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

- **Citation:** Criminal Appeal No. 4639 of 2009
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-07
- **Case number:** Criminal Appeal No. 4639 of 2009
- **Bench:** Naheed Ara Moonis, Anil Kumar-Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaptan-singh-in-jail-v-state-of-u-p-46469
- **Pages:** 35

## Headnote

Criminal law- Indian Penal Code - Sections
302 and 148 - Appeal against conviction.

Held - Plea of alibi-must be proved with
absolute certainty. (para 66)
Minor Discrepancies - Can be ignored unless,
completely
incompatible
with
prosecution
version. (para 74)
Medical Evidence- Cannot over right medical
evidence ocular testimony. (para 106)
Lapses
During
Investigation-
Not
to
discredit prosecution version in case supporting
evidence is consistent and dependable. (para
127)
Relative Witnesses- The testimony cannot be
doubted in case of minor variation. (para 130)

Appeal rejected. (E-2)

List of Cases Cited:-

## Text

_Characters 0–39,835 of 121,322. This is a partial read: ask again with offset=39835 for what follows._

704 INDIAN LAW REPORTS ALLAHABAD SERIES
miscarriage of justice. We are shocked that
the trial remained pending for about 24
years as it has been concluded in 2009
whereby
the
accused
persons
were
convicted by the learned trial court in both
the sessions trial.

135. On the basis of verbose and
prolix discussions made above and after
going through the materials available on
record, we are of the considered opinion
that findings of conviction recorded by the
learned trial court are well substantiated
and the accused persons well appropriately
sentenced.
Therefore,
the
conviction
recorded by the trial Court against the
accused appellants, Mansha Ram, Phulwari
and
Nawab
Singh
under
Section
302/34,148 I.P.C. is hereby maintained and
affirmed.

136. The appeals are devoid of merit
and are accordingly dismissed.

137. Let a copy of this judgment and
order along with original record be
transmitted to the learned trial court for
information and compliance.

138. Judgment certified and be placed
on record.
----------
(2020)03-05ILR A704
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.02.2020

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE ANIL KUMAR-IX, J.

Criminal Appeal No. 4639 of 2009
Connected with
Criminal Appeal No. 4409 of 2009

Kaptan Singh ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajiv Gupta, Sri Dileep Kumar, Sri
Rajrshi Gupta, Sri M.B. Singh, Sri R.P.
Singh, Sri S.F.A. Naqvi, Sri Rizwan Ahmad

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

Criminal law- Indian Penal Code - Sections
302 and 148 - Appeal against conviction.

Held - Plea of alibi-must be proved with
absolute certainty. (para 66)
Minor Discrepancies - Can be ignored unless,
completely
incompatible
with
prosecution
version. (para 74)
Medical Evidence- Cannot over right medical
evidence ocular testimony. (para 106)
Lapses
During
Investigation-
Not
to
discredit prosecution version in case supporting
evidence is consistent and dependable. (para
127)
Relative Witnesses- The testimony cannot be
doubted in case of minor variation. (para 130)

Appeal rejected. (E-2)

List of Cases Cited:-

1. Mahavir Singh Vs.St. of MP, (2016) 1 SCC
(Cri.) 45,

2. Abdul Sayeed Vs.St.of M.P., (2010) 10 SCC
259,

3. Rana Pratap; Vs. St. of Har. (1983) 3 SCC
327,
4. St.of HP Vs. Jeet Singh 1999 (38) ACC 50 SC,

5. Nathuni Yadav & ors. Vs. St. of Bihar; 1997
(34) ACC 576 SC,

6. Ram Ghulam Chaudhary Vs. St. of Bihar;
2001 (43) ACC 929,

7. Nankaunoo Vs. St. of U.P.; 2016(1) SC Cr.R
237,

8. V.K. Mishra & anr. Vs. St. of Uttrakhand and
another;
2015(2)
SC
Cr.R,
3-5 All. Kaptan Singh Vs. State of U.P.
705
9. Appa Bhai & anr. Vs. St. of Guj.; 1988 (25)
ACC168 SC,

10. Karan Singh & ors. Vs. St.of MP, Judgement
Today 2003, Suppl. Vol. 2 SC 261,

11. Tahsildar Singh & anr. Vs. St. of UP, 1959
SCR Supl. (2) 875,

12. Binay Kumar Singh Vs. St. of Bihar, 1997
Vol. 1 SCC 283,

13. Bhagwan Singh Vs. St. of Punj., 1952 AIR
214,

14. Dalip Singh Vs.. St. of Punj. AIR 1953 SC
364,

15. Veer Singh & ors. Vs.. St. of U.P., (2014) 2
SCC 455.

(Delivered by Hon'ble Naheed Ara
Moonis, J.)

