# Devendra Singh & Ors v. State

- **Citation:** (2025) 8 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-19
- **Case number:** Criminal Appeal No. 19 of 1993
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-singh-ors-v-state-53715
- **Pages:** 14

## Headnote

Govt. Advocate, Aniruddh Singh

Issue for Consideration
Matters relates to Criminal appeal against
conviction and sentence for dacoity(S.395
IPC:10 years' RI and Rs. 10000 fine) and
dacoity with deadly weapon (S. 397 IPC: 7
years' RI, concurrent), arising from a midnight
home invasion involving alleged loot, assault,
and attempted rape in a village feud.

Headnotes
Criminal
law-Criminal
Procedure
Code,1973-S.
374(2)-Indian
Penal
Code,1860-Ss.
395,397-Challenge
toConviction-Dacoity prosecution burdenContradictions
in
eye
witnesses-Nonproduction of key witnesses-Conviction
based on presumption without resolving
contradictions
or
improbabilities
is
unsustainable-Simple
injuries
to
four
persons amid alleged assault by 9-10
armed men-no medical examination of
complainant-no loot recovery-Acquittal on
benefit of doubt-The appeal is allowed.

Held
The
court
held
that
there
is
material
contradictions in PW-1, PW-2 and PW-3's
testimonies regarding arms carried by unnamed
accused, source of firing and (courtyard or roof)
and cartridge collection undermine credibilityUnexplained recovery of cartridges post-FIR
suggests possible planting-Non-production of
torches as material exhibits, despite memos,
creates
doubt-Failure
to
examine
injured
daughters -in -law or independent witnesses
despite their materiality, coupled with IO's note
of their non-disclousre of gun insertion, entitles
accused to beneffit of doubt-The trial court's
judgment dated 07.11.1993 set aside.(Para 13
to 35) (E-6)

Case law Cited
Iqbal & Anr Vs St. of U.P.(2015)4 ALJ 239, Rang
Bahadur Singh Vs St. of U.P. (2000) J.Cr.C. 259
(S.C.),Harbeer Singh Vs Sheeshpal Singh & Ors
(2017) JCR 508 (SC), Juggi @ Jugendra & Ors
Vs St. of U.P. (2015)1 JIC 662 (All),Manzoor Vs
St. of U.P. AIR (1983) SC 295 & Dhaniram Vs
St. of U.P.(1997) J.Cr.C. 692 (All.),Ram Ratan
Vs St. of M.P.,MANU/SC/1279/2021 [AIR 2022
SC 518], Amish Devgan Vs UOI & Ors;
MANU/SC/0921/2020
[(2021)
1
SCC
1)],
Ganesan & Ors Vs St. rep. by SHO & Ors,
MANU/SC/1015/2021 [(AIR 2021 SC 5643)],
Ashfaq Vs. St. (Govt. of NCT of Delhi),
MANU/SC/1042/2003[(AIR 2004 SC 1253)],
12 INDIAN LAW REPORTS ALLAHABAD SERIES
Kuldeep Kumar Tripathi Vs Rang Bahadur
Pandey & Ors, 2010 (3) ADJ 334-referred to.

List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860

List of Keywords
Accused,

Conviction,
CrPC,
Complainant,
Recovery
memo,
Dacoity,
cartridges,
testimonies,
benefit
of
doubt,
acquittal,
offenders, cognizable offence, contusion, deadly
weapon, injuries.

Case Arising From
CRIMINAL APPELATE JURISDICTION: CRIMINAL
APPEAL No. - 19 of 1993
From the Judgment and Order dated 19.08.2025
of the High Court of Judicature at Allahabad.

Devendra Singh & Ors Vs. State

Appearances for Parties
Advs. for Appellant:
S.H. Ibrahim, Amarendra Kr. Bajpai, Divesh
Mishra, I K Mishra, I.P. Singh, K.K. Tewari,
Kaushlendra Tiwari, Ratnesh Agnihotri, Rishad
Murtaza, S K Shukla, Sachidanand Mishra, Shri
Prakash Pandey
Advs. for Respondent:
G.A. Aniruddh Singh

## Text

_Characters 0–39,890 of 49,223. This is a partial read: ask again with offset=39890 for what follows._

8 All. Devendra Singh & Ors. Vs. State
11
application of mind to the subject matter
and the extent of the challenge laid. Out of
6 claims under challenge only 3 were dealt
with and not a word has been indicated qua
the rest. Even the issue dealt with is in a
wholly curosry manner and as such, the
judgement cannot be sustained.

15. Consequently, the appeal is
allowed. The judgement dated 13.05.2025
passed by the Commercial Court is quashed
and set aside.

16. The matter is remanded back to the
Commercial Court, Bareilly for re-hearing
and deciding the same afresh based on the
submissions made and the record of the
case.
----------
(2025) 8 ILRA 11
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.08.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No. 19 of 1993

Devendra Singh & Ors. ...Appellants
Versus
State ...Respondents

Counsel for the Appellants:
S.H. Ibrahim, Amarendra Kr. Bajpai, Divesh
Mishra, IK Mishra, I.P. Singh, K.K.Tewari,
Kaushlendra Tiwari, Ratnesh Agnihotri,
Rishad Murtaza, S K Shukla, Sachidanand
Mishra, Shri Prakash Pandey

Counsel for the Respondents:
Govt. Advocate, Aniruddh Singh

Issue for Consideration
Matters relates to Criminal appeal against
conviction and sentence for dacoity(S.395
IPC:10 years' RI and Rs. 10000 fine) and
dacoity with deadly weapon (S. 397 IPC: 7
years' RI, concurrent), arising from a midnight
home invasion involving alleged loot, assault,
and attempted rape in a village feud.

