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

- **Citation:** (2024) 12 ILRA 793
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-16
- **Case number:** Criminal Appeal No. 3172 of 1983
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jageshwar-singh-ors-v-state-of-u-p-51354
- **Pages:** 9

## Headnote

Indian Evidence Act, 1872 - Section 3 -
Code of Criminal Procedure, 1973 -Section
173 - Failure to seize and prepare
inventory of material objects relied upon
for identification, effect on prosecution
case - Pre-existing enmity. There were
various civil and criminal cases which
were
either
undergone
between
the
parties or were pending on the date of
incident in various courts and, therefore,
the PW-1 was throughout knowing the
names of the three accused persons,
whom he had named in the FIR. Court was
of the view that when three young ablebodied persons had entered the house
with their faces covered and were also
794 INDIAN LAW REPORTS ALLAHABAD SERIES
carrying fire arms, then the PW-1 would
not have the audacity to have a scuffle
with them and get the clothes, by which
they were covering their faces, removed
and thereafter recognize them. In a fullfledged investigation no remnants of the
firing were found. If the source of light
namely torches and lanterns were shown
to the police and the investigating agency,
then
the
non-preparation
of
the
inventories of the torches and lantern and
the fact that they were not taken into
custody,
would
go
against
the
prosecution. 32. Prosecution not able to
prove the charges beyond reasonable
doubt
against
the
accused
persons.
Criminal appeal allowed. Appellant Sriman
Singh directed to be released forthwith.

Allowed. (E-5)
List of Cases cited:

## Text

12 All. Jageshwar Singh & Ors. Vs. State of U.P.
793
building is in a dilapidated condition and is
required for purposes of demolition and
new construction the case will be squarely
covered by clause (b). Where, on the other
hand, the application of the landlord is
founded on the assertion that the building
is required for the personal occupation of
the landlord whether in its existing form or
after demolition and new construction, the
case will be covered by clause (a) of
Section 21(1). A building may be required
for personal occupation by the landlord
after demolition and new construction even
if it may not be in a dilapidated condition.
The landlord may simply require the
building for his personal occupation in
whatever condition it may be, whether in its
existing form or after demolition and new
construction."

32. And finally vide paragraph 10 of
the judgment answered the reference as
under:

"10. ......The need of the landlord
under Section 21(1)(a) can be considered
even if the landlord had pleaded that the
building is in dilapidated condition and
requires demolition and new construction."

33. Looking to this above legal aspect
and applying the same to the facts of the
present case, I find that the pleading was
raised that there was a need but the
building was too old to be used. If the
judgment of Division Bench is read in its
correct perspective and is applied to the
facts of the case it can, of course, be held
that the court rightly concluded that the
building was in a dilapidated condition but
since need was there, the application for
release deserved to be allowed.

34. Thus, I do not find any manifest
error either in the order of prescribed
authority or of the appellate authority to
exercise my extraordinary supervisory
jurisdiction under Article 227 of the
Constitution.

35. Petition lacks merit and is,
accordingly, dismissed.

36. Cost made easy.
----------
(2024) 12 ILRA 793
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 3172 of 1983

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

Counsel for the Appellants:
T. Rathore, Mahesh Prasad Yadav, V.S.
Singh

Counsel for the Respondent:
D.G.A., A.G.A., G.S., Chaturvedi

Indian Evidence Act, 1872 - Section 3 -
Code of Criminal Procedure, 1973 -Section
173 - Failure to seize and prepare
inventory of material objects relied upon
for identification, effect on prosecution
case - Pre-existing enmity. There were
various civil and criminal cases which
were
either
undergone
between
the
parties or were pending on the date of
incident in various courts and, therefore,
the PW-1 was throughout knowing the
names of the three accused persons,
whom he had named in the FIR. Court was
of the view that when three young ablebodied persons had entered the house
with their faces covered and were also
794 INDIAN LAW REPORTS ALLAHABAD SERIES
carrying fire arms, then the PW-1 would
not have the audacity to have a scuffle
with them and get the clothes, by which
they were covering their faces, removed
and thereafter recognize them. In a fullfledged investigation no remnants of the
firing were found. If the source of light
namely torches and lanterns were shown
to the police and the investigating agency,
then
the
non-preparation
of
the
inventories of the torches and lantern and
the fact that they were not taken into
custody,
would
go
against
the
prosecution. 32. Prosecution not able to
prove the charges beyond reasonable
doubt
against
the
accused
persons.
Criminal appeal allowed. Appellant Sriman
Singh directed to be released forthwith.