1. The appellants Kaptan Singh and
Deshraj have preferred the present appeals
bearing Criminal Appeal Nos.4639 of 2009
& 4404 of 2009 respectively against their
conviction in Sessions Trial No.129 of
1995. All the above named accused
appellants were convicted by the judgment
and order dated 22.7.2009 passed by the
learned Additional Sessions Judge, Court
No.2, Farrukhabad and each were directed
to undergo rigorous imprisonment for life
and also to pay fine of Rs.15,000/- under
Section 302 IPC and three years rigorous
imprisonment for the offence punishable
under Section 148 IPC. Both the sentences
were directed to run concurrently and in
case of default of payment of fine they
were further directed to undergo simple
imprisonment of six months.

2. The prosecution was launched
against seven accused persons, namely,
Atar Singh, Sughar Singh, Nawab Singh
(sons of Pyare Lal), Phulwari S/o Vijay,
Mansha Ram S/o Shankar, Kaptan Singh
and Deshraj (sons of Babu Ram) in
pursuance of the FIR lodged against them
by Bahaar Singh registered as Case Crime
No.158
of
1985,
under
Sections
147,148,149,302 IPC at police station
Kayamganj,
District
Farrukhabad
on
18.5.1985 at 6.50 P.M.

3. The Sessions Trial No.327 of 1989
pertains to the trial of accused persons,
namely, Atar Singh, Sughar Singh, Nawab
Singh, Mansha Ram and Phulwari. The
aforesaid trial of accused Sughar Singh was
separated at the fag end on his plea of
juvenility who was acquitted by the court
below.

4. The aforesaid accused persons,
namely, Atar Singh, Mansha Ram and
Phulwari as well as Nawab Singh have
preferred separate appeals bearing Criminal
Appeal No.4576 of 2009 & Criminal
Appeal No.4664 of 2009 against their
conviction in Sessions Trial No.327 of
1989.

5. The prosecution case in short
conspectus is that the First Information
Report was lodged on 18.5.1985 at 6.50
P.M. by Bahaar Singh S/o Ram Sahay in
respect of an incident occurred on the same
day at 4.30 P.M. which was registered as
Case Crime No.158 of 1985, under
Sections
147,148,149,302,201
IPC
at
police Kayamganj, District Farrukhabad.
He divulged in the FIR that his father Ram
Sahay
was
Pradhan
of
his
village
Lakhanpur for about 35 years. In the last
election, Chandrakali, the wife of Kaptan
Singh @ Kamta Prasad S/o Babu Ram
Yadav had contested election against his
father. His father had lost the election for
which a petition was filed which is
pending. About two & half years ago a
706 INDIAN LAW REPORTS ALLAHABAD SERIES
dacoity had been committed in the house of
Saudan Singh, who had named Atar Singh
S/o Pyarey Lal and Mansha Ram and two
others of which the case is pending. Besides
this, two years ago a case under Section 396
IPC was filed by Sohan Lal Nuner of village
Lakhanpur in which two persons were killed by
dacoits. In the said case, Mansha Ram, Atar
Singh and Deshraj, the brother of Kaptan Singh
were named in the FIR by Sohan Lal. Atar
Singh and Kaptan Singh were under the
impression that the complainant's father has
implicated them in the case of dacoity. About
two years ago, Kaptan Singh, Mansha Ram and
Atar Singh had fired upon his father and his
brother Tahar Singh with intent to kill them but
luckily they had escaped from there. In this case
all the three accused persons were challaned by
the police. On account of the above reasons,
Kaptan Singh and Atar Singh were bearing
enmity with his father. Two and half months
ago family member of Kaptan Singh was
murdered in the village in which Kali Charan
S/o Ram Naresh Yadav had filed a false report
against Vijayee and Mansha Ram along with
Tahar Singh who is the brother of the
complainant at the instance of Kaptan Singh
and on account of which, his brother is in jail.
After 2-4 days, the dead body of Nahar Singh,
the elder brother of Atar Singh was found in a
well in which Atar Singh had implicated the
complainant, his father, Nanhey, Rajendra,
Tejram etc. of his village in the case, on the
basis of mere suspicion that they had committed
murder of Nahar Singh. A case under Section
107 IPC was also filed by Kaptan Singh and
others, which is still continuing and on account
of these reasons Atar Singh and Kaptan Singh
were inimical with his father Ram Sahay.

