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

- **Citation:** (2004) 1 ILRA 53
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-05
- **Case number:** Criminal Appeal No. 1850 of 1981
- **Bench:** U.S. Tripathi, D.P. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-40276
- **Pages:** 12

## Headnote

Indian Panel Code 1860-circumstantial
evidence- Section 302, 148, 149 & 14713 accused convicted and sentencedagainst judgment/order appeal filedprosecution contended spear and fire
arms injury-Medical Report denied such
injury-Enemity and parti bandi providedNo independent witness-no evidence
adduced in defence-conviction can not
sustain-appeal allowed.

Held- para 33 and 34

After careful scrutiny of the evidence of
the eye-witnesses we find that the
prosecution has proved involvement of
the appellants Jagdish, Pyare, Hakim,
Nathi, Govind, Radhey Shyam and Salig
Ram in the murder of the deceased in
prosecution of common object of their
unlawful assembly.
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From above discussion, we find that the
conviction
recorded
and
sentences
awarded by the trial court against the
appellants,
Lokendra,
Charan
Singh,
Ramesh, Shyam Singh, Ram Babu and
Bachchu Singh cannot be upheld.

## Text

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1 All] Amar Nath V. D.I.O.S., Deoria and another
53

9. Admittedly appointment of the
petitioner having been made by the
committee of management and having
worked since 1992 cannot be left in a
lurch without payment. It appeals to
reason and justice that one who has
appointed him should pay his salary. The
committee of management had appointed
the petitioner it is responsible for payment
of salary to him. It is also been apparent
from the resolution dated 26.11.1992
(Annexure no.1 to the writ petition) and
letter of appointment dated 27.11.1992
(Annexure no.2 to the writ petition) that
payment of salary of the petitioner by
District Inspector of Schools was subject
to approval of financial sanction by the
District Inspector of School, which has
not accorded by him from the record.

10. It appears that the petitioner's
appointment was fraudulent and dehors
the rules. Such appointment can not give
any right to the petitioner to claim salary
from the District Inspector of Schools. At
best the petitioner can claim salary from
the committee of management which had
appointed him.

11.

In
view
of
facts
and
circumstances of the case the writ petition
has no force and it is liable to be
dismissed.

12. For the reasons stated above, it is
not a fit case for interference by this Court
under article 226 of the Constitution of
India. The writ petition fails and is
dismissed. It is however, provided that the
petitioner may claim his salary for the
period
he
had
worked
from
the
Committee
of
Management
of
the
institution.

No order as costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 5.8.2003

BEFORE
THE HON'BLE U.S. TRIPATHI, J.
THE HON'BLE D.P. GUPTA, J.

Criminal Appeal No. 1850 of 1981

Lokendar and others

...Appellants
 (In Jail)
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellants:
Sri G.S. Chaturvedi
Sri Sanjai Srivastava
Sri S.K. Chaturvedi
Sri S.S. Chauhan
Sri Lalji Sahai Srivastava

Counsel for the Opposite Party:
Sri Mohan Chandra
Sri Ghanshyam Joshi
A.G.A.

Indian Panel Code 1860-circumstantial
evidence- Section 302, 148, 149 & 14713 accused convicted and sentencedagainst judgment/order appeal filedprosecution contended spear and fire
arms injury-Medical Report denied such
injury-Enemity and parti bandi providedNo independent witness-no evidence
adduced in defence-conviction can not
sustain-appeal allowed.

Held- para 33 and 34

After careful scrutiny of the evidence of
the eye-witnesses we find that the
prosecution has proved involvement of
the appellants Jagdish, Pyare, Hakim,
Nathi, Govind, Radhey Shyam and Salig
Ram in the murder of the deceased in
prosecution of common object of their
unlawful assembly.
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54

From above discussion, we find that the
conviction
recorded
and
sentences
awarded by the trial court against the
appellants,
Lokendra,
Charan
Singh,
Ramesh, Shyam Singh, Ram Babu and
Bachchu Singh cannot be upheld.

(Delivered by Hon'ble D. P. Gupta, J.)

1. By the judgement and order dated
19th August, 1981, IXth Additional
Sessions Judge, Agra, in Sessions Trial
No. 232 of 1980: State Vs. Lokendra and
12 others, under Sections 302, 148, 149
and 147 IPC, PS Donki, district Agra,
convicted and sentenced the accused
appellants Jagdish, Nathi, Govind and
Radheyshyam, each to undergo one year's
RI for offence punishable under Section
147
IPC
and
accused
appellants
Lokendra, Charan Singh, Ramesh, Shyam
Singh, Ram Babu, Bachchu Singh, Salig
Ram, Pyare Lal and Hakim Singh, each to
undergo two years' RI for offence
punishable under Section 148. All the 13
accused-appellants were further convicted
and sentenced to undergo imprisonment
for life for offence punishable under
Section 302 read with Section 149 IPC.
All the sentences so awarded were to run
concurrently.

2. The facts giving rise to this appeal
can be narrated in brief as under:

3. PW 6 Mahabir Singh and his
brother deceased Rajvir Singh and all the
accused appellants were residents of the
village Gurha, P.S. Donki, District Agra.
In the year 1963 one Devi Singh of
village Gurha was murdered. In that
murder case Bhanwar Singh, father of the
deceased Rajvir Singh and PW 6
Mahaveer Singh along with Sarnam
Singh, Mohar Singh, Sobaran Singh and
Diwan Singh were the accused. Bhanwar
Singh had absconded and could not be
tried. The remaining four persons i.e.
Sarnam Singh, Mohar Singh, Sobaran
Singh and Diwan Singh were convicted
and sentenced to different terms of
imprisonment in the year 1966-67. The
appeals of Sarnam Singh and Mohar
Singh were allowed by the High Court.
The conviction of Diwan Singh and
Sobaran Singh were maintained and they
came out of the jail in the year 1975 after
undergoing their sentences. Sarnam Singh
was the brother of Harnam Singh, and
both were sons of Mohar Singh. Diwan
Singh is PW 7 in the present case.
Sobaran Singh was the real brother of
Diwan Singh. Rajvir Singh, deceased, was
the real nephew of Diwan Singh and
Sobaran Singh. Accused-appellants were
also inter-related. The accused-appellant
Salig Ram and Lokender were the
brothers and sons of Roshan Singh.
Bhagwan Singh, father of appellant
Ramesh, Joti Ram, father of appellant
Govind, Pyarelal appellant, brother of
appellant Hakim were the witnesses in
Devi Singh's murder case against Mohar
Singh, Sobaran Singh, Sarnam Singh,
Diwan Singh and Bhanwar Singh, the
father of the deceased. All the accused
belonged to one group.

4. In the murder case of Devi Singh,
Bhanwar Singh, the father of the deceased
Rajvir Singh was declared an absconder
and his agricultural land was auctioned
which was purchased by the accusedappellant Salig Ram and his father
Roshan Singh. There was some dispute
about the crop of this land between
Roshan Singh and his sons Salig Ram and
Lokender, on the one hand, and Rajvir,
deceased, and his family members, on the
other. Prior to the occurrence of this case,
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55
this agricultural land was given on 'batai'
to deceased Rajvir and his brother PW 6
Mahabir Singh. The crop sown by the
deceased and his brother was forcibly
harvested by Roshan Singh about a
fortnight
from
before
the
date
of
occurrence. Further, on 30.10.1979 Rajvir
Singh, deceased, his brother, Mahabir
Singh (PW 6), Harnam Singh (PW 2) and
one Suresh were beaten by the accusedappellants Lokender, Bachchu Singh,
Charan Singh, Shyam Singh, Nathi,
Hakim, Ram Babu, Radhey Shyam and
Roshan Singh, father of the accused
appellant Lokendera and Salig Ram. A
report of this incident was lodged with the
police of PS Donki, District Agra.

5. On 11.2.1980 at about 2.30 p.m.
Rajvir Singh, deceased, was going back to
his house from his field after collecting
some green fodder. When he reached in
front of house of Roshan Singh, all the
thirteen accused-appellants, named above,
surrounded him. The accused-appellant
Salig Ram was carrying a country-made
pistol. Pyare and Hakim were armed with
'pharsa'. Nathi, Jagdish, Govind and
Radhey Shyam were armed with lathis'.
The rest of the appellants, namely,
Lokendera,
Charan
Singh,
Ramesh,
Shyam Singh, Ram Babu and Bachchu
Singh were armed with spears. Salig Ram
exhorted his companions to kill the
deceased
Rajvir
Singh
and
fired.
Thereupon, the remaining 12 appellants
started beating the deceased with their
respective weapons. Hue and cry attracted
the attention of PW 2 Harnam Singh, PW
6 Mahabir Singh, Pw 7 Diwan Singh,
Jaswant Singh and Sarnam Singh who
were sitting at the Chabutara of PW 2
Harnam Singh, at a distance of 40 to 50
steps from the place of occurrence. These
witnesses rushed towards the place of
occurrence and saw the entire incident.
Accused-appellants left the place of
occurrence after inflicting injuries on the
person of Rajvir.

