# Jagdish Singh & Ors v. State of U.P

- **Citation:** (2025) 1 ILRA 104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-28
- **Case number:** Criminal Appeal No. 651 of 1983
- **Bench:** Siddhartha Varma, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-singh-ors-v-state-of-u-p-52563
- **Pages:** 17

## Headnote

D.G.A.
Criminal
Appeal-Eye
Witnesses-Eyewitnesses were not there on the spot at all- eye
witnesses not recognized the dacoits and only to
implicate certain known inimical persons, the
first information report got lodged-FIR was also
ante-timed-the case of the prosecution does not
inspire confidence - cooked up story only to
implicate known persons who were impugned
judgment set aside.

Appeals allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,634 of 57,857. This is a partial read: ask again with offset=39634 for what follows._

104 INDIAN LAW REPORTS ALLAHABAD SERIES
also need not to surrender as they have
already been released on remission.

71. So far as the appellant Chunni Lal
Kahar is concerned, he appears to be on
bail. He will surrender before the trial court
within 15 days from today to serve out the
sentence as imposed by the trial court.

72. Shri Rajesh Kumar Dwivedi, who
has represented appellants- Raj Kumar
Yadav and Chunni Lal as Amicus Curiae
will get Rs. 11,000/- as honorarium, which
would be paid by the Uttar Pradesh State
Legal Services Authority within 60 days
from today.

73. A copy of this order be sent to the
trial Court along with the trial court's
record as well as to the Member Secretary
Uttar
Pradesh
State
Legal
Services
Authority for compliance.
----------
(2025) 1 ILRA 104
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Criminal Appeal No. 651 of 1983
With
Criminal Appeal No. 652 of 1983

Jagdish Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Keshav Sahai, Apul Misra, Dileep Kumar,
Rajrshi Gupta, Satyendra Narayan Singh,
Upendra Vikram Singh

Counsel for the Respondent:
D.G.A.
Criminal
Appeal-Eye
Witnesses-Eyewitnesses were not there on the spot at all- eye
witnesses not recognized the dacoits and only to
implicate certain known inimical persons, the
first information report got lodged-FIR was also
ante-timed-the case of the prosecution does not
inspire confidence - cooked up story only to
implicate known persons who were impugned
judgment set aside.

Appeals allowed. (E-9)

List of Cases cited:

1. Iqbal & anr. Vs St. of U.P. reported in (2015)
6 SCC 623

2. Lakshman Prasad Vs St. of Bihar reported in
AIR 1981 SC 1388

3. Prem & ors. Vs St. of U.P. reported in 2022
(6) ADJ 529 (DB)

4. Shrishti Narain Vs Bindeshwar Jha & ors.,
2009 (6) SCC 457
(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. When an incident which allegedly
took place in the night of 12/13.01.1977, a
first information report was lodged on the
very same day at around 4:30am on the
13th January 1977. As per the first
information report, which had been got
lodged by one Harihar Singh son of Jung
Bahadur Singh, in the night of 12/13th
January 1977 while he himself had gone to
sleep after having food etc., in the varandah
of the house along with his son Hridya
Narayan Singh and other elderly relatives
by the names of Deo Nath Singh and
Ramagya Singh then at around 1:30AM in
the night Jagdish Singh, Amardeo Singh,
Durvasha Singh, Jai Shankar @ Dondha
Singh, Deo Narayan @ Bhukhad Singh,
Munda @ Raj Narayan Singh, Sriram
Singh, Siyaram Singh, Rama Singh, Sagar
1 All. Jagdish Singh & Ors. Vs. State of U.P.
105
Singh, Vijrendra along with 7 to 8 other
dacoits
entered
the
premises
which
contained the Baithaka and quarters where
women were sleeping. When the dacoits
entered as per the allegations made in the
first information report, the dogs of the first
informant started barking which made the
first informant and his son wake up. When
the first informant and his son started
making a hue and cry, one of the dacoits
chased the son of the first informant and hit
him by a lathi which had injured the right
wrist of the son. Of the so many dacoits
who had entered the premises of the first
informant, the dacoits Deo Narayan Singh,
Jagdish Singh, Raj Narayan Singh, Sri Ram
Singh and 2 or 3 other dacoits entered the
room where the two elderly persons
namely, Ramagya Singh and Deo Nath
Singh were sleeping and asked for the keys
of the locker. The other dacoits kept guard
outside the place where the two elderly
persons
were
sleeping.
They
were
throughout saying that if the elderly
persons were not giving the keys then they
be shot dead. Thereafter the dacoits shot at
Ramagya Singh and Deo Nath Singh and
they were killed. Thereafter the dacoits
went towards the tenements where the
ladies of the house were sleeping. They
broke open the door and entered the
premises and started looting the valuables.
The locker (tijori) was brought out in the
courtyard, which the dacoits tried to open
with various tools which were available
with them. They were kudal, farsa and
chheni. In the first information report it had
been stated that in order to frighten the
villagers intermittently the dacoits were
also firing in the air. It has also been stated
in the first information report that while the
looting was being done the dacoits were
saying that they had taken the revenge of
the murder of Deena Nath Singh. Because
of the hue and cry raised by the first
informant and the various ladies of the
house, the cousin of the first informant
Janmey Singh (P.W.3) and the nephew of
the first informant Govardhan @ Radhey
Shyam along with the Pradhan of the
village, Shyam Bihari Yadav and Ram
Surat Singh came on the spot. They saw the
dacoits looting and rummaging the house.
They had recognized the dacoits in the light
of torches and in the light which came out
of the burning "pual". The ladies of the
house had also recognized the dacoits in the
light of the lanterns and the various torches
which they possessed. It had been stated
that the wife of the first informant was also
injured by one of the dacoits. The Pradhan
of the village Parmanand Singh and one
Rama Nand Singh fired from their firearms
and thereafter the dacoits went away. The
first informant and the other villagers
chased the dacoits but all the time the
dacoits turned around and warned them
with dire consequences. It had been
categorically
mentioned
in
the
first
information report that vis-a-vis Jagdish
Singh and others there was old enmity
existing and it was for that reason that they
had killed the two elderly persons, namely,
Ramagya and Deo Nath. In the first
information report, the lost articles which
were stolen were also mentioned. The
investigation thereafter commenced and
such torches and lanterns which were to be
found on the spot were taken into the
custody and the recovery memos of things
taken into custody were prepared and were
numbered as exhibit - ka3. The locker and
the locks which had been broken by the
dacoits were also taken in the custody of
the Police and their recovery memo was
prepared and numbered as Exhibit - Ka4.
Such articles which were left behind by the
dacoits were also recovered by the Police
and memo of which were prepared and
exhibited as Exhibit - Ka 11 and 12. The
106 INDIAN LAW REPORTS ALLAHABAD SERIES
police had also recovered certain lathies
and shoes and recovery memo with regard
to them was prepared as Exhibit Ka36. The
empty cartridges and pads etc. of the
bullets which were fired were also
recovered and the memo with regard to
which was prepared and exhibited as
Exhibit Ka37. The clothes which had blood
on them of Deo Nath Singh were also taken
into custody and their memo was prepared
and exhibited as Exhibit ka 34. Ramagya's
clothes were also similarly taken into
custody and memo with regard to them was
prepared and exhibited as Exhibit Ka 35.

2. Thereafter, as per the case of the
prosecution,
a
panchayatnama
was
conducted on 13.1.1977 which commenced
at 6:35am and concluded at 7:05am.
Thereafter, the two dead bodies were sent
for post mortem and post mortem was
conducted on the dead bodies on 14.01.1977
at 11:00am. The police after it had
concluded its investigation submitted its
report and the Magistrate took cognizance of
the case.

3. The Trial Judge, namely, Sri N.S.
Shamshery, the 6th Additional Sessions
Judge, Varanasi, on 23.09.1978 framed
charges against the various accused persons.
Vis-a-vis Jagtoo and Ram Dhani charges
were framed under Section 396 IPC; vis-avis Smt. Sahdeiya and Kalawati charges
were framed under Section 412 IPC; vis-avis Jagdish Singh, Amardeo Singh, Durbasa
Singh, Jai Shankar @ Dhondha, Deo Narain
@ Jhakkar, Munda @ Raj Narain, Sri Ram
Singh, Siya Ram, Rama Singh, Sagar Singh,
Bijendra Singh, Lakshmi Noniya, Dulare
Singh, Kamla Singh, Lallan @ Lalla Singh
and Kattal @ Katwaru Mahhal charges were
framed under Section 396 IPC. Thereafter
when the accused denied the charges, trial
commenced.

4. From the side of the prosecution as
many as 25 prosecution witnesses were
examined. When the trial concluded and
the judgement was delivered on 11.3.1983
whereby Jagdish Singh, Amardeo Singh,
Durbasa Singh, Jai Shanker Singh @
Dhondha, Deo Narain @ Jhakkar, Raj
Narain Singh @ Munda, Siya Ram Singh,
Shri Ram Singh, Sagar Singh, Brijendra
Singh @ Bijendra Singh, Rama Singh and
Kattal alias Katwaroo were sentenced to
undergo life imprisonment for offences
committed under Section 396 IPC, they
preferred criminal appeals being criminal
appeals No. 651 and 562 of 1983 in this
Court.

5. Jagdish Singh, Durbasa Singh, Deo
Narain Singh, Raj Narain Singh, Sri Ram
Singh and Kattal @ Katwaroo filed
Criminal Appeal No. 651 of 1983; whereas
Amar Deo, Jai Shankar Singh, Sagar Singh
and Brijendra Singh filed Criminal Appeal
No. 652 of 1983. The other accused
persons were acquitted of the charges as
were levelled against them.

6. During the pendency of the Appeal
in Criminal Appeal No. 651 of 1983,
Jagdish Singh, Durbasa Singh, Deo Narain
Singh and Raj Narain Singh and Kattal died
and, therefore, the Criminal Appeal vis-avis them have abated. For the appellants,
Sri Ram Singh, Siya Ram and Ram Singh,
the Appeal was argued by Sri Apul
Mishra and Sri Rajrshi Gupta.

7. In Criminal Appeal No. 652 of
1983, the appellants Amar Deo Singh and
Sagar Singh died during the pendency of
the appeal and the appeal vis-a-vis them
has already abated. For the appellants no. 2
and 4 Jai Shankar Singh and Bijendra
Singh, the appeal was argued by Sri Apul
Mishra and Sri Rajrshi Gupta.
1 All. Jagdish Singh & Ors. Vs. State of U.P.
107

8. During the trial, the P.W.-1, Harihar
Singh, appeared in the witness box and
very
emphatically
and
graphically
described about the relationships which
existed between the accused persons. With
regard to the appellants Durbasa Singh,
Amar Singh, Jagdish Singh and Jai Shankar
Singh through his statement he illustrated
as to how they were descendents through
one Vishwanath. As per the statement
before the Court, the following pedigree
emerged :-

11. From the side of the complainants
also a pedigree as has been shown below
which emerged from the statements made
by the P.W.-1:

12. The P.W.-1 has, in fact, stated
after giving out the relationships between
the accused persons that all the accused
were known to each other and he has very
categorically
stated
that
P.W.-1
was
inimical to all the three families. He has in
so many words also narrated the enmities
which existed between the informants' side
and
the
accused.
They
are
being
enumerated here as under: -

1. An occurrence took place on
9.5.1973 in which Deena Nath brother of
accused
Durbasha
was
murdered.
Informant Harihar Singh was accused and
accused Deo Narain was prosecution
witness.

2. Prior to the present occurrence
on the application of accused Jagdish
license of informant Harihar Singh was
cancelled (Kindly see exhibit Ka-8 & Ka9).

3. During the pendency of murder
case proceedings under Section 107/116
were initiated between the parties.

4. In the year 1972 proceedings
under Section 133, Cr.P.C. were initiated
in which Harihar Singh was on one side,
108 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Deena Nath, accused Durbasha,
accused Amar Deo and accused Jagdish
Singh were arrayed on other side.

5. A civil suit no. 405/1975 was
filed in the court of Munsif Hawali
Varanasi (Harihar Singh Vs. Durbasha)
and the Suit related to a passage and the
civil suit was pending at the time of
incident.

6. Ram Nandan was the father of
P W. Shyam Bihari.

7. In the year 1951 Ram Nandan
father of P.W Shyam Bihari was prosecuted
under Section 302 I.P.C. for causing death
of one Shanker in which Lalji father of
accused Sagar and Brijendra was a
prosecution witness against Ram Nandan
Singh.

13. In the statement before the Court
P.W.-1 had stated that Ramagya's hands
were tied at the back and, thereafter, he was
shot at and in a similar manner Deo Nath
Singh was also shot at. He has once again
reiterated that the named persons in the first
information report had stated that they had
taken revenge of the murder of Dina Nath
Singh (Dina Nath Singh was the real
brother of Durvasa Singh and Amar Deo
Singh as is clear from the pedigree given
above).

14. He has stated that Amar Deo was
living in a house which was 20 steps away
from the house of the first informant.
Shyam Bihari was living around 200 latthas
away. To the east of the house of Amar
Deo, Harihari Singh's (P.W.-1) new house
was located. He has further stated that
around 150 latthas away from his khalihan,
Shyam Bihari's house (P.W.-2) was situate.
He has stated that he was surrounded by the
houses of his own enemies. He has further
stated in his evidence that all the houses of
the named accused persons were adjoining
the house of P.W.-1. He has very
categorically stated that when the firing
was being done, he was standing at a
distance of around 20 steps. He has also
stated that none of the accused persons had
covered their faces with dhata. He has
stated that no accused was trying to hide
his or her face. He has stated that he had
not mentioned anything in the first
information report with regard to the fact
that the hands of Deo Narain Singh were
tied behind him.

15. In paragraph no. 34 of the
statement made by P.W.-1 on 5.7.1980, he
had stated in his cross-examination, upon a
pointed question being asked by the Court
as to whether faces of the accused persons
were covered. He had averred that in fact
they were not hiding their faces. He has in
paragraph no. 35 stated that while the
dacoity and the shooting etc was taking
place he had called Jagdish Singh, Deo
Narain Singh and Sri Ram Singh by their
names and yet the accused persons had not
fired at him.

16. Upon being asked as to whether,
he had given the description of the dacoits
whose name he had not mentioned in the
first information report, the P.W.-1 had
stated that he had not given any description
of those persons whom he had not named.

17. The P.W. -2, Shyam Bihari, lived
in the neighborhood of P.W.-1. P.W.-1 in
his testimony before the Court had given a
reason as to why there was enmity between
Shyam Bihari and the accused. He had
stated that in 1951 Ram Nandan, the father
of the P.W.-2, was prosecuted under
Section 302 IPC for having caused the
death of one Shanker and in that case Lalji
the father of the accused and Bijendra
Singh had come to the Court as prosecution
1 All. Jagdish Singh & Ors. Vs. State of U.P.
109
witnesses against Ram Nandan Singh and
the father of Shyam Bihari. In this context,
the statement of P.W.-2 becomes relevant.
He has also very categorically stated that he
had been knowing all the accused persons
from before and that they were all of his
village. He has also stated that he had gone
for the test identification parade to the jail
for identifying such of the accused whose
names had not been mentioned. He has,
upon a pointed question being asked that
why he had not mentioned about the
descriptions of the accused who were not
mentioned in the statement under Section
161 Cr.P.C., he had replied that he did not
know as to why he had not mentioned
about their descriptions under Section 161
Cr.P.C. He has, in paragraph no. 17 of his
cross-examination, upon being questioned
as to why he had not mentioned about the
names of the persons who were already
named in the first information report in his
statement under Section 161 Cr.P.C., he
had replied that his statement was taken on
13.1.1977 at 8:00am but till that time he
had not known the names of the dacoits
who had done the dacoity the previous
night. He had also reiterated the fact that
none of the dacoits had covered their faces.

18. The P.W.-3, Janmejay Singh, is a
cousin of P.W.-1. He has also mentioned
about the enmity which he bore vis-a-vis
the accused Deo Narain Singh and he has
stated that the accused Deo Narain Singh
had given evidence against him in a murder
case. He had also reiterated that the dacoits
had also not covered their faces. He had
also stated that the accused Deo Narain
Singh had a gun in his hands and Jagdish
had a lathi in his hands. Munda Singh @
Raj Narain Singh was carrying a ballam.
Ram Singh was also carrying a lathi. He
has stated that the dacoits had also fired
towards the place where he was standing.

19. The P.W. - 4, Hriday Narain Singh
s/o Harihar Singh, the P.W.-1, while giving
his testimony, also reiterates what his father
had stated and has described the manner in
which the dacoits had hit him on his wrist.
In his statement in the Court he had also
mentioned the names of the accused
persons. He, in his cross-examination,
admitted that before the incident had
occurred there was a definite enmity
between the accused and him and because
of the statement given by him and his
father earlier in another case the accused
had been in jail for five year. He had also
reiterated the fact that none of the accused
persons had tied/covered their faces.

20. Since the P.W.- 1, 2, 3 and P.W.- 4
were witnesses of facts their statements
have been looked into in detail. The
statements of P.W.-24 who was the
investigating officer, is also relevant for the
decision of this case and therefore the
relevant portion of his statement is being
reproduced here as under:-

"दचक एि०आई०आर० इक्ज क-20 पर सी०ओ०
के हस्त क्षर है और यह 20-1-77 के है। मैं क रण नहीं बत
सकत दक सी०ओ० के िस्तखत 20-1-77 के क्यों हुये। यह
गलत है यह िेर से भेज गय थ इसदलये िेर से िस्तखत हुये।"

21. At page 230 of the paper book, in
paragraph no. 24, he had stated that the
chik FIR, Exhibit Ka-20 contained the
signature of the Circle Officer, which was
dated 20.1.1977. He has, however, stated
that he did not know as to why the
signature of the Circle Officer was made on
the chik FIR on 20.1.977 with regard to the
compliance of Section 157 Cr.P.C.. The
investigating officer had stated that he had
no idea as to when exactly the special
report was sent. Also with regard to the fact
as to whether when the dead body was sent
110 INDIAN LAW REPORTS ALLAHABAD SERIES
for post mortem whether the chik report
had accompanied the papers, he had stated
that there was no law/rule to send the first
information report along with the post
mortem. He, however, had stated that
traditionally the first information report
was sent with the post mortem and had,
thereafter, categorically stated that along
with the exhibit ka-16 and ka-15 i.e. the
letters which were sent for the post mortem
of the two dead bodies no first information
report had been sent. At page 32 of the
paper book, he had mentioned that he had
not prepared the memo with regard to the
ashes which he had found at the place of
incident which were supposed to be there
because of the fact that haystack (puwal)
was burnt. He has stated that he had
definitely not shown the place in the site
plan where the ash was to be found. He has
stated that on the papers Exhibit Ka-13 and
Ka-14 which were prepared on 13.1.1977
nowhere was the fact written that it
pertained to the case " State vs. Jagdish and
others".

22. Thereafter, the statements of the
accused persons were recorded under
Section 313 Cr.P.C. In the statements under
Section 313 Cr.P.C., the accused persons
had denied having committed the crime.

23. When the appeals were argued, the
learned counsel for the appellants had
submitted that the case as had been brought
forth by the prosecution was a highly
improbable case. To substantiate this
argument,
learned
counsel
made
the
following submissions:

I.
Learned
counsel
for
the
appellants states that when a dacoity takes
place and specially when the dacoits were
known to the informant's side then
definitely they would try to conceal their
identification and in the instant case he
submits that none of the accused had
covered their faces.

II. Learned counsel for the
appellants further states that, in fact, the
P.W.-1, P.W.-2, P.W.-3 and P.W.-4, all
have stated that they had called the accused
persons by name. Learned counsel for the
appellants submits that this calling the
dacoits by name would have been suicidal
and the statement made in this regard
shows that the prosecution witnesses were,
in fact, not there and they were only trying
to show their presence at the place.

III. Learned counsel for the
appellants states that enmity was writ large
between the accused persons and the
people on the side of the first informant. He
has submitted that, in fact, if a simple case
of dacoity had taken place the informant
would not know as to who was the accused.
However,
he
states
that
the
first
information report was lodged and the
accused had given out the names of the
persons who were living in an around their
village near the houses of the first
informant and their relatives and thereafter
they had tried to take revenge from them.
In this regard, learned counsel for the
appellants relied upon a judgement of
Supreme Court in the case of Iqbal &
another vs. State of U.P reported in (2015)
6 SCC 623 Since the learned counsel read
out the paragraphs no. 10, 16 and 17 of the
judgement, they are being reproduced here
as under:-

10.In cases of dacoity, usually,
the offence is committed by unknown
persons with the criminal background. It is
only in very few cases, are the accused
dacoits known to the victim. PW 1 Patia
Singh and PW 2 Jay Singh have stated that
they had witnessed the incident from a
distance of three-and-a-half yards. PW 3
1 All. Jagdish Singh & Ors. Vs. State of U.P.
111
Begraj also stated that he had witnessed
the incident from a distance of five-six
yards in the feeble torchlight. Admittedly,
according to the witnesses, there was no
electricity at the time of incident in their
houses. They claimed that they could see
the accused persons with the help of their
torchlights. In the courts below, on behalf
of the accused persons, it was argued that
the night of incident was an amavasya-new
moon night. On a perusal of calendar of
that month in that year, it is seen that the
intervening night of 21-9-1979/22-9-1979
was a new moon night i.e. "amavasya".

16. It is pertinent to note that in
the present case no recovery of articles
which are the subject of dacoity was made
from the appellants or other non-appealing
accused persons. In his complaint, PW 1
gave a list enumerating fifty expensive
items, such as gold jewellery, silver
articles, sarees and clothes and also cash.
As per the recovery memo, what was
recovered was just three kilograms of ghee
in a claypot. In his deposition, PW 8 Nepal
Singh (investigating officer) has stated that
at the instance of Kripa, he had recovered
a "chaptaghu" and an "attire". However,
in the recovery memo, only three kilograms
of ghee is mentioned which is said to have
been recovered on the disclosure statement
of accused Kripa. From the appellants as
well as from the non-appealing accused
persons, not a single valuable item out of
the whole list of stolen articles was
recovered. It is quite unbelievable that
within a short span of time i.e. from 21-91979 (date of incident) to 9-10-1979 (date
of arrest), the accused would have
converted or sold out all the valuable
items. Even if we accept that they had done
so, the prosecution ought to have adduced
evidence as to how and in what manner the
articles which were the subject-matter of
dacoity
were
either
disposed of
or
converted. Murder and robbery were part
of the same transaction. Consequent upon
the
disclosure
statement,
only
three
kilograms of ghee was recovered.

17. In order to bring home the
guilt of the accused persons, it is the duty
of the prosecution to prove that the stolen
property was in the possession of the
accused persons or that the accused had
knowledge that the property was a stolen
property or the accused persons had
converted the stolen property. No such
recovery
was
made
to
connect
the
appellants
and
other
non-appealing
accused persons with the crime.

Further
learned
counsel
for
the
appellants relied upon Lakshman Prasad
vs. State of Bihar reported in AIR 1981 SC
1388. Since the learned counsel has
specifically relied upon paragraph no. 3 of
the
judgement,
the
same
is
being
reproduced here as under:-

3. The central evidence against
the appellant consisted of the testimony of
PWs 1 and 2 who were the servants of
complainant PW 4 Baijnath Prasad. It
appears from the evidence that Baijnath
Prasad was a rich businessman of the
locality
and
the
accused-appellant
Lakshman Prasad was his next door
neighbour having a double storey house.
Both the courts below have accepted the
prosecution case that a dacoity took place
in the house of Baijnath Prasad in the
course of which cash and other articles
were stolen away. In the instant case,
counsel
for
the
appellant
has
not
challenged this finding of the courts below.
We are also satisfied that a dacoity
undoubtedly took place in the house of
Baijnath Prasad. The only question that
falls for consideration is whether or not the
appellant participated in the crime. PWs 1,
112 INDIAN LAW REPORTS ALLAHABAD SERIES
2 and 4 have supported the prosecution
case that the appellant clearly participated
in the dacoity and was, in fact, the leader of
the dacoits. After going through their
evidence, we do find that there is some
amount of consistency in their evidence but
mere congruity or consistency are not the
sole test of truth. Sometimes even falsehood
is given an adroit appearance of truth, so
that truth disappears and falsehood comes
on the surface. This appears to be one of
those cases. There are many inherent
improbabilities in the prosecution case so
far as the participation of appellant is
concerned. In the first place, admittedly the
appellant was a respectable man in the
sense that he was possessed of sufficient
means and was a well known homeopath
doctor and also the neighbour of the
complainant. In this view of the matter, it is
difficult to believe that he would commit
dacoity in the house of his own neighbour
and that too in the early hours of the
evening, so that he may be caught any
moment and take the risk of a conviction
under Section 395 of the Penal Code, 1860.
Secondly, the evidence of the complainant
PW 4 clearly shows that the dacoits had no
doubt concealed their identity but they did
it in such a way that their faces were
visible. Indeed, if the appellant had
participated in the dacoity and taken the
precaution of concealing his identity, then
he would have seen to it that his face was
fully covered so that identification by the
complainant
or
the
witnesses
would
become impossible. If he was a dare-devil,
then he would not have concealed his
identity at all. Thirdly, FIR having been
lodged the same evening the police visited
the house of the appellant next morning
and found him there. If the appellant had
really participated in the dacoity, he would
have at least made himself scarce. The
house of the accused was also searched
and nothing incriminating was at all found.
Finally,
there
was
the
important
circumstance that in view of a dispute
between complainant Baijnath Prasad and
the appellant, there was a clear possibility
of the appellant having been falsely
implicated due to enmity. The complainant
himself admits that there is a boundary
wall around the house of the appellant and
there is a road which runs to the east of his
house and the mill of the complainant is
situated to the west of the house. There is
evidence of DW 2 that there has been some
dispute between Baijnath Prasad and
accused Lakshman Prasad two or three
years before the occurrence of dacoity in
respect of a passage near the house of
accused Lakshman Prasad through which
he used to go to his mill. The evidence of
DW 2 does support what the complainant
has
himself
admitted.
The
gravest
provocation which the complainant must
have felt was the fact that Lakshman
Prasad bought a piece of land near his
house from Kishori Lall, the nephew of
Baijnath Prasad. This is proved by Ex. Kha
and the evidence of DW 4. The High Court
also observed that the sale deed executed
by the nephew of the complainant in favour
of the appellant was executed only a month
before this occurrence. This therefore
furnishes an immediate motive for the false
implication of the appellant. Another
important circumstance which seems to
have been overlooked by the courts below
is that PW 4 has clearly admitted in his
evidence at p. 44 of the paper-book that
immediately after the occurrence, a number
of people near the mosque assembled, of
whom he recognised Suba Raut and Moti
Raut, but they never came to his help. The
witness also says that when he came from
the west, he saw 40 to 50 persons at a little
distance, including Ganesh Raut, Achhelal,
Mathura Ram and Rameshwar. Obviously,
1 All. Jagdish Singh & Ors. Vs. State of U.P.
113
if an occurrence of dacoity had taken place
in the early hours of the evening, the near
neighbours must have assembled and yet
none of these neighbours have been
examined to support the complainant's
version that the appellant had participated
in the occurrence. It seems to us that the
reason why these persons did not choose to
support the complainant was that perhaps
the appellant had been falsely implicated
and hence the persons who had assembled
may not have relished the idea of
supporting the complainant if he had gone
to the extent of falsely implicating the
appellant in the dacoity. These intrinsic
circumstances speak volumes against the
prosecution case and raise considerable
amount
of
suspicion
in
our
minds
regarding the complicity of the appellant in
the dacoity. It is well-settled that while
witnesses may lie, circumstances do not.

Still further learned counsel for the
appellants relied upon Prem and others
vs. State of U.P reported in 2022 (6) ADJ
529 (DB). Since the learned counsel for the
appellants has read out paragraphs no. 25
and 26 of the judgement, they are being
reproduced here as under:-

"25. Before we proceed to
analyse the submissions, it would be useful
to notice a decision of the Supreme Court
in somewhat similar situation where the
accused had allegedly participated in the
commission of dacoity at his neighbour's
house and the factum of dacoity was duly
proved and the eye-witnesses, apparently,
were congruous and consistent in their
deposition yet, upon finding the possibility
of false implication very high, the apex
court allowed the appeal of the convicted
accused and acquitted him of the charge
upon finding that intrinsic circumstances of
the prosecution case raised considerable
amount
of
suspicion
regarding
the
complicity of the appellant in the dacoity.
The relevant observations of the Supreme
Court in that case i.e. Lakshman Prasad v.
State of Bihar : 1981 (Supp) SCC 22,
contained in paragraph 3 of the judgment,
are extracted below:-

"3. The central evidence against
the appellant consisted of the testimony of
PWs 1 and 2 who were the servants of
complainant PW 4 Baijnath Prasad. It
appears from the evidence that Baijnath
Prasad was a rich business man of the
locality
and
the
accused-appellant
Lakshman Prasad was his next door
neighbour having a double storey house.
Both the courts below have accepted the
prosecution case that a dacoity took place
in the house of Baijnath Prasad in the
course of which cash and other articles
were stolen away. In the instant case,
counsel
for
the
appellant
has
not
challenged this finding of the courts below.
We are also satisfied that a dacoity
undoubtedly took place in the house of
Baijnath Prasad. The only question that
falls for consideration is whether or not the
appellant participated in the crime. PWs 1,
2 and 4 have supported the prosecution
case that the appellant clearly participated
in the dacoity and was, in fact, the leader of
the dacoits. After going through their
evidence, we do find that there is some
amount of consistency in their evidence but
mere congruity or consistency are not the
sole test of truth. Sometimes even falsehood
is given an adroit appearance of truth, so
that truth disappears and falsehood comes
on the surface. This appears to be one of
these cases. There are many inherent
improbabilities in the prosecution case so
far as the participation of appellant is
concerned. In the first place, admittedly the
appellant was a respectable man in the
sense that he was possessed of sufficient
114 INDIAN LAW REPORTS ALLAHABAD SERIES
means and was a well-known homeopath
doctor and also the neighbour of the
complainant. In this view of the matter, it is
difficult to believe that he would commit
dacoity in the house of his own neighbour
and that too in the early hours of the
evening, so that he may be caught any
moment and take the risk of a conviction
under Section 395 Indian Penal Code.
Secondly, the evidence of the complainant
PW 4 clearly shows that the dacoits had no
doubt concealed their identify but they did
it in such a way that their faces were
visible. Indeed, if the appellant had
participated in the dacoity and took the
precaution of concealing his identity, then
he would have seen to it that his face was
fully covered so that identification by the
complainant
or
the
witnesses
would
become impossible. If he was a dare-devil,
then he would not have concealed his
identity at all. Thirdly, FIR having been
lodged the same evening the police visited
the house of the appellant next morning
and found him there. If the appellant had
really participated in the dacoity, he would
have at least made himself scarce. The
house of the accused was also searched
and nothing incriminating was at all found.
Finally,
there
was
the
important
circumstance that in view of a dispute
between complainant Baijnath Prasad and
the appellant, there was a clear possibility
of the appellant having been falsely
implicated due to enmity. The complainant
himself admits that there is a boundary
wall around the house of the appellant and
there is a road which runs to the east of his
house and the mill of the complainant is
situated to the west of the house. There is
evidence of DW 2 that there has been some
dispute between Baijnath Prasad and
accused Lakshman Prasad two or three
years before the occurrence of dacoity in
respect of a passage near the house of
accused Lakshman Prasad through which
he used to go to his mill. The evidence of
DW 2 does support what the complainant
has
himself
admitted.
The
gravest
provocation which the complainant must
have felt was the fact that Lakshman
Prasad bought a piece of land near his
house from Kishori Lall, the nephew of
Baijnath Prasad. This is proved by Ex. Kha
and the evidence of DW 4. The High Court
also observed that the sale-deed executed
by the nephew of the complainant in favour
of the appellant was executed only a month
before this occurrence. This therefore
furnishes an immediate motive for the false
implication of the appellant. Another
important circumstance which seems to
have been overlooked by the courts below
is that PW 4 has clearly admitted in his
evidence at page 44 of the paper-book that
immediately after the occurrence, a number
of people near the mosque assembled, of
whom he recognized Suba Raut and Moti
Raut, but they never came to his help. The
witness also says that when he came from
the west, he saw 40 to 50 persons at a little
distance, including Ganesh Raut, Achhelal,
Mathura Ram and Rameshwar. Obviously,
if an occurrence of dacoity had taken place
in the early hours of the evening, the near
neighbours must have assembled and yet
none of these neighbour have been
examined to support the complainant's
version that the appellant has participated
in the occurrence. It seems to us that the
reason why these persons did not choose to
support the complainant was that perhaps
the appellant had been falsely implicated
and hence the persons who had assembled
may not have relished the idea of
supporting the complainant if he had gone
to the extent of falsely implicating the
appellant in the dacoity. These intrinsic
circumstances speak volumes against the
prosecution case and raise considerable
1 All. Jagdish Singh & Ors. Vs. State of U.P.
115
amount
of
suspicion
in
our
minds
regarding the complicity of the appellant in
the dacoity. It is well settled that while
witnesses may lie, circumstances do not.
(Emphasis supplied)".

26. From the observations of the
apex court, extracted above, what becomes
clear is that mere consistency or congruity
in the testimony of the prosecution
witnesses is not the sole test of truth as
even falsehood can be given an adroit
appearance
of
truth,
so
that
truth
disappears and falsehood comes on the
surface. Therefore, what the court has to
look at, and assess, is whether the
prosecution evidence coupled with the
surrounding circumstances has a ring of
truth about it or there arises a strong
suspicion and high probability of false
implication of the accused put on trial.
Bearing this in mind, when we embark
upon the exercise to assess the prosecution
evidence, we find that, no doubt, on record,
the prosecution case is instituted on a
prompt first information report and is
supported by testimony of a person injured
but, interestingly, no one disputes the
factum of dacoity in the village on that
fateful night. What is disputed is the
accused-appellants being part of the gang
of dacoits. When we see the evidence in this
light, we find that the prosecution evidence
is completely silent as to what the accusedappellants did at the time of dacoity.
Except in the statement of one witness (i.e.
PW-1) that Bhagwan Singh was carrying a
gun and he fired a shot, there is no
disclosure about the role of any of the
accused appellants save that, that they
were noticed. In fact, PW-1 who deposed
about that, in the FIR, which was lodged by
him and with which he was confronted,
made no such disclosure. Even in respect of
gunshot alleged to have been fired by
Bhagwan Singh, it is not disclosed as to
whom it was aimed at and who sustained
what injury from it. Importantly, two
persons were reported to have been
examined for their injuries, one is PW-4
and the other is Champa Devi. Champa
Devi has not been examined as a witness
and PW-4 has sustained incised wounds,
the author of which has not been disclosed
by him. Interestingly, the only witness (i.e.
PW-3) with whom the accused-appellants
had no enmity and whose house was also
looted, does not support the prosecution
case either with respect to the number of
dacoits who participated in the dacoity or
in respect of their identity. Further, we find
that
there
is
no
recovery
of
any
incriminating material from any of the
accused-appellants to lend credence to the
accusation
against
them.
Another
important feature that we notice from the
testimony of the prosecution witnesses is
that various houses in the village were
looted and after the dacoits had left, the
villagers had collected at one place. This
suggests that there were independent
witnesses also who were affected by the
dacoity but the prosecution deliberately
chose not to examine them.