Headnotes
Criminal
law-Criminal
Procedure
Code,1973-S.
374(2)-Indian
Penal
Code,1860-Ss.
395,397-Challenge
toConviction-Dacoity prosecution burdenContradictions
in
eye
witnesses-Nonproduction of key witnesses-Conviction
based on presumption without resolving
contradictions
or
improbabilities
is
unsustainable-Simple
injuries
to
four
persons amid alleged assault by 9-10
armed men-no medical examination of
complainant-no loot recovery-Acquittal on
benefit of doubt-The appeal is allowed.

Held
The
court
held
that
there
is
material
contradictions in PW-1, PW-2 and PW-3's
testimonies regarding arms carried by unnamed
accused, source of firing and (courtyard or roof)
and cartridge collection undermine credibilityUnexplained recovery of cartridges post-FIR
suggests possible planting-Non-production of
torches as material exhibits, despite memos,
creates
doubt-Failure
to
examine
injured
daughters -in -law or independent witnesses
despite their materiality, coupled with IO's note
of their non-disclousre of gun insertion, entitles
accused to beneffit of doubt-The trial court's
judgment dated 07.11.1993 set aside.(Para 13
to 35) (E-6)

Case law Cited
Iqbal & Anr Vs St. of U.P.(2015)4 ALJ 239, Rang
Bahadur Singh Vs St. of U.P. (2000) J.Cr.C. 259
(S.C.),Harbeer Singh Vs Sheeshpal Singh & Ors
(2017) JCR 508 (SC), Juggi @ Jugendra & Ors
Vs St. of U.P. (2015)1 JIC 662 (All),Manzoor Vs
St. of U.P. AIR (1983) SC 295 & Dhaniram Vs
St. of U.P.(1997) J.Cr.C. 692 (All.),Ram Ratan
Vs St. of M.P.,MANU/SC/1279/2021 [AIR 2022
SC 518], Amish Devgan Vs UOI & Ors;
MANU/SC/0921/2020
[(2021)
1
SCC
1)],
Ganesan & Ors Vs St. rep. by SHO & Ors,
MANU/SC/1015/2021 [(AIR 2021 SC 5643)],
Ashfaq Vs. St. (Govt. of NCT of Delhi),
MANU/SC/1042/2003[(AIR 2004 SC 1253)],
12 INDIAN LAW REPORTS ALLAHABAD SERIES
Kuldeep Kumar Tripathi Vs Rang Bahadur
Pandey & Ors, 2010 (3) ADJ 334-referred to.

List of Acts
Criminal Procedure Code, 1973, Indian Penal
Code,1860

List of Keywords
Accused,

Conviction,
CrPC,
Complainant,
Recovery
memo,
Dacoity,
cartridges,
testimonies,
benefit
of
doubt,
acquittal,
offenders, cognizable offence, contusion, deadly
weapon, injuries.

Case Arising From
CRIMINAL APPELATE JURISDICTION: CRIMINAL
APPEAL No. - 19 of 1993
From the Judgment and Order dated 19.08.2025
of the High Court of Judicature at Allahabad.

Devendra Singh & Ors Vs. State

Appearances for Parties
Advs. for Appellant:
S.H. Ibrahim, Amarendra Kr. Bajpai, Divesh
Mishra, I K Mishra, I.P. Singh, K.K. Tewari,
Kaushlendra Tiwari, Ratnesh Agnihotri, Rishad
Murtaza, S K Shukla, Sachidanand Mishra, Shri
Prakash Pandey
Advs. for Respondent:
G.A. Aniruddh Singh

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri I. K. Mishra and Sri
Sachidanand Mishra, learned counsel for
the appellant nos. 1 and 3 respectively and
Shri
Rajesh
Kumar
Shukla,
learned
Additional Government Advocate (here-inafter referred as AGA).

2. This appeal has been filed by the
appellants namely Devendra Singh, Sripal
Singh, Suresh Singh, Dinesh Singh and
Yogendra Singh. During pendency of this
appeal, Shripal Singh, Dinesh Singh and
Yogendra Singh have died, therefore, this
appeal has abated on their behalf on
different dates. Now this appeal survives
only on behalf of the appellant no. 1Devendra Singh son of Indrapal Singh and
appellant no. 3-Suresh Singh son of Hari
Bux Singh.

3. This Criminal Appeal under Section
374(2) of Code of Criminal Procedure
Code (here-in-after referred as CrPC) has
been filed assailing the judgment and order
dated 7/11-1-1993 passed in S.T. No. 387
of 1991; State Versus Devendra Singh and
4 Others, arising out of Case Crime No.
66/1990 under Sections 395/397 of the
Indian Penal Code (here-in-after referred as
IPC), Police Station Behtagokul, District
Hardoi by IVth Additional Sessions Judge,
Hardoi, by means of which the appellant
nos. 1 and 5 namely, Devendra Singh and
Yogendra Singh have been convicted under
Section 395 IPC and sentenced each of
them to 10 years rigorous imprisonment
and a fine of ₹10,000, and in default of
payment of fine, three years simple
imprisonment and seven years rigorous
imprisonment under Section 397 IPC and
both
the
sentences
have
to
run
concurrently. The remaining appellant nos.
2, 3 and 4, namely Shripal Singh, Suresh
Singh, and Dinesh Singh respectively have
been convicted under Section 395 IPC and
sentenced
to
10
years
rigorous
imprisonment to each of them and a fine of
₹10,000 and in default of payment of fine,
three years simple imprisonment.