6. Today (on 18.5.1985) in the evening at
about 4.30 P.M. his father Ram Sahay was
sitting on a cot on the platform situated in front
of his baithak. Atar Singh, his younger brother
Sughar Singh, elder brother Nawab Singh,
Phulwari and Mansha Ram of his village as
well as Kaptan Singh and Deshraj emerged out
from the house of Atar Singh and passed
through the baithak of Rajju and reached at the
platform. Atar Singh, Phulwari and Mansha
Ram were armed with rifle, Sughar Singh,
Kaptan Singh and Deshraj having double barrel
gun and Nawab Singh was armed with
countrymade pistol came over chabootra. As
soon as his father saw them he got up and tried
to run towards baithak, at this Atar Singh,
Mansha Ram and Kaptan Singh had fired upon
his father. After receiving gun shot injury his
father ran towards baithak and fell down there.
Sughar Singh, Nawab Singh and Phulwari went
behind him and entered in the baithak. There
too, they had again fired upon him. Atar Singh,
Mansha Ram and Kaptan Singh were firing
indiscriminately outside which had created
reign of terror. His father had succumbed to the
injuries in the baithak. All the accused persons
thereafter dragged the dead body of his father
from baithak and put him on the heap of wood
of Arhar kept in an open vacant land of Sahab
Singh. Atar Singh and Deshraj exerted that
"Sale Ko Jalakar Rakh Kar Do" (burn him
to ashes) and set the heap of wood of Arhar
on fire. Other persons put dry leaves
(patai) of sugarcane on fire. Thereafter
they went towards the house of Kaptan
Singh unleashing reign of terror by firing.
This incident was witnessed by his mother
who was standing at the door he himself,
Sahab Singh S/o Bhawani Singh of his
village and Brijender Singh who is the son
of his brother's 'Sarhu' Soney Lal who
resides there but they all were helpless
seeing the murder of his father due to fear
of accused persons armed with rifles and
guns. The dead body of his father burnt to
some extent has been lying on the spot,
hence action be taken by lodging the FIR.

7. On the basis of the aforesaid FIR
lodged by Bahaar Singh S/o Ram Sahai,
3-5 All. Kaptan Singh Vs. State of U.P.
707
police swung into action. A case was
registered against Atar Singh, Sughar
Singh, Nawab Singh, Phulwari, Mansha
Ram, Kaptan Singh and Deshraj under
Sections 147,148,149,302,201 IPC as Case
Crime No.158 of 1985 on 18.5.1985 at
police station Kayamganj, which was
written by Constable Clerk Babu Ram
marked as Ext. Ka-8 & Ext. Ka-9. S.S.
Yadav, Inspector (C.B.C.I.D.) posted as
Sub-Inspector at police station Kayamganj
on 19.5.1985 had been entrusted to
investigate the case. He along with in
charge Inspector Jagdamba Prasad Mishra
and SSI K.L. Verma with police force
reached at the place of occurrence where
the deceased Ram Sahay was done to death
by firing upon him and his body was
burned by the accused persons which was
kept on the wood of Arhar. The inquest of
the deceased was conducted in the presence
of the witnesses and the inquest report was
marked as Paper No.16-A/1,16-A/2, 16A/3. It was duly signed by the SubInspector S.S. Yadav who proved his
signature and the same was marked as Ext.
Ka-3. Thereafter the dead body was sealed,
of which sample seal was prepared. He had
further prepared papers of challan nash,
police form no.13, letter to Chief Medical
Officer, I/C Fatehgarh, letter to R.I., photo
nash, chik FIR, copy of GD, site plan,
memo of empty cartridges, memo of ashes
of heap of Arhar, memo regarding search
and arrest of accused persons, recovery of
illegal firearm, memo of plain & blood
stained earth, which were marked as Ext.
Ka-4 to Ext. Ka-17. The recovery memos
as mentioned above were made in the
presence of Sahab Singh and Soney Lal
which were signed by them.

8. The statement of the complainant
and other witnesses were recorded under
Section 161 Cr.P.C. The papers relating to
the inquest of the deceased were handed
over to Constable Lal Mani and Constable
Balram along with the dead body and sent
to the District Hospital for autopsy of the
deceased.
After
conducting
the
investigation by SSI K.L. Verma, the
charge sheet was submitted on 30.6.1985
against the accused persons, namely, Atar
Singh, Sughar
Singh, Nawab Singh,
Mansha Ram and Phulwari, under Sections
147,148,149,302,201 IPC. The charge sheet
was marked as Ext. Ka-18. The charge
sheet had been submitted separately on
13.2.1986 against Kaptan Singh and
Deshraj by SSI Bhanwar Pal Singh, under
Sections 147,148,149,302,201 IPC, which
was marked as Ext. Ka-20.

9. On submission of charge sheet, as
usual the cognizance was taken by the
concerned Magistrate and after compliance
of provisions of Section 207 Cr.P.C. the
case was committed to the court of
sessions. The case was transferred to the
Special Judge/Additional Sessions Judge,
Farrukhabad. The charges were framed
against Atar Singh, Sughar Singh, Nawab
Singh, Mansha Ram and Phulwari on
30.6.1990, under Sections 148,302/34 IPC
in Sessions Trial No.327 of 1989.