Allowed. (E-5)
List of Cases cited:
1. Manzoor Vs St. Of U. P.reported in AIR 1983
SC 295.
2. Bhup Singh Vs St. of U.P. reported in 2014
SCC Online ALL 11723
(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Ram Manohar Narayan Mishra, J.)

1. Heard Sri M.P. Yadav, learned
counsel for the appellants, learned counsel
for the informant, learned A.G.A. Sri Rahul
Asthana, for the State and perused the
material available on record.

2. Present criminal appeal has been
filed against the judgment and order of
conviction dated 20.12.1983, passed by
learned Special Judge, Banda, in Sessions
Trial No.112 of 1981, whereby the learned
Special Judge, Banda (hereinafter referred
as 'trial court') has convicted the appellants
under Sections 447, 302/34, 394 IPC and
sentenced them as under:-

(I) to undergo 3 months rigorous
imprisonment under Section 447 IPC;

(II) to undergo life imprisonment
under Section 302/34 IPC; and

(III) to undergo 7 years rigorous
imprisonment under Section 394 IPC. All
the
sentences
were
directed
to
run
concurrently.

3. The factual matrix of the case is that
upon an incident having taken place in the
midnight of 19/20.1.1981, wherein Saroj,
the wife of PW-1 Ram Adhar had died, a
First Information Report was got lodged on
20.1.1981 at 11:15 AM by Ramadhar
Singh. The case as has been taken in FIR is
that while Ramadhar Singh and his wife
were asleep in their house on the first floor
in the midnight of 19/20.1.1981, four
miscreants entered the house. In the FIR, a
complete detail has been given as to who
and where people were sleeping on the
ground floor. It has been stated that the
mother of the first informant Smt. Bilasiya
and his sister Shyama Bai were sleeping in
the eastern side of the ground floor and
when there was some noise from the roof
of the first floor, then the mother and wife
of the first informant woke up. When the
wife of the first informant reached the place
from where the noise was coming, the four
miscreants, who were carrying firearms,
fired upon the neck of the deceased and the
deceased, who was wife of the first
informant fell down on the empty cot,
which was lying over there. Upon her
falling down, one of the miscreants took
out from the neck of his wife a piece of
jewellery (panch moharo ka gajra, sone ka).
After the incident had taken place, PW-1
Ramadhar ran towards the miscreants and
tried to catch hold of them and when he had
caught hold of one of the miscreants, the
others, with the butts of their guns started
beating the PW-1. However, upon a hue
12 All. Jageshwar Singh & Ors. Vs. State of U.P.
795
and cry being raised by the first informant,
his two brothers namely, Moti Lal Singh
and Heera Lal Singh came armed with their
guns and started firing upon the miscreants.
When the guns were fired, upon hearing the
sounds of the firearms, Ramraj Singh and
Valle Singh also came with their validly
licensed guns. Upon this, the miscreants
jumped out from the eastern side of the
house. While they were running away, the
two brothers
of
the
first
informant
alongwith Valle Singh and Ramraj Singh
and others, who had assembled at the place
of incident saw them running away.
However, since the miscreants were firing
upon the collected crowd, no one dared to
further run towards them and catch hold of
them. It has further been stated in the FIR
that the miscreants had covered their faces
with a piece of cloth (angauchha). In the
scuffle which followed the firing, the three
persons who had covered their faces with
the pieces of cloths, could not hold their
coverings back and the coverings fell away
and,
therefore,
the
first
informant
recognized them as Jageshwar Singh, son
of Prahlad Singh, Vichitra Singh son of
Baijnath Singh and Sriman, son of
Jageshwar Singh. He has stated that he
recognized the three miscreants fairly well
in the light which was coming out from the
lantern and the moon light. He has stated
that his brothers had also recognized the
three miscreants while they were running
away. They were seen by the brothers and
the others, who were collected at the place
of incident in the lights of torches and in
the moon light. The fourth miscreant whom
the first informant had not recognized, had
been described as a young man with an
average built wearing dhoti, kurta and
sadri. He has stated that if he was brought
before him, he would recognize him. Still
further, it has been stated that the wife of
the first informant upon falling on the cot,
had immediately died and that her dead
body was lying on the cot. He has also
stated about his injury in the FIR and has
stated that on the right side of his face,
there were injuries. He has also given the
value of the ornament, which was stolen
away. He has still further given the reason
for not having lodged the FIR immediately
at the time of the incident. Upon the FIR
having been lodged, the police got into
action and reached the spot and took into
its custody the lantern and a recovery
memo with regard to which was prepared
as Exhibit Ka-2. The other ornaments,
which the deceased was wearing were also
taken into custody and their recovery
memo was prepared as Exhibit Ka-3. The
torch was also shown to the police and was
given back to the persons who had shown
them as the Supurdgars of the torches.
However, recovery memo of it was
prepared as Exhibit Ka-4. The plain soil
and the blood stained soil were also taken into
custody, the memo of which was prepared and
exhibited as Exhibit Ka-15. The PW-1 first
informant got his injuries treated by Dr. K.L.
Agarwal and the medical report was exhibited
as Exhibit Ka-17. Upon the police having
come, panchayatnama was got prepared. The
preparation of the panchayatnama commenced
at 4:15 PM on 20.1.1981 and concluded at 5:45
PM. Thereafter, the dead body was sent for
postmortem and the postmortem was conducted
on 21.1.1981 at 3:00 PM. Upon the
investigation having been completed, the police
submitted its report and when the Court took
cognizance, it framed charges under Sections
460, 302 read with Sections 34, 404, 394 IPC
on 29.5.1981 against the three named accused
persons namely, Jageshwar Singh, Vichitra
Singh and Man Singh.

