# Kamal Singh v. State of U.P

- **Citation:** (2023) 5 ILRA 1319
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-09
- **Case number:** Criminal Appeal No. 1496 of 1995
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-singh-v-state-of-u-p-50175
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code,1860
- Section 307-conviction- 3 years of
rigorous imprisonment- informant submitted
a written report -he was witness in a case
relating to murder of Sohan singh-accused
threatened him -two gun shots fired at the
informant and on the chest of Rohan Singhmere use of lethal weapon is sufficient to
invoke
the
provision
of
sec.
307-not
necessary that attack should result in an
injury-prosecution proved beyond reasonable
doubt the charge u/s 307 IPC-more than 32
years have passed since the offence was
committed-no criminal history produced by
prosecution-punishment
reduced
to
two
years rigorous imprisonment.
Appeal partly allowed. (E-9)

List of Cases cited:

## Text

5 All. Kamal Singh Vs. State of U.P.
1319

5. He shall produce the vehicle
either before the Court or before such other
authorities as the Court may direct.

6. He will not transfer the vehicle
to anybody else nor possession of the same
be parted with until disposal of the case.

7. He shall not allow the vehicle
to be used in the commission of any
offence.
----------
(2023) 5 ILRA 1319
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.05.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1496 of 1995

Kamal Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Mahesh Kumar Kuntal, Sri R. Bhargava

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code,1860
- Section 307-conviction- 3 years of
rigorous imprisonment- informant submitted
a written report -he was witness in a case
relating to murder of Sohan singh-accused
threatened him -two gun shots fired at the
informant and on the chest of Rohan Singhmere use of lethal weapon is sufficient to
invoke
the
provision
of
sec.
307-not
necessary that attack should result in an
injury-prosecution proved beyond reasonable
doubt the charge u/s 307 IPC-more than 32
years have passed since the offence was
committed-no criminal history produced by
prosecution-punishment
reduced
to
two
years rigorous imprisonment.
Appeal partly allowed. (E-9)

List of Cases cited:

1. Chimanbhai Jagabhai Patel Vs St. of Guj.,
(2009) 11 SCC 273

2. St. of Maharashtra Vs Kashirao, (2003) 10
SCC 434,

3. Prakash Chandra Yadav Vs St. of Bihar,
(2007) 13 SCC 134

4. St. of M.P. Vs Kedar Yadav, 2011 (1) SCC (Cri)
108

5. Ranjeet Kumar Ram Vs St. of Bihar, 2015 SCC
OnLine SC 500

6. Ram Bali Vs St. of U.P., AIR 2004 SC 2329

7. Dayal Singh & anr. Vs St. of Uttaranchal,
(2012) 8 SCC 263

(Delivered by Hon'ble Surendra Singh-I, J.)

1. This criminal appeal has been
instituted against the judgment and order
dated 02.09.1995 passed by the VI
Additional Sessions Judge, Mathura in
Sessions Trial No. 94 of 1992 (State vs.
Ratan Singh & others) arising out of Case
Crime No.138 of 1990, under Sections 307
& 506 IPC Police station Farah, District
Mathura. By the impugned judgment and
order the trial court convicted appellant
Kamal Singh under Section 307 IPC and
sentenced him to three years rigorous
imprisonment. He was acquitted of the
charge under section 506 IPC.