10. Against accused appellant Kaptan
Singh and Deshraj the charges were framed
on 29.9.1995 by the Second Additional
Sessions
Judge,
Farrukhabad
under
Sections 147/148/302/149 & 201 IPC in
Sessions Trial No.129 of 1995. Both the
trials were consolidated on 17.9.1998.

11. The charges were read over to the
above mentioned accused appellants who
abjured the charges and claimed to be tried.
Even though the accused appellants Kaptan
Singh and Deshraj in Sessions Trial no.129
of 1995 were appearing intermittently in
708 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions Trial No.327 of 1989. but the
prosecution witness P.W-1 was again crossexamined in Sessions Trial no.129 of 1995.
The accused persons were on trial for
murder hence there was no justification to
have a criminal trial pending for so long
even when charges were already framed
against them.

12. To bring home guilt of the
accused appellants, the prosecution has
examined Bahaar Singh, informant S/o
Ram Sahay as P.W-1, Dr. C.N. Bhalla who
conducted the autopsy of the deceased Ram
Sahay as P.W-2 who was examined as P.W3 in Sessions Trial No.327 of 1989, S.S.
Yadav (Retired Inspector), CBCID as P.W3. Phool Chandra, Pairokar who was
examined as P.W-5 in Sessions Trial
No.327 of 1989 has not been examined in
the present case.

13. Bahaar Singh, the son of the
deceased was examined on oath as P.W-1
on 20.5.2004. He deposed that the incident
had taken place 19 years ago. It was about
4.30 P.M. in the evening, at that time, he
was present at some distance in front of his
house in gher. His father Ram Sahay was
sitting on a cot over the platform
(chabootra). At that moment Atar Singh
(since deceased), Sughar Singh, Nawab
Singh, Phulwari, Mansha Ram, Kaptan
Singh and Deshraj emerged together from
the house of Atar Singh (since deceased)
and passed through the baithak of Ragghu
reached at the platform of his house. Atar
Singh (since deceased), Phulwari, Mansha
Ram were having rifle, Kaptan Singh,
Deshraj and Sughar were armed with gun
and Nawab Singh was having Katta. When
they came over the platform his father
seeing them tried to run inside baithak. At
the same time, Atar Singh (since deceased),
Mansha Ram and Kaptan Singh fired upon
his father which hit him. His father
received shots. His father fell down inside
baithak. Thereafter Phulwari, Nawab Singh
and Sughar Singh entered into the baithak
and they had also fired there. He could not
count the number of fire made by them. On
account of firing the people were under the
grip of terror. His father had died on the
spot in baithak. Thereafter all the accused
persons dragged the dead body of his father
towards the open place of Sahab Singh.
Piles of wood of Arhar was kept there.
They had put the dead body on the wood.
Atar Singh (since deceased) and Deshraj
had put the fire on the heap of woods of
Arhar. Atar Singh (since deceased) and
Deshraj had challenged "Sale ko jalakar
rakh kar do". All the accused persons
thereafter moved towards the house of
Kaptan Singh making fire. This incident
was witnessed beside him his mother Nisar
Devi who was standing at the door at the
time of incident. This incident was also
witnessed by Sahab Singh and Brijendra
Singh as the accused persons were armed
with rifle and gun, they could not go near
to them. After dousing the fire he left the
dead body and went to the police station to
lodge the report. He went to police station
Kayamganj to lodge the report. The witness
accepted that the FIR (Ext. Ka-1) was
written by him after the death of his father
and was handed over at the police station
Kayamganj. On the basis of which, the FIR
was registered. He further deposed that on
account of old enmity his father was done
to death by the accused persons. Detail
account of enmity has been given in the
report.

14. P.W-1 Bahaar Singh was crossexamined on behalf of the appellants
Kaptan Singh and Deshraj. He deposed that
the opening door of the baithak of Ram
Sahay was towards east. The platform is in
3-5 All. Kaptan Singh Vs. State of U.P.
709
front of the door. The length of baithak is 810 hand in length. Platform is equal to
baithak in length but its width is about 8-9 f
feet. Two trees of gulmohar were at the
platform which were a little inside on
eastern corner of the platform and about a
ft or two inside. The main door of his house
and Ragghu's towards north of baithak of
house and his baithak is adjacent to the
northern side of his house and main door.
In this house, Ragghu and his son Munna
and many females were residing, but no
one lives in baithak. On the northern side of
Ragghu's house, house of Faujdar is
situated. The family of Faujdar resides
therein. In front of house of Faujdar in
north side there is a village consisting of
25-30 houses.

15. P.W-1 Bahaar Singh deposed on
further cross-examination that at the time
of incident his mother and wives of his two
brothers were residing in the same house.
His brother Tahar Singh was in jail on the
day of incident in connection with the
murder of Ram Naresh. Elder brother of
Ram Sahay was Bhawani. Sahab Singh,
who is the son of Bhawani, is witness in the
present case. Brijendra Singh is the son of
'Sarhu' of his brother Tahar Singh. House
of Sahab Singh is adjacent to his house.
House of Sahab Singh is towards southern
side of his house adjacent to the houses of
Soney Lal and Ram Prakash who live along
with their family member in their houses.
Akhunpur is a part of Mauza of Lakhanpur.
His father was Pradhan of Lakhanpur for
35 years. Village of Master Kaptan Singh
Nagla Akhunpur is away from his village.

16. It is wrong to say that a distance
of 500 mtr. Is between the two Akhunpur.
Kaptan Singh is a Teacher. He has no
knowledge whether he has degree of M.A.
or not. He is not aware since when Kaptan
Singh was Teacher prior to the date of
incident. Accused Deshraj is the brother of
Kaptan Singh. Deceased Ram Naresh of
Nagla Akhunpur was in the family of
Kaptan Singh. Kali Charan is the son of
Ram Naresh. Kali Charan had named his
brother Tahar Singh and others in the
murder of Ram Naresh. He is not aware
whether Kali Charan had got the FIR in
respect of murder of Ram Naresh by
accused Kaptan Singh. He is also not aware
that in the case of murder of Ram Naresh
his brother Tahar Singh was convicted for
life imprisonment. He never went to
Kutchehry to do the pairvi in the case of
Tahar Singh. He is not aware as to who was
doing pairvi in his case. In the case of
murder of Ram Naresh, Kali Charan had
named his brother Tahar Singh and not
Kaptan Singh. His father Ram Sahay had
lost the election of Pradhan prior to his
murder. Wife of Kaptan had won the
election. He is not aware that his father
Ram Sahay had given land of Mauza
Lakhanpur in favour of National Inter
College, Rampur. He has no knowledge
whether any objection was raised with
regard to the lease. It is wrong to say that
said Arazi was sold in his and his brother
Tahar Singh's favour. He is not aware as to
whether any lease was cancelled which was
given in favour of the college. It is wrong
to say that Chandrakali had given a notice
under Section 120-B for his eviction and
fine was imposed upon him or on his
brother. It is wrong to say that on account
of eviction they had bearing enmity with
Kaptan Singh and his family member. His
father had never taken any contract of
liquor in Kayamganj. He had never heard
about that his father taken contract of liquor
in Kayamganj. He had no knowledge that
his father had taken any shop in share. He
had never seen Ram Sahay running shop of
liquor or grocery shop in Kayamganj. He is
710 INDIAN LAW REPORTS ALLAHABAD SERIES
not aware that his father had various cases
in Kayamganj. Bhawani, father of Ram
Sahay had died prior to his birth. He is not
aware that Bhawani was murdered while
committing dacoity at the house of Raja
Ram Gupta of Kayamganj. He is not aware
about how much land belonged to Ram
Sahay at the time of incident. After the
death of his father the land was devolved
upon him and his brother.

17. P.W-1 was cross-examined in
great detail with respect to the location of
the field of Ram Sahay, Soney Lal and
Saudan Singh. He further deposed that he
was at his home and had not gone to
Kayamganj.
His
father
used
to
go
Kayamganj prior to the incident. On the
day of incident, his father was at his house.
He (P.W-1) had witnessed the incident from
the gher, if the same has not been
mentioned in the report he could not say
the reason. He had written in the report that
his mother had witnessed the incident from
the door. He has not written about himself
as he had seen the incident from the gher.
He could not notice as such he did not
mention his place from where he had seen
the incident. Near the field of Soney Lal he
and Brijendra Singh remained there for
about 20 minutes. The place where his
father was sitting was about 20-25 meters
south east where they were sitting. Prior to
sitting in gher he had come from the field
of muskmelon. After returning from the
field of muskmelon he and Brijendra Singh
were sitting 20-25 minutes in gher.
Thereafter incident had taken place. His
statement has already been recorded in
connection with the present case in the
same court relating to Atar Singh (since
deceased) and other accused persons. The
witness was confronted with his statement
recorded on 17.1.2001 in the case of State
Vs. Atar Singh and others as P.W-1. He had
admitted that he had given the statement in
the said trial that he had seen the entire
incident from 20-25 mtr. southern side from
the place where his father was sitting. He
was there last 15 -20 minutes prior to that
he was at his house. Prior to the incident
Brijendra was with him. He was crossexamined by the defence counsel in that
case that he was not at his house and
Brijendra was at Jasrathpur. Hence he had
deposed the above statement. He denied
that he has been tutored while giving above
clarification. He was never asked in this
regard hence he did not disclosed that he
had gone to the field of muskmelon. The
police had enquired from him at the police
station. He does not remember about
disclosing to the police that he was
returning from the field of muskmelon he
could not disclose about the reason if the
same is not mentioned. When he saw the
accused persons then they had not reached
near to the cot of his father rather they had
come upto the platform. The cot was lying
on the southern side of the platform. The
cot was 4-5 ft away from the door of the
house. It was towards the south of door.
The corner of the chabootra in the south
from the door is about 7-8 ft.

18. After his cross-examination on
20.5.2004 he was again recalled and crossexamined on 16.6.2004. He deposed that
his father was sitting on the cot which was
lying 3-4 ft towards the south door of
baithak. On seeing accused persons his
father tried to run to enter into baithak. His
father was shot dead by the miscreants as
he got up and after receiving firearm injury
his father fell down in the baithak.
Miscreants could not stop his father as he
entered in the baithak.

19. He could not say that as to in
which year the witness Brijendra had
3-5 All. Kaptan Singh Vs. State of U.P.
711
admitted in school in Rampur, but he
knows that he was studying prior to 2-3
years of the incident. Accused Kaptan
Singh and Deshraj are not related to his
family. His agriculture, house and business
has no share with accused Kaptan Singh. It
is wrong to say that he was not in his
village on the day of incident and had not
seen any incident. It is wrong to say that he
had falsely named the accused Kaptan
Singh and Deshraj as his brother Tahar
Singh was named in the murder of Ram
Naresh. It is also wrong to say that on
account of enmity he is giving false
statement today.

20. Dr. C.N. Bhalla has been examined as
P.W-2 on 16.7.2009 in the present Sessions
Trial bearing No.129 of 1995 (State Vs. Kaptan
Singh and another) who was earlier examined
as P.W-3 in Sessions Trial No.327 of 1989
(State Vs. Atar Singh & others) on 18.11.2002.

21. In his examination-in-chief, Dr. C.N.
Bhalla, P.W-2 deposed on oath that he was
posted as Pediatrician in District Hospital,
Fatehgarh on 19.5.1985. On that day at about 5
P.M. he had conducted the postmortem of the
dead body of Ram Sahay S/o Umrao, resident
of village Akhunpur. He was aged about 60
years. The dead body was brought by Constable
Lal Mani and Constable Balram. The dead
body was received by him in a sealed condition
and had identified the dead body. Ram Sahay
died one day ago. Body was of average built.
The dead body was burned 4-6 degree. Head
was partially burned. Muscles were visible.
Muscles on his body and under neath bones
were seen burnt and visible. At some places,
body was severely in burned condition.

22. P.W-2 further deposed that from head
two wadding pieces; one from chest and one
from abdomen, three tikli from the brain were
extracted. Four tiklis from abdomen and two
tikli from chest were recovered. 78 pellets were
recovered from brain, chest and abdomen.

23. The following ante-mortem injuries
were found:

1. Lacerated wound 3cm x 2.5cm x
chest cavity in the left side 14cm below left ribs.
Direction front to back;

2. Lacerated wound 3cm x 2.5cm x
abdomen cavity subcortal margin in M.C.L. just
below the right ribs. Direction front to back
obliquely;

3. Lacerated wound 3cm x 2.5cm x
chest cavity left side of back below 8cm of
scapula. Direction back to front;

4. Lacerated wound 8cm x 5cm x
depth of skull. Skull was cracked. Brain matter
and blood was coming out. Right ear was
lacerated. Direction right to left.

24. On Internal Examination: Except
frontal bone of head all other bones were
broken. Brain and its membranes were
lacerated and the brain was coming out
from injury. Left part of 4th and 5th ribs of
the chest were broken. Both lever and its
membranes were lacerated. Blood was
filled in both parts of chest. Stomach, small
intestine, large intestine and gall bladder,
both kidneys and spleen were lacerated.

25. He deposed that in his opinion,
the death of Ram Sahay was due to
excessive bleeding from head and on
account of ante mortem injuries. He opined
that death could have occurred on account
of the injuries received on 18.5.1985 at
about 4.30 P.M. in evening. Firstly he was
done to death by causing injury with firing
and thereafter he was burned. He proved
the postmortem report prepared and signed
by him, which was marked as Ext. Ka-2.
He further deposed that the instant
postmortem has also been included in the
712 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions Trial No.327 of 1989; State Vs.
Atar Singh & others.

26. In his cross-examination on behalf
of the accused appellants, namely, Kaptan
Singh and Deshraj, he deposed that while
conducting autopsy he found four injuries.
The description of which has been given in
the postmortem report. He had not shown
any injury of any gun shot as the body was
burnt and lacerated wound was found due
to firing. The length and width of injury
nos.1, 2 & 3 on the body of the deceased
were equal and same. This injury could
have been caused by one or more than one
firearm weapon. If the fire is shot from one
place from different distance then the
dimension of the injuries would be
different. It is always not necessary that
when the fire is shot from close range
wadding and tikli would not be found in the
body, if the fire is shot from the distance of
4 ft tikli would travel into the body. He
could not say as to whether firing from
within a distance of 4 ft wadding would
travel into the body or not. He has no
knowledge if the fire is made in contact
with the body, the wadding would pierce in
the body. It is not known to him that on
firing wadding would enter into the body.
wadding and tikli were found in all the four
injuries of the deceased only due to this, it
could not be said that there is a great
possibility that the firing was done from
close range as the dead body was burnt
lacerated wound is found always when
firing is made. This witness was put to a
question as what he means about wadding,
he answered wadding is a part of tikli. At
this moment, tikli shots and wadding which
were recovered from the body of the
deceased were not before him. There could
be possibility of 4-5 hours difference about
death and the deceased would have died in
the night around at 10-11 P.M.

27. S.S. Yadav, Inspector CBCID has
been examined on 10.2.2009 as P.W-3 in
the present Sessions Trial bearing No.129
of 1995 (State Vs. Kaptan Singh and
another) who was examined as P.W-4 in
Sessions Trial No.327 of 1989 (State Vs.
Atar Singh & others) on 26.5.2003. The
defence
had
sought
adjournment
on
26.5.2003 to cross-examine him on the next
date. Thereafter the case was adjourned
incessantly
by
the
defence
and
on
10.2.2009 he was again summoned and was
re-examined with the permission of the
court on behalf of all the accused persons
of both the sessions trial separately.

28. S.S. Yadav, P.W-3 who was retired
as Inspector, CBCID was summoned and
was granted permission for examination-inchief again. He deposed on oath that the
Constable Clerk Babu Lal and SSI K.L.
Verma were posted along with him at the
police station. He knew their writing and
signature. The chik FIR paper no.4-A-1 and
copy of GD no.21-A-1 were written and
signed by Constable Clerk Babu Lal. It was
marked as Ext. Ka-8 & Ext. Ka-9. He
further deposed that paper no.8-A site plan,
paper no.9-A (memo of recovery of empty
cartridges), paper nos.9-A-2 & 9-A-4
relating to memo of raid and arrest in
recovery of arms and paper no.9-A-5,9-A-6
& 9-A-7 were prepared and signed by SSI
K.L. Verma. The above papers were
marked as Ext. Ka-10 to Ka-17. Paper
no.3-A is the charge sheet against accused
persons, namely, Atar Singh, Sughar Singh,
Nawab Singh, Mansha Ram and Phulwari
under Sections 147,148,149,302,201 IPC
which was written and prepared by SSI
K.L. Verma on 30.6.1985. The charge sheet
was marked as Ext. Ka-18. He deposed that
SSI K.L. Verma had retired in 1998 since
then his whereabout is not known nor he
ever met with him.
3-5 All. Kaptan Singh Vs. State of U.P.
713

29. In his cross-examination he
deposed that SSI K.L. Verma reached to the
superannuation in 1998. He is not aware
about to which place he belongs. He had
gone at the place of occurrence in this case.
At what time, he reached on 18.5.1985 he
could not remember as the incident is quite
old. When he reached on 18.5.1985 it was
dark. He did not make any arrangement of
any light to conduct the autopsy. He did not
mention in the inquest report that light was
not available. He does not remember
whether he read the FIR prior to filling the
inquest report. He had mentioned on the
last paper of the inquest report about the
papers which is at serial no.3 one page
copy of chik report. He had not done any
overwriting over the number of two in
nakal rapat. It is wrong to say that in place
of one two figure has been made. Copy of
chik report is in two pages. It is wrong to
say that nakal rapat was in two pages rather
it was in three pages. He had mentioned in
the inquest report about the weapon, but he
did not mention the nature of weapon used
in the incident. In the inquest report at the
top he had not made any overwriting in
number 8 of case crime no.158. It is also
wrong to say that in the inquest report
Sections 147,148,149 IPC were added
subsequently. On the back of first page of
inquest
case
crime
number
is
not
mentioned. It is also wrong to say that on
the first page of inquest report, case crime
number was mentioned later on.

30. It is wrong to say that at the time
of preparing inquest report, chik FIR was
not in existence. It is also wrong to say that
an oral information was given with respect
to the murder of Ram Sahay on 19.5.1985
and then the police official reached at the
place of incident. The inquest report bears
his signature. He has not mentioned in the
inquest report that under the direction of IO
K.L. Verma, he has prepared inquest report,
but he has mentioned the presence of SHO
and SSI K.L. Verma. Recovery of weapon
was not before him. Border of police
station Campell is adjacent to Etah and
Budaun. Various gangs of miscreant were
active in the border area in which several
big gangs were involved. At the time of
incident gang of Sultan Dhanuk was active
in that area. He is not aware whether
females were also resided along with
miscreants in the gang. he is not aware that
Rajjo Devi is concubine of Sultan. He has
no knowledge as to whether member of the
gang of Sultan used to take shelter at the
place of deceased Ram Sahay. It is also not
known to him that Ram Sahay was a man
of criminal nature. In the charge sheet
criminal history of Ram Sahay is not
described. He has no knowledge whether
any criminal history of Ram Sahay is at the
police station.

31. This witness was cross-examined
by the counsel of the accused appellants
Kaptan Singh and Deshraj. He deposed that
he is not aware at what time they had
departed from the police station to the place
of incident. SHO and SSI had accompanied
him. He is not aware about other police
personnel. They had gone on the official
jeep. He does not remember that at what
time they reached at the place of incident.
He went along with them at the place of
occurrence. He does not remember as to
what action was taken by SSI K.L. Verma
and Inspector. He does not remember as to
whose statements were recorded by the
Inspector and SSI K.L. Verma. He also not
remember as to which place they had
raided. He could not say as to what distance
from the deceased was lying from his
house. His dead body was lying at the
outside the village. He has not written mark
of fire in the inquest report. He had
714 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned about that the dead body was
burnt. He has no knowledge that village
Akhunpur and Nagla Akhunpur are two
separate villages.

32. Constable Phool Chandra Pairokar
of Police Station Kotwali, Farrukhabad was
examined on 5.5.2009 as P.W-5. This
witness deposed that he knew Babu Lal,
Constable Clerk and SSI Bhanwarpal
Singh. He was posted along with them and
used to see their reading and writing. He
knows about their writing and signature. He
proved the paper no.4-A/1, 24-A/3, chik
FIR and paper no.21-A/1, copy of GD
prepared by Constable Clerk Babu Lal
which were marked as Ext. Ka-9. Paper
no.3-A (charge sheet) in respect of Kaptan
Singh and another of Sessions Trial No.129
of 1995 was written by SSI Bhanwarpal
Singh was proved by him and the same was
marked as Ext. Ka-20. He further deposed
that Constable Clerk Babu Lal and SSI
Bhanwarpal Singh have been transferred.
Since then he had not met with them.

33. This witness was cross-examined
by the defence on the same day. He
deposed that it is wrong to say that he was
never posted along with Constable Clerk
Babu Lal and SSI Bhanwarpal Singh and
that no proceeding of this case had taken
place before him. He also denied that as a
mere formality he is deposing falsely under
pressure.

34. After examining the witnesses of
fact and formal witnesses, the accused
appellants were examined under Section
313 Cr.P.C. on 14.5.2009 and 18.7.2009.
Accused
appellant
Deshraj
was
also
examined under Section 313 Cr.P.C. on
14.5.2009
and
18.7.2009.
Both
the
appellants
had
denied
the oral
and
documentary evidence and stated that they
are innocent and they have falsely been
implicated.

35. Learned trial court after taking
into account the entire documentary and
oral evidence of the prosecution witnesses
arrived
at
the
conclusion
that
the
prosecution has proved its case against the
accused appellants, namely, Kaptan Singh
and Deshraj who had motive and shared
common intention with other accused
persons who were armed with deadly
weapon had committed ghastly murder of
complainant's father Ram Sahay, hence
guilty of the offence punishable under
Sections 148,302/34 IPC. It was further
held that as the prosecution has not proved
the case that the appellants had tried to
destroy the evidence of murder, the charge
of offence under Section 201 IPC is not
proved beyond doubt and hence reached to
the conclusion that they deserve acquittal
under Section 201 IPC.

36. Learned trial court had found that
the offence punishable under Sections
302/34 & 148 IPC is proved to the hilt ,
hence
they were
convicted
for
life
imprisonment with a fine of Rs.15,000/-
and three years rigorous imprisonment and
both the sentences were directed to run
concurrently and in case of default, further
simple imprisonment of six months.

37. We have heard S/Sri Rajrshi
Gupta, Rizwan Ahmad and Rajeev Kumar,
learned counsel appearing on behalf of
appellants Deshraj and Kaptan Singh in
both
the
abovementioned
connected
appeals and learned A.G.A. Shri Ashwini
Prakash Tripathi appearing on behalf of the
State and have gone through the record.

38. Learned counsel Shri Rajrshi
Gupta has also filed written submission in
3-5 All. Kaptan Singh Vs. State of U.P.
715
support of his arguments advanced on
behalf of the appellants, namely, