# Birju (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 933
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-14
- **Case number:** Criminal Appeal No. 473 of 1987
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/birju-in-jail-v-state-of-u-p-44882
- **Pages:** 8

## Headnote

A. Criminal Law-Indian Penal Code,1860
- Sections 302 and 452 of IPC - Cause of
death of the deceased was due to coma
as a result of ante mortem head injury,
likely to be caused by gunshot injury -
Injury is sufficient to cause death in
ordinary course of nature - delay in
lodging the FIR in every case is not fatal
- present case two days delay in lodging
the FIR creates a serious doubt as to
whether the report lodged by (PW-1) is
genuine or not - prosecution failed to
prove the guilt of the appellant beyond a
reasonable doubt - the appellant
deserves to be given benefit of doubt.
(Para 3,16,17,)

Appeal allowed (E-7)
List of cases cited:-

## Text

3 All. Birju Vs. State of U.P.
933
and order dated 14.04.1987 passed by
VIIth Additional District & Sessions
Judge, Sitapur are hereby set aside. The
appellant is acquitted of the charge
leveled against him.

54. Lower court record along with
copy of judgment be sent back forthwith.
----------

(2019)11ILR A933

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.10.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 473 of 1987

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

Counsel for the Appellant:
Sri Abrar Ahamad Siddiqui, (A.C.).

Counsel for the Opposite Party:
Sri Amit Sinha, A.G.A.

A. Criminal Law-Indian Penal Code,1860
- Sections 302 and 452 of IPC - Cause of
death of the deceased was due to coma
as a result of ante mortem head injury,
likely to be caused by gunshot injury -
Injury is sufficient to cause death in
ordinary course of nature - delay in
lodging the FIR in every case is not fatal
- present case two days delay in lodging
the FIR creates a serious doubt as to
whether the report lodged by (PW-1) is
genuine or not - prosecution failed to
prove the guilt of the appellant beyond a
reasonable doubt - the appellant
deserves to be given benefit of doubt.
(Para 3,16,17,)

Appeal allowed (E-7)
List of cases cited:-

1. Jai Prakash Singh Vs St. of Bihar (2012) 4
SCC 379

2. Kali Ram Vs St. of H.P. (1973) AIR 2773

(Delivered by Hon'ble Pritinker Diwaker, J.)

1. This appeal arises out of
impugned judgment and order dated
11.2.1987 passed by IV Additional
Sessions Judge, Bulandshahr in Sessions
Trial No.471 of 1985, convicting the
appellant under Sections 302 and 452 of
IPC and sentencing him to undergo
imprisonment for life and two years
rigorous imprisonment respectively.

2. As per prosecution case, in the
night intervening 18/19.7.1985, accused
appellant Birju, acquitted accused Rame
and two other persons entered the house
of deceased-Kunvar Pal and caused
gunshot injury to him. Injured was
immediately taken to the Government
Hospital,
Bulandshahr
from
where,
considering his serious condition, he was
referred to All India Institute of Medical
Sciences, (AIIMS) New Delhi where,
during treatment, he died on 24.7.1985. In
the meanwhile, on 21.7.1985, on the basis
of written report Ex.Ka.1 lodged by (PW1) Fatah Singh, FIR Ex. Ka.16 was
registered against the accused appellant,
acquitted accused Rame and two other
unknown persons under Sections 452 and
307 of IPC.

Further case of the prosecution
is that prior to the incident, there was
some quarrel between the appellant and
the deceased over a dispute relating to
one wall as a result of which, the
deceased was done to death by the
accused appellant. The incident is said to
934 INDIAN LAW REPORTS ALLAHABAD SERIES
have been witnessed by (PW-2) Smt.
Surajwati, wife of the deceased in the
light of earthen lamp (Lantern) which was
burning in the house of the deceased.
Upon hearing the cries of Smt. Surajwati
and the sound of gunshot, (PW-1) Fatah
Singh, who was incidentally sleeping
inside the house of the deceased, rushed
to the place of occurrence and saw
accused persons fleeing from the spot.
(PW-1) Fatah Singh and (PW-2) Smt.
Surajwati both have identified appellant
Birju, to be one of the assailants.

