# Devendra Singh & Ors. (In Jail) v. State of U.P

- **Citation:** CRIMINAL APPEAL No. 1164 of 2002
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-19
- **Case number:** CRIMINAL APPEAL No. 1164 of 2002
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-singh-ors-in-jail-v-state-of-u-p-46420
- **Pages:** 7

## Headnote

A. Criminal law- Indian Penal Code-
Section 302/201-The delay in recording
the statement of the witness by the
Investigating Officer and the witness not
telling
about
the
incident
to
the
Investigating Officer casts a serious doubt
about his being an eyewitness of the
occurrence which may suggest that the
Investigating
Officer
was
deliberately
marking time with a view to decide about
shape to be given to the case and
eyewitnesses
to
be
introduced.-
Contradictions between statements of
witnesses on all material points.

Indian Evidence Act- Section3, Section
155- Credibility of Witnesses - Where there
is an inordinate delay in recording the statement
of the eye witness, the testimonies of the
witnesses of fact are contradictory on material
points and there is absence of corroboration of
the ocular evidence from other evidence, the
conviction of the accused cannot stand. .
(Para 13, 14, 17, 18)

Criminal Appeal allowed (E-3)

List of case cited:

Shahid Khan Vs. St. of Raj. AIR 2016 SCC 1178

## Text

374 INDIAN LAW REPORTS ALLAHABAD SERIES
only one fire was heard by the witnesses. It
being so, the claim of the accused that he
was shot by Head Constable Kashi Prasad,
itself stands falsified and cannot be
accepted by us.

24. In view of above scrutiny of evidence
and analogy of facts and circumstances of this
case, obviously it cannot be said that the
charges have not been proved beyond
reasonable doubt against the accused and that
the trial court erred while it recorded finding of
conviction against the accused under Sections -
302, 324 and 309 I.P.C. and imposed the
sentence on him.

25. We do not find any infirmity in the
judgment and order of conviction and sentence
passed by the trial court in Sessions Trial No.
255 of 1984 (State vs Vijai Pal Singh), arising
out of Case Crime No. 45 of 1984, under
Sections - 302, 307, 324 and 309 I.P.C., Police
Station - Barhpura, District - Etawah.

26. Accordingly, this appeal is dismissed.

27. Let a copy of this order be certified to
the court below for its intimation and necessary
compliance. The lower court record is directed
to be remitted to the court concerned.
----------
(2020)03-05ILR A374
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.02.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

CRIMINAL APPEAL No. 1164 of 2002

Devendra Singh & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Arimardan Yadav, Sri Jadu Nandan
Yadav, Sri Rajendra Kumar Srivastava, Sri
Ravindra Singh, Sri Rajendra Kumar Yadav

Counsel for the Opposite Party:
A.G.A., Sri Aklank Jain

A. Criminal law- Indian Penal Code-
Section 302/201-The delay in recording
the statement of the witness by the
Investigating Officer and the witness not
telling
about
the
incident
to
the
Investigating Officer casts a serious doubt
about his being an eyewitness of the
occurrence which may suggest that the
Investigating
Officer
was
deliberately
marking time with a view to decide about
shape to be given to the case and
eyewitnesses
to
be
introduced.-
Contradictions between statements of
witnesses on all material points.

Indian Evidence Act- Section3, Section
155- Credibility of Witnesses - Where there
is an inordinate delay in recording the statement
of the eye witness, the testimonies of the
witnesses of fact are contradictory on material
points and there is absence of corroboration of
the ocular evidence from other evidence, the
conviction of the accused cannot stand. .
(Para 13, 14, 17, 18)

Criminal Appeal allowed (E-3)

List of case cited:

Shahid Khan Vs. St. of Raj. AIR 2016 SCC 1178

(Delivered by Hon'ble Ali Zamin, J.)

1. Heard Sri Rajendra Kumar Yadav,
learned counsel for the appellant nos.1 and
2, Sri J.N Yadav, learned counsel for the
appellant no.3 and learned A.G.A for the
State.

2. This appeal has been preferred
against the judgment and order dated
12.02.2002, passed in S.T. No.160 of 1991
3-5 All. Devendra Singh & Ors. Vs. State of U.P.
375
(State vs. Devendra Singh and others) by
which the learned Additional Sessions
Judge,
Court
No.31,
Firozabad,
has
convicted and sentenced each of the
appellants to undergo imprisonment for life
under Section 302 I.P.C. and to pay a fine
of Rs.10000/- in default of payment of fine
to
undergo
six
months
simple
imprisonment and to undergo five years
rigorous imprisonment under Section 201
I.P.C. and to pay fine of Rs.5000/- each in
default of payment of fine three months
simple imprisonment.

3. Prosecution case, in brief, is that in the
intervening night of 19/20.01.1990 Raghuvir
Singh, father of the informant Bachan Singh,
was sleeping as usually in the Machan situated
in the field, some unknown persons committed
his murder and threw the dead-body in a well
by tying his hands and legs. The dead-body was
taken out from the well with the help of the
villagers. Injury marks were found on the dead
body. On the basis of written report (Ex.Ka-1),
Chik F.I.R (Ex.Ka-7) Case Crime No.23 of
1990, under Sections 302, 201 I.P.C, Police
Station Nagla Khangar, District Firozabad, was
registered on 20.1.1990 at 11.50 a.m.
Investigation of the case was entrusted to S.O.
V.S. Singh (DW-6). The Investigating Officer
reached the spot, on his instruction, S.I. Sri
Harish Chandra Sharma (PW-4) prepared
inquest memo (Ex.Ka-12) and relevant papers.
After completion of inquest memo dead-body
was dispatched for postmortem.

4. PW-7 Dr. H.M Agarwal conducted
postmortem on 21.01.1990 at 2.00 p.m. and
prepared inquest report (Ex.Ka-16). According
to postmortem, following injuries were found
on the body of the deceased:-

"(1) Incised wound of 3 x 1 x bone
deep on Rt. cheek, opp. the tragus of Rt. ear (2)
Incised wound of 2 x 1-1/2 cm on mandible
deep on Rt. side face (3) Incised wound of 4 x 3
cm muscle deep on the Rt. side neck below
mandible (4) Incised wound of 3 x 1 cm muscle
deep on Rt. side neck 2 cm away from Inj. no.3
(5) Incised wound of 5 x 2 cm x deep structure
of Rt. (oesophagus, trachea, blood vessels &
nerves) side neck with cut of underneath
structure below the angle of mandible Rt. side
(6) Incised wound of 3 x 1 cm x bone deep and
the back of head just near mastoid bone (7)
Incised wound of L shape present on the back of
head 3 cm with depth up to scalp (8) Incised
wound of 2cm x 2cm x bone deep present on the
back of neck, 3cm down to injury no.7 and 2cm
apart (9) contusion of 6cm x 4cm on the left
cheek (10) Incised wound of 2 x 1-1/2 cm x
muscle deep on back of left shoulder."

5. As per opinion of the doctor, death
occurred near about 1-1/2 days before
conducting postmortem and cause of death was
found due to shock and excess bleeding as a
result of antemortem injuries.

6. Investigating Officer prepared spot
map (Ex.Ka-11) and took into his possession
blood stained and plain earth from the place of
incident and prepared inquest memo (Ex.Ka12). He further took into his possession a quilt
taken out from the well and prepared its
recovery memo (Ex.Ka-13). A blood stained
and earthen sickle was also taken into
possession from the place of incident and
recovery memo (Ex.Ka-14) was prepared.

7. After completing the investigation,
Investigating Officer submitted the chargesheet under Sections 302 and 201 I.P.C.
against the accused-appellants, Devendra
Singh, Ram Naresh @ Seth and Bhoora,
before the Court of C.J.M. Firozabad, who
committed accused persons to the Court of
Session where Case Crime No.23 of 1990,
under Sections 302, 201 I.P.C, Police
Station Nagla Khangar, District Firozabad,
376 INDIAN LAW REPORTS ALLAHABAD SERIES
was registered as Session Trial No.160 of
1991. It was made over to the Court of
Additional Sessions Judge-II, Firozabad for
trial, who framed charge against the
accused persons under Sections 302 and
201 I.P.C.

8. To prove its case prosecution has
produced seven witnesses; P.W.1 Bachan
Singh is the informant, P.W.2 Agya Ram
and P.W.3 Janak Singh are witness of fact,
P.W.4 Harish Chandra Sharma prepared
inquest of the dead-body, P.W.5 Prem
Singh prepared chik and F.I.R. P.W-6
Vijendra
Singh
Investigating
Officer,
P.W.7 Dr. H.M. Agarwal conducted
postmortem are the formal witnesses. After
prosecution evidence, statements of the
accused persons were recorded under
Section 313 Cr.P.C., in which, they pleaded
that due to enmity the case proceeded
against them. After recording statements of
accused persons, Vinod Kumar has been
examined as C.W.1.

9. Learned Additional Sessions Judge,
Firozabad, after hearing learned counsel for
the parties and perusal of the record, has
passed the impugned judgment and order as
disclosed in para 2 of the judgment.

10. Learned counsel for the appellants
submits that there is no eyewitness of the
incident. Prosecution has produced P.W.1
informant Bachan Singh and P.W.2 Agya
Ram as a witness of fact. P.W.1 Bachan
Singh has stated that Agya Ram told him
after 39 days of the incident that murder of
his father was committed by the accused
persons whereas P.W.2 Agya Ram has
stated that he told Bachan Singh after two
months of the incident. Agya Ram was
present in the village but his statement was
not recorded promptly by the I.O.,
therefore, his testimony is not believable.
P.W.3 Janak Singh has stated that Vinod
Singh was Village Pradhan at the time of
incident. He had gone to meet Vinod Singh
and when he was sitting there, in his
presence, accused Devendra Singh, Ram
Naresh and Bhoora came and told that they
have committed murder of Raghuvir Singh
by sickle and tying him in a quilt and dhoti
threw the body into a well. According to
P.W.2 Agya Ram he saw committing
murder of Raghuvir by accused persons.
They had threatened him not to disclose to
anyone about the incident but he has stated
that an information had spread in the
village before telling by him about the
incident to P.W.1 Bachan Singh. The
witness has also stated that the accused
persons told to Vinod that since he is
Village Pradhan he should save them as
police consider his request. They also
stated that if their goats had not entered
into the field of Raghuvir Singh then this
quarrel would not have happened and
Raghuvir Singh would not have been
murdered. Vinod has been examined as
C.W.1 and he has denied knowledge as to
who committed the murder of Raghuvir. He
also submits that motive of the incident is
alleged that goats of the accused persons
had entered into the field of the deceased
on account of which an altercation took
place which was resolved also, thereafter
incident was caused but entering of goats in
the field is a matter of trivial nature, on the
basis of which, causing the incident does
not appear probable specially when matter
was resolved. Therefore, he submits that
impugned judgment and order is not
sustainable and is liable to set aside.

11. Per contra, learned A.G.A.
submits that as per evidence goats of the
accused persons had entered into the field
of deceased regarding which an altercation
took place thereafter the deceased was
3-5 All. Devendra Singh & Ors. Vs. State of U.P.
377
murdered
by
the
accused
persons.
Prosecution witness P.W.2 Agya Ram and
informant P.W.1 Bachan Singh have
proved it. Learned Additional Sessions
Judge,
considering
the
prosecution
evidence, facts and circumstances of the
case, has rightly convicted and sentenced
the accused persons. No interference is
required by this court.

12. According to the prosecution
version, the deceased who was sleeping in
the intervening night of 19/20-01-1990 in a
machan situated in the field was murdered
and information was given to this effect
that some unknown persons had committed
his murder and threw the dead-body into a
well by tying his hands and legs. P.W.1 in
his cross-examination at page 19 of the
paper book has admitted that Agya Ram
had told him after 39 days of the incident
that Devendra Singh, Ram Naresh and
Bhoora committed the murder of Raghuvir
Singh, whereas P.W.2 Agya Ram has stated
that he told to P.W.1 Bachan Singh after
near about two months of the incident. On
page 23 of the paper book he has also
stated that due to fear he did not tell the
informant for two months of the incident.
Thus,
there
is
contradiction
in
the
statenment of P.W.1 Bachan Singh and
P.W.2 Agya Ram about duration of
disclosing
information
regarding
the
incident.

13. He has also stated that after 5-6
days of terahi a rumour spread in the
village that the accused persons have
committed murder of the deceased. He
asked Agya Ram about it and Agya Ram
consoling told him that there is a rumour in
the village that accused appellants had
committed murder of the deceased. Agya
Ram weepingly told the informant not to
disclose the information to anyone. P.W.1
Bachan Singh does not state from whom he
heard the rumour about commission of the
murder by accused persons after 5-6 days
of the terahi. He also does not state that
when he heard the rumour he informed to
investigating officer. As such the testimony
of P.W.1 Bachan Singh does not inspire
confidence that P.W.2 Agya Ram told him
about the commission of the murder of the
deceased by the accused persons. P.W.2
Agya Ram has stated that the incident is at
near about 12:00 to 1:00 hours of the night,
on that day he was sleeping in his field and
his uncle Raghuvir Singh was also sleeping
in his field. He had seen in that night the
accused appellant. When he flashed the
torch he saw that Ram Naresh and Bhoora
had pressed his uncle Raghuvir by lathi and
Devendra Singh was cutting him with a
sickle. Hands and legs of his uncle
Raghuvir were tied by his dhoti. He has
also stated that he asked the accused
persons why they are doing so then the
accused persons threatened that if you tell
about the incident to anyone then he will
also be killed in the same manner and they
will
also
kill
his
family
members.
Thereafter, the accused persons threw the
dead-body of Raghuvir in the well and put
the quilt over him. The accused persons
also left the sickle there which was found
in the morning. He has also stated that
before the incident at about 12:00 hours of
the day the accused persons were grazing
goats which entered into the field of
Raghuvir and Raghuvir had forbidden them
whereupon an altercation took place; he
intervened in the matter and due to that
reason the accused persons committed
murder of his uncle Raghuvir. In crossexamination, he has stated that he told the
Investigating Officer that he had casually
slept in his field in that night. He has also
stated that he showed his torch to the
Investigating Officer. He has further stated
378 INDIAN LAW REPORTS ALLAHABAD SERIES
that before he could tell anything to Bachan
Singh a rumour had spread in the village
that the accused persons had committed
murder of the deceased. According to him
he was the only eye witness of the incident,
therefore, without his telling anybody no
rumour could have spread. Since he is the
nephew of the deceased therefore his
conduct in keeping mum for two months
does not appear natural. He has also stated
that since the rumour had spread in the
village that is why he told about the
incident to Udai Singh and Bachan Singh
sons of Raghuvir Singh, in that case, it is
also possible that actually he did not see the
incident and on the basis of rumour he told
P.W.1 Bachan Singh about the murder.

14. He has admitted that 'daroga' has
recorded his statement after two months of
the incident. Investigating Officer P.W.6
Vijender Singh has also stated that on
20.3.1990 he recorded the statement of
Agya Ram Singh, although he has stated
that before 20.3.1990 he did not meet Agya
Ram but he has stated that after dispatching
the dead body he tried much to open the
case by reading and involving informer, as
per statement of P.W.2 Agya Ram he was
residing in the village at the time of
incident. If the witness Agya Ram was
residing in the village at the time of the
incident then recording his statement after
two months from the date of incident and
the witness not telling about the same to the
Investigating Officer assumes importance.
The delay in recording the statement of this
witness by the Investigating Officer and the
witness not telling about the incident to the
Investigating Officer also casts a serious
doubt about his being an eyewitness of the
occurrence which may suggest that the
Investigating
Officer
was
deliberately
marking time with a view to decide about
shape to be given to the case and
eyewitnesses to be introduced. It will be
profitable to refer the case of Shahid Khan
vs. State of Rajasthan AIR 2016 SCC
1178 in which Hon'ble Supreme Court has
held as under :-

"The statements of PW 25 Mirza
Majid Beg and PW 24 Mohamed Shakir
were recorded after 3 days of the
occurrence. No explanation is forthcoming
as to why they are not examined for 3 days.
It is also not known as to how the police
came to know that these witnesses saw the
occurrence. The delay in recording the
statements casts a serious doubt about their
being eye-witnesses to the occurrence. It
may suggest that the investigating officer
was deliberately marking time with a view
to decide about the shape to be given to the
case
and
the
eye-witnesses
to
be
introduced.''

15. P.W.2 Agya Ram has also stated
that before the incident at about 12:00
hours the accused persons were grazing
goats which entered into the field of
deceased Raghuvir Singh and Raghuvir had
told the accused not to graze goats in his
field whereupon an altercation took place,
he intervened and resolved it that is why
the accused persons committed murder of
Raghuvir. In cross-examination, he has
stated that before the incident he did not
tell anyone about grazing of the goats. He
also did not tell to the daroga about grazing
of the goats which indicates that the story
of grazing goats by accused persons and
entering of their goats into the field of
deceased Raghuvir Singh is subsequently
developed and first time disclosed before
the court which actually did not exist,
therefore, the story of grazing goats by the
accused persons and entering of their goats
into the field of deceased Raghuvir Singh
and thereafter taking place of altercation
3-5 All. Devendra Singh & Ors. Vs. State of U.P.
379
between them is neither believable nor
reliable. Further more, for the sake of
argument, if it happened so and the matter
was resolved by the witness Agya Ram,
then this issue was not of such a grave
nature that accused persons would commit
murder
of
deceased
Raghuvir
Singh
particularly when no reliable evidence has
been brought on record to draw such an
inference.

16. According to P.W.3 Janak Singh
accused persons confessed before Vinod
Singh Pradhan of the Village that they
committed
murder
of
the
deceased
Raghuvir Singh but C.W.1 Vinod has
denied knowlege about the persons who
committed the murder of the deceasedRaghuvir.
In
cross-examination
by
Additional District Government Counsel,
he has specifically stated that he did not
state before the Investigation Officer that
many days before Devendra, Ram Naresh
and Bhoora of his village came to him and
said that you are Pradhan of the village and
a wrong has been committed by them and
save them they will be grateful to him. He
has also stated that the accused persons did
not tell him that their goats had entered into
the field of Raghuvir Singh that is why in
the intervening night of 19/20-01-1990
accused persons committed his murder by
tying his hands and legs and threw the body
into a well. Thus, the statement of P.W.3
Janak Singh and C.W.1 Vinod Kumar are
contrary to each other. Therefore, statement
of P.W.3 Janak Singh does not inspire
confidence.

17. P.W.2 Agya Ram has stated that
he
had
showed
the
torch
to
the
Investigating Officer by which he had seen
the accused persons in the intervening night
of the incident but P.W.6 Investigating
Officer on page 37 of the paper book has
stated that witness Agya Ram neither
showed any torch to him nor he prepared
any memo. Thus, on the point of showing
torch to the Investigating Officer by which
witness Agya Ram had seen the accused
persons is also not consistent but contrary
to each other. Therefore, witnessing of the
incident by this witness in the light of torch
is also doubtful.

18. Investigating Officer has stated
that Agya Ram told him that he casually
slept in his field in the night, whereas
P.W.2 Agya Ram has stated that he used to
sleep in the field, thus, on the point of
sleeping in the field of this witness,
prosecution evidence is also contradictory.
In view of statement of Investigating
Officer (P.W.6) his presence at the time of
incident further creates doubt.

19. In view of the above discussion,
we come to a conclusion that conduct of
P.W.2 Agya Ram keeping mum for a
period of two months, despite being
nephew of deceased, is not natural. Story of
grazing goats by accused persons and
entering of the goats into the field of
deceased and they had an altercation with
the
deceased
also
does
not
inspire
confidence.

20. On a conspectus of facts and
circumstances of the case and close
scrutiny of the evidences available on
record, as discussed above, we find that the
prosecution has failed to prove its case.
Accordingly, the impugned judgment and
order is not sustainable.

21. The appeal is, therefore, allowed.
The
impugned
judgment
and
order
mentioned above convicting and sentencing
the appellants is set aside. Appellants are
acquitted of the charges u/s 302 and 201
380 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC. Appellants are on bail. Their bail
bonds are discharged. Each appellant shall
file personal bond and two sureties in
accordance with Section 437(A) Cr.P.C. to
the satisfaction of the court concerned.

22. Office is directed to communicate
this order to the court concerned forthwith
and send back the record
----------
(2020)03-05ILR A380
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.04.2020

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 1164 of 2000
Connected with
Criminal Appeal No. 1503 of 2000

Ram Charan & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Dileep Kumar, Sri Ramesh Sinha, Sri
Akhilesh Singh, Sri Shishir Tandon, Sri
Shivam Yadav.

Counsel for the Opposite Party:
A.G.A., Sri G.S. Chauhan

A. Criminal law-Indian Penal Code,1860 -
Section 149, Section 302, Section 304 Part
1 - Indian Evidence Act- Section 3, Section
27 - Code of Criminal Procedure - Section
154, 155 - A detailed description and
sequence of incident constituting the
offence is not at all required to be
mentioned in the FIR- Section 174- For
the purpose of holding the inquest it is
neither necessary nor obligatory on the
part
of
the
Investigating
Officer
to
investigate into or ascertain who were the
persons responsible for the death - Any
omission on the part of the investigating
officer cannot go against the prosecution -
Non recording of disclosure statement and
non-examination of public witness as
regards to the recovery would be of no
consequence - Statement of Police Officer
can be relied upon and even form basis of
conviction when it is reliable, trustworthy
and preferably corroborated by other
evidence on record - Affidavits have got
no evidentiary value as the affidavits are
not
included
in
the
definition
of
"evidence" in S. 3 of the Evidence Act -
Seizure memo need not be attested in all
cases by any independent witness and the
evidence
of
police
officer
regarding
recovery at the instance of the accused
should ordinarily be believed -The reason
for a chance witness being present on the
spot and his testimony requires close
scrutiny-Minor
contradictions,
inconsistencies,
embellishments
or
improvements on trivial matters which do
not affect the core of the prosecution
case, should not be made a ground on
which the evidence can be rejected in its
entirety-The
evidence
of
the
injured
witness is put at a very higher footing and
without
any
substantial
reason
the
statement
of
such
injured
witnesses
cannot be disbelieved- Statements of the
interested witnesses can be safely relied
upon by the court when their statements
find corroboration by other evidence - The
Court
can
convict
an
accused
on
statement of sole witness even if he is
relative
of
the
deceased
and
non
examination
of
independent
witness
would not be fatal to the case of
prosecution - It is not the quantity, rather
quality of the evidence which is decisive in
arriving
at
the
right
conclusion-The
allegation of exhortation attributed to all
the seven accused persons in a form of
chorus
is
highly
improbable
in
the
ordinary course - Not possible for all the
seven accused persons to utter the same
words simultaneously - Exhortation is
considered to be a very weak evidence,
unless coupled with some overt act, to
show involvement in commission of crimeBoth the accused gave only one blow and
did not repeat the assault further- Nor
they
chased
any
other
person
of