4. From the side of prosecution as
many as seven prosecution witnesses were
examined. PW-1 is the first informant and
796 INDIAN LAW REPORTS ALLAHABAD SERIES
the husband of the deceased. He has in his
examination-in-chief narrated the facts as
were reported in the FIR. He had stated that
he had four brothers, known by the names
of Heera Singh, Moti Singh, Ram Gopal
Singh and Chhotey Lal. He had also stated
that the name of his mother was Bilasiya
and the name of his sister was Shyama Bai.
The name of the wife of his brother Heera
Singh was Smt. Mullan. In the statementin-chief, he has also stated that the scribe of
the FIR was one Binda Singh. Upon crossexamination,
he
has
given
various
information with regard to various cases,
which were pending between the first
informant's
family
and
the
accused
persons. He had stated that Shyam Lal, who
was real brother of Jageshwar Singh was
also an accused in the murder of the uncle
of the first informant namely, Jageshwar @
Jaggu. He had further stated that even
Vichitra Singh, who was an accused in the
instant case and was real brother of
Jageshwar Singh was an accused in the
murder case of Jageshwar @ Jaggu, the
uncle of the first informant.

5. He has also stated that Sriman, the
accused in the instant case, was the son of
the Jageshwar Singh who was the accused
in the murder case of Jageshwar @ Jaggu.
He has thereafter also informed the Court
that all the accused in the murder case of
Jageshwar @ Jaggu had been acquitted. He
has informed the Court that after the
incident had taken place, the crowd which
had collected at the place of incident had
not told the first informant the names of the
persons whom they had seen jumping from
the eastern side of the house. The next
litigation which, he had informed, was
being contested between his family and the
family of the accused persons, was that
between Kallu and his own father, where
there was a case with regard to land and he
had stated that Vichitra Singh, one of the
accused, was a witness against his father in
that case and thereafter Kallu had won the
case. The other case which he had informed
of was where one Jagdish Singh son of
Ram Avtar had been murdered in the
village and in that case the younger
brothers of the first informant Chhota
Singh, Moti Lal Singh and another villager
Bale Singh, his brother Gyan Prasad and
his brother-in-law Satya Narayan were
accused. They were all convicted and
appeal had been filed against the conviction
order. He has stated that Bale Singh who
had been convicted in the murder of
Jagdish was the prosecution witness in the
instant case as well. He has thereafter also
narrated that alongwith all the other
accused in the murder of Jagdish Singh,
Vichitra Singh and Jageshwar Singh were
also accused in that case, but they had been
acquitted.