2. The prosecution story in brief is
that informant Shiv Singh s/o Than Singh
r/o Mahuan, Police Station Farah submitted
a written report dated 21.07.1990 in Police
Station Farah, Mathura to the effect that he
is a witness in the case relating to murder
of Sohan Singh. On account of which
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
residents of his village accused Ratan singh
s/o Pyare, Kamal Singh and Bharat Singh
both sons of Ratan Singh have enmity with
him. They have threatened him that if he
gives evidence against them, he will be
killed.
In
the
intervening
night
of
20/21.07.1990 at about 12:00 pm, on the
terrace of Rohan Singh s/o Jyoti of his
village, informant Shiv Singh was having
conversation with Rohan Singh. The
above-mentioned accused came on the
terrace and threatened him that he should
desist from giving evidence against them
otherwise he will repent later on. Informant
Shiv Singh told them that he will give
evidence of the facts which he has seen.
Hearing this, accused Ratan Singh exhorted
his sons Kamal Singh and Bharat Singh to
kill the informant by firing. On his
exhortation, appellant Kamal Singh and
Bharat Singh with the intention of causing
death, fired two gun shots on the informant.
The pellets from the bullet hit near the eyes
of the informant Shiv Singh and on the
chest of Rohan Singh. On alarm being
raised by the informant and Rohan Singh,
villagers Ram Hans s/o Netram, Soran s/o
Nathiya, Man Singh s/o Ram Khiladi and
Balram s/o Khachera reached at the place
of occurrence. Accused ran away from the
spot threating the informant that today his
life has been spared but on some-other day
they will kill him.

3. Informant, Shiv Singh submitted
his written report (Exhibit Ka-1) on
21.07.1990 at 06:15 am at Police Station
Farah by which Case Crime No.138 of
1990 was registered under Section 307 and
506 IPC. The chick FIR is Exhibit Ka-4.

4. Injured Rohan Singh and Shiv
Singh
were
medically
examined
on
21.07.1990 at 8:00 am and 08:30 am
respectively by Dr. G.S. Awasthi in
Primary Health Centre, Farah, Mathura.
According to the injury report (Exhibit Ka6), the following injuries were found on the
person of Shiv Singh :

"1. Multiple abrasions of firearm
on right side of face scattered, oval in
shape size, 0.5 cm X 0.5 cm red in colour.
Blackening is present, 3.5 cms above, from
right angle of mouth.

2. Firearm abrasion on right side
of forehead 0.5 cm X 0.5 cm, red in colour,
oval in shape. Blackening is present, 1.5
cm above from right eyebrow."

In the opinion of the doctor,
injury nos. 1 and 2 were caused by friction.
Injury was simple in nature, duration about
half day old. Injuries could be caused by
firearm.

5. According to the injury report
(Exhibit ka-7), the following injuries were
found on the person of Rohan Singh :

" 1. Gun shot lacerated wound on
right side, upper part of chest, oval in
shape, size 0.5 cm X 0.5 cm X muscle deep.
Blackening is present. Clotted blood
around the injury, 3 cm away from medial
end of collar bone, red in colour, present."

In the opinion of the medical
officer, the injury has been caused by blunt
object and is simple in nature, duration
about half day old. Injuries could be caused
by fire arm.

6. T he investigation of the case was
done by S.I. Kishan Singh, who visited the
place of occurrence and prepared site plan
(Exhibit Ka-2), recorded statements of
witnesses and after investigation submitted
charge-sheet under Sections 307 and 506
5 All. Kamal Singh Vs. State of U.P.
1321
IPC (Exhibit Ka-3) against accused Ratan
Singh, Bharat Singh and Kamal Singh.

7. After committal of the case, on
03.07.1992 the Court framed charge under
Sections 307/34 and 506 I.P.C. against
accused Ratan Singh, Kamal Singh and
Bharat Singh, who denied the charge and
claimed trial.

8. During trial, accused Bharat Singh
died and criminal case has been abated
against him.

9. To prove the charge against the
accused persons, the prosecution examined
P.W.-1 Shiv Singh, P.W.-2 Rohan Singh,
P.W.-3 Ram Hans and P.W.-4 Soran as
witnesses of facts, who have deposed
regarding the occurrence. The prosecution
has also examined P.W.-5, Investigating
Officer S.I. Kishan Singh and P.W.-6
Medical Officer, Dr. G.S. Awasthi as
formal witnesses.

