# Diwari Lal & Ors. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 328 of 2001
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-20
- **Case number:** Criminal Appeal No. 328 of 2001
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/diwari-lal-ors-in-jail-v-state-of-u-p-46250
- **Pages:** 37

## Headnote

Criminal Law-Indian Penal Code-1860-Section
307/149 & 302/149 - Appeal against conviction.
Binding Precedent - The fact of the present case are
different to facts of the case laws cited by the counsel
for the parties. Therefore the ratio of the judgments
cited is not applicable.

Criminal Appeal rejected. (E-2)

List of cases cited:-

## Text

_Characters 0–39,963 of 128,671. This is a partial read: ask again with offset=39963 for what follows._

1920 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)03-05ILR A1920
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2020

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

Criminal Appeal No. 328 of 2001

Diwari Lal & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Ashwini Kumar Awasthi, Sri Ajay Vikram
Yadav, Sri Manish Tiwari, Sri Vimlendu
Tripathi

Counsel for the Opposite Party:
A.G.A., Sri Rajesh Yadav, Sri Vipin Kumar Yadav

Criminal Law-Indian Penal Code-1860-Section
307/149 & 302/149 - Appeal against conviction.
Binding Precedent - The fact of the present case are
different to facts of the case laws cited by the counsel
for the parties. Therefore the ratio of the judgments
cited is not applicable.

Criminal Appeal rejected. (E-2)

List of cases cited:-

1. Pala Singh and others Vs St. of Pun., (1972) 2 SCC
640

2. Criminal Appeal no. 2525 of 1978, Chhotey Lal and
others Vs St. of U.P. reported in 1990 (2) Crimes (HC)
531

3. Bhajan Singh Alias Harbhajan Singh Vs St. of Har.,
(2011) 7 SCC 421

4. 1998 SCC (Crl) 1055, Shiekh Ayub Vs St.of Maha
5. Waman and others Vs St. of Maha., (2011) CrLJ
4287 (SC)

6. Gangabhavani v. Rayapati Venkat Reddy, AIR
2013 SC 3681

7. Yogendra Morarji Vs St. of Guj., (1980) 2 SCC 218

8. Moti Singh Vs St. of Maha., (2002) 9 SCC 494

9. Vajrapu Sambayya Naidu and others Vs St. of A.P.
and Others, (2004) 10 SCC 152

10. (2014) 5 SCC 744, St. of Raj. Vs Manoj Kumar

11. Kashi Ram and others Vs St. of M.P., (2002) 1
SCC 71

12. Bhawar Singh and Ors Vs St. of M.P., (2008) 16
SCC 657

13. Munshi Ram Vs Delhi Administration, AIR (1968)
SC 702

14. Rajinder and others Vs St. of Har., (1995) 5 SCC
187

15. Abid Vs St. of U.P., 2009 (66) ACC 737 (SC)

16. Avtar Singh Vs St.of Har., 2012 (79) ACC 699

17. Asraf Ali Vs St. of Assam, (2008) 16 SCC 328

18. Shardul Singh Vs. St. of Har. (2002) 8 SCC 372

19. Ravindra Kumar Vs. St. of Punj., (2001) 7 SCC
690,

20. St. of U.P. Vs. Baburam (2000) 4 SCC 515

21. Thaman Kumar Vs. St. of UT of Chandigarh,
(2003) 6 SCC 380,

22. Yunis alias Kariya Vs. St. of M.P. (2003) 1
SCC 425,

23. (1973) 3 SCC 219 (Shivaji Genu Mohite Vs.
St. of Maha.)

24. (2017) 11 SCC 120 (Rajagopal Vs.
Muthupandi alias Thavakkalai and Others)

25. St. of U.P. Vs M.K. Anthony, (1985) 1 SCC
505,

26. Gangabhavani v. Rayapati Venkat Reddy,
AIR 2013 SC 3681
3-5 All. Diwari Lal & Ors. Vs. State of U.P.
1921
(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. Heard Shri Vimlendu Tripathi,
learned counsel for the appellants and the
learned A.G.A. for the State.

2. The present criminal appeal has
been filed against the judgement and order
dated 24.1.2001 passed by the Special
Judge (D.A.A. Act), Etawah in S.T No. 503
of 1993 connected with S. T. No. 546 of
1993 whereby the appellant have been
convicted under section 148 I.P.C. and
sentenced to 3 years R.I., under section
307/149 I.P.C. and sentenced to 7 years R.I.
and under section 302/149 I.P.C. to life
imprisonment. All the sentences were
directed to run concurrently.