6. After having narrated about a few
other civil litigations, it had been brought
to the notice of the Court by the learned
counsel that certain evidence which was led
by Moti Lal, the real brother of the first
informant in the case of Rukmin Vs. Sadhu
was also brought to the notice of the court
in Original Suit No.1 of 1978 and in that
case he had stated that Jamuniya, the
widow of Sadhu, had willed her property to
Sriman Singh and Rukmin the real sister of
Sadhu Singh had contested the case against
Sriman Singh (accused of this case) and
had challenged the will.

7. Learned counsel has, therefore,
submitted that when Moti Lal, the brother
of the first informant had led his oral
evidence in the above case, then there was
enmity between Sriman Singh the accused
(in the instant case) and the informants side
and and therefore, the accused had been
12 All. Jageshwar Singh & Ors. Vs. State of U.P.
797
named by the first informant in the instant
FIR.

8. Upon being asked as to whether
there was any other literate person in the
family of the first informant, the first
informant had informed that Hira Lal was a
Lekhpal and that he was educated upto
class 8th and that he was always visiting
the house of the first informant. However,
since he was not there on the date of
incident, therefore, he had not got the
report scribed by him. He has also stated
that as everybody in the family was
grieving, the report was not got scribed by
Hira Singh. Upon a pointed question being
asked as to why the FIR was got lodged
very belatedly, PW1 had stated that the
police station was around 13 miles away
and that primarily was the reason for the
delayed FIR. He denied the fact that the
mulling over of various names as to who all
could be implicated, was not the reason for
the delay. Upon another pointed question
being asked as to why other jewellery
which his wife was wearing was not taken
away, he had stated that the dacoits had
only taken the jewellery which was there in
the neck of the deceased and the other
jewellery was not touched by them.

9. PW-2 Moti Lal, the brother of the
first informant, had also given more or less
the same sequence of events as was given
by the first informant. He had also
reiterated in his cross-examination the fact
that there was enmity between the family of
the first informant and the various accused
persons. He had very categorically stated
that he had no knowledge before the FIR
was lodged as to who were the persons to
be made accused in the case. He has stated
that the moment Ram Adhar Singh had
fallen down, the accused persons had fled
away from the place or occurrence.

10. PW-3 Ram Raj Singh, was the son
of Balwant and uncle of the first informant,
and he was thus the cousin of the first
informant. In his examination in chief, he
has chiefly informed that he had seen the
incident in torch light and that he had in the
Court also got the torch which he could
also submit in the court. Upon being asked
as to where he was standing at the time of
the incident, he had stated that he had
informed the Darogaji, the Investigating
Officer, about the place where he was
standing and if that place was not provided
in the site plan then he did not know the
reason for that. He had however, spoken
something which was against what the PW1 had spoken and that was that he had seen
the faces of the accused which were not
covered and that they were only having a
piece of cloth for covering, which was
insufficient.

11. PW-4 is Bale Singh, a villager
who had also reached the place of incident
armed with his licensed gun. He has also
stated that he had seen the four persons
jumping down from the eastern side of the
house of Ram Adhar. He has, however,
stated that Ram Adhar was lying in an
unconscious state in his house. In the crossexamination, he has also divulged all the
litigations which were pending between the
families of the first informant and the
accused
persons.
He
has,
however,
consistently stated that the first informant
Ram Adhar was lying in an unconscious
state when he had reached the house.