10. P.W.-1 Shiv Singh has proved his
written report (Exhibit Ka-1), Investigating
Officer S.I. Kishan Singh (PW-5) proved
the Chick FIR (Exhibit Ka-4), site plan
(Exhibit
Ka-2)
and
the
charge-sheet
(Exhibit Ka-3).

11. On 22.06.1994 the Court recorded
the statement of the accused under Section
313 Cr.P.C. They have denied the charge
stating that the witnesses are giving false
evidence against them. They have also
stated that the injured have got forged
medical report prepared and wrong chargesheet has been submitted against them. The
accused have further stated that due to
village politics they were falsely implicated
in a murder case which was earlier lodged
against unknown accused. They did not
produce any evidence in their defence.

12. It has been argued by learned
counsel for the accused-appellant that
according to the prosecution version the
incident took place on 20/21.07.1990 at 12
o'clock at night but no source of light is
stated in the written report and the
Investigating Officer has not shown source
of light in his site plan. Therefore, it is not
possible for the witnesses to recognize the
appellant-accused in the dark night. It has
also been argued on behalf of the appellantaccused that according to the prosecution
case, the accused-appellant Kamal Singh
and
co-accused
Bharat
Singh
(since
deceased) used firearm and caused injury to
Shiv Singh and Rohan Singh but according
to the injury report of Rohan Singh, the
doctor has opined that the injury was
caused by blunt object and is simple in
nature. There is no supplementary medical
report or x-ray report, therefore, firearm
injury is not proved. It has also been
submitted that the police has not recovered
from the place of occurrence empty
cartridge or any other article related to the
incident. No weapon or other article was
recovered from the possession or the
pointing
out
of
the
appellant.
The
Investigating Officer has also not recovered
blood stained soil or plain soil from the
place of occurrence. Therefore, merely on
the basis of oral evidence charge against
the accused is not proved.

13. Per contra, it has been argued by
learned A.G.A. for the state that the injury
report of both injured PW-1 Shiv Singh and
PW-2 Rohan Singh clearly mentions
firearm injuries on their person. The
opinion of the doctor regarding nature of
injuries is not conducive and not binding on
the Court. No benefit to the accused
appellant can be granted merely due to
default on the part of Investigating Officer
in not seizing/recovering weapons of
1322 INDIAN LAW REPORTS ALLAHABAD SERIES
offence,
Katta
and
used or
unused
cartridges from the custody of accusedappellant or from the place of occurrence.

14. I have heard Shri Mahesh Kumar
Kuntal, learned counsel for the appellant,
learned A.G.A. For the State and perused
the record.

15. The definition of attempt to
murder and punishment therefor has been
provided under Section 307 I.P.C. In the
case of Chimanbhai Jagabhai Patel vs.
State of Gujarat, (2009) 11 SCC 273
considering the judgment in State of
Maharashtra vs. Kashirao, (2003) 10
SCC 434, the Apex Court has held that the
prosecution
has
to
prove
following
elements to constitute an offence under
Section 307 I.P.C.:

"20.....The essential ingredients
required to be proved in the case of an
offence under Section 307 are:

(i) that the death of a human
being was attempted;

(ii) that such death was attempted
to be caused by, or in consequence of the
act of the accused; and

(iii) that such act was done with
the intention of causing death; or that it
was done with the intention of causing such
bodily injury as : (a) the accused knew to
be likely to cause death; or (b) was
sufficient in the ordinary course of nature
to cause death, or that the accused
attempted to cause death by doing an act
known to him to be so imminently
dangerous that it must in all probability
cause (a) death, or (b) such bodily injury as
is likely to cause death, the accused having
no excuse for incurring the risk of causing
such death or injury."