6. The condition of Rajvir was
serious. He was immediately taken on a
charpai to the police station Donki, which
was at a distance of 2 kms from the place
of occurrence. A written report, Ext. Ka3, was lodged by PW 6, Mahabir Singh. A
case at Crime No. 23 of 1980 was
registered under Sections 147, 148, 149,
307 IPC against the appellants on
11.2.1980 at 4 p.m. by Head Constable
Ram Dayal (PW 9). The injured was
conscious and was capable of giving
statement. The Investigating Officer, SI
Sobaran Sinbgh (PW 11) who was present
at the police station, immediately took up
the
investigation
and
recorded
the
statement of the injured, copy of which is
Ext. Ka-13. The condition of the injured
further deteriorated. So, he was sent to
Fatehabad Hospital, which was about 8
miles from the police station. On
11.2.1980 at 4.50 p.m. PW 1 Dr. G. S.
Katara examined the injuries of Rajvir
and he found the following injuries on his
person:-
(i) Incised wound about 1--" x 1/2" x
bone deep on left fore arm above the wrist
joint.
(ii) Incised wound about 3/4" x 1/2" x
skin deep on right leg medially about 4"
below the right knee joint.
(iii) Incised wound about 3/4" x 1/2" x
skin deep on right leg medially about 4"
below the right knee joint. Both injuries
no. 2 and 3 were in front.
(iv) Incised wound about 3/4" x 1/2" x
skin deep on the front side of left leg.
(v) Contusion 1---- " x 2" with swelling
on the front side of left knee joint.
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(vi) Lacerated wound about 1" x 1/2" x
bone deep on left hand thumb.
(vii) Contusion about 4" x 2" with
swelling on left thigh laterally.
(viii) Contusion about 2" x 1" with
swelling on left wrist joint anteriorly (in
front).
(ix) Contusion about 2" x 1" with
swelling on the back of left forearm.
(x) Lacerated wound about 1" x 1/2" x
skin deep on right hand thumb between
thumb and index finger.
(xi) Contusion 2" x 1" with swelling on
right thigh front.
(xii) Lacerated would about 2" x 1/2" skin
deep on right forearm medially.
(xiii) Contusion x" x 1" with swelling on
the back of right hand.
(xvi) Lacerated wound about 3/4" x 1/2" x
skin deep on right leg front about 12"
below the knee joint.
(xv) Contusion about 3" x 2" with
swelling on right ankle joint medially.
(xvi) Contusion 3" x 2" with swelling on
right ankle joint laterally.
(xvii) Contusion 3/4" x 1/2" with swelling
on left hand back.
(xviii) Lacerated wound about 3/4" x 1/2"
x bone deep on the back of left elbow
joint.
(xix) Contusion about 2" x 1" with
swelling on right hand posteriorly.
(xx) Lacerated wound about 3/4" x 1/2" x
skin deep on left hand index finger
anteriorly.
(xxi) Lacerated wound about 3/4" x 1/2" x
skin deep on left hand middle finger
anteriorly.
(xxii) Lacerated wound about 3/4" x 1/2"
x skin deep on left hand ring finger
anteriorly.
(xxiii) Lacerated wound about 3/4" x 1/2"
x skin deep on left hand little finger.
(xxiv) Lacerated wound about 1" x 1/2" x
skin deep on right hand ring finger.
(xxv) Lacerated wound about 3/4" x 1/2"
x skin deep on right hand little finger.
(xxvi) Lacerated wound about 3/4" x 1/2"
x skin deep on right hand index finger.
(xxvii)Lacerated wound about 1" x 1/2" x
skin deep on right hand palm.

7. The injuries were described as
fresh. Injuries Nos. 1, 2, 3 and 4 were of
some sharp edged weapon and the
remaining were of blunt weapon. Rajvir
complained of pain in the abdominal
region but no mark of injury was found
there by the doctor. X-ray of abdomen
and renal area was advised.

8. Rajvir succumbed to his injuries
at about 11.50 p.m. in the same night in
Fatehabad PHC. His body was sent to the
District
Hospital
for
post-mortem
examination, which was conducted by Dr.
L.N. Sharma (PW 5) on 12.2.1980 at
about 3.30 p.m. The age of the deceased
was about 22 years. He found the
following ante-mortem injuries on the
body of the deceased:

1.
Stitched wound on all the fingers of
the left hand, except little finger in the
area of 1/2" x 2".
2.
Stitched wound one and a half inch
in length on the backside of the left
forearm.
3.
Stitched wound 1/2" in length on
back of left hand.
4.
Abrasion 1" x 1/2" on back of left
elbow.
5.
Stitched wound on all the fingers of
left hand measuring 1/4" to 3/4".
6.
Stitched wound on the left thigh in
the front side.
7.
Stitched wound 1" in left chest below
injury no. 6.
8.
Abrasion 1/2" x 1/2" just below
injury no. 7.
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9.
Stitched wound 1/2" in length on the
front side of the left leg.
10. Abrasion 1" x 1/2" on the left patela
front side.

9. On internal examination the
doctor found fracture of left patela bone
and left index finger. Both chambers of
the heart were empty. Whole body was
pale in colour. Stomach contained four
ounce watery fluid. Large and small
intestines were empty. In the opinion of
the doctor, death was caused due to shock
and hemorrhage, as a result of antemortem injuries. All the injuries taken
together were sufficient to cause death.