3. After the death of the deceased,
inquest Ex.Ka.11 was conducted on his
body on 24.7.1985 and the body was sent
for postmortem which was conducted on
the same day by (PW-4) Dr Rohitashwa,
vide Ex.Ka.7.

As
per
Autopsy
Surgeon,
following ante-mortem injuries were
found on the body of deceased Kunvar
Pal:

"1. Infected stitched wound of
semi circular shape present over of tempo
parietal region 23.0 cm in length starting
from tragus of ear to parietal eminence.

2. Infected abraded contusion
1.5 cm above (Rt) eyebrow with healing
margin of 3 x 1.0 cm size in frontal
region.

3. Tracheotomy wound of 2 x
1.0 cm size in middle with 2 stitches at
lower end in vertical present 3.0 cm
above the suprasternal Notch.

Scalp
-
as
mentioned
&
hoematoma under mentioned injuries (1)
& (2)

Skull - linear fracture in left
middle cranial fosa extending upto left
mandibular joint & maxillary bone hole
of 5.0 cm diameter at tempo frontal (L)
region with destruction of meninges and
brain tissues.

Brain - extradural hoematoma
over left frontal lobe on anterio superior
surface laceration involving left front of
tempo-parietal region of 13 x 7 x 0.5 cm
size with contusion of variable size at
places, two pellets found in brain tissue &
are in muscle tissue."

Cause of death of the deceased
was due to coma as a result of ante
mortem head injury, likely to be caused
by gunshot injury. Injury No.(1) is
sufficient to cause death in ordinary
course of nature.

4. During investigation, police could
not get the two unknown persons and had
filed charge-sheet against the appellant
and the acquitted accused Rame.

5. While framing charge, the trial
Judge has framed charge against the
appellant under Sections 302 and 452 of
IPC, whereas against accquited accused
Rame, charge was framed under Sections
452 and 302/34 of IPC.

6. So as to hold accused persons
guilty, prosecution has examined seven
witnesses. Statements of the accused
persons were recorded under Section 313
Cr PC in which, they pleaded their
innocence and false implication.

7. By the impugned judgment, the
trial Judge has acquitted co-accused
Rame of all the charges, whereas the
appellant
has
been
convicted
and
sentenced, as mentioned in para-1 of this
judgment. Hence, this appeal.

8. Learned counsel for the appellant
submits:-
3 All. Birju Vs. State of U.P.
935

(i) that a very improbable story
has been put forth by the prosecution that
on account of a minor wall dispute, the
deceased was done to death by the
appellant.

(ii) that the incident occurred in
the midnight, at 2:00 am on 19.7.1985
and, therefore, question of identification
of the appellant in the dark night becomes
doubtful.

(iii) that there was no sufficient
source of light at the place of occurrence.

(iv) that there is inordinate
delay of two days in lodging the FIR and
no reasonable explanation has been
offered by the prosecution regarding this
delay. Considering the delay in lodging
the FIR, possibility of false implication of
the appellant cannot be ruled out.

(v) that motive part has not been
proved by the prosecution.

(vi) that presence of lodger of
FIR Fatah Singh (PW-1) at the place of
occurrence is doubtful.

(vii)
that,
in
fact,
some
unknown thieves have entered the house
of the deceased, committed his murder
and that is why, while recording the
inquest, this fact has been mentioned and
likewise, in the postmortem report, this
fact has been narrated.

(viii) that had the appellant
killed the deceased and the incident had
been witnessed by (PW-1) Fatah Singh
and (PW-2) Smt. Surajwati, a prompt
report would have been lodged and, at
least, while giving the history of the case,
it ought to have been disclosed before the
treating Doctors that it is the appellant
who caused gunshot injuries to the
deceased.

(ix) that no weapon has been
seized from the possession of the
appellant.

9. On the other hand, supporting the
impugned
judgment,
learned
State
Counsel submits that conviction of the
appellant is in accordance with law and
there is no infirmity in the same. He
submits that even assuming that there is
two days delay in lodging the FIR, the
same appears to be justified because the
family
members
of
the
deceased,
including (PW-1) and (PW-2) were first
taking care of the health of the deceased
and then the report was lodged. He
submits that there is no proper crossexamination of the witnesses regarding
presence of source of light and thus, the
identification of the appellant cannot be
questioned at the appellate stage.

10. We have heard learned counsel
for the parties and perused the record.

11. (PW-1) Fatah Singh, is a cousin
of the deceased. He states that a day prior
to the incident, he came to the house of
his maternal uncle (Chater Singh) and had
a talk with the family members, he was
informed that on account of a wall
between his house and the house of
appellant, there was some dispute. He
states that in the night, he slept in the
Varandah, whereas his maternal uncle and
aunt were sleeping adjacent to him. His
cousin Kunvar Pal and his wife Smt.
Surajwati were sleeping in another
Varahdah, where an earthen lamp was
burning. At about 2:00-2:30 in the
midnight, he heard the sound of gunshot
and as he was having his torch with him,
in the torch light, he saw the appellant
and other accused persons and that the
appellant was having country made pistol
with him. He also saw his cousin Kunvar
Pal in the injured condition and thereafter,
accused persons fled away from the spot.
He further states that the injured was
936 INDIAN LAW REPORTS ALLAHABAD SERIES
taken
to
Government
Hospital,
Bulandshahr from where, on the advice of
the Doctor, he was taken to All India
Institute of Medical Sciences, New Delhi.
He further states that after three days of
the incident, he returned from New Delhi
and then lodged the report vide Ex.Ka.1.

In the cross-examination, he
states that for about 3-4 days he was there
along with the deceased in New Delhi. He
further states that from the persons
present at New Delhi, Doctor had
inquired as to how the injuries were
sustained by the deceased, but no such
personal query was made from him. In
paragraph 8, he has stated that it was a
dark night, but an earthen lamp was
burning. He has further stated that light of
earthen lamp was not sufficient to identify
the accused persons and therefore, in the
report lodged by him, he had disclosed
that he identified the appellant in the light
of earthen lamp and also in the torch
light. He has categorically stated that he
had not seen any one causing firearm
injury to the deceased and he reached to
the place of occurrence after the incident.
He admits that there was a lane behind the
house of his maternal uncle and he
identified the accused while they were
running from the said lane. He further
states that the accused persons have
crossed the wall of about five feet and he
identified the accused persons after
peeping from the said wall. He further
states that while the accused persons were
running, they turned back and that is why
he could identify them. He states that
acquitted accused Rame has nothing to do
with his maternal uncle and likewise, he
has nothing to do with the accused.

12. (PW-2) Smt. Surajwati, is a wife
of the deceased and an eye witness to the
occurrence. She states that a day prior to
the incident, there was a quarrel between
her husband and the appellant over a
dispute relating to a wall and that her
husband was threatened. She further
states that when the incident occurred, she
heard that (PW-1) Fatah Singh came to
her house. She further states that (PW-1)
was sleeping along with her father-in-law
and
mother-in-law
in
a
separate
Varandah, whereas she was sleeping
along with her husband in another
Varandah. At about 2:00-2:30 in the
midnight, she was cleaning her minor
child who had gone to attend the nature's
call and at that time, four persons jumped
her wall and gained entry in the
Varandah. According to her, out of four
persons, she could identify the appellant
and the acquitted accused Rame and that
the appellant was having a firearm with
him, caused gunshot injuries to her
husband. After hearing her cries, her
father-in-law, mother-in-law and (PW-1)
Fatah Singh came at the place of
occurrence after opening the door and at
that time (PW-1) was having torch with
him. She states that she identified the
accused persons in the light of earthen
lamp and after causing injuries to her
husband, they fled away from the spot.
She further states that her husband was
immediately
taken
to
Government
Hospital, Bulandshahr from where, he
was referred to the All India Institute of
Medical Sciences, New Delhi and there
he died after about five days.

In the cross-examination, she
states that three persons had covered their
faces and she identified acquitted accused
Rame from his voice. She further states
that she might have committed a mistake
in identifying the accused persons. She
has also stated that the treating Doctor at
3 All. Birju Vs. State of U.P.
937
Bulandshahr had never asked them as to
how the injuries were sustained by the
deceased nor there was any such talk
while the x-ray of the deceased was being
taken. She further states that she did not
disclose to the Doctor as to why her
husband was subjected to injuries. She
further states that while she came to
Bulandshahr along with the deceased, in
between there was a police station, but
nothing was informed to the police. She
has clarified that prior to the incident,
there was no marpeet between her
husband and the appellant and that on
account of rains, the wall fell down. She
further states that when the accused
persons had jumped her wall, at that time,
she was cleaning her minor child who had
returned after attending the nature's call
and while doing so, she saw the accused
persons.

13. (PW-3) Chatar Singh, is a father
of the deceased, has turned hostile. (PW4)
Dr
Rohitashwa,
conducted
the
postmortem on the body of the deceased.
(PW-5) Sukhveer, is a Constable who at
the relevant time was posted at All India
Institute of Medical Sciences, New Delhi,
has stated that on 19.7.1985, the injured
was brought to the hospital. (PW-6)
Chandra Pal Singh, registered FIR and
did major part of investigation. (PW-7)
Randeep Talwar, is a witness of inquest,
has stated that, at the time of inquest,
none of the accused was named and it was
disclosed to him that the injuries have
been caused to the deceased by thieves.

14. Close scrutiny of the evidence
makes it clear that on or around
19.7.1985, deceased Kunvar Pal sustained
gunshot injuries and was taken to
Government Hospital, Bulandshahr from
where, he was referred to All India
Institute of Medical Sciences, New Delhi,
where he succumbed to his injuries on
24.7.1985.
In
the
meanwhile,
on
21.7.1985, on the basis of written report
Ex.Ka.1 lodged by (PW-1) Fatah Singh,
FIR Ex.Ka.16 was registered against the
appellant and three other accused persons
under Sections 452 and 307 of IPC.
According to prosecution, it is the
appellant who caused firearm injuries to
the deceased, resulting his death and the
incident has been witnessed by (PW-2)
Smt. Surajwati, wife of the deceased, who
has stated that she saw the incident in the
light of earthen lamp (Lantern) and, at the
same time, she also states that she might
have committed mistake in identifying the
accused persons.

15. Another important witness of the
prosecution (PW-1) was incidentally
present at the place of occurrence. He
states that after hearing the sound of
gunshot, he along with his maternal uncle
(hostile) and aunt (not examined) rushed
to the place of occurrence and saw the
appellant fleeing from the spot. He further
states that he had a torch in his hand and
saw the occurrence in the torch light and
also in the light of earthen lamp
(Lantern). Nowhere in his statement, he
has clarified as to how all of a sudden he
reached to the house of his maternal
uncle. There is absolutely no justification
as to what for he had gone to the house of
the deceased. His presence at the place of
occurrence becomes doubtful because the
FIR is not a prompt one. Undisputedly,
the FIR has been lodged after two days of
the incident in which (PW-1) had shown
himself to be present at the place of
occurrence
and
allegedly
saw
the
appellant fleeing from the spot. Even
according to (PW-1), he saw the appellant
in a lane after jumping the wall of about
938 INDIAN LAW REPORTS ALLAHABAD SERIES
five feet. If (PW-1) had seen the appellant
in a lane, whether the light of earthen
lamp (Lantern) was there or not, has not
been made clear by the prosecution.
According to prosecution itself, the
earthen
lamp
was
burning
in
the
Varandah of the house, whereas (PW-1)
saw the appellant in a lane. In the
surrounding circumstances, presence of
(PW-1) at the place of occurrence
becomes doubtful and likewise, seeing the
appellant
by
(PW-1)
also
becomes
doubtful. The prosecution has further
failed to establish that the light of earthen
lamp (Lantern) was good enough where
the accused persons could have been
identified by the witnesses in a dark night
when the incident occurred inside the
house.

16. Yet another important aspect of
the case is that injured was taken to two
Government
Hospitals,
first
at
Government Hospital, Bulandshahr and
thereafter, at All India Institute of Medical
Sciences, New Delhi, but nowhere this
fact was disclosed to the treating Doctors
that it is the accused persons who caused
gunshot injuries to the deceased. As per
prosecution case, it was disclosed by the
witnesses that some thieves have entered
the house of the deceased and committed
his murder and, therefore, possibility of
false implication of the appellant, in a
delayed FIR lodged by (PW-1) Fatah
Singh, cannot be ruled out.

True it is that delay in lodging
the FIR in every case is not fatal, but if
the facts of the present case are
considered along with the evidence
available on record, two days delay in
lodging the FIR creates a serious doubt as
to whether the report lodged by (PW-1) is
genuine or not. Law in this respect is very
clear. In Jai Prakash Singh vs. State of
Bihar1, the Supreme Court, while dealing
with similar issue, held as under:

12. The FIR in a criminal case
is a vital and valuable piece of evidence
though may not be substantive piece of
evidence. The object of insisting upon
prompt lodging of the FIR in respect of
the commission of an offence is to obtain
early
information
regarding
the
circumstances in which the crime was
committed, the names of actual culprits
and the part played by them as well as the
names of eye-witnesses present at the
scene of occurrence. If there is a delay in
lodging the FIR, it looses the advantage
of spontaneity, danger creeps in of the
introduction
of
coloured
version,
exaggerated account or concocted story as
a
result
of
large
number
of
consultations/deliberations. Undoubtedly,
the promptness in lodging the FIR is an
assurance
regarding
truth
of
the
informant's version. A promptly lodged
FIR reflects the first hand account of what
has actually happened, and who was
responsible for the offence in question.
(Vide: Thulia Kali vs. State of Tamil
Nadu, AIR 1973 SC 501; State of Punjab
vs. Surja Ram, AIR 1995 SC 2413; Girish
Yadav & Ors. vs. State of MP, (1996) 8
SCC 186; and Takdir Samsuddin Sheikh
vs. State of Gujarat & Anr., AIR 2012 SC
37)."

17. The evidence collected by the
prosecution creates a doubt as to whether
the incident has been witnessed by (PW2) Smt. Surajdevi or not and likewise,
whether (PW-1) Fatah Singh was present
at the time of occurrence and saw the
appellant
fleeing
from
the
spot.
Furthermore, according to (PW-2) Smt.
Surajwati, out of four accused persons,
three had covered their faces and even she
3 All. Birju Vs. State of U.P.
939
has not stated that it is the appellant only
who was present with his uncovered face.
In this view of the matter, we are of the
view that the prosecution has failed to
prove the guilt of the appellant beyond a
reasonable doubt and in such a situation,
the appellant deserves to be given benefit
of doubt.

In Kali Ram vs. State of
Himachal Pradesh2, the Supreme Court,
while dealing with the issue relating to
withholding or affording benefit of doubt,
observed as under:

"26. It needs all the same to be
re-emphasised that if a reasonable doubt
arises regarding the guilt of the accused,
the benefit of that cannot be withheld
from the accused. The courts would not
be justified in withholding that benefit
because the acquittal might have an
impact upon the law and order situation
or create adverse reaction in society or
amongst those members of the society
who believe the accused to be guilty. The
guilt of the accused has to be adjudged
not by the fact that a vast number of
people believe him to be guilty but
whether his guilt has been established by
the evidence brought on record. Indeed,
the courts have hardly any other yardstick
or material to adjudge the guilt of the
person arraigned as accused. Reference is
sometimes made to the clash of public
interest and that of the individual accused.
The conflict in this respect, in our
opinion, is more apparent than real. As
observed on page 3 of the book entitled
"The Accused" by J.A. Coutts 1966
Edition, "When once it is realised,
however, that the public interest is limited
to the conviction, not of the guilty, but of
those proved guilty, so that the function of
the prosecutor is limited to securing the
conviction only of those who can
legitimately be proved guilty, the clash of
interest is seen to operate only within a
very narrow limit, namely, where the
evidence is such that the guilt of the
accused should be established. In the case
of an accused who is innocent, or whose
guilt cannot be proved, the public interest
and the interest of the accused alike
require an acquittal.

27. It is no doubt true that
wrongful acquittals are undesirable and
shake the confidence of the people in the
judicial system, much worse, however, is
the wrongful conviction of an innocent
person.
The
consequences
of
the
conviction of an innocent person are far
more serious and its reverberations cannot
but be felt in a civilized society. Suppose
an innocent person is convicted of the
offence of murder and is hanged, nothing
further can undo the mischief for the
wrong resulting from the unmerited
conviction
is
irretrievable.
To
take
another instance, if an innocent person is
sent to jail and undergoes the sentence,
the scars left by the miscarriage of justice
cannot be erased by any subsequent act of
expiation. Not many persons undergoing
the pangs of wrongful conviction are
fortunate like Dreyfus to have an Emile
Zola to champion their cause and succeed
in getting the verdict of guilt annulled. All
this highlights the importance of ensuring,
as far as possible, that there should be no
wrongful conviction of an innocent
person. Some risk of the conviction of the
innocent, of course, is always there in any
system of the administration of criminal
justice. Such a risk can be minimised but
not ruled out altogether. It may in this
connection be apposite to refer to the
following observations of Sir Carleton
Allen quoted on page 157 of "The Proof
of Guilt" by Glanville Williams, Second
Edition:
940 INDIAN LAW REPORTS ALLAHABAD SERIES

"I dare say some sentimentalists
would assent to the proposition that it is
better that a thousand, or even a million,
guilty persons should escape than that one
innocent person should suffer; but no
responsible and practical person would
accept such a view. For it is obvious that
if our ratio is extended indefinitely, there
comes a point when the whole system of
justice has broken down and society is in
a state of chaos."

The fact that there has to be clear
evidence of the guilt of the accused and that in
the absence of that it is not possible to record
a finding of his guilt was stressed by this
Court in the case of Shivaji Sahabrao Bobade
& Anr. (AIR 1973 SC 2622) as is clear from
the following observations :

"Certainly it is a primary
principle that the accused must be and not
merely may be guilty before a court can
convict
and
the
mental
distinction
between 'may be' and 'must be' is long and
divides vague conjectures from sure
considerations".

18. Having considered the aforesaid
facts, law and the evidence available on
record, in our opinion, present appeal
deserves
to
be
allowed.
Order
accordingly. The impugned judgment and
order is set aside. Since the appellant is
reported to be on bail, no further order is
required in his respect.

19. Let a copy of this judgment be
sent to the concerned trial Court forthwith
for compliance.

20. We appreciate the assistance
rendered by Sri Abrar Ahmad Siddiqui,
learned Amicus and the State Government
is directed to pay him Rs.7,000/- towards
his remuneration.
----------
(2019)11ILR A940

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.10.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 477 of 1987

Parto ...Appellant (In Jail)
Versus
State ...Respondent.

Counsel for the Appellant:
Sri Santosh Kumar Tiwari, Sri Surendra
Nath Tiwari, Sri Tejpal.

Counsel for the Respondent:
Sri H.M.B. Singh, A.G.A.

A. Criminal Law-Indian Penal Code,1860 -
Section 302 of IPC - statements of two
eye-witnesses - accused appellant caused
firearm injuries to the deceased, resulting
his death - Postmortem report of the
deceased supports the prosecution - the
evidence of an interested witness should
not be equated with that of a tainted
evidence or that of an approver so as to
require corroboration as a matter of
necessity - the evidence cannot be
disbelieved merely on the ground that the
witnesses are related to each other or to
the deceased - In case the evidence has a
ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should,
be relied upon - Relationship is not a
factor to affect credibility of a witness - A
close relative cannot be characterized as
an 'interested' witness. He is a 'natural'
witness
-
evidence

found
to
be
intrinsically reliable, inherently probable
and wholly trustworthy, conviction can be
based on the 'sole testimony of such
witness - FIR can be proved ante-timed
or
ante-dated
by
adducing
proper