12. PW-5 is Munnu Singh, Head
Constable who had proven the chik FIR
and the entries of the general diary.

13. The Investigating Officer Sri
Manni Lal Mishra was produced as PW
No.6 and he has stated the manner in which
798 INDIAN LAW REPORTS ALLAHABAD SERIES
the investigation had taken place. He had
very categorically stated that nowhere at
the place of incident was any wad or empty
cartridges etc. found. He has denied the fact
that there were any manipulation with the
FIR or with the Panchayatnama. Upon a
question being asked as to whether Moti
Lal, the brother of the first informant had
shown the empty cartridges and the wad
which had fallen down as a result of the
firing which he had done, he had stated that
though these objects were shown to him,
but he had not taken them in to his
possession.

14. PW-7 is a doctor, who had
conducted the medical examination on the
PW-1. He had also done the postmortem of
the deceased Smt. Saroj. He has proven the
medical report and the postmortem report.

15. Upon the conclusion of the
testimonies which were recorded of the
prosecution witnesses, the statements of
three accused were recorded under Section
313 Cr.P.C. When the judgment and order
dated 20.12.1983 was delivered by the trial
court, the instant Criminal Appeal was
filed. During the pendency of the criminal
appeal two of the appellants namely
Jageshwar Singh and Vichitra Singh had
died and, therefore, the appeal vis-a-vis
appellant No.1 Jageshwar Singh and
appellant No.2 Vichitra Singh stood abated.
The appeal was only argued vis-a-vis
appellant No.3 Sriman Singh by Sri M.P.
Yadav, Advocate.

16. Learned counsel for the appellants
has stated that if the allegations made in the
FIR are perused it would be clear that the
three
named
accused
persons
namely
Jageshwar Singh, Vichitra Singh and Sriman
Singh had covered their faces with pieces of
cloths and, therefore, initially the PW-1 had
not been able to recognize them but when the
PW-1 had entered into a scuffle with them,
the pieces of clothes which were covering the
faces of the three accused persons had come
off and he had recognized them as Jageshwar
Singh, Vichitra Singh and Sriman Singh.

17. Learned counsel for the appellants
states that the fact of the matter was that
certain complete outsiders had entered the
house of the first informant for committing
robbery etc. and that the first informant had
not been able to recognize them at all but
after the completion of incident, he had
thought it best that the incident be not wasted
away and that it be used against his enemies
who were contesting various cases with his
family
and,
therefore
the
names
of
Jageshwar, Vichitra Singh and Sriman Singh
were introduced in the case.

18. Learned counsel for the appellant has
relied upon the statements which were made a
part of the evidence and has stated that since
Moti Lal, the brother of the first informant had
given evidence against Sriman Singh in the Civil
Case No. 1 of 1978 (Rukmin Vs. Sadhu) and
because Ramraj had appeared in the witness box
and had testified against the accused Sriman
Singh, there was a definite enmity between the
families of the first informant and the accused
persons and, therefore, they were falsely
implicated in the case.

19. Learned counsel for the appellants
states that in the cross-examinations PW-1
and PW-2 had very truthfully come up with
the answers that there were other criminal
and civil cases pending between the parties
and that, he submits, must have been a
definite reason for the false implication of
the accused persons.

20. Learned counsel for the appellants
has further stated that the source of light
12 All. Jageshwar Singh & Ors. Vs. State of U.P.
799
had not been categorically mentioned by
the prosecution. He submits that the torch
and lantern which had been mentioned by
the prosecution had nowhere been taken
into custody by the police and, therefore,
the entire case of the prosecution became
baseless in the absence of any light. In this
regard, learned counsel for the appellants
has relied upon the judgment of this Court
in Manzoor vs State Of Uttar Pradesh
reported in AIR 1983 SC 295. Learned
counsel for the appellants specifically
relied upon paragraph No.12 of the
judgment and submits that when torches
etc. had not been produced in the evidence,
the Investigating Officer could not simply
say that he had seen the torches and had
returned them back to the persons who had
shown the torches, would not be taken as a
proper evidence. The exact portion of
paragraph No.12, which is relevant for the
case is being reproduced here as under:-