3. Briefly stated the facts of the case are
that on 14.11.1991 a written report Ext. Ka-1
was submitted by one Akhilesh Kumar scribed
by Rajveer Singh at police station Bharthana,
Etawah, which was registered as case crime no.
294 of 1991 under sections 147, 148, 149, 307
and 302 I.P.C. wherein it was stated that on
14.11.1991 at about 6 a.m. the informant
Akhilesh Kumar alongwith Prahlad Singh,
Govind Singh, Sovaran Singh, Malkhan Singh,
Ajmer Singh, Manoj Kumar and Babloo were
ploughing his filed which he had purchased
from Uma Shanker resident of Kunjpura
Etawah and with regard to this agricultural plot
he had old enmity with Nathu Ram and
regarding which a court decision had been
made in favour of his (Akhilesh's) father as a
result of which Nathu Ram and his sons bore
enmity towards Akhilesh. It is alleged that
seeing Akhilesh and his companions ploughing
the said plot, Nathu Ram (died during trial)
alongwith Diwari Lal, Dinesh Chandra, Viresh
Chandra, Shiv Singh, Sarvesh Chandra (died
during trial), Nihal Singh and Kusum Singh
armed with Lathi, Stick, Spear, Pharsa, Country
Made Pistol, and handbombs came to the plot
and surrounded the complainant after which
Nath Ram exhorted his companions to kill the
complainant and other persons whereupon the
accused persons, namely, Nathu Ram and
Sarvesh Chandra fired upon the complainant
and others and also attacked them with Lathi,
Danda, Pharsa Spear, and country made pistols,
as a result of which the complainant's brother
Ramesh Chandra died on the spot whereas
Prahlad Singh, Kripal Singh, Govind Singh and
Manoj Kumar sustained bullet injuries and
injuries from Danda, Spear, Lathi and Pharsa.
The complainant and the other injured started
shouting upon which Subhash Chandra, Jaiveer
and other villagers rushed to the spot and on
their challenge the accused persons ran away.
On the basis of this written report F.I.R. was
registered by the police on 14.11.1991 at 10.35
a.m. (Ext. Ka. 2). Ext. Ka- 14 dated 14.11.1991
is a search report in respect of the accused
persons which mentions that all the accused
persons had ran away from their houses. Ext.
Ka-8 is the recovery memo which shows
recovery of four empty cartridges, one cartridge
is of 12 bore, pieces of used bombs, half burn
strings and three cartridges were recovered
from the field of Nirbal. Ext. Ka-7 is the
recovery memo of plain and blood stained earth
from the place where the deceased Ramesh
Chandra had fallen.

4. The inquest report is Ext. Ka-6 which
shows the time of the F.I.R. as 10.35 a.m. dated
14.11.1991 and the time of commencement of
inquest is mentioned as 11 a.m. dated
14.11.1991 and the time of completion of the
inquest is mentioned as 2.00 p.m. dated
14.11.1991.

LathiLathilathiLathiLathiLathiLathiLathilathila
thilathiLathi

5. The dead body of the deceased Ramesh
Chandra was sent for post mortem examination
and postmortem was conducted on 15.11.1991
at 3 p.m. by Dr. H.N. Singh (P.W.-5) who has
1922 INDIAN LAW REPORTS ALLAHABAD SERIES
noted the following ante mortem injuries on the
person of the deceased:-

"(1) Blast Injury 8cmx8cm x skull
cavity deep lying on part of forehead
including nasal bone, causing multiple
fracture of frontal bone & nasal bone.
Injury is surrounded by blackening in are
of 15cmx 14cm.

(2) Incised wound 24cm x 2cm x
skull cavity deep causing multiple fractures
of both parietal and occipital bone. Wound
is lying transversely on the occipital and
both parietals, on right Side 1 cm about
right Ear and on left side 6cm above the
left. Brain matter drained out.

(3) Incised wound 12 cm x 3 cm x
skull cavity deep on back of head
transversely situated above the neck at
level of mid of both ears causing fracture of
underlying occipital bone.

(4) Abrasion 2cm x 1 cm on outer
aspect of left upper arm 13 cm below top of
shoulder.

(5) Incised wound 4cm x 1cm x
muscle deep, 8 cm below rest of neck on
right Side back."

6. The doctor has also opined on the basis
of the injuries that the death of the deceased is
possible to have been caused at 7:00 am on
14.11.1991. He has also opined that the injuries
are capable of being caused by a hand grenade
and that the blast injury has been caused within
a distance of 3 ft. In the opinion of the doctor
the death of the deceased has been caused due
to shock and excess bleeding.

7. The injured Akhilesh, the informant
was examined by P.W.-6 Dr. K.K. Sharma, who
has prepared the report (Ext.Ka.5) and has
noted the following injuries:-

"(1) A lacerated wound of size 3.5
x0.5 cm, muscle deep, irregular margins, over
right Side of the head, 7.5 cm above the right
Pinna of ear.

(2) A traumatic swelling of size 8cm
X 5 cm over posterio lateral side of the left
elbow joint."

8. In the opinion of the doctor the injuries
are simple and caused by blunt object. Duration
fresh.

9. The injured Manoj Kumar S/o Prahlad
Singh was examined by Dr. B.S. Bisaria (P.W.-
8) who has noted the following injuries:-

"(1) Multiple semi-circular wound in
an area 12cm x 11 cm on the right side of face
and ear measuring about 0.2 x 0.5 cm in
diameter x skin deep.

