviving
interest in the area. There is no bar in
holding several mining leases in the
district except the restriction in Rule 10
which provided that the maximum area
for mining else should not cover a total
area of thirty acres. There is nothing on
record to show that the total area covered
or held by petitioner exceeds thirty acres.

9. For the aforesaid reason, the writ
petition is allowed, the impugned orders
dated 28.05.2002 by the Commissioner,
Vindhyachal
Region,
Mirzapur
(annexure-12 to the writ petitioner) and
the order dated 18.09.2002 passed by the
State Government (annexure-16 to the
writ petition) are set aside. There shall be
no order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2003

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE K.N. OJHA, J.

Criminal Appeal No. 399 of 1997

Basant Singh and others ...Appellants
 (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Appellants:
Sri Ramdendra Asthana
Sri Anil Srivastava
Sri A.K. Singh

Counsel for the Opposite Party:
A.G.A.
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2 All] Basant Singh and others V. State of U.P.
325
Indian Penal code-section 374 - element
of doubt-circumstances show that the
murder was committed only by Bharat
Singh and participation of Basant Singh
and Udai Singh by catching hold of Kripal
Singh is some what doubtful. As is well
know the element of doubt would go in
favour of the concerned accused. (Held
in Para)
Case Law Referred:

(Delivered by Hon'ble K.N. Ojha, J.)

1. Both these appeals have been
preferred against the same Judgment
dated 22.01.1997, passed by learned IX
Additional Sessions Judge, Kanpur Nagar,
In S.T. No. 1029 of 1996, State vs. Basant
Singh and 2 others by which appellants
Basant Singh and Udai Singh have been
convicted under section 302 read with 34
I.P.C.
and
appellant
Bharat
Singh
convicted under section 302 I.P.C. and
each one of them is sentenced to undergo
life imprisonment and a fine of Rs.5,000/-
also and in default of payment of fine,
further rigorous imprisonment of six
months. On realization of fine a sum of
Rs.10,000/- is to be given to Smt. Pushpa
Devi, widow of deceased Kripal Singh.

2. Appellants Basant Singh and Udai
Singh were represented by Sri Ramendra
Asthana, Sri Anil Srivastava and Sri Anil
Kumar Singh, Advocates, but they did not
appear to advance arguments. Sri Amar
Saran, Advocate, was appointed amicus
curiae for accused Bharat Singh, who is
confined in Jail. Sri Amar Saran agreed
and argued the appeal for all the three
appellants.

3.

According
to
prosecution,
deceased Kripal is the son of accused
Basant and real brother of accused Bharat
Sing. Udai Singh, another accused is real
uncle of Kripal Singh, Basant Singh and
Udai Singh caught hold of Kripal Singh
alias Badshah Singh aged about 28 years,
on 27.05.1996 at 9.30 A.M. near the
house of Gulab Singh in their village
Nasara, police station Narwal, district
Kanpur Nagar and Bharat Singh pierced
iron bar in the abdomen of Kripal Singh
resulting in his instantaneous death.
Informant Smt. Pushpa Devi, widow of
the deceased, lodged F.I.R. under section
302, 506 I.P.C. bearing crime no. 91/96 at
police station Narwal, district Kanpur on
the same day at 10.30 A.M. against all the
three appellants. The distance of the
police station is 2 km. From the place of
occurrence.

4. It is alleged in the F.I.R. that Smt.
Pushpa Devi has been living with there
husband Kripal Singh in her room in the
same house in which accused live, which
is situated in village Nasara, police station
Narwal, district Kanpur Nagar. Basant
Singh accused, father of the deceased, did
not give share of deceased to him in
landed property. When deceased insisted,
threatening was given to get him killed.
On 27.05.1996 at about 9.30 P.M. when
Kripal Singh was going to Kanpur Nagar
to attended his duty, as he was in private
service, and reached near the house of
Gulab Singh, Basant Singh and Udai
Singh caught hold of him and Bharat
Singh stabbed iron bar in his stomach,
resulting in his instantaneous death. Postmortem examination on the dead body of
Kripal Singh aged about 28 years was
done in the mortuary of Kanpur Nagar on
28.05.1996 at 11.30 A.M. and following
ante-mortem injury was found:

1. Punctured wound 1 cm. x 1 cm. x
abdominal cavity deep 12 cm below right
nipple.
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5. At the time of post-mortem
examination rigor mortis passed off from
both extremities. Eyes were closed.
Peritoneum was punctured on right side.
In abdominal cavity 1.5 litre blood was
present. In stomach 4 ounce fluid was
present. Small intestine contained half of
full gases and big intestines contained hall
full faucal matter. Death was due to shock
and hemorrhage as a result of ante
mortem injury.

6. Chick Report was prepared by
P.W.1
constable
Hanuman
Prasad,
investigation was started by P.W.5 Hoti
Lal Verma who prepared inquest report,
site-plan and recovery memo of iron bar,
which was recovered from the possession
of appellant Bharat Singh. The recovery
of memo in Ext. Ka-11. The recovery is
said to have been made from the place
near Balika Vidyalaya, Narwal. Rest
investigation was completed by P.W.6
police sub-inspector Babu Singh, who
recorded the statement of eye-witnesses
P.W.3 Smt. Pushpa Devi and P.W.4
Chhanga Singh. Iron bar, pant, shirt,
underwear, shoe and trousers of the
deceased were sent to chemical examiner,
on which human blood was found. After
charge sheet was submitted, the case was
committed to the Court of Session and the
charge was framed by learned IX Addl.
Sessions Judge against Basant Singh and
Udai Singh under Section 302 I.P.C. read
with section 34 I.P.C. and against Bharat
Singh under Section 302 I.P.C.

7. Prosecution examined P.W.1
constable Hanuman Prasad, who prepared
chick report, P.W.2 Dr. Y.K. Nigam, who
performed autopsy on the dead body of
Kripal Singh, eye witnesses P.W.3 Smt.
Pushpa Devi and P.W. 4 Chhanga Singh,
P.W.5 Sub-inspector Hoti Lal Verma and
P.W.6 Babu Singh. The last two were
investigating officers.

8. The accused denied their
participation in the crime. It was alleged
the Basant Singh is the father of the
deceased Kripal Singh. He was sitting at
his betel shop in village Bhagawan Khere
which is at a distance of 2 Km. From his
village Nasara where he was told at 8.00
A.M. that two unknown persons had
committed murder of Kripal Singh. The
case of Udai Singh is that he was admitted
in a nursing home in Lal Bunglow of city
Kanpur Nagar and the injuries were
caused by two unknown person in village
Nasara, police station Narwal, district
Kanpur Dehat on 27.05.1996 at 10.30
P.M. it is also alleged that the appellants
have been falsely implicated in the crime
by Smt. Pushpa Devi and her father. It is
further alleged that Smt. Pushpa Devi and
Chhanga Singh witnesses were not
present in village Nasara at the time of the
occurrence.

9. When none appeared for the
appellants Basant Singh and Udai Singh,
Sri Amar Saran, amicus curiae, was
permitted to argue the case for them also.
Arguments of Sri Amar Saran, amicus
curiae and learned A.G.A. have been
heard and the judgment is being delivered
on merits.

10. Two eye-witnesses have been
examined in this case. They are P.W.1
Smt. Pushpa Devi, widow of Kripal Singh
and P.W.4 Chhanga Singh, father of Smt.
Pushpa Devi, who was resident of district
Fatehpur and was present in the village of
Smt. Pushpa Devi, as there was some
dispute of property. These witnesses have
made consistent statement that the share
of Kripal Singh was not being given in the
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2 All] Basant Singh and others V. State of U.P.
327
landed property by the accused persons.
Therefore,
dispute
did
take
place.
Deceased and the appellants were living
in the same house in different rooms in
village Nasara, police station Narwal,
district Kanpur Nagar. Chhabboo Singh
and Chandra Pal Singh alias Gola Singh
were two brothers. Chhabboo Singh has
two sons Basant Singh and Udai Singh,
who are accused. Basant Singh had three
sons, Bharat Singh, Kripal Singh and
Baljit. Smt. Pushpa, informant is the wife
of Kripal Singh. Chandra Pal Singh had
no son. Kripal Singh used to live with
him. Witnesses have stated that Chandra
Pal Singh had assured to given his landed
property to Kripal Singh. Kripal Singh
was demanding his share in the house and
landed property of Chhabboo Singh to
which appellants did not agree. Udai
Singh used to say that he had purchased
the property of Chandra Pal Singh also.
Panchayat was also earlier called for due
to this dispute. On 27.05.1996 at 9.30
A.M., when Kripal Singh, who was
employed at a private shop in Kanpur
Nagar, was going out of his village. His
wife and others also were at some
distance from him. When he reached the
house of Gulab Singh of the same village,
Basant Singh and Udai Singh caught hold
of him and Bharat Singh pierced iron bar
in the stomach of Kripal Singh, who died
on the spot. The occurrence is said to
have been witnesses by P.W.1 Smt.
Pushpa Devi and P.W.4 Chhanga Singh,
her father. The occurrence is of broad day
light. The investigating officer P.W.5 Hoti
Lal Verma, police sub-inspector reached
the spot on the same day, prepared siteplan inquest report. Thus, we subscribe to
the view of the learned Sessions Judge
that
murder
of
Kripal
Singh
was
committed in village Nasara, police
station narwal, district Kanpur Nagar on
27.05.1996 at 9.30 A.M. as the fact of
death, time and place is not disputed by
the appellants and there is sufficient
evidence to prove the fact. The dead body
of Kripal Singh was recovered from the
place of the occurrence.

