# Brijbasi Lal & Anr v. State of U.P - **Citation:** (2026) 4 ILRA 1137 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2026-04-27 - **Case number:** Criminal Appeal No. 1735 of 1987 - **Bench:** Avnish Saxena - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijbasi-lal-anr-v-state-of-u-p-54701 - **Pages:** 15 ## Text _Characters 0–39,687 of 49,646. This is a partial read: ask again with offset=39687 for what follows._ 4 All. Brijbasi Lal & Anr. Vs. State of U.P. 1137 assistance provided by the Advocate and at times, the Court has to deal with matters where the Advocates place incorrect facts or law before the Court. This creates a big obstacle in expeditious dispensation of justice and lack of proper assistance by the Advocates is a major cause of delay in decision of cases. The present bunch of three appeals has been decided by me practically without any assistance by the learned Counsel for the appellants, which resulted in consumption of much more time in deciding these appeals than was justifiable. 27. The Advocates are an integral part of justice dispensation. I have time and again been requesting the Advocates to provide better assistance to the Courts. I once again request the members of the bar to realize the importance of their role in justice dispensation, respect their professional duty and provide assistance to the Courts in dispensation of justice by advancing precise and concise submissions with the help of relevant law, to the best of their ability. Hope this request will not go in vain, like numerous previous requests. --------- (2026) 4 ILRA 1137 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 27.04.2026 BEFORE THE HON'BLE AVNISH SAXENA, J. Criminal Appeal No. 1735 of 1987 Brijbasi Lal & Anr. ...Appellant Versus State of U.P. ...Respondent Issue for Consideration Matter pertains to whether the trial court has rightly appreciated the testimonies of witnesses of fact and reached to the right conclusion of convicting the accused appellant? (Para 16) Headnotes Criminal Law - Appeal against conviction - appreciation of chance witnesses - Code of Criminal Procedure, 1973 - S. 374(2) - Indian Penal Code, 1860 - S. 307 - evidence of chance witness requires a very cautious and close scrutiny and must adequately explain presence at place of occurrence, but cannot be discarded merely because the witness happened to be present by chance - where the two chance witnesses were inconsistent inter se, in conflict with the informant, and failed to explain their presence, their testimony was not inspiring confidence - conviction set aside and benefit of doubt granted. (Paras 17 to 27) Criminal Law - attempt to murder - evaluation of ocular and medical evidence - Indian Penal Code, 1860 - S. 307 - medico legal evidence proved gunshot injuries on a vital part of the body and injuries were sufficient to cause death though simple in nature, but inconsistent ocular version, doubtful presence of chance witnesses, and defective investigation created reasonable doubt - accused entitled to benefit of doubt. (Paras 22 to 27) Criminal Law - defective investigation - non-recovery of blood stained clothes, earth and weapon - Indian Penal Code, 1860 - S. 307 - faulty investigation by itself is not a ground for acquittal if the prosecution evidence is consistent, reliable, trustworthy and cogent, but where 1138 INDIAN LAW REPORTS ALLAHABAD SERIES the prosecution version itself is infirm and the evidence of witnesses is not reliable, investigative lapses reinforce doubt - prosecution case failed. (Paras 24 to 27) Criminal Law - recovery of weapon - failure to seize licensed gun and send it for ballistic examination - Indian Penal Code, 1860 -S. 307 - absence of weapon recovery and ballistic report, though not decisive by itself, became material in the facts of the case because the prosecution otherwise failed to establish a clinching chain of evidence connecting the accused with the offence - Hence the accused is entitled for benefit of doubt and shall be acquitted. (Paras 26 to 27) Held: The two chance witnesses, Shiv Kumar Singh and Sughar Singh, were not only inconsistent in their statements regarding the occurrence but were also in conflict with the statement of the informant, Rajendra Singh - The prosecution failed to establish any reason for their presence at the place of occurrence - The prosecution version, as gathered from the testimonies of the three witnesses of fact, does not inspire confidence regarding the truthfulness of the prosecution case - The site plan, non-collection of blood-stained clothes, blood-stained earth, and the alleged weapon further weaken the prosecution case - The injured witness and the informant assigned different roles to the accused, Brijbasi and Keshav - The fact that the injured person was taken from District Mainpuri to District Etawah for treatment also creates doubt about the prosecution story - The prosecution failed to establish that the licensed gun of Subedar Singh was used in the incident - There are material discrepancies regarding the allegation of two shots being fired and the claim that one shot caused injuries to two persons - Consequently, there is no clinching evidence against the accused to sustain a conviction for the offence of attempt to murder - The accused is therefore entitled to the benefit of doubt and deserves to be acquitted - Appeal allowed.(Paras 24 to 31) (E-7) Case Law Cited Subal Ghorai Vs. State of West Bengal, (2013) 4 SCC 607; Thangaiya v. State of T.N., (2005) 9 SCC 650; Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360; Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Harbeer Singh v. Sheeshpal, (2016) 16 SCC 418; Suresh v. State of Haryana, (2018) 18 SCC 654; Dhanaj Singh v. State of Punjab, (2004) 3 SCC 654; Motilal v. State of Rajasthan, (2009) 7 SCC 454; State of U.P. v. Wasif Haider, (2019) 2 SCC 303; Madan v. State of U.P., (2023) 15 SCC 701 (3 Judges); Edakkandi Dineshan v. State of Karhala, (2025) 3 SCC 273; Mano v. State of T.N., (2007) 13 SCC 795; Abdulwahab Abdulmajid Baloch v. State of Gujarat, (2009) 11 SCC 625 (3- Judges); Jagroop Singh v. State of Punjab, (2012) 11 SCC 768; Ram Singh v. State of U.P., (2024) 4 SCC 208; Jitendra Kumar Mishra alias Jittu Vs. State of Madhya Pradesh, (2024) 2 SCC 666. List of Acts Code of Criminal Procedure, 1973; Indian Penal Code, 1860 List of Keywords investigation; trial court; conviction; abated; fine; possession of land; chance witness; licensed gun; FSL report; FIR; foundation; spade; fire arm; bullet; site plan; discrepancy; blood stained clothes; benefit of doubt; acquitted; ocular testimonies; medical report; weapon; ballistic report; appellate court; reasonable doubt. Case Arising From APPELLATE JURISDICTION: Appeal against the judgment of conviction and sentence dated 26.06.1987 passed by IIIrd Additional Sessions Judge, Mainpuri in Session Trial No. 165 of 1986, State Vs. Brijbasi Lal and another, P.S.- Karhal, District- Mainpuri, under S. 307 IPC. Appearances for Parties Advs. for the Appellant: Sri Aftab Alam Advs. for the Respondents: Sri Chandra Badan, learned AGA 4 All. Brijbasi Lal & Anr. Vs. State of U.P. 1139 (Delivered by Hon'ble Avnish Saxena, J.) 1. Heard Sri Aftab Alam, learned counsel for the appellants and Sri Chandra Badan, learned AGA for the State. 2. Before proceeding with the case a parting observation of the Honble Supreme Court in the case of Subal Ghorai Vs. State of West Bengal1, is worth quoting wherein investigative agency and the trial court were advised to be careful and responsive while investigation and conducting trial. The quote is reiterated underneath:- "59. .... we must express that the investigation of this case is far from satisfactory and recording of evidence is done in a casual manner. Justice is done only because of the inherent strength of the prosecution case and credible evidence of the honest rustic witnesses. Sessions cases involve the rights of the victims and rights of the accused. Even the society has a great stake in the proper conduct of sessions cases because they have relevance to the maintenance of law and order. Investigation of criminal cases must, therefore, be done very carefully and trials must be conducted with a sense of responsibility." THE APPEAL:- 3. This criminal appeal under Section 374(2) CrPC challenging the judgment of conviction has been preferred by two accused i.e. appellant no. 1 Brijbasi Lal S/o Chhote Singh (Father) and appellant no. 2- Keshav Singh @ Kallu S/o Brijbasi Lal (Son). During the pendency of appeal, father passed away and the criminal appeal abated against appellant no. 1- Brijbasi Lal. During the argument, the learned counsel for appellant submits that the sole surviving appellant Keshav Singh @ Kallu is also 78 years of age. The incident is of 04.12.1980, wherein the allegation against the sole surviving appellant is of opening fire at informant Rajendra Singh wherein Shiv Kumar Singh suffered gun shot injury. The role of exhortation is on the deceased. The trial court in judgment of conviction dated 26.06.1987 in Sessions Trial No. 165 of 1986 (State Vs. Brijbasi Lal and another) has awarded punishment of rigorous imprisonment of three years and Rs. 5000/- fine against the sole surviving appellant. In default of payment of fine, he was directed to undergo further one year rigorous imprisonment. There is no point of mentioning the punishment awarded on Brijbasi Lal (deceased). INSIGHTFUL FACTS:- 4. Prior to disclosure of prosecution case certain glaring facts need to be mentioned at the threshold, reiterated underneath:- 4.1 Accused appellant Keshav Singh @ Kallu and the informant Rajendra Singh are neighbours and residents of Village- Mahalerpur, P.S.- Karhal, District- Mainpuri. 4.2 There is dispute regarding of possession of land between informant Rajendra Singh and deceased Brijbasi Lal, a proceeding under Section 145 CrPC was pending. 1140 INDIAN LAW REPORTS ALLAHABAD SERIES 4.3 The injured witness Shiv Kumar Singh, who is a chance witness is resident of Village- Vikrampur, Civil Lines Etawah. 4.4 Eye Witness Sughar Singh is resident of Kausari Khera, P.S.- Nagla Kangar, Mainpuri, who is also a chance witness. 4.5 The father of informant, namely, Mulaim Singh also allegedly suffered gun shot injuries; but there is neither the medico legal examination report nor he is being produced as a witness in the court, hence the trial court has not relied the witness on the point of Keshav opened fire at Mulaim Singh on his injuries. 4.6 The licensed gun which was used by accused appellant Keshav Singh belongs to his grand father Subedar which has not been taken into custody by the police and no FSL report is obtained. 4.7 The incident is occurred at District Mainpuri whereas the FIR is registered at P.S.- Jaswant Nagar, District- Etawah. 5. The above facts are kept in mind while going through the record and necessary for appreciation of evidence. THE PROSECUTION CASE AND TRIAL:- 6. The FIR got registered on 04.12.1980 at 19:30 hours, at P.S.- Jaswant Nagar, District- Etawah by Rajendra Singh-informant. The chik FIR registered as Case Crime No. 242 under Sections 307/34 IPC. exhibit Ka-4 does not disclose the distance of place of incident to the police station but mentioned that the incident is of Village- Mahalerpur, P.S.- Karhal. It is disclosed in the FIR that in front of the southern door of the informant house, there was a disputed land. The case under Section 145 CrPC was pending before the court of Sub Divisional Magistrate, Karhal between the informant and accused Brijbasi Lal S/o Chhote Lal Yadav. On the disputed plot the informant had already dugged the foundation. The Magistrate invoking Section 145 CrPC directed the parties not to use this land. Brijbasi Lal and his son due to the said dispute, became inimical to informant and family. On 04.12.1980 at about 5:00 p.m., Keshav Singh @ Kallu came to the disputed property with spade (Fawda) in his hand and started levelling the foundation. The informant has stopped him on account of pendency of the case. Accused Keshav Singh @ Kallu became infuriated and started hurling abuses. The informant stopped him for slang, on which Keshav Singh @ Kallu came with the licensed gun of his grand father (Chote Baba) Subedar. Brijbasi Lal then exhorted मार िाले को गोल िे ,आज मौका है ' (to fire shot at him, its opportune time), Keshav Singh @ Kallu fired a shot with the intention to kill informant, Shiv Kumar Singh S/o Hakim Singh, Shyam Singh S/o Lal Singh, Putte Singh S/o Hajuri Singh of his village, Thakur Sughar Singh and Lal Ji S/o Chhote Lal of Village Kausari Khera were standing. Shiv Kumar Singh suffered gun shot injury and fell on ground, on which Brijbasi Lal and Keshav sprinted away. The informant with the help of his brother Kubhal Pal Singh taken the injured to the police station, where the FIR got registered by PW-6 Constable Atma Singh and investigation was entrusted on Sub Inspector Surendra Singh Sengar. The injured Shiv Kumar Singh was taken to 4 All. Brijbasi Lal & Anr. Vs. State of U.P. 1141 district hospital Etawah, where his medico legal examination was carried out by Dr. C.L. Katiyar on 04.12.1980 at 10:25 p.m. After investigation the Investigating Officer has submitted charge sheet against the Brijbasi Lal for offence under Section 324 IPC. The trial commenced before the court of Magistrate initially against Brijbasi Lal for offence under Section 324 IPC. Witnesses have been recorded and in order dated 28.04.1983, Keshav Singh @ Kallu was summoned to face trial invoking Section 319 CrPC. Thereafter, the prosecution has moved an application that the offence is of attempt to murder and the Magistrate has no jurisdiction. In order dated 05.12.1983, the application of the prosecution was rejected. The prosecution went in Criminal Revision No. 286 of 1983 (State of U.P. Vs. Brijbasi Lal and another). The revisional court in order dated 18.08.1984 has allowed the revision directing the Magistrate to commit the case to the court of Sessions. 7. In pursuance to the direction of the revisional court, the case was committed to the Court of Sessions in order dated 01.07.1986 of Chief Judicial Magistrate, Mainpuri. 8. Fresh charges against both the accused have been framed before the Court of Sessions on 04.08.1986. The sole surviving accused was charged for offence under Section 307 IPC. 9. The prosecution has produced in all seven witnesses. Three witnesses of fact and four formal witnesses. 10. Rajendra Singh, the informant is produced as PW-1; Shiv Kumar Singh, the injured is produced as PW-2 and Sughar Singh, eye witness is produced as PW-3; Dr. C.L. Katiyar, who has conducted medico legal examination of Shiv Kumar Singh (injured), was produced as PW-4; Hasin Akhtar, x-ray technician, who has taken out x-ray, was produced as PW-5; Constable Atma Singh, the scribe of Chik FIR and G.D., was produced as PW-6; and Sub Inspector Surendra Singh Sengar, the Investigating Officer was produced as PW-7. 11. The accused have not produced any witness in defence after recording of statement under Section 313 CrPC, wherein the accused appellant has denied having committed any offence as alleged and stated that he has been falsely implicated in the case. THE JUDGMENT OF TRIAL COURT:- 12. The trial court has considered documentary evidence and ocular testimonies of the prosecution witnesses and held that the incident occurred at the southern door of the informants house on 04.12.1980 at 5:00 p.m. The accused Keshav Singh @ Kallu has opened fire on the informant Rajendra Singh but Shiv Kumar Singh suffered gun shot injury, who was standing beside Rajendra Singh. The trial court did not found accused Keshav guilty of inflicting gun shot injury on Mulaim Singh, because he was neither produced before the court for his deposition nor his injury report was placed. The trial judge further held that Brijbasi Lal was instrumental in instigating and exhorting him to open fire. The trial court found consistency in the statement of informant, injured witness and eye witness and has denied their being chance witness, though it is dealt with in the judgment that injured witness and eye witness are residents of different places. There is not even an iota of discussion as to how and why the injured and eye witness were there at the house of informant Rajendra Singh. The only statement is that they often visit the house of Rajendra Singh 1142 INDIAN LAW REPORTS ALLAHABAD SERIES and have no enmity with the accused. The learned trial court further found that the medico legal examination carried out by doctor is sufficient to establish that the Shiv Kumar Singh suffered gun shot injury. He found that the gun shot injury though simple in nature but suffered at the head of the injured, could be fatal to life. The learned trial court has found that the Investigating Officer has not carried out the investigation in fair and impartial manner and issued advisory to him to conduct future investigation in impartial and fair manner. ARGUMENTS IN APPEAL:- 13. Learned counsel for appellant on being aggrieved by the observation made by the trial court in its judgment of conviction, has submitted that the incident is of District Mainpuri whereas the FIR is registered at Police Station of District Etawah. The injured Shiv Kumar Singh suffered injuries at his native place at Etawah wherein the accused appellant has been falsely implicated. The father of injured Shiv Kumar Singh, has not lodged any FIR. His statement is nowhere recorded during investigation. The incident was of winter month and according to injured, the incident occurred between 5:30 to 6:00 p.m. on 04.12.1980. It is the time of dusk. The statement of witnesses of fact is not conformity to the site plan, which has been prepared by the Investigating Officer at the instance of informant. The site plan does not show any wall in between the assailants and victim which is stated to be standing between two. There is discrepancy in the statement of witnesses pertaining to firing of two shots by Keshav Singh @ Kallu. There is no recovery of licensed gun which is stated to be used by accused in firing the detrimental shot. There is no injury report of Mulaim Singh. There is no witness from the same village, though their presence was mentioned in the FIR. It is mentioned in the FIR that the injured Shiv Kumar Singh is the resident of the same village. There is enmity between the accused appellant and informant which was a reason for false implication. The statement of eye witness and injured witness has not been recorded under Section 164 CrPC. There is no blood stained clothes recovered by the Investigating Officer. The distance between the place of incident and the place where FIR is lodged, is not mentioned. Incident is stated to be of 5:00 p.m. The injured was taken inside the house and thereafter with help of bullock cart, he was taken to Etawah from Mainpuri, despite that the FIR is lodged at 7:30 p.m. Further submits that the trial court has not rightly evaluated and appreciated the evidence on record and therefore, the accused shall be given benefit of doubt and acquitted. 14. Per contra, learned AGA submits that the incident is of attempt to murder wherein the accused appellant is held guilty for firing detrimental shot at Shiv Kumar Singh, who was present along with the informant Rajendra Singh at the southern door of his house. The prosecution has produced three witnesses of fact including the injured witness. Their statements are consistent and corroborative to each other as well as medico legal report. The trial court has rightly appreciated the testimonies of witnesses and reached to the conclusion that the detrimental shot was fired by the accused appellant. Further submits that the lapses in the investigation will not benefit the accused where the testimonies of witnesses of fact are sufficient in their deposition in establishing the case. Hence submits that the trial court has rightly convicted the accused appellant. The appeal is devoid of merit and liable to be dismissed. APPRECIATION OF EVIDENCES:- 4 All. Brijbasi Lal & Anr. Vs. State of U.P. 1143 15. This Court has taken into consideration the rival submissions made by learned counsel for the parties and perused the record. 16. The point of determination in the present appeal is whether the trial court has rightly appreciated the testimonies of witnesses of fact and reached to the right conclusion of convicting the accused appellant? 17. The two witnesses of fact namely Shiv Kumar Singh and Sughar Singh are the chance witnesses, as they were stated to be standing in front of the house of informant Rajendra Singh, when Shiv Kumar Singh suffered gun shot injury and Sughar Singh was the eye witness. The principles of law enunciated by the Honble the Supreme Court on the point of testimonies of chance witness is reiterated underneath:- Thangaiya v. State of T.N.2 "8. Coming to the plea of the accused that PW 3 was a chance witness who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as chance witnesses it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere chance witnesses. The expression chance witness is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence. Therefore, there is no substance in the plea that PW 3's evidence which is clear and cogent is to be discarded." (Emphasis Supplied) Sarvesh Narain Shukla v. Daroga Singh3 "19. We are also of the opinion that if the court comes to the conclusion that the testimony of a chance witness is credible, the evidence cannot be thrown out merely on the ground that the witness happened to be present by chance. Dangar Tewari stated that when he along with Ram Dutt Mishra had reached at the tri junction of the GT Road, Gopiganj on Mukund Lal's Bullet motorcycle they had heard sounds of firing by weapons and had seen the accused persons armed with shotguns, rifles, carbine and pistols firing at the Ambassador car after it had come to a stop after colliding with a bus coming from the Allahabad side and that the murders had been committed while the deceased were still in the car. The evidence of Ram Dutt Mishra is much to the same effect. Both these witnesses have specifically revealed the identity of the assailants and the manner of attack and explained their presence by stating that they had gone for darshan and were on their 1144 INDIAN LAW REPORTS ALLAHABAD SERIES way back home. We also find that despite extensive cross-examination, no reasons are forthcoming on record as to why they would become false witnesses in a case of triple murder." Jarnail Singh v. State of Punjab 4 "22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh, Harjinder Singh v. State of Punjab, Acharaparambath Pradeepan v. State of Karhala and Sarvesh Narain Shukla v. Daroga Singh. Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan). 23. Conduct of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (vide Thangaiya v. State of T.N.,Gurcharan Singh (PW 18) met the informant Darshan Singh (PW 4) before lodging the FIR and the fact of conspiracy was not disclosed by Gurcharan Singh (PW 18) and Darshan Singh (PW 4). The fact of conspiracy has not been mentioned in the FIR. Hakam Singh, the other witness on this issue has not been examined by the prosecution. Thus, the High Court was justified in discarding the part of the prosecution case relating to conspiracy. However, in the fact situation of the present case, acquittal of the said two co-accused has no bearing, so far as the present appeal is concerned. Harbeer Singh v. Sheeshpal 5 "23. The defining attributes of a chance witness were explained by Mahajan, J., in Puran v. State of Punjab. It was held that such witnesses have the habit of appearing suddenly on the scene when something is happening and then disappearing after noticing the occurrence about which they are called later on to give evidence." Suresh v. State of Haryana 6 "47. Generally, the chance witness, who reasonably explains his presence in the named location at the relevant time, may be taken into consideration and should be given due regard, if his version inspires confidence and the same is supported by surrounding circumstances. Nonetheless, the evidence of a chance witness requires a very cautious and close scrutiny. A chance witness must adequately explain his presence at the place of occurrence (refer to Satbir v. Surat Singh and Harjinder Singh v. State of Punjab. Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (refer to Shankarlal v. State of Rajasthan). The behaviour of the chance witness, subsequent to the incident may also be taken into consideration particularly as to whether he has informed anyone else in the village about the incident (refer to Thangaiya v. State of T.N. [Thangaiya v. State of T.N.] ). 18. The principles explained in the above quoted judgments is that the testimony of chance witness cannot be discarded but the witness required a very cautious and close scrutiny. If from the testimony it is inferred that the presence of chance witness is doubtful at the place of occurrence 4 All. Brijbasi Lal & Anr. Vs. State of U.P. 1145 then his testimony would have been discarded. Hence the testimony of two chance witnesses namely Shiv Kumar Singh and Sughar Singh is required to be closely scrutinized. 19. PW-2 Shiv Kumar Singh in his examination-in-chief has stated that the incident occurred at 5:30 to 6:00 p.m., whereas the consistent statement of PW-1 Rajendra Singh and PW-3 Sughar Singh reveals that the incident is of 5:00 p.m. PW-2 further deposed that Keshav and Brijbasi were levelling the foundation. Whereas PW-1 Rajendra Singh has attributed the work of levelling the foundation only on Keshav Singh @ Kallu. PW-2 further states that Rajendra Singh stopped Keshav Singh @ Kallu and Brijbasi Lal from levelling the foundation on which Brijbasi started abusing Rajendra Singh. PW-1 Rajendra Singh in his testimony has not assigned the role of abuse him on Brijbasi either in his testimony or in the first information report. PW-2 further deposed that he has stopped them from hurling abuses. PW-1 Rajendra Singh in his testimony and FIR has not disclosed that Shiv Kumar Singh has stopped Brijbasi or Keshav Singh @ Kallu from hurling abuses. PW-2 in his testimony further exaggerated his presence by showing that upon his opposing Brijbasi from hurling abuse Keshav had fired shot at him on the exhortation of Brijbasi, who exhorts that ज्यादा बक बक करता है, मार िाले को तभ केशव ने गोल चलाई. Whereas the role of exhortation attributed on Brijbasi Lal to instigate Keshav Singh @ Kallu to fire shot at Rajendra Singh and not at Shiv Kumar Singh. PW-1 Rajendra Singh in his testimony has also admitted the exhortation which he has mentioned in FIR. On the contrary, Rajendra Singh PW-1 has stated that the shot was fired at Rajendra Singh but Shiv Kumar Singh was standing beside him as such he suffered gun shot injury, whereas Shiv Kumar Singh has in his testimony taken a lead role. The examination-in-chief of PW-2 Shiv Kumar Singh is entirely in contrast with the examination-inchief of PW-1 Rajendra Singh. During cross examination of PW-2 has stated that there is no enmity with the accused appellant. His statement has not been recorded by the Investigating Officer. He refuted the suggestion that he suffered injuries at Raja Ke Baag, Etawah. He has admitted that his father has not lodged any FIR. He has stated that he and Mulaim Singh were at a distance of a hand. There were two shots fired. Blood was splitted. He has given description about gun by which the accused has fired at him. Whereas Rajendra Singh PW-1 has stated that there was only one fire. The inconsistency in the statement of this witness is further to be looked into when the statement of other witnesses of fact is taken to consideration. 