(2) Multiple semi-circular would in
an area of 15cm x 14 cm on the front of right
shoulder measuring about 0.2 x 0.5 cm in
diameter x skin deep."

10. In the opinion of the doctor, all the
injuries are simple and fresh and caused by any
firearm weapon. The doctor has also advised for
X-Ray.

11. Injuries suffered by injured Govind
(who has not been examined during trial) as
noted by Dr. V.S. Bisaria (P.W.-8) are as under:-

"(1) Lacerated wound 5cm x 0.7
cm x muscle deep on the right side of skull
11 cm above of right ear.

(2) Abrasion 0.2 cm x 0.3 cm on
the tip of right nose."

12. In the opinon of the doctor, all the
injuries are simple, fresh and caused by
hard blunt object.

13. The witness has testified that
these injuries are capable of being caused
3-5 All. Diwari Lal & Ors. Vs. State of U.P.
1923
by a blunt object. This witness also stated
that he cannot say that injury no. 1 and 2
caused to Manoj Kumar were caused by
bullet though the injury no. 1 is under the
right side of the ear and is semi-circular. He
also stated that normally a bullet is round in
shape but pellets can be in any form and
shape.

14. The investigating officer S.I.
Radhey Shyam, P.W.-7 conducted the
investigation of the case and prepared the
inquest report (Ext. Ka-6), the recovery
memo of empty cartridges and half burnt
strings (Ext. Ka-8), prepared site plan (Ext.
Ka-9), photo lash, dead body challan, letter
to R.I. and letter to C.M.O. (Ext. Ka-10, 11,
12 and 13 respectively). The dead body was
sealed
and
sent
for
postmortem
examination through constables Tulsiram
and
constable
Ram
Kripal.
The
investigating officer in his testimony has
stated that F.I.R was noted in his presence
and registered as Case Crime No. 294 of
2991 under sections 147, 148, 149, 307 and
302 I.P.C. by Head Moharrir Shyam Babu
Shukla and the G.D. was also prepared by
him. He has proved the chik F.I.R Ext. Ka1 as well as F.I.R. Ext. Ka-2. He has also
stated that the informant Akhilesh met him
around 10.30 a.m. and thereafter he went to
the site which is an agricultural plot. There
was no temple on the plot. He has also
stated that the residences of two of the
accused was situated to the south of the
village Bhaisai. He prepared the chauhaddi
of the site and marked it in the site plan. As
per the site plan to the north is the plot of
Surendra Yadav and Prem Singh. The
actual site where the incident occurred has
been marked as 'C' under red line. It is the
field of Rama Shanker and Uma Shanker.
The informant in his statement informed
that with regard to this very plot he had
won a case and there was a conflict
between the parties with regard to this very
plot. According to the informant this plot
was of Nathu Ram and his sons. The
investigating officer has also stated that the
informant had told him that they were
attacked not only with lathi and sticks but
also by fire arm i.e. country made pistols
and guns and pharsa as well as hand bomb.
The investigating officer has stated that he
has prepared the site plan on the disclosure
and pointing out by the informant Akhilesh.
Blood was also found on the Medh on the
field of Nirbal Singh, which has been
marked in the site plan as '+'. The
investigating officer could not remember as
to whether at the site there was any plough.
The investigating officer has denied that the
dead body of the deceased Ramesh
Chandra was first brought to the police
station and then sent for post mortem
examination. The investigating officer has
also
identified
the
handwriting
and
signature of S.I. P.K. Mishra. He has
further stated that subsequent investigation
was carried out by S.H.O. himself.

15. In his cross examination he has
deposed
that
after
completion
of
investigation the charge sheet, Ext. Ka-14
has been submitted by P.K. Mishra,
Inspector.

16. In order to prove its case during
trial, the prosecution has examined 8
witnesses in all.

17. P.W. 1 Akhilesh is the first
informant and injured witness of the
incident and has reiterated the version of
the F.I.R. stating that on 14.11.1991 at
about 6 a.m. in the morning he alongwith
Prahlad Singh, Govind Singh, Sovaran
Singh, Malkhan Singh, Ajmer Singh,
Manoj Kumar and Babloo had gone to the
agricultural plot in question where the
1924 INDIAN LAW REPORTS ALLAHABAD SERIES
incident occurred to plough the same. He
has stated that he had won a court case with
regard to this plot recently and had
anticipated and also feared that some
quarrel may take place with regard to this
plot. At the same time Nathu Ram with
whom the court case had been contested
came to the site alongwith Diwari Lal,
Dinesh Chandra, Viresh Chandra, Shiv
Singh, Sarvesh Chandra, Nihal Singh and
Kusum Singh. Nath Ram was armed with a
Kanta and country made pistol, Diwari Lal
was armed with spear and country made
pistol, Dinesh Chandra was armed with
country made pistol, Viresh Singh was
armed with a Kanta and Pharsa, Nihal was
armed with gun and Kusum was carrying a
Jhola (bag) and armed with Lathi/Danda.
On reaching the spot Nathu Ram exhorted
the other accused persons to kill the
informant
and
other
persons
and
immediately thereafter all the accused
persons started assaulting the informant and
others and also opened fire in which
Prahlad Singh, Kripal Singh, Govind and
Manoj as well as informant Akhilesh
received injuries. In the end accused
Kusum threw a hand bomb which hit
Ramesh Chandra who died on the spot. The
informant has also stated that on hearing
the hue and cry, Subhash Chandra, Jaiveer
and several other persons of the village
reached there and on their challenge the
accused persons ran away from the spot.
The informant has proved the report which
was scribed by Rajveer which was also
signed by him. The informant also stated
that the medical examination of the injured
persons was carried out and Prahlad and
Kripal being more seriously injured were
sent to Gwalior for treatment. In his cross
examination he has stated that Nathu Ram's
father is Bachchan Lal but he does not
know the name of the father of Bachchan
Lal. Raj Kumar was not the uncle of Nathu
Ram but belonged to the same family.
Jodha and ....(sic) also belong to the same
family. Ameer Singh's father was Ram
Chandra. Ameer Singh was resident of
Kunjpura which is near Jaswant Nagar.
Kunjpura is about 50 km. away from the
village of the informant, P.W. 1. The
informant also stated that he does not know
whether Jodha is the brother of Ram
Chandra or not. Babloo is the son of
Hawaldar. Ajmer and Malkhan are real
brothers and are sons of Sovaran. Sovaran
and Hawaldar are real brothers. Prahlad and
the deceased Ramesh Chandra and the P.W.
1 Akhilesh are real brothers. Govind's
father is Iqbal. The accused Diwari Lal,
Viresh, Shiv Singh, Sarvesh and Dinesh are
real brothers and sons of Nathu Ram. P.W.
1 then stated that Raj Kumar was blind, he
was married but had no children. His wife
had predeceased him. Raj Kumar had
executed a sale deed of his land in favour
of one Badan Singh. Prior to execution of
this sale deed Raj Kumar had executed a
sale deed in favour of Lakhan Singh.
Lakhan is the resident of Kunjpura. P.W. 1
stated that he does not know where Badan
Singh resides. Lakhan Singh's father is
Pyarey Lal. Badan Singh used to come to
the house of Raj Kumar. The plot in dispute
was chak no. 580. P.W. 1 has further stated
that the land which Raj Kumar had given to
Lakhan through sale deed was resold by
Lakhan Singh to Raj Kumar through a sale
deed. This witness has further stated that it
is wrong to say that Lakhan Singh had got
executed the sale deed of this land executed
in his favour by playing fraud on Raj
Kumar and on fear of being exposed and on
objection being raised by Raj Kumar he
had returned the same to Raj Kumar
through a sale deed. This witness also
stated that Badan Singh after three days of
execution of the sale deed took the same
land through a sale deed in favour of his
3-5 All. Diwari Lal & Ors. Vs. State of U.P.
1925
son Uma Shanker. He also stated that half
of this land was thereafter sold by Uma
Shanker to his brother Rama Shanker
through a sale deed. This fact was in the
knowledge of Raj Kumar who did not raise
any objection. This witness also stated that
he did not know whether any part of this
land was given by Raj Kumar to a school or
to a temple of Mahaveerji though he has
stated that on chak no. 580 there is a temple
of Mahaveerji which was got constructed
by Raj Kumar. To the west of this temple
there is a primary school but he does not
know the number of plot but he has stated
that this land also belonged to Raj Kumar.
Raj Kumar had died about 15 years ago.
The primary school was got constructed by
Raj Kumar. He has also stated that with
regard to the disputed plot no. 580 civil
proceedings are still pending. Raj Kumar
for the purposes of management of temple
and
primary
school
had
constituted
committees of which the President was the
accused Nathu Ram. He has also stated that
civil proceedings in respect of plot in
dispute was between the accused Nathu
Ram and the informant's father Latoori
Singh, Sovaran Singh, Kripal, Malkhan
Singh, Ajmer etc. The sale deed of the same
disputed land relating to the temple and
school was got executed by Latoori Singh,
father of the informant, Anarkali, Malkhan
Singh, Ajmer, Kripal Singh from Uma
Shanker and Rama Shanker. Uma Shankar
and Rama Shankar got executed the sale
deed of house of Raj Kumar in favour of
Latoori, Anarkali and Prem Singh upon
which
Dinesh
accused,
instituted
proceedings under section 107/116 Cr.P.C.
against Latoori Singh, Prahlad, deceased
Ramesh Chand, Kripal Singh, Sovaran,
Malkhan and Ajmer. Rajveer was the scribe
of this report. The informant has denied
that he and the others had purchased the
land in dispute through a fraudulent sale
deed. He could not remember since what
time the court proceedings were going on
between him, Uma Shanker, Ameer Singh
and others and Nathu Ram though he has
stated that at the time when he purchased
the land there was already a dispute going
on with Nathu Ram. He has also denied
that Nathu Ram was residing in the temple
and has stated that instead he was residing
in his house.

18. The informant P.W. 1 in his cross
examination stated that accused Kusum
used to sell milk and he has no enmity
against him. The informant also stated that
house of Nathu Ram was situated in the
west and the temple was also situated in the
west and the house was about 30 steps from
the temple and Nathu Ram used to reside in
the said house. He also stated that prior to
purchase of the house by the informant,
Ameer Singh used to reside therein and this
house originally belonged to Raj Kumar
and has been built on chak no. 580. The
informant was not aware as to whether Raj
Kumar had executed a fraudulent sale deed
in favour of Ameer Singh but it is wrong to
say that Raj Kumar always resided in the
house. The informant also stated that he
alongwith 9 - 10- persons had gone to the
plot no. 580 to plough the same for the first
time. There were two ploughs. He also
stated that he had no apprehension that any
conflict will ensue but stated that so many
people had gone there with him because
their help was required. He also stated that
one person used one plough and it is
incorrect to say that they had gone there
with the intention to pick up a quarrel. He
also stated that prior to the prosecution
party ploughing the land Nathu Ram was in
his house. Adjacent to plot no. 580 is the
field of Himmat Singh and adjacent to that
is the field of Nirbal Singh. He further
deposed that he alongwith his companions
1926 INDIAN LAW REPORTS ALLAHABAD SERIES
started ploughing the land concerned from
the east at that time the sun had already
arisen and prior to start of the conflict they
had already ploughed about 20 Koorh.
Both the ploughs were being used. Ramesh
was sitting in the field of Nirbal Singh and
others were sitting in the field Chak No.
580. The informant and Govind were
operating the two ploughs. The informant
has also stated that those who were
ploughing were carrying small sticks
whereas the others were not carrying any
weapon of any kind. He also stated that
accused on reaching the field asked the
informant and others to stop ploughing the
field and immediately started assaulting
them. The informant had seen the accused
coming to the field with weapons and he
alongwith his companions were frightened.
Though they made an attempt to run away
and some persons managed to run away but
they could not escape. The informant ran
towards his brother Ramesh, Govind ran
towards Kripal Singh and before running
they had released the bullocks and
buffaloes from the ploughs. When he
reached near Ramesh he was also assaulted
by the accused persons. By that time
Kusum had taken out a bomb from the
Jhola (bag) and thrown it at Ramesh as a
result of which Ramesh died on the spot.
The informant had not been able to reach
Ramesh and he was still 70 - 80 steps away
when he saw accused Kusum throwing the
bomb at Ramesh. The informant also stated
that he was assaulted by Shiv Singh. Shiv
Singh was armed with Pharsa and Sarvesh
was armed with Kanta. The informant
further
stated
that
though
in
his
examination in chief he had stated that Shiv
Singh and Sarvesh were armed with Lathi
and Danda but that is not correct as they
were armed with Pharsa and Kanta. Kusum
was armed with hand bomb in a Jhola and
also had a Katta (country made pistol). He
also stated that injuries caused to him were
caused by the wooden part of the Kanta. He
also stated that Kusum had no concern with
the land in dispute. The informant also
stated that his companions had gone with
him because their help was required in
leveling the field and also for preparing the
small boundaries and to remove the grass.
The informant also stated that he had
recently won a case regarding this land and
therefore his companions also came with
him by way of precaution. The informant
also stated that injuries of Prahland and
Manoj were caused by fire arm. Accused
Dinesh and Nihal Singh were firing from
their guns and no one else was firing.
Injuries of Kripal Singh were caused by
Nathu Ram by Pharsa and Kanta, Sarvesh
by Katta and Kanta and Diwari by Ballam
(Spear) and Govind was also assaulted. The
informant stated that it is wrong to say that
they had gone to the land in dispute to seize
the same. He also stated that neither of his
companions carried a Phawda (spade) and
they were not possessing any Kudal or
Khurpi.

19. This witness in cross examination
has further stated that plot in question Chak
no. 580 measured about 11 bighas in which
there was a banyan tree standing. He also
stated
that
he
had
gone
with
his
companions to plough the said land but he
had no apprehension that Nathu Ram
would fight over it although there was
enmity between him and Nathu Ram. After
this marpeet the informant and others went
to the police station in a Bullock Cart, the
body of the deceased was lying in the field.
One Har Vilas had brought the bullock cart
from the village and another bullock cart
was brought by Vishundara. The entire
marpeet lasted about 10-12 minutes. The
informant was medically examined in
P.H.C. Bharthana at about 1 p.m. alongwith
3-5 All. Diwari Lal & Ors. Vs. State of U.P.
1927
his injured companions. The injuries of
Kripal and Prahlad being serious in nature,
they were referred to Etawah for treatment
but the informant did not go with him and
instead Rajesh and Satyendra had gone
with them. After medical examination the
informant and others came to the police
station and met the Daroga and gave him
the entire information.They reached the
police station after the medical examination
at about 2 p.m. Other than the injured
nobody had come with the informant to the
police station. At one place the informant
has stated that prior to his medical
examination he had gone with his father
Latoori to the police station but he could
not remember whether anybody else had
gone with him. After the dead body came to
the police station the informant had gone to
Etawah with the dead body for post mortem
examination. He stayed in the night at
Etawah as the post mortem was conducted
on the next day. He also stated that no fire
arms were used against him but Nihal
Singh was carrying a gun with which he
had fired at Ramesh.

20. P.W. 2 Kripal Singh is the
injured witness and in his deposition he had
stated that at about 7 O'clock in the
morning his son Govind Singh was
ploughing the field no. 580 and Sovaran
Singh, Ajmer Singh, Malkhan Singh,
Ramesh, Prahlad, Manhoj, Babloo alias
Ramakant were present there alongwith
him. He deposed that they were preparing
the Medh and cleaning the grass of the said
plot. At the same time accused Nathu Ram,
Diwari Lal, Sarvesh, Shiv Singh, Viresh,
Dinesh, Kusum Singh, Nihal Singh reached
there. Nathu Ram and Sarvesh were armed
with Kanta and country made pistols, Shiv
Singh was armed with Pharsa and country
made pistol, Viresh was armed with Pharsa
and Katta, Diwari Lal was armed with
Ballam (spear) and Katta, Dinesh was
armed with gun, Nihal Singh was armed
with gun and Kusum was armed with hand
bombs and country made pistol. Nathu
Ram asked them to stop ploughing
otherwise all will be killed but they
protested and did not stop ploughing,
whereupon the accused persons started
assaulting them and the P.W. 2 alongwith
Prahlad, Akhilesh, Manoj, Govind Singh
received injuries. Ramesh was also injured
and died on the spot. He also stated that
since he received injuries in the beginning,
therefore, he could not see as to who has
caused injuries to Ramesh but he clearly
stated that injuries to him were caused by
Sarvesh and Diwari Lal with Kanta. Nathu
Ram wanted to purchase the land in
question which was purchased by him,
Ajmer Singh, Malkhan Singh ....(sic),
Latoori for which a consolidation case was
won by them and mutation was also carried
out in their favour. Accused Dinesh
thereafter made a false report (Istgasa) but
for want of witnesses this case also ended
in favour of the P.W. 2 (Kripal Singh). He
further deposed that on hearing the hue and
cry Subhash, Jagveer Singh, Ramanath,
Nathuram and other villagers reached on
the spot and witnessed the incident.

21. In the cross examination P.W. 2
Kripal Singh stated that Raj Kumar was the
resident of his village and he was blind.
Nathu Ram accused was the uncle of Raj
Kumar (Chacha). In the plot no. 580 of Raj
Kumar there is a primay school and a
Hanuman temple. To the west of the temple
in this plot there was a house of Raj Kumar.
He does not know whether Raj Kumar had
made separate committees for the primary
school and the Hanuman Temple but these
properties were being looked after by
Ajmer Singh. P.W.-2 also stated that the
house of Raj Kumar is to the west of the
1928 INDIAN LAW REPORTS ALLAHABAD SERIES
temple and very close to it and in this house
Nathu Ram and his sons reside. Nathu Ram
used to do pooja in the temple. The primary
school was got constructed by Raj Kumar
and he had donated the school and the land
to the Government with the intention that
the Government would run the school. The
Government had also constructed a new
school on this plot no. 580. Raj Kumar had
no children. The house of Raj Kumar in
which Nathu Ram was residing was sold by
Uma Shanker and Rama Shanker in favour
of Anarkali wife of Hawaldar. He has also
stated that Uma Shanker and Rama
Shanker were sons of Ameer Singh. Kusum
Singh was running a pan shop and was also
selling milk. Kusum Singh used to collect
milk from the village and sell the same in
Bharthana, Etawah. Kusum Singh is the
resident of Dadiyan which is about one and
half kms away from village Bhasai. No
member of his family resides in the village
of P.W. 2. The witness also stated that there
was a consolidation case between Nathu
Ram and his family and also a civil dispute.

22. In cross examination this witness
further stated that at the time of incident
alongwith him the other legitimate title
holders were removing grass from the
ploughed field but they were not carrying
any Kudal or Khurpi. It is incorrect to say
that on that day he did not go to the field to
prepare the Medh (small boundary). He has
also stated that he had informed the
investigating officer that his son Govind
and informant Akhilesh were ploughing the
field whereas he alongwith others was
removing the grass from the ploughed field
by hand. He also stated that before
assaulting them the accused had fired in the
air. They were not carrying Lathi or Sticks
but they came with the common intention
to kill. He has stated that he was assaulted
by Kanta and not with any fire arm by
Sarvesh and Diwari Lal. He has stated that
Diwari Lal had assaulted him with the
wooden part of the Ballam (spear). He has
clarified that he had been assaulted by the
wooden part and not from the sharp edge of
the Ballam as a result of which he has
received injuries. At the time when he was
assaulted he was standing towards the
south of the temple at a distance of about
200 steps, to the south of which there is the
field of Nirbal Singh. He stated that for the
first time when he saw the accused persons
they were to the north south near the
temple and he was not frightened seeing the
accused persons otherwise he would have
run away. Nathu Ram asked them to stop
ploughing but they did not stop. Deceased
Ramesh was standing behind him on the
southern Medh. He has denied that any
hand bomb was thrown from his side at
Nathu Ram or that they were injured by
any hand bomb thrown by them at Nathu
Ram. He has also deposed that it is
incorrect to say that they had received
injuries while they were throwing bomb at
Nathu Ram and that Ramesh has also
received bomb injuries in this process. He
had gone in a buffalo cart alongwith his son
Govind and wife to Bharthana. He had
gone from the village to the hospital and
from there he had gone to a hospital in
Gwalior for treatment. He met the Daroga 9
- 10 days after returning from Gwalior. He
also stated that it is wrong to say that a
false report has been lodged against the
accused persons with the connivance of the
police and by changing the time in the
F.I.R. It is also incorrect to say that no such
incident as narrated by him had occurred
and it is also incorrect to say that there was
firing from both sides.

23. P.W. 3 Manoj Kumar s/o Prahlad
Singh is also an injured eye witness of the
incident
and
has
deposed
that
on
3-5 All. Diwari Lal & Ors. Vs. State of U.P.
1929
14.11.1991 at about 7 a.m. in the morning
he had gone to the field alongwith Kripal
Singh, Govind, Prahlad Singh, Ramesh
Singh, Akhilesh, Sovaran Singh, Malkhan
Singh, Ajmer Singh and Ramakant. They
had won a case in respect of the land in
question and therefore, they had all gone to
the field and at the time of the incident
some persons were removing grass of the
field. At that time, Nathu Ram armed with
Katta and Kanta, Diwari Lal armed with
Ballam and country made pistol, Sarvesh
armed with Katta and Kanta, Viresh armed
with Katta and Pharsa, Shiv Singh armed
with Katta and Pharsa and Kusum, who
was carrying a jhola containing hand
bombs and a Katta, Nihal Singh armed
with country made pistol and Dinesh armed
with gun reached there and surrounded
them and started assaulting them. In this
assault Ramesh, Manoj, Prahlad, Akhilesh,
Kripal Singh and Govind had received
injuries. He alongwith Prahlad was injured
by fire arm which were used by Nihal and
Dinesh. He stated that he received pellet
injuries on his ear and neck. He further
stated that perhaps Kripal Singh had
received injuries by Pharsa and his uncle
Ramesh had died on the spot on receiving
the injuries caused to him by Pharsa and
hand bomb. Hand bomb was thrown by
Kusum Singh at Ramesh which had badly
injured Ramesh. After that this witness got
his medical examination done of his
injuries.

24. In his cross examination this
witness further stated that with regard to
plot no. 580 there was a court case with
Nathu Ram and even at that time there was
some civil case was going on. Between the
house of Nathu Ram and temple there may
be a distance of 10 - 15 ft. The house of
Nathu Ram is situated to the west of the
temple. He does not know whether Raj
Kumar resides in the same house in which
Nathu Ram alongwith his family was
residing. Raj Kumar had no other house in
the village. He does not know whether Raj
Kumar is the uncle of accused Nathu Ram.
The house in which Nathur Ram's family
resides is in the name of Nathu Ram of
which a sale deed was got executed by the
wife of Hawaldar, and Prem Singh but he
does not know from whom this sale deed
was got executed. Till the date of the
incident
the
vendor
had
not
taken
possession of the said plot no. 580. He
stated that he alongwith others had gone to
the plot no. 580 for the first time to take
possession of the same. He had no
apprehension that there would be any
quarrel with the accused or that the accused
Nathu Ram would try to prevent them from
taking possession of the plot. They had
taken two pairs of ploughs to the field
alongwith 10 persons who were not armed
with any weapon. Two people were
ploughing the field and rest were removing
the grass from the field. He had given
statement to the Daroga on the date of the
incident but after that the Daroga had not
examined him. The witness has denied that
he alongwith others had gone to the field in
question, plot no. 580, with arms or hand
bombs to plough the field. This witness has
clearly stated that accused Viresh was
armed with pharsa and Katta, Sarvesh was
armed with Katta and Kanta, Shiv Singh
was armed with Pharsa and Katta. When
the witness first saw the accused they were
carrying arms, they came from all sides.
Nathu Ram was on the north west corner of
the field.

25. The witness also deposed that he
saw the accused persons only when they
were about 5-6 ft. away and were on all
sides of the field. He also stated that he
along with others did try to run away but
1930 INDIAN LAW REPORTS ALLAHABAD SERIES
they could not escape and were assaulted
by the accused appellants. Ramesh died on
the spot after the incident. Subhash and
Jaiveer alongwith other villagers came to
the spot after the injuries were caused to
him and the accused persons ran away
seeing the villagers. On hearing the sound
of firearm the bullocks ran away with the
plough. The injured were taken by bullock
cart to Barthana. He also stated that from
the Thana they came to Etawah for
treatment. From the Thana the witness
Manoj along with Prahalad Singh, Kripal
Singh and Govind Singh had gone to the
hospital in a jeep. The witness remained
admitted in the hospital for two days. The
witness also stated that accused Dinesh and
Nihal were carrying guns, the rest of the
accused were carrying two weapons each.
The accused had fired using both hands.
This witness has stated that first the hand
bomb was thrown and thereafter, the
accused attacked with pharsa and then
started firing from the firearms. The
witness has stated that it is incorrect to say
that he alongwith others had gone to the
plot no. 580 in question to take forcible
possession or that they had not won the
case and had gone to the said plot with
hand grenades and guns etc., to take
forcible possession of the same through a
fraudulent sale deed and that on accused
Nathu Ram remonstrating with them, they
threw hand grenades at Nathu Ram. The
witness has also stated that it is incorrect to
say that other than accused Nathu Ram no
other accused was present at the spot and it
is also incorrect to say that the time of the
F.I.R. has been changed in collusion with
the police.

26. P.W.-4 Head Constable Shyam
Babu Shukla is the Head Muharir and he
has proved the filing of the written report
by the informant Akhilesh Kumar and has
also affirmed that on the said basis he has
registered the Chik F.I.R. being Case Crime
no. 273. He has also proved his signature
on the F.I.R. which is Ext.Ka.2 as well as
the time of 10:35 am and date 14/11/1991
mentioned therein. The witness has also
stated that General Diary (GD) has been
weeded out. It is maintained in the Thana
for one year and thereafter sent to the
record room and after five years it is
weeded out.

27. P.W.-5 Dr. H.N. Singh has
conducted the postmortem of the deceased
Ramesh Chandra. This witness has proved
the injuries as per the postmortem report
Ext.Ka.4.

28. P.W-6 is Dr. K.K. Sharma who
has examined the injured Akhilesh. This
witness has proved the injury report
Ext.Ka.5, caused to Akhilesh Kumar, the
informant.

29. P.W.-7 is Radhey Shyam Verma,
who has conducted the investigation of the
case. His deposition has already been
narrated above.

30. P.W.-8 is Dr. B.S. Bisaria who
has medically examined the injured Manoj
and injured Govind and also proved the
injury report Ext. Ka.13.

31. On the basis of the evidence
brought on record by the prosecution the
trial court has convicted and sentenced the
appellants, as aforesaid.

32. Sri Vimlendu Tripathi, learned
counsel
for
the
accused-appellants
submitted that the copy of the FIR was sent
to the Magistrate on 18.11.1991 i.e. after
four days of the incident and was not sent
3-5 All. Diwari Lal & Ors. Vs. State of U.P.
1931
promptly, therefore, the FIR itself is antetimed.

33. Rebutting the submissions of the
learned counsel for the appellants on the
question of the FIR being forwarded to the
Magistrate belatedly, learned A.G.A. has
submitted that even though Section 157
Cr.P.C. requires such report to be sent by
the police officer to the Magistrate
empowered to take cognizance of such
evidence forthwith but that is only for
purposes of keeping control of the
investigation and if necessary to give
appropriate directions under Section 159
Cr.P.C. The learned AGA submitted that if
the FIR is otherwise promptly recorded and
there is nothing on record or even a whiff
of suspicion to show that there was a
possibility of it being anti-timed, the mere
fact that the report was forwarded to the
Magistrate belatedly would not vitiate the
trial nor can it be conjectured on that
ground that the F.I.R. is anti-timed.
Reliance has been placed on the judgment
of the Supreme Court in Pala Singh and
others Vs State of Punjab, (1972) 2 SCC
640. Paragraph 7 of the said judgment
reads as under:-

"7. Shri Kohli strongly criticised
the fact that the occurrence report
contemplated by S. 157, Cr.P.C. was sent to
the magistrate concerned very late. Indeed,
this challenge, like the argument of
interpolation and belated despatch of the
inquest report, was developed for the
purpose of showing that the investigation
was not just, fair and forthright and,
therefore, the prosecution case must be
looked at with great suspicion. This
argument is also unacceptable. No doubt,
the report reached the magistrate at about
6 p.m. Section 157, Cr. P.C. requires such
report to be sent forthwith by the police
officer
concerned
to
a
magistrate
empowered to take cognisance of such
offence. This is really designed to keep the
magistrate informed of the investigation of
such cognizable offence so as to be able to
control the investigation and if necessary to
give appropriate direction under s. 159. But
when we find in this case that the F.I.R. was
actually recorded without delay and the
investigation started on the basis of that
F.I.R.