11. The learned counsel for the
appellants submitted that F.I.R. is too
prompt. The police Station is at a distance
of two km. from the scene of occurrence.
Both eye-witnesses were present on the
spot. The occurrence is of broad day light.
The real culprits were seen by Smt.
Pushpa Devi. Therefore, there was no
confusion as to who caused the injury. In
these circumstances, she got the F.I.R.
lodged at the police station, which is at a
distance of 2 km. from the place of
occurrence. The learned Sessions Judge
has rightly held that the F.I.R. is not too
prompt and it does not suffer from any
deliberation and consultation.

12. Learned counsel for the
appellant submits that the investigating
officer did not find blood on the earth. It
means, murder of Kripal Singh was not
committed near the house of Gulab Singh,
Iron rod, pant, shirt and underwear was
sent to scientific laboratory Manager,
Lucknow and the opinion was received
that these exhibits contained human
blood. The dead body of Kripal Singh was
lying near the house of Gulab Singh and
11⁄2 litre blood was found in his stomach.
It means the blood was collected inside
the body and in such circumstance, if the
blood was not found on the earth, it does
not mean that murder was committed at
some other place.

13. The next argument advanced by
the learned counsel for the appellants is
that if Smt. Pushpa Devi, widow of Kripal
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Singh would have been at the place where
injury was caused, accused persons would
have caused injury to her also. A perusal
of the record shows that it was deceased
Kripal Singh who demanded the share in
the land and house. The problem was
from Kripal Singh and not from his wife
Smt. Pushpa Devi. In such circumstance,
it is not unnatural that injury was caused
by Bharat Singh to Kripal Singh and not
to Smt. Pushpa Devi, who was empty
handed at the spot and could not offer any
meaningful resistance to him.

14. It is further submitted by the
learned defence counsel that two sisters of
Smt. Pushpa Devi are married in the same
village. She used to frequently visit the
residences of her sisters due to which her
husband Kripal Singh was not satisfied
and, therefore, it may be that he would
have committed suicide. If such plea is
taken by the defence, burden is on the
accused to prove it. There is nothing in
the evidence to show that there was any
dispute between Kripal Singh and his wife
Smt.
Pushpa
Devi
in
this
matter.
Therefore, this plea is also devoid of
force. Besides it, a person commits
suicide by hanging himself from a fan or
iron rod or by lying on railway track of
subjecting himself to electric shock and
likewise, then it may sound to be
probable, but it does not appear natural
that a person will pierce iron rod in his
chest to commit suicide, because the
moment he will pierce the iron rod in his
chest, he will feel unbearable pain due to
such attempt and is such circumstance he
will not be successful in committing
suicide. Hence also, it cannot be believed
that Kripal Singh committed suicide.

15. Learned defence counsel has
further submitted that P.W.4 Chhanga
Singh, father of Smt. Pushpa Devi is
resident of district Fatehpur and there was
no occasion for his presence on the spot.
There was dispute of property and
Chhanga Singh is relative of Smt. Pushpa
Devi
being
her
father.
In
such
circumstance, if he had gone to the
residence of Kripal Singh and was present
at the time of the occurrence, the
statement of P.W.4 Chhanga Singh cannot
be disbelieved on the ground that he could
not be present there. If Chhanga Singh
would not have been present there, he
would not have made detailed reply of the
questions asked in cross-examination. He
cannot be disbelieved only because he is
the relative being the father of the wife of
the deceased, he having firmly withstood
the test of cross-examination.

16. Learned counsel for the defence
further submits that iron rod is said to
have been recovered near the wall of
Government Girls College, Narwal. It is
submitted that if a person uses an iron
rod, he will throw it away rather than he
will keep it with himself. When a person
was in anger and he committed murder,
he was chased immediately by the police
and on the same day if he was arrested
and iron bar was recovered, there is
nothing unnatural in it.

17. Learned defence counsel has
further
submitted
that
there
is no
independent witness of the occurrence. It
is noteworthy that the occurrence did take
place in the same family and no person of
the village likes to involve himself in such
dispute, where there are chance that such
family members may get the matter
compromised and such witness will be
inimical to the whole family. The
statement of Smt. Pushpa Devi cannot be
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2 All] Basant Singh and others V. State of U.P.
329
disbelieved. She was aged about 24 years
when her husband was murdered.

18. She lives in one room of the
same house where accused live. Her
husband died and she is all alone. She has
to live in the same society. It cannot be
believed that in order to harass the
accused persons, she has falsely lodged
the F.I.R.

19. Learned counsel for the defence
has
further
relied
on
medical
jurisprudence by Dr. J.P. Modi in which
Dr. Modi has expressed opinion that hair
becomes loose within 48 to 72 hours after
death. In instant case the occurrence is
said to have taken place on 27.05.1996
and the post-mortem examination of the
dead body of Kripal Singh was done on
28.05.1996 at 11.30 A.M. It means the
murder was committed about one day
before. Dr. Modi has written in his
medical jurisprudence that it is impossible
to give exact time when putrefactive
process develops in a dead body because
such process is only a sign of death. It is a
slow process and it differs according to
climatic conditions of the place. Besides
it, P.W.2 Dr. Y.K. Nigam, who performed
autopsy on the dead body of Kripal Singh,
has himself written in post-mortem
examination report that according to signs
of the body, death had taken place about
one and a half day before. There may be
some marginal error also about time. In
such circumstance, if the death did take
place one day before and there being no
science which may exactly fix the time of
death with specific details in minute and
second, the time of murder cannot be
doubted and there is nothing inconsistent
in the F.I.R., post-mortem examination
report and statement of witnesses in
respect of time of death of Kripal Singh.
20. In this case, Kripal Singh
deceased is the son of accused Basant
Singh, Udai Singh his uncle and Bharat
Singh
is
brother.
According
to
prosecution, Basant Singh and Udai Singh
caught hold of Kripal Singh and Bharat
Singh pierced iron bar in his chest,
resulting into his instantaneous death. It
does not appear natural that the whole
family was so much annoyed with the
conduct of Kripal Singh that father and
uncle cauther hold of him and real brother
pierced iron bar in his chest. Kripal Singh
had not caused any injury to his father and
uncle, which would have irritated them
for catching hold of Kripal Singh. Beside
it, if anger or plan to commit murder of
Kripal Singh would have been such that
Basant Singh and Udai Singh caught hold
of him, not only one injury would have
been caused by Bharat Singh to Kripal
Singh, but so many injuries would have
been caused so that it could be assured
that his death had taken place. Bharat
Singh in his brother. He pierced iron bar
into his chest. It means he had intention to
commit murder and he was known that by
piercing iron bar into vital part of the
body like chest, death was imminent.

21. Thus, circumstances show that
the murder was committed only by Bharat
Singh and participation of Basant Singh
and Udai Singh by catching hold of
Kripal Singh is some what doubtful. As is
well known, the element of doubt would
go in favour of the concerned accused.

22. In view of above discussion, we
arrive at the conclusion that the charges
are not proved against Basant Singh and
Udai Singh but the charge under section
302 I.P.C. is proved against Bharat Singh.
Hence the appeal partly succeeds.
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330
23. The appeal is partly allowed and
the order of conviction and sentence
passed against Basant Singh and Udai
Singh under Section 302 read with
Section 34 I.P.C. are set aside and they
are acquitted from the charges. The
appeal preferred by Bharat Singh is
dismissed. Learned Additional Sessions
Judge has sentenced him to undergo life
imprisonment and a fine of Rs.5,000/- has
been imposed on him and in default of
payment
of
fine
further
rigorous
imprisonment of six months has been
awarded. In case of deposit of fine of
Rs.5,000/- whole of it would be given to
Smt. Pushpa Devi, widow of deceased
Kripal Singh.

24. As per the record, accused
Bharat Singh is in Jail, he will serve out
the sentence passed against him. Chief
Metropolitan Magistrate, Kanpur Nagar
shall verify from jail that accused Bharat
Singh actually lodged in jail in connection
with this case. If, he is enjoying his
liberty, he shall be arrested and lodged in
jail to serve out sentence.

25. Let a copy of this judgement and
order alongwith record of the case be sent
to the lower court for necessary action
and compliance under intimation to this
Court within two months from the date of
receipt of the copy of this judgment.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 24034 of 1995

Tahir Hasan

...Petitioner
Versus
Committee of Management, District Cooperative Bank Ltd. Muzaffarnagar and
another

 ...Respondents

Counsel for the Petitioner:
Sri R.K. Jain
Sri Rahul Jain

Counsel for the Respondents:
Sri M.S. Negi
S.C.

U.P. Cooperative Societies Employees
Service Regulation 1975- Regulation 5
(a)
(b)
Regularisation-
Petitioner
engaged to work as class 4th employees
for different times on different post
w.e.f. 16.3.89 filing representations-can
not be ground for exemption from
limitation- if the appointment approved
by
Cooperative
Institutional
Board-
detail
guidelines
given
for
framing
scheme for regulation.

Held- Para 19 printed

Case law discussed:
1997 (4) SC-391, AIR 1992 SC-2130
2001 (i) ESC-65

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard the learned counsel for the
parties and perused the record.

2. The petitioner is an under
graduate and passed Intermediate (Class
XII) examination. He applied for the post