10. PW 11, Sobaran Singh, SubInspector, Investigating Officer, recorded
the statement of eye-witnesses and the
injured Rajvir. He visited the place of
occurrence and prepared the site-plan,
which is exhibit Ka-4 and took simple and
blood-stained earth from the place of
occurrence. After the death of Rajvir
injured, the case was converted under
Section 302 IPC. Thereafter, investigation
was taken up by PW 10, B. K. Tewari,
Station Officer, P.S. Donki. He sent
blood-stained earth and the clothes for
chemical examination. The report of the
chemical examiner and serologist are Exts
Ka-16 and Ka-17, respectively. Bloodstained earth and clothes were found
having human blood. After completing
the
investigation,
charge-sheet
was
submitted against the appellants.

11. In the trial court, the prosecution
examined Dr. G.S. Katara (PW 1), and the
eye-witnesses Harnam Singh (PW 2),
Mahaveer Singh (PW 6) and Diwan Singh
(PW 7), and Constable Virendra Sharma
(PW 3), who took the dead body in sealed
condition with necessary papers for postmortem, PW 4 constable Mahesh Chand,
who took the injured Rajvir to PHC,
Fatehabad, for medical examination with
necessary papers, PW 5, Dr. Laxmi
Narain Sharma, who conducted the postmortem examination and submitted his
report, PW 8 Gurdip Singh Sarna, who
prepared the inquest report, on getting
information about the death of the injured,
Rajvir. PW 9, Head Constable Ram
Dayal, who prepared chick report, Ext.
Ka-7. On the basis of the written report of
Mahavir, Ext. Ka-3, he made an entry in
the GD, a true copy of which is Ext. Ka-8.
PW 10 B.K. Tewari, who was the second
Investigating Officer of this case and
conducted
the
investigation
from
12.2.1980 and submitted the charge-sheet.
PW
11
Sobaran
Singh,
the
first
Investigating
Officer
of
the
case.
Affidavit of Constable Behari Singh was
filed, who took the sealed bundles
containing sample of simple and bloodstained earth and clothes for chemical
examination to Agra.

12. The accused appellants denied
their participation and involvement in the
crime. They stated that Bhanwar Singh,
father of the deceased Rajvir, had been
absconding after committing the murder
of Devi Singh. The friends of the said
Devi Singh were inimical with Bhanwar
Singh and finding an opportunity they
might have killed Rajvir Singh. They
further stated that they have been roped in
this case due to enmity.

13. No evidence in defence was
adduced by the appellants.

14. After analysing the evidence of
the prosecution, trial court found all the
appellants guilty of the offences with
which they were with charged and
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convicted
and
sentenced
them
as
mentioned above.
15. We have heard Sri G.S.
Chaturvedi, Senior Counsel, and Sri
Sanjai Srivastava, learned counsel for the
appellants, learned AGA for the State and
Sri Ghanshyam Joshi, learned counsel for
the complainant, and have perused the
entire on record.

16. It was contended on behalf of
the appellants that there was no injury
caused by the spears and fire-arms. There
is no evidence of the involvement of the
appellants,
Lokendra, Charan
Singh,
Ramesh, Shyam Singh, Ram Babu,
Bachchu Singh, who were assigned spears
and Salig Ram, who was assigned
country-made pistol. Further, it was
contended that the incised wound injuries
recorded by the doctor as injury nos. 1 to
4 could not be caused by 'pharsa' assigned
to the appellants, Harnam Singh and
Hakim Singh. Thus, there was no
evidence against the appellants 1 to 6, 8, 9
and 13 regarding their involvement in the
said crime. It was further argued that there
was no injury on the vital part of the body
of the deceased. No injury was sufficient
in the ordinary course of nature to cause
death and at the most the offence falls
under Section 325 IPC. It was further
contended that there was enmity between
the parties. The witnesses were highly
inimical, partisan and interested, and,
therefore, their evidence could not be
relied upon. Further it was contended that
the investigation was not fair and was
tainted. Lastly, it was contended that due
to enmity the appellants were roped in the
case.

17. Learned AGA supported the
findings and the judgement of the trial
court and contended that as there was
'partibandi' in the village, no independent
witness could be available. Dr. Laxmi
Narain Sharma, PW 5, had stated that the
cumulative effect of the injuries was
sufficient to cause death of the deceased.

18. The time, date and place of
occurrence and cause of death were not
seriously disputed by the appellants. PW
2 Harnam Singh, PW 6 Mahabir Singh
and PW 7 Diwan Singh were the eyewitnesses. They stated that near the house
of Roshan Singh on the 'kachcha' road,
Rajvir was beaten by the appellants. It
was about 2.30 p.m. on 11.2.1980. Rajvir
was taken on a cot to police station which
was at a distance of about 2 miles. There
at 4 p.m. on the basis of the written report
given by PW 6 Mahavir, who was the real
brother of the deceased Rajvir, PW 9
Head Constable Ram Dayal recorded the
chick report and made entry in the
General Diary. PW 11 SI Sobaran Singh,
the investigating officer of the case,
reached on the spot and he took sample of
simple and blood-stained earth from the
'kachcha' road near the house of Roshan
Singh. PW 10 V.K. Tewari, the second
investigating officer, sent the clothes of
the deceased and sample of simple and
blood-stained
earth
for
chemical
examination. As per the report of the
chemical examiner and serologist, sample
of earth and clothes contained human
blood.

19. As per the statement of PW 5
Dr. Laxmi Narain Sharma, the cause of
death of Rajvir was due to shock and
hemorrhage caused by the ante-mortem
injuries received by the deceased. PW 1
Dr. Ghanshyam Katara, who examined
the injured (deceased) on 11.2.1980 at
4.50 p.m. stated that the injuries on the
person of deceased could be caused on
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11.2.1980 at about 2.30 p.m. by lathi and
'pharsa'. He stated that Rajvir died in the
hospital on 11.2.1980 at about 11.50 p.m.

20. In the cross-examination of these
witnesses nothing could be extracted by
defence which could affect their veracity
on the above aspects. Thus, from the
evidence on record it stood proved
beyond doubt that on 11.2.1980 at about
2.30 p.m. in village Gurha, P.S. Donki,
District Agra, near the house of Roshan
Singh on 'kachcha rasta' Rajvir Singh got
injuries by lathies and weapons like
pharsa and he died of the said injuries at
about 11.50 p.m.

21. PW 6 Mahavir Singh stated that
the occurrence took place at about 2.30
p.m. and he prepared the FIR and took the
injured Rajvir on a cot immediately to the
police station at 4 p.m. where the FIR was
handed over. This was corroborated by
PW 9 Ram Dayal, Head Constable, who
recorded the chick report on the basis of
written report given by PW 6 Mahabir
Singh and made entry in the General
Diary the same day at 4 p.m. The
condition of the injured was deteriorating.
He was sent for treatment and medical
examination
with
PW
4
Constable
Mahesh
Chandra
to
the
Fatehabad
Primary Health Center, by Dr. G.S.
Katara, PW 1, for examination at 4.50
p.m. Nothing could be brought in crossexamination of the witness which would
indicate that chick FIR was not recorded
at the police station on 11.2.1980 at 4
p.m. From the statements of the aforesaid
witnesses, it stood proved that the chick
FIR was recorded at the police station at 4
p.m. on 11.2.1980. Thus, the FIR was
prompt.

22. In the FIR, there was mention
that due to old enmity this crime was
committed by the appellants. In the FIR,
the nature of enmity was not disclosed.
PW 2 Harnam Singh, PW 7 Diwan Singh
and to some extent PW 6 Mahavir Singh,
had given the details of the enmity. In
1963, one Devi Singh was murdered. In
that murder case, Sarnam Singh, brother
of PW 2 Harnam Singh and their father
Mohar Singh, PW 7 Diwan Singh,
Sobaran Singh and Bhanwar Singh, the
father of PW 6 Mahavir Singh and the
deceased Rajvir Singh were the accused.
Against them, Bhagwan Singh, Pyare and
Jyoti gave evidence and Bhanwar Singh,
father of PW 6 Mahavir Singh and the
deceased Rajvir Singh absconded and
could not be brought to trial till today.
Sarnam Singh, Mohar Singh, Sobaran
Singh and Diwan Singh were convicted
but on appeal Sanram Singh and Mohar
Singh were acquitted while conviction of
PW 7 Diwan Singh and Sobaran Singh
were maintained and they came out of the
jail in the year 1975 after serving out the
sentences. PW 7 Diwan Singh was the
real brother of Bhanwar Singh. The
deceased Rajvir Singh and PW 6 Mahavir
singh were the real nephews of PW 7
Diwan Singh.

23. The other enmity which was
disclosed by the witness in their statement
was that Bhanwar Singh, the father of PW
6 Mahavir singh and the deceased Rajvir
Singh was absconding in the Devi Singh's
murder case. His land was auctioned and
that land was purchased by Roshan Lal.
The land was given on 'batai' to PW 6
Mahavir Singh and the deceased Rajvir
Singh.
When
crop
was
ready
for
harvesting, Roshan Lal and Lokendra,
Salig Ram took forcible possession of the
crop and did not pay a single paise to the
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deceased Rajvir Singh and PW 6 Mahavir
Singh. The another enmity, which was
disclosed by these witnesses, was that on
30.10.1979 Lokendra, Bachchu Singh,
Charan Singh, Shyam Singh, Natthi,
Hakim, Ram Babu, Radhey, Shyam and
Roshan committed 'marpeet' with PW 6
Mahavir, deceased Rajvir, Suresh and PW
2 Harnam Singh. The report of the
incident was lodged at police station
Donki,
district
Agra.
A
cross-case
regarding this incident was also filed by
the appellants. The appellant Lokendra
and Salig Ram are the sons of Roshan.
Appellant Charan Singh and Jagdish are
the sons of Hisabi. Kanchan Singh is the
real brother of Roshan and appellant
Bachchu Singh is the son of Kanchan
Singh. Appellant Shyam Singh, Charan
Singh and Natthi belonged to the family
of Roshan. The rest of the appellants
belongs to their party. Thus, all the
appellants were having enmity and
'partibandi' against the witnesses and the
deceased Rajvir of the present case. Thus,
there was enmity between the parties and
in these circumstances, the argument of
the learned counsel for the appellant has
some weight that witness PW 2 Harnam
Singh, PW 6 Mahavir Singh and PW 7
Diwan Singh could not be said to be
independent witnesses and they were
highly interested and partisan ones. It is
well-settled proposition that enmity cuts
both ways. This may be a motive to
commit the crime and also a motive for
false implication. Therefore, in these
circumstances, when witnesses are highly
interested and partisan a duty is cast upon
the court to scrutinise the evidence of
such witnesses very cautiously and with
greater care.

24. Now we have to see whether the
appellants were involved in the murder of
Rajvir. For that, we have to analyse very
carefully the statement of PW 2 Harnam
Singh, PW 6 Mahavir Singh and PW 7
Diwan Singh, who were the eye-witnesses
of the occurrence.

25. The house of Diwan Singh and
Mahavir singh were in the north-eastern
corner of the village while the place of
occurrence was in the south-western
corner of the village. The distance
between them was about 200 yards. As
per the FIR, deceased Rajvir went from
his house to the fields for taking green
fodder ('rijka') for the cattle. At the
Chabutara of the house of Harnam Singh,
PW 2 Harnam Singh himself, Sarnam
Singh, his brother and PW 7 Diwan Singh
and Jaswant Singh were sitting and were
talking to each other. It was about 2.30
p.m. They heard the sound of a gunfire.
They rushed towards the house of Roshan
Singh and saw the appellants causing
injuries
on
the
deceased
by
their
respective weapons on the exhortation of
Salig Ram who also fired. The 'Chabutara'
of Pw 2 Harnam singh was about 50 steps
away from the 'kachcha rasta' where this
occurrence took place and there was no
obstruction in between. It was admitted
by PW 7 Diwan Singh, PW 2 Harnam
Singh and PW 6 Mahavir Singh that the
houses of Sarnam Singh, Kishan Lal,
Radhey Shyam, Charan Singh were there.
Besides, there were 'nohra' of Kanchan
Singh, Shiv Singh, Eidan Singh, Roshan
Singh and Shyam Singh. PW 2 Harnam
Singh and PW 6 Mahavir Singh, PW 7
Diwan
Singh
had
supported
the
prosecution case on all the material
points. PW 6 Mahavir Singh had given
evasive reply regarding the murder case
of Devi Singh, which took place in the
year 1963. Age of this witness in 1963
would have been 7 or 8 years. It appears
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61
that due to this fact PW 6 Mahavir Singh
did not give straight replies to the
questions of the defence. PW 7 Diwan
Singh replied all questions put to him on
behalf of the defence regarding the
murder of Diwan Singh and other
enmities. PW 2 Harnam Singh also
replied all the questions regarding the
murder case of Devi Singh. They did not
hide anything. Harnam Singh admitted
that against him the case under Section
324 IPC was pending. Harnam Singh, was
ASI in Bharatpur and he retired from
service in the year 1977. A suggestion
was given to this witness that he
fabricated a case under Section 363 IPC
against Salig Ram, Hakim Singh and one
Raghuvir when he was ASI and on
complaint he was suspended and was
compulsorily retired. In support of this
suggestion,
no
evidence,
oral
or
documentary,
was
given
by
the
appellants. Thus, the attempt made on
behalf of the appellants to show that even
this witness was highly interested to get
Salig Ram and Hakim Singh falsely
implicated had failed. PW 7 Diwan Singh,
was convicted in that murder case of Devi
Singh. Diwan Singh is the uncle of the
deceased Rajvir and PW 6 Mahavir. In the
cross-examination, of the witness, nothing
could be brought on record, which could
show that he was not present on the spot
or he did not see the occurrence. Certain
statements given by this witness to the
investigating officer under Section 161
Cr.P.C.
were
confronted.
We
have
considered those contradictions and on
marshalling it we find that those were not
improvements made by the witness. The
variation regarding the place from where
the witnesses saw the incident is not
material as the spot position, which had
been given by the witness had not been
challenged. The distance of the house of
PW 2 Harnam Singh from the spot and
the existence of Chabutara had not been
challenged. The fact that from the
Chabutara the place of occurrence was
visible had also not been challenged. The
presence of witnesses was also natural.
PW 2, Harnam Singh, had stated that as
usual these witnesses were sitting on the
Chabutara. It was but natural as they
belonged to one group. PW 7, Diwan
Singh, had stated that in the village
generally most of the people used to take
their meals in the day before going to
their fields. After taking meals, they were
sitting at the Chabutara of Harnam singh
and they were talking about the problems
relating to diesel and other things. Thus,
these witnesses had given the reason for
their sitting at the Chabutara. These
witnesses stated that they heard the sound
of fire and exhortation made by Salig
Ram, and also the cry of Rajvir Singh
while they were sitting on the Chabutara.
They rushed to the place of occurrence
and by the time they reached to the spot,
all the appellants were beating. It was
argued that it was not clarified whether
these witnesses saw exhortation and firing
by Salig Ram and also the appellants
causing injuries by their respective
weapons to Rajvir from the Chabutara or
on reaching the place of occurrence. At
one time, these witnesses had said that
they saw the incident from the Chabutara.
At other time they said that they saw it
when
they
reached
the
place
of
occurrence. We have carefully examined
and analysed the statements of these three
witnesses.
Absolutely,
there
is
no
variation or difference in their statements.
As we had already discussed above, there
was no obstruction between the place of
occurrence and the Chabutara and the
distance was only about 50 steps.
Therefore, both the statements taken
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62
together will show that on hearing the
sound of fire and cry they started
witnessing the occurrence from the
Chabutara itself and in the process of
running towards the place of occurrence,
they continued to see the occurrence.

26. The number of injuries on the
persons of the deceased were very
relevant. There were as many as 27
injuries on the person of the deceased. All
the injuries were below the neck portion.
This clearly indicates that when the
deceased was attacked he tried to save
himself by taking blows on his hands,
arms and he tried to save his head. PW 6,
Mahavir Singh, had stated that they
rushed from the Chabutara shouting that
they were coming. This is the reason why
the appellants had to run away in haste
and could not cause the injuries on the
vital parts. The duration of occurrence
was very short.

27. The question is whether all the
13 appellants were involved or not in the
crime. PW 1, Dr. G.S. Katara, stated that
there was no injury of spear on the person
of deceased. If the spear was used as a
lathi, then, blunt injuries could be caused,
but if spear was used as a spear from the
edged side, then the injuries, which were
found on the person of the injured, could
not be caused. As far as the injuries no. 1
to 4, were concerned, PW 1 had stated
that out of these four injuries, injury nos.
2 and 4 were superficial, but all the four
injuries could be caused by pharsa.

28. As we have detailed above, there
was enmity between the parties. The
possibility of room for exaggeration
cannot be ruled out in the light of the
evidence on the record. There was no
injury caused by the spears. All the
witnesses had said that all the appellants
were causing injuries by their respective
weapons i.e. lathi, pharsa and ballam. It
was a day-light occurrence. If the ballam
was used as a lathi, it could have been
explained by witnesses. None of the
witnesses had stated that ballam was used
as a lathi. If we take the statement of PW
2 Harnam Singh, to be true that all the
appellants were attacking the deceased
with full force, certainly some injuries
from ballam must have been caused.
Therefore, if we view the statements of
these three witnesses, that will show that
due to enmity this probability could not
be ruled out that the names of some of the
appellants would have been wrongly
added as assailants. Therefore, after
careful scrutiny of the statements of these
three
witnesses,
we
find
that
the
involvement of the appellants Lokendra,
Charan Singh, Ramesh, Shyam Singh,
Ram Babu and Bachchu Singh, who were
shown to be armed with spears, is
doubtful.

29. As far as the involvement of the
appellant Salig Ram is concerned, it was
argued that no pellets or cartridge was
found on the site. It was stated by the
witnesses that Salig Ram fired from the
country-made pistol from a distance of
about 2 yards, and on the exhortation of
Salig Ram, the other appellants started
beating Rajvir. We have given our careful
consideration. In kachcha rasta recovery
of pellets was impossible. It was not the
case of the prosecution or there is no
evidence on record that the second
cartridge was loaded or fired. Therefore,
if no empty cartridge was found, it will
not show that Salig Ram was not
involved. It is true that there is no injury
caused by fire-arm. The case of Salig
Ram differs from other appellants whose
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1 All] Lokendar and others V. State of U.P.
63
involvement is found doubtful by us and
benefit of doubt has been extended to
them. The attention of the witnesses was
attracted on hearing the exhortation and
fire made by Salig Ram and cries of the
deceased Rajvir. No other appellants
shouted or exhorted. The presence and
involvement of Salig Ram cannot be
doubted.

30. In this case it was argued that
investigation was not fair and was tainted.
It was argued that the statement of injured
Rajvir was said to have been recorded by
the investigating officer at the police
station on 11.2.1980 when the FIR was
lodged at 4 p.m. The statement, which is
very detailed one, containing minute
details of the occurrence, could not be
given by the deceased.