20. PW-3 Sughar Singh in his examination in chief has stated that he was sitting on the platform situated at the south of the house of Mulaim Singh where Mulaim Singh, Bharat Singh and Rajendra Singh were sitting, Shiv Kumar Singh was standing, Brijbasi Lal and Keshav Singh @ Kallu came to the disputed plot and started levelling the foundation. Rajendra Singh has stopped them on which Brijbasi Lal and Keshav Singh @ Kallu started abusing. Shiv Kumar Singh when objected for hurling abuse, Brijbasi Lal exhorted Keshav Singh @ Kallu to open fire at Shiv Kumar Singh on which Keshav Singh @ Kallu has fired at Shiv Kumar Singh, who suffered gun shot injury. He is not aware whether any other persons suffered gun shot injury. This witness is of Village Kausari Khera. He is stated to be sitting along with Mulaim Singh and is not aware whether Mulaim Singh suffered gun shot injury or not, though PW-1 has stated that Mulaim also suffered gun shot injury which came to know in the next morning when he returned home. In his cross examination, he has stated that there was only one fire. He was there for half an hour. Both witnesses PW-2 and PW-3 have stated differently about the place of occurrence from the place of occurrence shown in the site plan. The Investigating Officer PW-7 Sub Inspector Surendra Singh 1146 INDIAN LAW REPORTS ALLAHABAD SERIES Sengar has prepared the site plan and showed that the foundation is on the East of the house of informant Rajendra Singh and West to the house of Brijbasi Lal, lying in the middle of their houses in North South direction there was no wall shown between the two houses except the foundation. The platform is shows on the North of the house of informant where Mulaim Singh was shown present at place D. The injured Shiv Kumar Singh was shown standing at place A along with Rajendra Singh on the eastern door of the house of Rajendra Singh. The distance between Rajendra Singh and Shiv Kumar Singh with Mulaim Singh is 40 paces, though it is stated by the witnesses that Mulaim Singh was sitting adjacent to, where Rajendra Singh was standing along with other persons namely Shiv Kumar Singh, Sughar Singh, Lal Ji, Shyam Singh, Hakim Singh. It is pertinent to point here that the name of Hakim Singh is not shown in the FIR. In the site plan, two places have been shown from where accused Keshav has fired at Shiv Kumar Singh and at Mulaim Singh. From place B Keshav has fired at Shiv Kumar Singh at place A at a distance of 25 paces. From place C he has fired at Mulaim at place D. There is discrepancy in the statement of witness pertaining to two shots fired by Keshav Singh @ Kallu. 21. PW-1 Rajendra Singh has stated that Shiv Kumar Singh is his nephew son of cousin sister. He stated that there is discrepancy in the site plan which he has denied being prepared by the Investigating Officer at his instance. He stated that at the time of incident, he was standing at the south eastern corner of his house. The site plan shows that he is on the eastern side of his house. He has stated that his father is at a distance 2 to 4 paces from him. He has stated about one shot fired by Keshav Singh @ Kallu. At no stretch of imagination it could be perceived that in a single shot fired two persons are injured one at standing position and one on a sitting position. Shiv Kumar Singh suffered injuries on his head whereas Mulaim Singh suffered injuries on his leg. He has stated that the firing was behind the wall. There is no wall between the two houses. 22. PW-4, Dr. C.K. Katiyar has stated in his examination in chief that he has conducted medico legal examination of injured Shiv Kumar Singh. He found four gun shot injuries on the person of injured Shiv Kumar Singh which he has examined at 19:45 p.m. on 04.12.1980. He found that injury no. 3 is the exit wound of injury no. 2. Injury nos. 2 and 3 are simple in nature. The injuries on the person of Shiv Kumar Singh are reiterated underneath:- 1. A gun shot wound of entry 0.4 cm x 0.4 cm x scalp deep on the left side of front of head. 4.5 cm above the outer and of left eye brow. Margins are inverted, contused, lacerated. The wound directed back wards. Soft clotted (fresh) blood is present. 2. Gun shot wound of entry 0.5 cm x 0.4 cm x scalp deep on the left side of head. 11 cm above the left ear. Margins are inverted, contused and lacerated and the wound is directed backwards. Fresh clotted blood is present. 3. Gun shot wound of exit 0.5 cm x 0.5 cm x communicating freely with the injury no. 2. on the left side of the head. 4 cm behind the injury no. 2 margins are everted and lacerated. Fresh clotted blood is present. 4. Three gun shot wounds of entries in an area of 4cm x 3 cm on the front and middle part of the head. 9 cm.. above the ridge of nose. Each wound is measuring 0.4 cm x 0.4 cm into scalp 4 All. Brijbasi Lal & Anr. Vs. State of U.P. 1147 deep. Margins are inverted contused and lacerated. Wounds are directed back wards. Fresh soft clotted blood is present. Injury no. one and 4 are under observation. Advised x-ray. All the injuries are caused by some fire arm. Injury no. 2 and 3 are simple. Restore Kuo Advised x-ray. Duration- All the injuries are fresh. 23. PW-5 Hasin Akhtar the x-ray technician has stated that he is the x-ray technician and proved x-ray plates. He submits that the x-ray report was prepared by Dr. R. C. Sharma and proved the report as exhibit Ka-3, in secondary evidence. The x-ray report reveals the multiple radiopaque F-B metallic shadow rounded spike shaped. PW-4 Dr. C.L. Katiyar stated that the injuries are simple in nature but dangerous to life. 24. Considering the statement of Dr. C.L. Katiyar, it is found that the injured Shiv Kumar Singh suffered gun shot injury on his vital part of body, which are sufficient to cause death though they are simple in nature but so far as the point is whether those injuries have been inflicted by accused Keshav, is concerned, the testimonies of three witnesses are inconsistent in nature. Moreover, the Investigating Officer who is part of prosecution witness and has collected material, prepared the site plan has stated differently in respect to the place of occurrence. The trail of blood from the place of occurrence has not been recovered. The mattress which was put on bullock cart and injured was taken to the police station and then to the hospital from that bullock cart. The blood stained mattress, the blood stained clothes and the blood stained earth were not recovered by the Investigating Officer. 25. On the point of taking into possession the blood stained earth and clothes during the investigation, Honble the Supreme Court in catena of judgments has elaborated the principles wherein it is held that merely the faulty investigation will not be beneficiary to the accused, if the evidence of eye witnesses is consistent, reliable, trustworthy and cogent. Dhanaj Singh v. State of Punjab 7 "5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective." Motilal v. State of Rajasthan8 "11.It is true that a faulty investigation cannot be a determinative factor and would not be sufficient to throw out a credible prosecution version. But in the instant case there is no explanation offered even to explain the discrepancies." State of U.P. v. Wasif Haider 9 1148 INDIAN LAW REPORTS ALLAHABAD SERIES "24.In the present case, the cumulative effect of the aforesaid investigative lapses has fortified the presumption of innocence in favour of the respondent-accused. In such cases, the benefit of doubt arising out of a faulty investigation accrues in favour of the accused. 25.Although we acknowledge the gravity of the offence alleged against the respondentaccused and the unfortunate fact of a senior official losing his life in furtherance of his duty we cannot overlook the fact that the lapses in the investigation have disabled the prosecution to prove the culpability of the accused. The accused cannot be expected to relinquish his innocence at the hands of an inefficacious prosecution, which is ridden with investigative deficiencies. The benefit of doubt arising out of such inefficient investigation, must be bestowed upon the accused." (Emphasis Supplied) Madan v. State of U.P. 10 "68.Another submission on behalf of the appellants is with regard to faulty investigation. No doubt that there have been certain lacunae in the police investigation. However, the evidence of eyewitnesses is consistent, reliable, trustworthy and cogent. Merely because there are certain lacunae in the investigation, it cannot be a ground to disbelieve the testimony of eyewitnesses. In this respect, we may refer to the observations of this Court inKarnel Singhv.State of M.P." "5. Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective." Edakkandi Dineshan v. State of Karhala 11 "26.A cumulative reading of the entire evidence on record suggests that the investigation has not taken place in a proper and disciplined manner. There are various areas where a proper investigation could have strengthened its case. InParas Yadavv.State of Bihar. "8. the lapse on the part of the investigating officer should not be taken in favour of the accused. It may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this Court fromRam Bihari Yadavv.State of Bihar" "13.