# Jagat Pal Singh & Anr. (In Jail) v. The State of U.P

- **Citation:** Criminal Appeal No. 482 of 1991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-31
- **Case number:** Criminal Appeal No. 482 of 1991
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagat-pal-singh-anr-in-jail-v-the-state-of-u-p-46393
- **Pages:** 6

## Headnote

A. Criminal Law-Indian penal code-Section
307/34 - Common Intention - Injured
witness has clearly stated in his statement
that appellant is only with lathi but no
injury of lathi is inflicted on the part of the
injured by invoking section 307 read with
Section 34 IPC, it cannot be said that
there was common intention of the
appellant to attempt murder of the injured
- Although it may be considered that the
appellant was present at the place of
occurrence but no overt act is done by the
appellant.

Held- Mere presence of the accused at the
place of the occurrence, without doing any
overt act would not make him culpable with
the aid of Section 34 of the IPC. ( Para
30,31)

Appeal Allowed (E-3)

List of case cited:-

## Text

3-5 All. Jagat Pal Singh & Anr. Vs. The State of U.P.
209
prosecution does not stand proved because the
prosecution version as per FIR is that when the
victim had gone to ease herself out in the
sugarcane of Suresh Singh at a little distance
from her house, she was caught from behind by
Sonpal Singh and at that time Rampal was also
accompanying him and both of them had
dragged her in the said field where rape was
committed upon her by Sonpal Singh and
before Rampal could rape her, she had liberty to
cry loudly, hearing which the witnesses PW-3
and PW4 reached there and saw the occurrence.
On minutely scanning the above testimony, I
find that the said version does not stand proved
for the reasons which have been disclosed after
analysis of the statements made of each witness
above. I also find that both the witnesses i.e.
PW3 and PW4 who were said to be eye
witnesses, are closely related to the victim,
therefore, their testimony could be doubtful on
this count also and they could give false
statement. Their conduct is also not found to be
natural in allowing the accused flee away from
the place of occurrence despite being armed
with a lathi. The conduct of the victim is also
not found fair because her version is very
unnatural that such kind of rape would be
committed upon her at a place where excreta
was lying and for other reasons also which have
also been given above.

22. In view of the above, the trial court's
judgment is not found in consonance with the
evidence on record. The conviction of appellant
no. 2 Rampal u/s 376/511 IPC deserves to be
set aside and is accordingly set aside, he stands
acquitted. The appeal stands allowed.

23. Record reveals that the accusedappellant is on bail, hence his sureties stand
discharged.

24. Let a copy of this judgment along
with lower court record be transmitted to the
trial court for necessary action at his end in
accordance with law.
----------
(2020)03-05ILR A209
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 482 of 1991

Jagat Pal Singh & Anr.
 ...Appellants (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri R.B. Sahai, Sri Manvendra Singh

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law-Indian penal code-Section
307/34 - Common Intention - Injured
witness has clearly stated in his statement
that appellant is only with lathi but no
injury of lathi is inflicted on the part of the
injured by invoking section 307 read with
Section 34 IPC, it cannot be said that
there was common intention of the
appellant to attempt murder of the injured
- Although it may be considered that the
appellant was present at the place of
occurrence but no overt act is done by the
appellant.

Held- Mere presence of the accused at the
place of the occurrence, without doing any
overt act would not make him culpable with
the aid of Section 34 of the IPC. ( Para
30,31)

Appeal Allowed (E-3)

List of case cited:-

1. Kashmira Singh vs. St. of Punj., AIR 1994
SC 1651
210 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Raja Gopal Swamy Konar vs. St. of T.N.,
1995 SCC (Cri) 184

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1.

Heard
Sri
Manvendra
Singh,learned counsel for the appellants
and Sri Ratendra Kumar, learned A.G.A.

2. This criminal appeal has been
preferred by appellants- Jagat Pal Singh
and Shyam Lal Singh against the judgment
and order dated 25.02.1991, passed by IV
Additional Session Judge, Fatehpur, in S.T.
No. 136 of 1986 (State Vs. Jagatpal Singh
and Shyam Lal), whereby convicting the
appellant no. 1 under Section 307 IPC, for
3 years R.I. and fine of Rs. 2,000/- in
default two months simple imprisonment
on account of inflicting injury to Ram
Manohar Singh, and for inflicting injury to
Jai Karan Singh 2 months rigorous
imprisonment and fine of Rs. 500/- in
default of payment of fine 15 days simple
imprisonment to him and convicting the
appellant no. 2 Shyam Lal under section
307/34 IPC for rigorous imprisonment of 3
months and fine of Rs. 1,000/- on account
of inflicting injury to Ram Manohar Singh
in default 1 month simple imprisonment
and inflicting injury to Jai Karan Singh one
month rigorous imprisonment and fine of
Rs. 500/- and in default of payment of fine
10 days simple imprisonment.

3. Brief facts of this case are as
follows-:

4. P.W. 1 Phool Singh has lodged an
FIR by means of written application Ext.
Ka 1 with the allegation that a dispute
regarding agricultural field between the
family of the complainant and family of the
appellants Jagatpal and Shyam Lal about
two years ago. It is further alleged in the
FIR that on the date of incident i.e. on
05.07.1985
at
about
8.00
a.m.
the
complainant, his cousin brother Jai Karan
and Ram Manohar Singh watering his field,
meanwhile, the appellant Jagatpal Singh
armed with licensee gun and appellant
Shyam Lal armed with lathi came there and
objected for watering the field and when
the first informant refused to stop for
watering, due to this altercation take place,
on exhortation of the appellant Shyam Lal,
Jagat Pal fired shot from his licensee gun
with the intention to kill his brother due to
such fire Ram Manohar Singh and Jai
Karan Singh have got injury. Munni Lal,
Kallu and some villagers arrived at the
place of occurrence with the assistance of
villagers his licensee gun was snatched
away. Meanwhile, the appellant Jagatpal
managed to escape from the place of
occurrence.
After
the
incident,
the
complainant P.W. 1 Phool Singh reached at
the police station with snatched gun of the
appellant Jagatpal along with his injured
brother and lodged an FIR.

5. On the basis of written report the
chik FIR Ext. Ka 2 was lodged at police
station on 05.07.1985 by entering in GD
No. Sl. No. 22 11.30 a.m.. The FIR was
registered against the appellants Jagat Pal
and Shyam Lal under Section 307 IPC and
after lodging the FIR, the injured were sent
to hospital for medical examination.

6. The injured Ram Manohar and Jai
Karan
were
medically
examined
on
05.07.1985 at PHC Hathgawan by Medical
Officer. The doctor have found following
injuries on the persons of injured:-
Injuries of injured Ram Manohar:-

1. Multiple firearm wound of
different size from 1/6 to 1⁄2 mussel deep
3-5 All. Jagat Pal Singh & Anr. Vs. The State of U.P.
211
size in the area of Rt. Arm extending from
Rt. Thumb to right upper mid arm.
Blackening present, oozing of blood from
the wound present. Swelling around the
wound present.

2. Multiple gun shot wound
injury of different size on 1/6 to 1⁄2 x 1/6
mussel deep size on the Rt. lateral chest
extend from upper harden of right hip joint
to middle point lateral chest. Oozing of
blood present. Blacking present. Swelling
around the wound also present. Advise Xray.

Nature Advise:

All
the
injury
kept
under
observation. X-ray, cause by some fire arm
weapon.

Duration about 1⁄2 day old.

Injuries of injured Jai Karan
Singh:-

1. One black spot size of 1⁄4 x 1⁄4
size on the upper herden left thigh 2" below
the left injury region. Redness and swelling
around the wound present.

Nature Advise:

injury kept under observation.
Advise X-ray, cause of injury could not be
detected.

Duration about 1⁄2 day old.

7. After lodging the FIR, the
investigation of this case was handed over
to the Investigating Officer Sri Ramesh
Chandra Verma, who reached the place of
occurrence and recorded the statements of
witnesses, and prepared the site plan.
During investigation recovery memo of
alleged licensee gun Ext. Ka 4 was
prepared by him.

8. After completing the investigation,
investigating officer has submitted chargesheet against the appellants Jagat Pal and
Shyam Lal under section 307 IPC before
the court concerned. After submitting
charge-sheet the trial court framed the
charge Ext. Ka .. against the appellants
Jagat Pal and Shyam Lal.

9. The appellants denied the charge
framed against them and claimed to be
tried.

10. To substantiate the charge, the
prosecution has examined 6 witnesses in
all. P.W. 1 Phool Singh (complainant), who
proved the written report as Ext. Ka-1,
P.W. 2 Manohar Singh (injured), P.W. 3,
Ram Saran Singh (scribe of the FIR), who
proved the FIR as Ext Ka-2, G.D. Entry
No. 20, time 11.30 a.m. as Ext. Ka-,
recovery memo as Ext Ka-4. P.W. 4
Dashrath (public witness), P.W. 5 Munnil
Lal and P.W. 6 Constable Prem Shankar
Pandey, who proved site plan as Ext. Ka-5
and charge-sheet as Ext. Ka-6.

11. After completion of statements of
prosecution, the statements of accusedappellants were recorded under section 313
Cr.P.. In their statements they denied all the
allegation levelled against them.

12. The appellant Shyam Lal stated in
his statement that at the time of occurrence
he was not present at the place of
occurrence, so he raised plea of alibi and
the accused-appellant Jagat Pal has stated
in his statement recorded under section 313
Cr.P.C. that on the date of occurrence his
turn for watering to the field, but the
212 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant and his brothers assaulted him
with lathi and Axe (kulhari), appellant
exercise his right of defence to save himself
he has shot fired from his licensee gun,
which hit Ram Manohar and after this
occurrence, he reached at the police station
to lodge the FIR for injury inflicted upon
him by the informant parties, but his report
was not lodged. He further stated that he
himself has medically examined.

13. After hearing both the parties, the
learned trial court convicted the appellants
as aforesaid.

14. During trial appellant no. 1 Jagat
Pal reported to be no more. Hence the
appeal against appellant no. 1 Jagat Pal was
abated.

15. Only one appellant no. 2 Shyam
Lal is surviving.

16. I have heard learned Sri
Manvendra Singh, learned counsel for the
appellant, Sri J.P. Tripathi, learned AGA
for the State and perused the record.

17. Learned counsel for the appellant
submitted that although the injured Ram
Manohar and Jai Karan were medically
examined, but the doctor, who prepared the
injury reports which was not produced by
the prosecution before the trial court, so the
material evidence is withheld by the
prosecution so the oral evidence is not
corroborated by the medical evidence. He
further submitted that there are material
contradictions
in
the
statements
of
witnesses, but the learned trial court
without appreciating this fact has wrongly
convicted the appellant.

18. It is also submitted that as per the
allegation made in the FIR, only role of
exhortation against the surviving appellant
Shyam Lal was attributed, but neither
active participation nor prior meeting of
mind proved by the prosecution. Mere
presence of the appellant in place of
occurrence is not sufficient to invoke the
provision of Section 34 IPC. Appellant
Jagat Pal has clearly stated in his statement
that he had exercise his right of private
defence, but the learned trial court did not
appreciate this fact and learned trial court
has wrongly convicted the appellant. Due
to this reason finding of trial court is totally
perverse.

19. It is also submitted by learned
counsel for the appellant that injured
witness Jai Karan was material witness
which is withheld by the prosecution and
also submitted that all the public witnesses
produced by the prosecution did not
support
the
prosecution
version
and
become hostile.

20. Learned AGA has vehemently
opposed and submitted that by means of
clinching evidence learned trial court also
appreciated the evidence and the trial court
has rightly convicted the appellant and
there is no illegality and infirmity in the
order passed by learned session court.

21. As no doctor was examined by the
court during trial. Learned counsel for the
appellant admitted the genuineness of the
injury report under section 294 Cr.P.C. of
injured Jai Karan Singh as Ext. Ka 7 and
Ram Manohar Singh as Ext. Ka-8.

22. P.W. 1 Phool Singh has stated in
his statement that when he was watering his
field at the time, appellants Jagat Pal armed
with licensee gun and Shyam Lal armed
with
lathi
arrived
at
the
place
of
occurrence, and when he refused for
3-5 All. Jagat Pal Singh & Anr. Vs. The State of U.P.
213
watering the field, then on the exhortation of
appellant Shyam Lal, appellant Jagat Pal shot
fired from his licensee gun which hit the injured
Ram Manohar and Jai Karan. In his crossexamination, P.W. 1 Phool Singh clearly stated
that during altercation between injured Ram
Manohar and Jai Karan, appellant-accused
Shyam Lal armed with lathi had assaulted the
injured, meanwhile appellant Jagat Pal shot
fired on him and due to this, Ram Manohar
sustained injury. He next submitted in his crossexamination that although the appellant Shyam
Lal was present armed with lathi at the place of
occurrence, but no injury was inflicted by the
appellant Shyam Lal. This fact is also affirmed
by perusing the injury report Ext. Ka-7 and Ext.
Ka-8.

23. One of the star injured witness Ram
Manohar has stated in his statement that
appellant Shyam Lal was only objected for
watering of the field, but assault was not
committed by him. Except this version, nothing
stated against appellant Shyam Lal.

24. One of the star injured witness Jai
Karan Singh was withheld by the prosecution
and no good ground is assigned for nonexamination of the above witness, is also
adverse effect of the prosecution version.

25. P.W. 4 Dashrath, named eyewitness
of the FIR has stated in his cross examination
that only role of exhortation has been assigned
to the appellant Shyam Lal. He has stated that
Jagat Pal fired gun shot and injured assaulted to
the appellant by means of lathi.

26. P.W. 4 Munni Lal, named eyewitness
who declared hostile and did not support the
prosecution version.

27. Other witnesses namely P.W. 5
constable Prem Shankar Pandey and P.W. 4
were also examined by prosecution as
secondary witness to prove the site plan Ext Ka
7.

28. By invoking section 34 IPC, the
learned trial court convicted the appellant under
section 307/34 IPC . Under Section 34 IPC
reads as under:-

"Section 34 in The Indian Penal
Code. [34. Acts done by several persons in
furtherance of common intention. --When a
criminal act is done by several persons in
furtherance of the common intention of all, each
of such persons is liable for that act in the same
manner as if it were done by him alone.]"

The act has committed by any one of
them is done, is of the common intention, part
A prior meeting of the present participation in
respect of the overt act until it cannot be said
that this is common intention and crime
committed by any of them in furtherance of
such intention.

29. In case of Kashmira Singh vs. Stat of
Punjab AIR 1994 SC 1651, the common
intention
is
to
be
inferred
from
the
circumstances particularly the part played by
the accused and the surrounding circumstances
namely nature of the weapon used and the
injury indicted as well as the meeting of the
minds among the accused who are being held
constructively liable.

In Raja Gopal Swamy Konar vs.
State of Tamil Nadu 1995 SCC (Cri) 184,
Hon'ble Apex Court held that so far as A-2 is
concerned he inflicted simple injuries with the
stick on P.W. 2 and one on the deceased
Ramaswamy. Therefore, common intention to
kill the two deceased cannot be made out
against him.

30. Case in hand injured witness has
clearly stated in his statement that appellant
214 INDIAN LAW REPORTS ALLAHABAD SERIES
is only with lathi but no injury of lathi is
inflicted on the part of the injured by
invoking section 307 read with Section 34
IPC, it cannot be said that there was
common intention of the appellant to
attempt murder of injured Ram Manohar

31. On perusal of the entire
evidence although it may be considered
that the appellant Shyam Lal was
present at the place of occurrence but
there is no overt act is done by the
appellant. The trial court wrongly
convicted the appellant by giving lathi
blow to the injured and prosecution is
not able to prove the common intention
as envisaged under section 34 IPC.

32. After considering the entire
evidence and perusal of the record, I am
of the opinion that the prosecution is
unable to prove the alleged offence
under
section
307/34
IPC
beyond
reasonable doubt against sole surviving
appellant Shyam Lal.

33. The appeal is allowed. The
order dated 25.02.1991 is set aside and
the appellant Shyam Lal is acquitted the
charge levelled against him under
section 307/34 IPC. The appellant is on
bail. He need not to surrender before
the Court. The sureties and bail bonds
are discharged.

34. The office is directed to
transmit back the record of the Lower
Court with a copy of judgment and
order of this Court for immediate
compliance.
----------
(2020)03-05ILR A214
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE

THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 491 of 1998

Santu Kori & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
S.S. Chauhan, Krishna Kr. Singh

Counsel for the Respondents:
Govt.
Advocate,
M.
Naseeruallah,
Mohammad Masood Hasan, Mohammad
Naseerullah

A. It is well settled that where direct
evidence is worthy, it can be believed,
then motive does not carry much weight
and mind set of accused persons differs
from each other.

Indian Evidence Act- Section 8- Motive-
Where the case is based on direct evidence,
motive loses its relevance.

B. Merely because witnesses are closed
relatives
of
victim,
their
testimonies
cannot be discarded, but Court has to
adopt a careful approach and analyse
evidence to find out whether it is cogent
and credible evidence.

Indian Evidence Act- Section 134- It is the
quality and not the quantity of evidence
which is important. Conviction can be
recorded on the testimony of related witnesses
provided the same is credible and corroborated
from other evidence.

C.
Discrepancies,
variations
and
contradictions in prosecution case - If the
same do not go to the root of case then
accused-appellant is not entitled to get
benefit of the same.

Indian Evidence Act- Section 3- Minor
contradictions,
improvements
and