31. Therefore, such a detailed
statement could not have been given by
such serious injured witnesses at the
police station at about 4 p.m. and this
goes to show that the statement might
have been prepared by investigating
officer in detail at some later stage and it
cannot be relied on as a dying declaration.

32. The evidence of the doctor was
that the cumulative effect of the injuries
was sufficient to cause death in the
ordinary course of nature. Therefore, the
argument that this could be a case under
Section 325 IPC has no substance. If all
the injuries are viewed collectively in the
light of the statement of PW 5, it is clear
that they were sufficient in the ordinary
course of nature to cause death. The mere
fact that the injuries were not caused on
vital parts of the body and no injury was
individually sufficient in the ordinary
course of nature to cause death, would not
exclude the application of clause (3) of
Section 300 IPC. Therefore, the argument
that the offence falls Section 325 IPC and
not under Section 302 IPC has no
substance.

33. After careful scrutiny of the
evidence of the eye-witnesses we find
that
the
prosecution
has
proved
involvement of the appellants Jagdish,
Pyare, Hakim, Nathi, Govind, Radhey
Shyam and Salig Ram in the murder of
the deceased in prosecution of common
object of their unlawful assembly.

34. From above discussion, we find
that the conviction recorded and sentences
awarded by the trial court against the
appellants,
Lokendra, Charan
Singh,
Ramesh, Shyam Singh, Ram Babu and
Bachchu Singh cannot be upheld.

35. In the result, the appeal is partly
allowed. The appeal of Jagdish, Pyare,
Hakim, Nathi, Govind, Radhey Shyam
and Salig Ram is dismissed and the
conviction and sentences awarded by the
trial court against them are confirmed.
They are on bail. Their bail bonds are
cancelled. They shall surrender before the
CJM concerned to serve out the sentence.
Learned CJM shall issue a warrant of
arrest and will sent them to jail to serve
out the sentences.

36. The appeal of Lokendra, Charan
Singh, Ramesh, Shyam Singh, Ram Babu
and Bachchu Singh is allowed. Their
conviction and sentences are set aside.
They are on bail. They need not
surrender. Their bail bonds are cancelled
and surety discharged.

37. Office is directed to send a copy
of this judgement and order to the CJM
concerned
for
compliance
and
for
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
64
submitting the compliance report to the
Court within one month of the receipt of
the copy this judgement and order.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2003

BEFORE
THE HON'BLE K.N. SINHA, J.

Criminal Misc. Application No. 1722 of 2003

Virendra Pawar

...Applicant
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Chandra Kesh Misra
Sri Daya Shankar Misra

Counsel for the Respondents:
A.G.A.

Criminal Procedure Code 1973, Section
482-Abuse of the process of the court
criminal
proceedings-quashing
ofseparate trial for other accused-on the
same evidence-resulted acquittal-hardly
any chance for conviction of present
applicant-held,
no
jurisdiction
to
continue the trail.

Held: Para 10

The above authorities are fully applicable
on the fact of the present case as on the
same evidence, the main accused and
other co-accused have been found to be
not guilty and acquitted for the charge.
There is hardly any chance for conviction
in respect of the present applicant. There
would be no use permitting the present
proceedings to continue.

(Delivered by Hon'ble K.N. Sinha, J.)

1. The present application under
Section 482 Cr.P.C, has been filed for
quashing of the proceeding of Criminal
Case No. 3205/9 of 1999, under Sections
302/34 I.P.C, Police Station Kotwali,
District Muzaffarnagar.

2. The brief facts giving rise to this
application, are that the informant Sri
Virendra Kumar lodged the report on
23.11.1998 at police station Kotwali,
District
Muzaffarnagar,
which
was
registered as Case Crime No. 481 of
1998, under Section 302/34 I.P.C against
the applicant and others. The F.I.R is
annexure-1
to
this
application.
A
chargesheet
was
filed
against
the
applicant and three others. The case of the
applicant was separated and the case of
remaining accused namely, Sunil Pratap
Sharma alias Toni, Upendra Singh and
Raj Kumar alias Mintoo alias Karan
Singh were committed to the court of
session. Their trials proceeded and no
witness supported the case, with the
result, the session trial ended in acquittal.
The judgement of session trial is
annexure- 7 to the application.

3. The case of the present applicant
was separated and remained pending in
the court of Judicial Magistrate who has
issued warrant against the applicant.

4. The present application has been
filed on the ground that none of the
witnesses supported the case against the
other accused and the trial ended in
acquittal. There was no justification for
proceeding against the applicant, as the
result would be the same.

5. I have heard the learned counsel
for the applicant, learned A.G.A and also
perused the judgement, F.I.R, chargesheet
and evidence recorded in the trial of other