4. Prosecution story, in brief, is that
complainant-Ganga Bux Singh submitted
written-report Ext.Ka.1 at Police Station
Behta Gokul, District Hardoi, with the
allegations that there is enmity between
him and Sripal Singh, Suresh Singh,
Dinesh Singh and Devendra Singh of his
village in connection with the land since
long and a case is also pending in the
Tehsil and so many times hot words have
8 All. Devendra Singh & Ors. Vs. State
13
been exchanged in this regard. About a
year ago his sons were also beaten, in
regard to which, he gave an application to
police and a day before the occurrence at
about 6 P.M. Devendra Singh threatened
his son-Hari Nam Singh in the grove near
the village situated in the north and
threatened to see him. In the last night at
about 1.30 A.M., while he was sleeping at
his door along with his brother-in-law
Ranvir Singh and his sons Harinam Singh,
Hari Shanker Singh along with their wives
Savitri and Shiv Kumari were sleeping
inside the house, on noise, he woke up and
saw that a person flashed torch on his face.
He also after flashing his torch saw that
Devendra Singh, Sripal Singh, Suresh,
Dinesh, Yogendra Singh and four other
persons, who can be identified, were
standing near him, out of them Devendra
Singh was armed with single barrel gun,
Yogendra was armed with 'Tamancha' and
remaining were armed with 'Lathi-Danda''.
Devendra kept his gun on his chest and
asked him "SALE UTH KER GHAR KA
DARWAJA
KHULWAO
TUMHARE
GUNDE
LARKON
KO
JAAN
SE
KHATM KER DOONGA". Sripal Singh
gave him 3-4 slaps. Suresh moved 'Danda'.
Due to fear, he got opened the door of the
house. It has further been alleged that
inside the house a lantern was illuminating
on the wall of kitchen. They, on being
entered the house, began 'Maarpeet'. All of
them used fists and kicks and beat his both
the sons with 'Danda' also. Devendra Singh
challenged and said "INKO ITNA MARO
KI JHAGRA MITA DO". They had beaten
his daughters-in-law also and Suresh,
Dinesh and Yogendra tried to commit rape
with them and tried to enter barrel of gun in
their vagina. They also opened fire in the
air. On the noise, Deva Singh, Om Prakash,
Nand Kishore and several others reached
on the spot. In the light of torches and on
being challenged accuseds ran away. The
accuseds were identified by them in the
light of lantern and torches. In the last he
requested that necessary action be taken
after lodging his report.

5. On the basis of said written report
Exihibit-Ka.1, F.I.R. Exihibit-Ka.10 was
written at police station on 26.5.1990 at
9.50 hours under Sections 147, 148, 149,
452, 323, 504, 506 and 376/511 I.P.C.
against the accuseds and the case was
entered in general diary. In pursuance
thereof, the investigation was made. The
Investigating Officer (here-in-after referred
as I.O.) recorded the statements of
witnesses and after visiting the spot
prepared the site plan, which is ExhibitKa.13. I.O. also took in his possession the
lantern and torch and prepared their
memos, which are Exhibits-Ka.2 and Ka.3
respectively. Injureds Smt. Savitri Devi,
Smt. Shiv Kusari, Hari Singh and Harinam
Singh were medically examined and their
medical examination reports are ExhibitsKa.4 to Ka.7 respectively. Injureds Smt.
Shiv Kumari and Smt. Savitri were also
referred to Women Hospital, Hardoi for
examination of their injuries on their
private part and in this regard their medical
examination reports are Exhibits-Ka.8 and
Ka.9 respectively. I.O. also took in his
possession a torch, empty cartridges and
torches of other witnesses and prepared
their memos, which are Exhibits-Ka.12,
Ka.14 and Ka.16 respectively. A copy of
other
relevant
general
diary
report
converting the case under Sections 395/397
I.P.C. is Exihibit-Ka.15. An application of
Arún Pal Singh, scribe of the writtenreport, addressed to I.O. Behtagokul,
District Hardoi is Exihibit-Ka.18. After
completion of investigation, charge sheet,
under Sections 395/397 IPC, was submitted
against the aforesaid accused(s) in the court
14 INDIAN LAW REPORTS ALLAHABAD SERIES
of
Magistrate
concerned.
The
First
Additional
Chief
Judicial
Magistrate,
Hardoi, committed the case to the court of
Sessions
for
trial
vide
order
dated
01.10.1991. After committal of the case to
the court of Sessions, the charge was
framed against the accused(s)-Devendra
Singh, Shripal Singh, Suresh Singh, Dinesh
Singh, and Yogendra Singh on 29.10.1991
under Section 395 read with Section 397
IPC. The accused(s) denied the charge and
claimed for trial.

6. The prosecution, to prove its case,
examined nine witnesses. Ganga Bux
Singh; the complainant, appeared as P.W.
1, Hari Nam Singh-Injured and Ram
Chandra appeared as P.W. 2 and P.W. 3
respectively, who are the eyewitnesses of
the occurrence. Dr. S Thiriyani appeared as
P.W. 4, Dr. Reeta Singh appeared as P.W.
5, Head Constable Raghupati Singh, scribe
of F.I.R. appeared as P.W. 6, Sub-Inspector
Sabhajit Rai appeared as P.W. 7, SubInspector Pyarey Lal Yadav appeared as
P.W. 8 and Sub-Inspector J.B. Singh
appeared as P.W. 9. P.W. 7 to 9 were the
investigating officers of the case. The
prosecution also produced empty cartridges
and belt of cartridges, which are material
Exhibits-I to VIII.

7.
After
closure
of
prosecution
evidence, accused(s) were examined under
Section 313 of Criminal Procedure Code
(here-in-after referred as CrPC) to explain
the circumstances appeared against them in
the evidence. They in their statement
denied the prosecution allegations and
merely stated that they have been falsely
implicated in the present case due to
enmity. The accused(s) did not examine
any oral evidence in their defense, but they
filed copies of certain documents, which
are exhibits- Kha-1 to Kha-5.

8. Learned counsel for the appellants
submitted that the appellants have been
convicted without considering the evidence
and material on record. He further
submitted that the complainant could not
have been present at the place of incident
as per the First Information Report (herein-after referred as FIR). He further
submitted that Ganga Bux Singh was not
examined medically. He further submitted
that there was no allegation of loot of
essential goods etc. in FIR and the looted
property was also not recovered. He further
submitted that no proof of use of weapon
was found. He further submitted that there
was contradiction in the statements of
witnesses and they had also modified their
statements. He further submitted that the
source of light has been shown only a
lantern, and it could not be proved that
torches
were
present
in
lightening
condition. It has also been submitted that
the lantern and torches etc. were also not
produced during the trial. No examination
in regard to the cartridges was done to
ascertain, as to whether they were of the
gun of Devendra Singh or not. He further
submitted that two injured ladies i.e. the
daughter-in-laws' of P.W. 1, were not
produced in evidence. In the investigation,
they had not stated about Devendra Singh,
therefore, the statement was contradictory
to the evidence of P.W. 1 and P.W. 2. He
further submitted that the injuries are
simple in nature and the appellants had no
criminal history. He next submitted that the
use of a deadly weapon has not been found.
It has also been submitted that it is very
improbable that persons of the same
village, residing in the vicinity, would
commit the offense of dacoity, without
covering their faces. Thus, it was submitted
that the appellants have been wrongly and
illegally convicted and sentenced, without
considering and dealing with the evidence
8 All. Devendra Singh & Ors. Vs. State
15
and material on record appropriately. Thus,
the impugned order is not sustainable in the
eyes of law and liable to be set-aside and
the appellants are liable to be acquitted.

9. Learned counsel for the appellants
relied on Iqbal and another vs. State of
Uttar Pradesh; 2015 (4) ALJ 239, Rang
Bahadur Singh vs. State of Uttar
Pradesh;
2000
J.Cr.C.
259
(S.C.),
Harbeer Singh vs. Sheeshpal Singh and
others; 2017 JCR 508 (SC), Juggi @
Jugendra and others vs. State of U.P.;
2015 (1) JIC 662 (All), Manzoor vs. State
of Uttar Pradesh; AIR 1983 SC 295 and
Dhaniram vs. State of U.P.; 1997 J.Cr.C.
692 (All.).

10.
Learned
AGA
vehemently
opposed the submissions of learned counsel
for the appellants. He submitted that the
impugned judgment and order has rightly
been passed in accordance with law, after
considering the evidence and material on
record. He next submitted that it was a case
of dacoity as there were more than five
accuseds and in the incident, five persons
were injured. He also submitted that
Devendra
Singh
had
a
barrel
gun;
Yogendra Singh had a country-made pistol
and the rest of the accuseds had lathi and
danda in their hands. It was further
submitted that the FIR was primarily
lodged and it is settled law that it is not an
encyclopedia. He further submitted that the
F.S.L. report and the report of the lady
doctor are in favor of the prosecution. It has
further been submitted that merely because
ornaments could not be recovered, it cannot
be said that the prosecution has failed to
prove its case because the participation of
the accused in the instant case has not been
proved. It has further been submitted that
the conviction has rightly been made under
Sections 395 and 397 IPC. He next
submitted that the two injured persons have
been examined. The FIR was lodged on
26.05.1990 at 09:15 in regard to the
incident of the night of 25/26.05.1990 at
about 11/2 AM, therefore, the FIR was
lodged promptly and the accused Sripal
Singh and Suresh Singh were arrested on
28.05.1990. However, nothing could be
recovered. Thus, learned AGA submitted
that the appellants have rightly been
convicted in accordance with law and
sentenced
accordingly.
There
is
no
illegality
or
error
in
the
impugned
judgment and order. The appeal has been
filed
on
misconceived
and
baseless
grounds, which is liable to be dismissed.

11. Learned AGA relied on Ram
Ratan vs. State of Madhya Pradesh;
MANU/SC/1279/2021 [AIR 2022 SC
518], Amish Devgan vs. Union of India
and others; MANU/SC/0921/2020 [(2021)
1 SCC 1)], Ganesan and others vs. State
rep. by Station House Officer and
others; MANU/SC/1015/2021 [(AIR 2021
SC 5643)], Ashfaq vs. State (Govt. of
NCT of Delhi); MANU/SC/1042/2003
[(AIR 2004 SC 1253)] and Kuldeep
Kumar Tripathi vs. Rang Bahadur
Pandey and others; 2010 (3) ADJ 334.

12. I have considered the submissions
of learned counsel for the parties and
perused the records.

13. One of the grounds argued by
learned counsel for the appellants is that
there was a delay in lodging the FIR. This
issue has been considered by the learned
trial court and it has been held that the
delay in lodging the FIR has been fully
explained by the prosecution because the
incident had taken place in the midnight
and the people of the same village
committed such heinous crime of dacoity,
16 INDIAN LAW REPORTS ALLAHABAD SERIES
in which they had beaten four family
members, in which two young women of
the family also suffered injuries on their
private parts. P.W.-1 Ganga Bux Singh; the
complainant, has stated that, "रात में मैं डर की
वजह से ररपोर्ट करने थाने नहीं गया था। सुबह मैंने अरुण पाल से घर
पर हाल बताकर तहरीर ललखाई थी।" and the scribe of
the written report, Exhibit Ka-1, Arun Pal
Singh in his application, Exhibit Ka-18, has
written that "26.5.90 को सुबह 5.30 बजे मैं सोकर
उठा तो सन्देश वाहक जो मेरे मामा ने भेजा था ने बताया कक
खुजगीपुर में गंगाबक्श कसंह के घर रात में डकैती पड़ गई है ... मैं
तुरन्त मामा के गांव गया ........गंगा बक्श कसंह अनपढ़ है अतः
उनके बताये हुये तरीके से मैंने घटना की तहरीर किख दी थी।"
This clearly shows that some time would
have been taken in writing the written
complaint.

14. It is written in the application
dated 30.06.1990 of Arun Pal Singh,
Exhibit Ka-18 that "कनवेदन करना है कक गांव में
गंगाबक्श कसंह के घर डकैती पड़ी थी व गांव के कुछ िोग
उसमे शाकमि थे कजन्हे प्राथकमकी में दजज भी कराया गया है
परन्तु घटना मार पीट व बिवा की किखाई गई क्योंकक
गंगाबक्श कसंह को कुछ िोगो ने भ्रकमत कर कदया कक डकैती का
केस नही चि पाएगा। अतः मारपीट का मुकदमा किखाओं।
गंगा बक्श कसंह अनपढ़ है अतः उनके बताये हुये तरीके से मैंने
घटना की तहरीर किख दी थी" and the FIR was
lodged
under
sections
147/148/149/452/323/504/506/376/511
IPC. However, during investigation, the
case was converted under Sections 395
and 397 IPC. In any case, the delay in
lodging the FIR has been explained by
the prosecution. However, as admitted
by the complainant; P.W.-1, his both
the sons were educated, but he failed to
explain as to when his sons were
educated, why the FIR was got written
only after calling Arun Pal Singh in the
morning from the other village, but he
was not produced in evidence. His
statement under Section 161 Cr.P.C. was
also not recorded.

15. The trial court observed that the
main point for consideration in the case is
as to whether the occurrence took place as
alleged by the prosecution or not. The
learned trial court, after considering the
evidence of prosecution witnesses, which
includes the doctors, who have proved the
injury reports and the fact that empty
cartridges and belts of cartridges were also
found by the I.O. on the roof of the house
of the complainant and it has also come in
the evidence of P.W.-1 Ganga Bux Singh
that the accuseds opened fire from the roof
at the time of occurrence to create
terror/ruckus in the village and I.O. also
found some broken articles in the house of
the complainant and that nobody would
like to say wrongly that accused(s) persons,
who are residents of his own villages,
entered a barrel of the gun inside the vagina
of daughter-in-laws', held that the incident
of dacoity took place in the house of the
complainant as alleged by the prosecution
and P.W.-1
Ganga Bux Singh;
the
complainant, proved the prosecution case.
In addition thereof, he stated that some
miscreants climbed on the roof and opened
fire and remaining others were beating
them in the courtyard and were demanding
cash and jewellery and accuseds snatched
jewellery, which his daughter-in-laws were
wearing and cash and looted jewellery kept
in the boxes and other jewellery articles i.e.
Payal, Nathuni, Bunda and seven silver
coins, brass batua and paraat, three gagra
etc.