"12. There is then the evidence of P.Ws. 1
and 2, the home-guards of whom only P.W.
2 had identified the appellants in the
identification parade held on 17.11.1978.
The four home-guards including P.Ws. 1
and 2 are stated to have flashed their torch
lights and to have seen the two persons
running away from the scene of occurrence
after they had heard the alarm of the
injured Gul Bahar near the railway line.
The torches have not been produced in
evidence, and the investigating officer P.W.
12 would say in his evidence that he saw
those torches 30 and returned them to the
home-guards. It is not known why the
investigating officer P.W. 12 thought it fit
to return the torches with the aid of which
the home-guards are stated to have seen
the two persons running away from the
scene of occurrence though that will be a
relevant piece of material evidence in the
case. P.W. 12 has stated that after
recording the statement (Ex. Ka. 11) of the
deceased Gul Bahar at the District
hospital, Saharanpur he went to the mela
and recorded the statements of the four
home-guards."

21. Learned counsel for the appellants
further relied upon the judgment of this
Court in Bhup Singh Vs. State of U.P.
reported in 2014 SCC Online ALL 11723
wherein
he
specifically
relies
upon
paragraph No.19 and the same is being
reproduced here as under :-

"....19. As discussed above, non
production of torch in the court also creates
a doubt regarding truthfulness of the
statements of the witnesses that they had
recognized the accused persons in the torch
light. In this regard, the Hon'ble Supreme
Court in the case of Manzoor v. State of
Uttar Pradesh, AIR 1983 Supreme Court
295 held that the accused persons were
identified by the witnesses in torch light but
the torch was not produced in court, the
Hon'ble Apex Court held that torch has not
been
produced
in
evidence
and
Investigating Officer PW-12 says in his
evidence that he saw those torches and
returned them to Home guards. It is not
known why the Investigating Officer PW12 thought it fit to return the torch with the
help of which the Home Guards are said to
have seen the persons running away from
the scene of occurrence though it was a
relevant piece of evidence."

22. Learned counsel for the appellants
stated that it was highly improbable that
one person i.e. PW-1 had a scuffle with
four able-bodied persons who had come to
the house of the PW-1 to commit robbery
etc. He submits that no person in his senses
would have indulged in the scuffle as had
been stated by the PW-1, specially when
800 INDIAN LAW REPORTS ALLAHABAD SERIES
the four accused persons were carrying
firearms.

23. Learned counsel for the appellants
also states that there is no evidence with
regard to firing having been done from
either side as no empty cartridge or wad
etc. were found at the place of incident.

24. Learned counsel for the appellants
further stated that despite the fact that the
brother of the first informant was a Lekhpal
and was a literate person, he was not asked
to scribe the FIR but one Binda Singh had
got the FIR scribed and he was also not
produced in the witness box.

25. Learned counsel for the appellants
states that if the statements of PW-2 and
PW-3 are seen, it would become clear that
before the FIR was lodged, they had not
mentioned about any name of any person
whom they had seen during the incident.
Learned
counsel
for
the
appellants,
therefore,
submits
that
only
after
thoroughly thinking out as to who was to
be made an accused, the FIR was lodged.

26. Learned counsel for the appellants
further has
stated that there was a
contradiction in the sense that the PW-3
Ramraj Singh had at Page 62 of the paper
book stated that he had seen the persons who
had entered the house of PW-1 but he had
stated that their faces were not covered. This
was in direct contradiction to what the PW-1
had stated that all the faces of the accused
persons were initially covered but the faces
could be seen after there was a scuffle
between the first informant and the accused
persons and the pieces of clothes which were
covering their faces had been removed.

27. Still further, learned counsel for
the appellants states that if the statement of
Bale Singh is seen then there was again a
contradiction because all the witnesses had
stated that PW-1 was fighting with the
accused persons straight and erect, but PW4 had stated that he had seen the PW-1 in a
fainted state.

28. In effect learned counsel for the
appellant states that pre-existing enmity
was the reason for including the names of
the accused persons in the FIR and that in
fact they were not there on the spot and
they were wrongly implicated in the case.

29. Learned AGA, however, in reply
has submitted that the eye-witnesses could
not be lightly brushed-aside and the
testimony of the eye-witnesses had to be
minutely looked into and minor aberrations
could be brushed-aside. He submits that
PW-1 was not an ordinary eye-witnesses
but he was also an injured eye-witnesses
and the testimony of an injured eye-witness
could not be brushed-aside lightly.

30. Having heard the learned counsel
for the appellant Sri M.P. Yadav and the
learned AGA Sri Rahul Asthana, we do
find that there were various civil and
criminal cases which were either undergone
between the parties or were pending on the
date of incident in various courts and,
therefore,
the
PW-1
was
throughout
knowing the names of the three accused
persons, whom he had named in the FIR.

31. We are also of the view that when
the incident had occurred and three young
able bodied persons had entered the house
with their faces covered and were also
carrying fire arms, then the PW-1 would
not have the audacity to have a scuffle with
them and get the clothes, by which they
were covering their faces, removed and
thereafter recognize them. This appears to
12 All. Shiv Sharan & Anr. Vs. State of U.P. & Anr.
801
be a story which could not be believed at
all. Further, we are of the view that when
the incident had occurred and a full-fledged
investigation had taken place and when no
remnants of the firing were found, then also
we are of the view that something fishy
was there with regard to the prosecution
story.
Also,
relying
upon
the
two
judgments which had been cited by the
learned counsel for the appellants, we are
of the view that if the source of light
namely torches and lanterns were shown to
the police and the investigating agency,
then the non-preparation of the inventories
of the torches and lantern and the fact that
they were not taken into custody, would go
against the prosecution.

32. We, thus, for all the reasons stated
above are of the view that the prosecution
had not been able to prove the charges
beyond reasonable doubt against the
accused persons. The appellants Jageshwar
Singh and Vichitra Singh have already died
and the appeal against them stood abated.
The appeal vis-a-vis Sriman Singh stands
allowed.
The
judgment
and
order
20.12.1983 is set-aside. The appeal is thus
allowed vis-a-vis Sriman Singh.

33. The appellant Sriman Singh, after
non-bailable warrants were issued against
him, is in jail. He be released forthwith if
he is not required in any other case.
----------
(2024) 12 ILRA 801
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.12.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 8535 of 2022
With
Criminal Appeal No. 7952 of 2022

Shiv Sharan & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Ghan
Shyam
Das,
Prakhar
Saran
Srivastava, Rahdey Shyam Yadav, Rajiv
Lochan Shukla

Counsel for the Respondents:
Dur Vijay Singh, G.A.

(A)
Criminal
Law
-
Appeal
against
conviction and sentence by trial court in a
case based on circumstantial evidence -
Indian
Penal
Code,
1860
-
Section
302/149 , 147, 201 & 364 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(2)(v) -
Last seen - Chain of circumstances -
Inconclusiveness
of
evidence
-
Inadequacy of Evidence in Circumstantial
Cases
-
In
cases
relying
solely
on
circumstantial evidence, the prosecution
must
establish
a
complete
chain
of
circumstances leading to the conclusion of
guilt beyond any reasonable doubt -
Merely on the strength of evidence of last
seen the chain of circumstances required
to be proved in a case of circumstantial
evidence,
would
not
be
sufficiently
connected.(Para - 25,27)

Informant's nephew (Ram Niwas) was taken on
17.11.2003 by accused - did not return -
Recovery of clothes and shoes was made on
accused's pointing - no disclosure statement or
recovery memo prepared in presence of
independent persons - Evidence on record not
carefully examined by trial Court nor inherent
flaws in the evidence of PW-1 - noticed an
inadequacacies in the evidence of recovery -
Relevant aspects have not been factored in
while convicting the accused persons - trial
court convicted accused based on circumstantial
evidence. (Paras - 3,4, 8,20,26,31)