16. To justify a conviction under this
Section, it is not essential that bodily injury
capable of causing death should have been
inflicted. Although the nature of injury
actually
caused
may
often
give
considerable assistance in coming to a
finding as to the intention of the accused,
such intention may also be deduced from
other circumstances, and may even, in
some cases, be ascertained without any
reference at all to actual wounds. It is not
necessary that the injury actually caused to
the victim of the assault should be
sufficient under ordinary circumstances to
cause the death of the person assaulted.
What the Court has to see is whether the
act, irrespective of its result, was done with
the intention or knowledge and under
circumstances mentioned in the section. An
attempt in order to be criminal need not be
the penultimate act. It is sufficient in law, if
there is present an intent coupled with some
over act in execution thereof. To bring a
case within the ambit of section 307, the
prosecution has to make out the facts and
circumstances envisaged by section 300. If
the ingredients of Section 300 are wholly
lacking, there can be no conviction under
Section 307. The ingredients of the Section
are (1) intention or knowledge relating to
commission of murder; and (2) the doing of
an act towards it.

17. Attempt mentioned in Section 307
I.P.C. is an intentional preparatory action
which fails in its object - which is so fails
through circumstances independent of the
person who seeks its accomplishments. In
Prakash Chandra Yadav vs. State of
Bihar, (2007) 13 SCC 134 the Apex Court
held:
5 All. Kamal Singh Vs. State of U.P.
1323

"Doing of an act with intention
or knowledge to cause death is a necessary
ingredient. Receipt of injury by the victim is
not a pre-requisite for conviction under the
first part of Section 307 I.P.C. The second
part is attracted when the victim receives
an injury."

18. The mere use of lethal weapon is
sufficient to invoke the provisions of
Section 307. It is not necessary to
constitute the offence that the attack should
result in an injury. An attempt is itself
sufficient if there is requisite intention. An
intention to murder can be gathered from
circumstances other than the existence or
nature of the injury.

19. In State of M.P. vs. Kedar
Yadav, 2011 (1) SCC (Cri) 108, the Apex
Court has held that:

"The section makes a distinction
between the act of the accused and its
result, if any. The Court has to see whether
the act, irrespective of its result, was done
with the intention or knowledge and under
circumstances mentioned in the Section.
Therefore, an accused charged under
Section 307 I.P.C., cannot be acquitted
merely because the injuries inflicted on the
victim were in nature of a simple hurt."

In the light of the law propounded
by the Apex Court, the evidence adduced
by the prosecution is to be analysed.

20. Informant injured PW-1 Shiv
Singh deposed in his evidence dated
27.11.1992 that the occurrence took place
about two years four months earlier. It was
12 p.m. night. He was having conversation
with Rohan Singh on his terrace. Accused
Kamal Singh, Ratan Singh and Bharat
Singh came on their terrace. Ratan Singh
threatened him not to give evidence in the
murder case of Sohan Singh, otherwise he
will have to repent later on. Shiv Singh
answered him that he will give correct
evidence what he has seen. Hearing this,
accused Ratan Singh asked his sons to kill
the informant, Shiv Singh. Acting on this,
accused Bharat Singh and Kamal Singh
with the intention to kill the informant,
fired two gun shots upon the informant,
which hit near the eyes of the informant
and on the chest of Rohan Singh. The
injured hid themselves and raised alarm, on
which Ram Hans, Soran, Maan Singh and
Balram of his village reached there,
thereupon accused threatened that today
you have managed to save yourself but on
the next occasion you will not be spared
and went back to their home. PW-1 Shiv
Singh proved one of the country made
pistol which was used in firing on them. He
also deposed regarding lodging of FIR and
also that injured were accompanied by the
police to PHC where their medical
examination was done.

21. PW-1 Shiv Singh deposed in his
cross-examination that house of Rohan
Singh is towards South of that of accused
Ratan Singh. There are three or four rooms
towards the east of Ratan Singh's house.
Towards South of the house of Ratan Singh
a Kharanja road is situated. Between the
house of Ratan Singh and kharanja road a
platform (chabutara) of 3-4 ft. width is
situated. Towards the South of kharanja 4-5
ft. width platform (chabutara) of Rohan is
situated.
After
Rohan's
platform
(chabutara), his house is situated which is
of 8 ft. width. At the time of firing, PW-1
Shiv Singh and Rohan were sitting on the
terrace of his house. P.W.-1 denied that
towards the South of Kotha his rooms are
situated. PW-1 denied that at the time of
firing they were sitting in the room. He
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that he had told the Investigating
Officer about the place where they were
sitting and that electric light was lit on in
the Kotha of Rohan. PW-1 stated that he
and Rohan were sitting in a bed on the
terrace of Kotha. After firing, blood was
spread on his clothes. The Investigating
Officer did not ask or took possession of
his blood stained clothes. PW-1 has also
deposed in his cross-examination that the
house of Ram Hans is adjacent to the place
of occurrence. He has also deposed in his
evidence that the motive of enmity between
him and the accused was the murder of his
son Sohan Singh. PW-1 has given the
reason for not lodging the FIR soon after
the occurrence. He said that due to fear of
the accused he could not lodge the FIR
instantly. He visited the police station in
the morning. PW-1 denied that the distance
between the house of Ratan Singh and the
place of occurrence is 50-60 ft.

22. Thus, informant injured PW-1 has
deposed in his evidence, the date, time,
place of occurrence and the presence of
injured Rohan Singh, Ram Hans and Soran
Singh at the place of occurrence. He also
proved the distance between the house of
Ratan Singh and the place of occurrence
which was about 15-20 ft. PW-1 has also
deposed about the participation of accused
and the manner of their causing injury to
him and Rohan Singh.

23. Injured PW-2 Rohan Singh has
deposed in his evidence dated 27.11.1992
that the occurrence took place about two
years and four months back at 12:00
o'clock night, while he was having
conversation with Shiv Singh on his
terrace. Ratan Singh threatened Shiv Singh
not to give evidence in Sohan Singh's
murder case and in case he gave evidence,
he will have to repent later on. Shiv Singh
told that he will given evidence what he has
seen, therefore, Ratan Singh exhorted his
sons to fire and kill Shiv Singh. On his
exhortation, Kamal Singh and Bharat Singh
fired upon Shiv Singh. The pellet from
their country made pistol hit near the eyes
of Shiv Singh and on his chest. PW-2 has
further deposed that on their raising alarm
Soran
Singh, Ram
Hans
and other
witnesses reached there. He deposed that at
about 6-6:30 am report was lodged in
police station concerned.

24. PW-2 has stated in his crossexamination that the distance between his
house and that of accused Ratan Singh is
about 15 ft. It was dark night but light was
on in his house and that in the house of
Shiv Singh. He has also deposed that he
informed the Investigating Officer about
the two firing shots done by the accused.
He has stated that blood from the wound fell
on the body as well as on the ground. He
stated in his cross-examination that the
witnesses reached immediately on the place
of occurrence. Rohan Singh has also deposed
that due to fear of the accused, they did not
immediately visit the police station for
lodging the FIR. PW-2 has emphatically
denied that distance between his house and
that of Ratan Singh is about 50-60 ft.

25. Thus, PW-2 injured Rohan Singh
has corroborated the evidence of PW-1
Shiv Singh regarding the time, place,
manner of occurrence, the participation of
accused in the incident and the firearm used
by them, injuries received by him and PW1 Shiv Singh, lodging of FIR after the
incident and his as well as Shiv Singh's
medical examination done in the PHC
Farah, Mathura.

26. P.W.-3 Ram Hans and PW-4
Soran reside adjoining the place of
5 All. Kamal Singh Vs. State of U.P.
1325
occurrence. Their presence at the place of
occurrence is proved by the evidence of
PW-1 Shiv Singh and PW-2 Rohan Singh.
PW-3 Ram Hans has stated in his evidence
that hearing the hue and cry raised by the
family members of injured Rohan Singh, he
reached at the place of occurrence. He has
stated in his evidence dated 05.12.1992 that
the occurrence took place about two years
four months ago at 12 o'clock at night. PW4 Soran was present there. He saw bullet
injuries below the eyes of Shiv Singh and
on the chest of Rohan Singh. When he
asked them about the injuries Rohan Singh
told him that appellant-accused Kamal and
co-accused Bharat (since deceased) had
fired on him. PW-3 Ram Hans has stated in
his evidence that electric light was lit on
the terrace and in the room of Rohan. PW-3
Ram
Hans
admitted
in
his
crossexamination that he had himself not seen
the accused firing at the injured Shiv Singh
and Rohan Singh. He reached there after
hearing the hue and cry of the family
members of Rohan. When he reached there,
Rohan, his wife, brother and children were
present on the terrace. Blood was spread
outside on the terrace of the room.

27. PW-4 Soran has also given
evidence regarding the date, time and place
of occurrence. PW-4 Soran has stated that
he awoke hearing the voice coming from
the house of Rohan and Shiv Singh. He
reached there after Ram Hans had reached
there. Shiv Singh and Rohan had received
injuries. Blood was oozing from the chest
of Rohan and from the forehead of Shiv
Singh. Both injured were telling persons
present there that appellant-accused Kamal
Singh and co-accused Bharat Singh had
caused them injuries by firing on them.
PW-4 stated that light was burning there.
He has stated in his cross-examination that
the Investigating Officer did not ask him
about presence of light at the place of
occurrence, therefore, he did not tell him
about the light lit there. PW-4 Soran stated
that when he reached on the place of
occurrence, the injured were on the terrace
and a khat (Cot) was lying there nearby on
the terrace.

28. Thus, PW-3 Ram Hans and PW-4
Soran by their evidence have corroborated
the evidence of PW-1 Shiv Singh and PW2 Rohan Singh regarding the date, time and
place of occurrence, participation of
accused, the manner of their causing injury
to PW-1 Shiv Singh and PW-2 Rohan
Singh, the lodging of FIR and medical
examination of injured Shiv Singh and
Rohan Singh in PHC Farah, Mathura. The
evidence of PW-1 Shiv Singh, PW-2 Rohan
Singh, PW-3 Ram Hans and PW-4 Soran is
cogent, truthful and reliable. Nothing
comes out in their cross-examination that
may raise doubt regarding the truthfulness
and reliability of their evidence.

29. A country made pistol is a lethal
weapon. Firearm injury caused by countrymade pistol may be fatal in nature.
Appellant-accused Kamal Singh and coaccused Bharat Singh on the exhortation of
their father Ratan Singh to kill Shiv Singh
and Rohan Singh fired on them with
country-made pistol causing them injury
one
on
their
forehead
and
chest,
respectively. Considering the facts and
circumstances of the case, weapon used in
causing injury and the part of body on
which injury was caused, it can be
concluded that appellant-accused Kamal
Singh with co-accused Bharat Singh fired
on injured Shiv Singh and Rohan Singh
with the intention to cause them to death.

30. Regarding the argument submitted
on
behalf
of
the
appellant-accused
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding alleged default/irregularity by the
Investigating
Officer
in
doing
the
investigation, it has been established by a
catena of judgments of Apex Court that
such default cannot be the basis of acquittal
and the accused will not get any benefit of
it, if case is proved by other oral and
documentary evidence.

31. The Apex Court in Ranjeet
Kumar Ram vs. State of Bihar, 2015
SCC OnLine SC 500 has held as under:

"21. It is well settled that in
criminal trials even if the investigation is
defective, the rest of the evidence must be
scrutinized independently of the impact of
the defects in the investigation otherwise
the criminal trial will plummet to the level
of the investigation. Criminal trials should
not be made casualties for any lapses
committed by the investigating officer.
In State of M.P. v. Mansingh, (2003) 10
SCC 414, it was held that even if there was
deficiencies in the investigation that cannot
be
a
ground
for
discrediting
the
prosecution version. The same view was
reiterated in Sheo Shankar Singh v. State of
Jharkhand, (2011)
3
SCC
654 and C.
Muniappan v. State of Tamil Nadu, (2010)
9 SCC 567."

32. In Ram Bali vs. State of U.P.,
AIR 2004 SC 2329 the Apex Court has
held as under :

"12. The investigation was also
stated to be defective since the gun was not
sent for forensic test. In the case of a
defective investigation the court has to be
circumspect in evaluating the evidence. But
it would not be right in acquitting an
accused person solely on account of the
defect; to do so would tantamount to
playing into the hands of the investigating
officer if the investigation is designedly
defective."

33. In Dayal Singh and another vs.
State of Uttaranchal, (2012) 8 SCC 263
the Apex Court has propounded as under:

"34. Where our criminal justice
system provides safeguards of fair trial and
innocent till proven guilty to an accused,
there it also contemplates that a criminal
trial is meant for doing justice to all, the
accused, the society and a fair chance to
prove to the prosecution. Then alone can
law and order be maintained. The courts
do not merely discharge the function to
ensure that no innocent man is punished,
but also that a guilty man does not escape.
Both are public duties of the Judge. During
the course of the trial, the learned
Presiding Judge is expected to work
objectively and in a correct perspective.
Where
the
prosecution
attempts
to
misdirect the trial on the basis of a
perfunctory
or
designedly
defective
investigation, there the Court is to be
deeply cautious and ensure that despite
such an attempt, the determinative process
is not subverted. For truly attaining this
object of a "fair trial", the Court should
leave no stone unturned to do justice and
protect the interest of the society as well."

34. PW-3 Ram Hans and PW-4
Soran, who reside adjoining to the place of
occurrence and whose presence at the time
of occurrence is proved by evidence of
PW-1 Shiv Singh and PW-2 Rohan Singh
have also corroborated the evidence of PW1 and PW-2 regarding the date, time, place
of occurrence, manner, participation of
accused, manner of their causing injury to
PW-1 and PW-2, lodging of the FIR and
medical examination of the injured Shiv
Singh and Rohan Singh in PHC, Farah,
5 All. Kamal Singh Vs. State of U.P.
1327
Mathura. The evidence of PW-1, PW-2,
PW-3 and PW-4 is cogent, truthful and
reliable. Nothing comes out in their crossexamination that may raise doubt regarding
the truthfulness and reliability of their
evidence.

35. The oral evidences of PW-1 Shiv
Singh, PW-2 Rohan Singh, PW-3 Ram
Hans
and
PW-4
Soran
have
been
corroborated by documentary evidence,
written report, chick FIR, injury report of
Shiv Singh and Rohan Singh, site plan and
charge sheet filed against the accused
Kamal Singh and Bharat Singh (since
deceased).

36. Considering the facts and
circumstances of the case in the light of the
law propounded by the Apex Court
regarding the defective investigation, the
argument advanced by learned counsel for
the appellant cannot be accepted and it is
accordingly rejected.

37. As regards the argument advanced
by learned counsel for the appellant that in
the injury report of the injured Rohan Singh
the doctor has opined that injury was
caused by hard and blunt object and is in
simple in nature, from the perusal of the
medical report it is seen that it further
mentions that "injuries could be caused by
firearm". Therefore, the argument of
learned counsel for the appellant does not
hold much ground. Apart from this,
Medical Officer PW-6 Dr. G.S. Awasthi
has stated in his evidence regarding Injury
No. 2 found on the person of Shiv Singh
and the injury found on the person of
Rohan Singh it is possible that it may be
caused on 20/21.07.1990 by firearm.

38. Considering the medical report
along with oral evidence of Medical
Officer P.W.-6, Dr. G.S. Awasthi the
arguments of the learned counsel for the
appellant on this point does not hold much
ground and is not accepted.

39. From the analysis of the oral and
documentary evidence on record it is
concluded that the prosecution has proved
beyond reasonable doubt that on the date,
time and place of occurrence the accusedappellant Kamal Singh with co-accused
with the intention to cause death, fired on
Shiv Singh and Rohan Singh causing fatal
injuries to them. The prosecution has
proved beyond reasonable doubt charge
under Section 307 I.P.C. against the
accused-appellant and the Trial Court has
rightly convicted the appellant-accused
under that section.

40. Learned counsel for the accusedappellant has also submitted that in case the
appeal is not allowed against conviction
then considering that incident took place
more than 32 years back in the year 1990
and that the appellant-accused has no
criminal antecedent to his credit or he has
not involved in any other criminal activity,
he may be released on probation.

41. Learned A.G.A. For the State has
opposed the prayer of the accused-appellant
being enlarged on probation and submitted
that the appellant has committed an offence
under
Section
307
I.P.C.
which
is
punishable
with
life
imprisonment,
therefore, he is not entitled to the benefit of
probation.

42. Considering the facts and
circumstances of the case and the fact that
the appellant-accused had asked injured
P.W.-1 Shiv Singh not to give evidence in a
case in which appellant-accused was
undergoing
trial
for
the
murder
of
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
informant's (P.W.1) son Sohan and when
informant Shiv Singh refused to do so, the
accused-appellant Kamal Singh with coaccused fired on Shiv Singh and Rohan
Singh by a country-made pistol causing
injuries to them on their vital parts. There is
no ground to release the appellant on
probation.

43. Considering the facts and
circumstances of the case, especially that
more than 32 years have passed since the
offence was committed and prosecution has
not produced any criminal history of the
appellant-accused, the period of sentence
awarded to appellant-accused is reduced
from three years to two years rigorous
imprisonment without modifying the fine
imposed on him. The criminal appeal is
partly allowed.

44. The appellant-accused will
surrender before the Trial Court concerned
within 30 days. The Trial Court shall take
him into custody and sent him to
appropriate jail for serving the sentence.
The period which the appellant-accused has
already undergone during investigation and
trial shall be set off according to the
provisions of Section 428 Cr.P.C. against
the sentence awarded to him.

45. Let a copy of this judgment along
with the trial court record be sent to the
court concerned for compliance.
----------
(2023) 5 ILRA 1328
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2023

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 2198 of 2018
Satta @ Satya Prakash ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
S.P.S.
Chauhan,
Smt.
Meenakshi
Chauhan

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860- Sections 377 - Section
5/6 Protection of Children from Sexual
Offences
Act-2012-
Challenge
toConviction- medical report and the
supplementary medical report prepared by
Dr. (PW-4), it is proved that the victim
sustained injuries - the statements of
PW-1 and PW-2 gets corroboration from
the medical report-the accused-appellant
was also medically examined wherein
'alcoholic smell was found present in his
breath' and he also sustained the injuries
but the injuries of the accused-appellant
have not been proved-The statement of
PW-2)
is
natural,
without
material
contradiction and inspires confidence-Her
statement gets corroboration from the
statement of PW-1and PW-3 and medical
reports- Thus, the learned lower court had
rightly
convicted
and
sentenced
the
accused-appellant.(Para 1 to 43)

B. It is for the accused to prove the
contrary that he has not committed or
abetted the commission of an offence
under sections 3, 5, 7, and section 9 of the
POCSO Act and, in case, he fails to do so,
presumption would operate against him
leading
to
his
conviction
under the
provision of the Act. It cannot be disputed
that no presumption is absolute and every
presumption is rebuttable. It cannot be
said that the presumption under Section
29 of the POCSO Act is absolute. It will
come
into
operation
only
when
prosecution is first able to establish the
fact and that would form the foundation of
the presumption under Section 29 of the