16. P.W.-2 Hari Nam Singh, injured,
who has been said to be the eyewitness of
the
occurrence,
also
supported
the
prosecution case. He stated about the
enmity between him and accused Devendra
Singh on account of land dispute, in regard
to which the litigation was ongoing at the
time of the occurrence also and in the
8 All. Devendra Singh & Ors. Vs. State
17
evening at about 06:00 P.M. before the
night of occurrence, Devendra Singh
abused him and threatened to see him. He
stated that about two and half years ago, at
about 01:30 in the night, he was lying with
his wife in the western courtyard of his
house and his brother was lying along with
his wife in the eastern courtyard of the
house and his father was lying along with
Ranveer Singh on the Chabutara at the
door. He also stated that on the call of his
father, he opened the door and saw
Devendra Pal Singh, Shripal Singh, Suresh
Pal Singh, Dinesh Singh and Yogendra Pal
Singh and 4-5 unknown persons holding
his father. On opening the door, all the
accuseds along with his father entered the
western courtyard and at that time, the
accused Devendra was armed with a singlebarrel gun, Yogendra Singh with a country
made pistol, Shripal Singh, Suresh Pal
Singh and Dinesh Singh were having lathidanda in theirs hands and they began to
beat him and his brother with kicks and
fists. He further stated that Suresh, Dinesh
and Yogendra had tried to commit rape on
Smt. Savitri Devi and Smt. Shiv Kumari, but
when they were unsuccessful, the accused
Devendra Singh inserted the barrel of the gun
in their vagina, due to which they received
injuries in their private parts. He further
stated that the accuseds committed loot by
entering in his house and looted the articles
kept in the boxes of his wife and also looted
utensils. He further stated that the unknown
persons climbed on the roof and made 6-7
fire and on noise, witnesses reached on the
spot with torches and lathis. Thereafter, the
accused(s) ran away through the western door
with the looted property and all the accuseds
were identified in the light of the lantern and
torches.

17. The site plan indicates that the
accused(s) entered the house after getting
the door opened at Point "H" and thereafter,
after crossing Barotha Nos. 1 and 2, entered
into the first courtyard, where on the southwestern side, one of the sons of the
complainant along with his wife was
sleeping and the other son was sleeping in
the courtyard subsequent thereto on the
western side and his wife was sleeping on
the northern side of the said courtyard,
where the kitchen is also situated and the
lantern was burning on the southern wall of
the kitchen, in regard to which, firstly
P.W.-1 stated that it was on the western
wall, but subsequently he stated that he had
wrongly stated it was on the western wall
and it was actually on the southern wall.
The accuseds ran away from the western
gate at "G". It is the case of the prosecution
that the accuseds were seen in the light of
the lantern and torches, while they entered
the house. However, the lantern appears to
be after a wall in the first courtyard, in
which there is a gate on the western side for
going into the second courtyard, where the
kitchen is situated on the northern side,
therefore it can not be said that the light of
lantern would have been on all the sides in
the courtyard and it has not been shown or
proved. The torches have neither been
produced in evidence nor it has been
proved that they were in working condition.
The memos have been prepared in regard to
the torches used by the informant and other
persons, but on different dates. However, it
has not been proved as to whether these
torches were used at the time of the
incident or not.

18. It is also a case of the prosecution
that the accused(s), other than the named
persons, went upstairs and fired to create a
ruckus and terror, whereas the site plan
shows that the stairs are outside the house,
and none of the witnesses have stated that
18 INDIAN LAW REPORTS ALLAHABAD SERIES
after entering the house, any of the
accused(s) had gone outside to go upstairs.

19. P.W.-2, Hari Nam Singh, the son
of the complainant, has also stated in his
evidence that on the call of his father,
Ganga Bux Singh, he opened the main door
and saw that Devendra Pal Singh, Shri Pal
Singh, Suresh Pal Singh, Dinesh Pal Singh,
Yogendra
Pal Singh
and
4-5 other
unknown persons were holding his father.
On opening the door, they all dragged his
father into the courtyard. The accusedDevendra had a single barrel gun in his
hand; Yogendra had a country-made pistol
in his hand and Shri Pal Singh, Suresh Pal
Singh and Dinesh Pal Singh had lathi and
danda in their hands. However, he could
not see which arms were with the
remaining persons, whereas P.W.-1 Ganga
Bux Singh, the informant, has stated that
accused-Devendra Singh had a single barrel
gun in his hand, Yogendra had a countrymade pistol and the remaining had lathi and
danda in their hands. Thus, there is
contradiction in regard to the remaining
unnamed persons about the arms in their
hands. P.W.-1 has further stated that some
of the accuseds went on the roof and fired,
but he has not named the persons, who
went on the roof, and according to him, the
accused Devendra and Yogendra were in
the house and were trying to do bad work
with
the
daughter-in-laws'
of
the
complainant, and they entered the barrel of
the gun in their private parts, and as per his
evidence no other person was having the
gun. The similar statement has been given
by the P.W.-2. Though he has stated about
the gun shot, but he has not stated that who
went on the roof and fired. Thus, there is
contradiction in the evidence of the
eyewitnesses i.e. P.W.-1 and P.W.-2. P.W.-
3, who is a villager and a neighbour of the
informant, stated that he saw that the
dacoits were going up and down and
coming in and going out. He further stated
that 6-7 fires were made by the dacoits.
Some fires were made from the courtyard
and some from the roof and used cartridges
were found on the roof. Ganga Bux Singh
had collected the used cartridges and went
to the police station. Thus, there is
contradiction in the evidence of P.W.-1,
P.W.-2 and P.W.-3 in regard to the fire
from gun because on the one hand, P.W.-1
has stated that the fires were made from the
roof, whereas P.W.-3 has stated that some
fires were made from the courtyard also
and
according
to
P.W.-3,
the
used
cartridges were collected by Ganga Bux
Singh before going to the police station. On
the contrary, P.W.-8, S.I. Pyarelal Yadav,
who was one of the investigating officers of
the case, has stated that the investigation
was assigned to him on 27.05.1990 and
thereafter he went to the site and recovered
seven used empty cartridges and one rim of
brass cartridge. Thus, once the used
cartridges were already collected by the
complainant on the date of the incident,
then how seven used cartridges and one rim
of brass cartridge were found on the roof of
the complainant remains unexplained and it
might have been planted subsequently
because the FIR or any other material does
not disclose that the cartridges collected by
the complainant on the date of the incident
were handed over to the police.

20. P.W.-2 has stated that the FIR was
written by Arun Pal Singh before him, and
it was mentioned in the written report that
the accused(s), after entering the house,
made loot and took away the jewelry of the
ladies kept in the box and eating utensils,
paraat, tasla, gagra and brass batua.
Thereafter, he stated that he does not
recollect as to whether it was mentioned in
the FIR or not. In any case, the written
8 All. Devendra Singh & Ors. Vs. State
19
report made by Arun Pal Singh neither
discloses the same nor it is mentioned in
the FIR. However, subsequently, during
investigation, the case of dacoity and the
loot of the aforementioned articles was
made and a written statement by Arun Pal
Singh (Exhibit Ka.18) has also been placed
on record to show that some persons had
confused the informant, Ganga Bux Singh,
that the case of dacoity would not be
workable (चल पायेगा), therefore, the case of
marpeet was got written, and Ganga Bux
Singh is illiterate. Though this application
may have no relevance as neither the
statement of Arun Pal Singh has been
recorded under Section 161 Cr.P.C. nor he
has been produced in evidence. But, since it
has been produced by the defense and
relied, therefore, it has rightly been
considered. Thus, if the version of Arun Pal
Singh is taken to be correct, it is apparent
that the FIR was lodged after consultation
and
thinking.
The
police,
in
the
investigation, also could not find out about
the remaining unnamed accused(s) and
only the named accused(s), who were
residents of the same village, were arrested
and the trial was held against them.

21. The daughter-in-laws' of the
complainant have not been produced in
evidence to prove the incident and as to
how they got the injuries. The injuries
suffered by the said ladies are simple in
nature and in regard to the injury in their
private parts, the doctor stated that they are
simple in nature caused by some blunt
object. It is also very strange that both the
ladies suffered a lacerated wound of the
same size i.e. 0.25cmX0.25cm at 6 'O clock
position and at 11 'O Clock position of their
vagina. The other two injureds, namely
Hari Singh and Hari Nam Singh, sons of
the complainant, had also simple injuries
caused by a blunt and hard object. It is very
strange that in a beating by about nine to
ten persons with lathi-danda, a single barrel
gun and a country made pistol, only four
persons have suffered simple injuries and
no injury was suffered by the complainant.
P.W.-3 Ramchandra has not stated in his
evidence that the accuseds had beaten the
complainant and his family members. He
has stated that the accuseds were going up
and down stairs and coming out and going
in the house and taking out the goods and
when they exhorted, the accuseds ran away
and in the light of torch, they saw the
accuseds, but they could not see what
goods were being brought out and stated
that they ran with the same. Thus, there is a
contradiction in it also because once they
were taking out the goods in front of him,
this court failed to comprehend as to why
the witness could not see the goods and tell
anything about them.

22. Shri J.B. Singh, P.W.-9, who was
handed
over
the
investigation
on
22.06.1990, stated that Smt. Savitri and
Smt. Shiv Kumari had not told about
entering the barrel of the gun in their
vagina and despite his asking to ascertain
the same, they had not told. It is further
stated that they did not name any of the
accuseds for the said act and the said ladies
have not been produced in evidence.
Therefore, the said statement of the
Investigating Officer remains unrebutted
and the fact that Arun Pal Singh was called
from the other village for writing the
complaint, whereas the sons of the
informant had studied up to 9th and 8th
grade respectively and letter of Arun Pal
Singh i.e. Exhibit Ka-18 creates doubt
about the veracity of the prosecution story
itself. Even otherwise, the prosecution story
appears to be highly improbable because
the complainant and the family members
waited until the morning for treatment and
20 INDIAN LAW REPORTS ALLAHABAD SERIES
lodging the FIR of the incident, in which at
least four persons had suffered injuries, out
of which two of the ladies suffered injuries
on their private parts, and even then, no
effort was made for their treatment and
taking them to the hospital, whereas in such
a situation, normally a prudent person
would immediately take steps for treatment
and lodging the FIR. The presumption
drawn by the learned trial court about the
firing of the dacoits also seems to be
improbable and it has also not been stated
by the complainant and other prosecution
witnesses of fact and admittedly, the
distance to the police station was about half
an hour by vehicle. The accused(s) were of
the same village and it also seems
improbable that they would come for the
dacoity with open faces and without
covering them without fearing of their
being recognized and in such a condition
also, not firing to kill any of the family
members, despite having fire arms. The
complainant, Ganga Bux Singh, has also
not been got examined medically because
he would not have suffered any injury,
whereas the allegation is that he has been
dragged by about nine persons after getting
the door opened by P.W.-2. In such a
situation, it is not possible that certain
injuries would not have been suffered by
him, may be contusion, etc. The witnesses
namely, Om Prakash, Nand Kishore, and
Roshan, who were named by P.W.-1, P.W.-
2, and P.W.-3, have not been produced in
evidence, and they were discharged on the
application by the learned Additional
Government Counsel on the ground that
they were won over by the accuseds.
Ranvir Singh, who was brother-in-law of
the
complainant
and
was
sleeping
alongwith him, when the accuseds came
and committed the crime, was a material
eye-witness, but not produced in evidence,
which also creates doubt about the whole
prosecution story. They were material and
independent witnesses and might have not
been produced because they might not be
ready to give evidence of a false
prosecution case. Neither recovery of the
stolen articles has been made nor the police
could find out as to what happened to them,
if they were stolen in the alleged robbery.
The trial court, without considering the
above and evidence and recording findings
on the basis of presumption, has convicted
the appellants and sentenced them, which
could not have been done.

23. The Hon'ble Supreme Court, in the
case of Iqbal and Another versus State of
Uttar Pradesh (Supra), has held that in
cases of dacoity, usually, the offence is
committed by unknown persons with the
criminal background. It is only in very few
cases, the accused-dacoits are known to the
victim. It has further been held that in order
to bring home the guilt of the accused
persons, it is the duty of the prosecution to
prove that the stolen property was in the
possession of the accused persons or that
the accused had knowledge that the
property was a stolen property or the
accused persons had converted the stolen
property. No such recovery was made to
connect the appellants and other nonappealing accused persons with the crime.
It has also been held that the prosecution
ought to have adduced evidence as to how
and in what manner the articles which were
the subject matter of dacoity were either
disposed of or converted.

24. The Hon'ble Supreme Court, in the
case of Rang Bahadur Singh vs. State of
U.P. (Supra), has held that it is difficult to
believe that the appellants who were well
known to the inmates of the house would
have
gone
there
without
covering/concealing
their
faces.
The
8 All. Devendra Singh & Ors. Vs. State
21
Hon'ble Supreme Court has taken similar
view in regard to the recovery of the
articles as in the aforesaid case of Iqbal
and Another versus State of Uttar
Pradesh (Supra).

25. The Hon'ble Supreme Court, in the
case of Harbeer Singh vs. Sheeshpal
Singh and others (Supra), has held that
the corroboration by independent witnesses
is an indispensable rule in cases where the
prosecution is primarily based on the
evidence of seemingly interested witnesses.
It is well settled that it is the quality of the
evidence and not the quantity of the
evidence which is required to be judged by
the Court to place credence on the
statement.

26. A Division Bench of this Court, in
the case of Juggi @ Jugendra and others
vs. State of U.P. (Supra), has held that if
persons belonging to the same village or
adjoining village to whom the witnesses are
knowing since before the occurrence
commits dacoity, they will try to conceal
their identity but in the present case all the
witnesses of fact have deposed that all the
miscreants were having open faces and did
not try to conceal their identity. So this
creates a doubt upon the prosecution story
and presence of the witnesses on the spot.
The Court further held that non-production
of torch is very relevant. In the present
case, the source of light has been shown the
lantern and torch, but the same have not
been produced. Though recovery memos of
the same were prepared but the same were
handed over back.

27. The Hon'ble Supreme Court, in the
case of Manzoor vs. State of Uttar
Pradesh (Supra), has taken the similar
view and observed as under in paragraph
12:-

"12. There is then the evidence of
P.Ws. 1 and 2, the home-guards of whom
only P.W. 2 had identified the appellants in
the
identification
parade
held
on
17.11.1978.
The
four
home-guards
including P.Ws. 1 and 2 are stated to have
flashed their torch lights and to have seen
the two persons running away from the
scene of occurrence after they had heard
the alarm of the injured Gul Bahar near the
railway line. The torches have not been
produced in evidence, and the investigating
officer P.W. 12 would say in his evidence
that he saw those torches 30 and returned
them to the home-guards. It is not known
why the investigating officer P.W. 12
thought it fit to return the torches with the
aid of which the home-guards are stated to
have seen the two persons running away
from the scene of occurrence though that
will be a relevant piece of material
evidence in the case. P.W. 12 has stated
that after recording the statement (Ex. Ka.
11) of the deceased Gul Bahar at the
District hospital, Saharanpur he went to
the mela and recorded the statements of the
four home-guards. This evidence of P.W.
12 shows two things, namely (1) that the
home-guards would have been on duty at
the mela in the night of 22/23.9.1978 40
and could not have been on patrol duty,
moving about near the railway line or the
lime kiln which is stated by the P.W. 12 to
be situate one furlong away from the mela,
as P.Ws. 1 and 2 would have it, and (2) that
none of the home-guards could have
accompanied the injured Gul Bahar from
the
petrol
pump
where
the
First
Information Report (Ex. Ka. 1) is stated to
have been recorded to the Police Station,
for if any home-guard had accompanied
the injured Gul Bahar to the Police Station
he would have been examined by the police
at the Police Station itself in connection
with this case and it would not have been
22 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary for P.W. 12 to have examined
that home-guard only at the mela. The
evidence of P.Ws. 1 and 2 that Ex. Ka 1
was recorded at the petrol pump is not
reliable, for it is stated in Ex. Ka. 1 that
one of the home-guards took down the
deceased's statement and brought him to
the Police Station after recording the
report. From the statement in Ex. Ka. 1 that
one of the home guards brought the
deceased to the Police Station, it would
appear that Ex. Ka. 1 could have been
written only after the injured Gul Bahar
had been taken to the Police Station and
not earlier. It is to be noted that none from
the petrol pump and the rickshaw-puller
who is stated to have carried the injured
Gul Bahar from the petrol pump to the
Police Station has been examined as a
witness at the trial. It is seen from the
evidence of P.W.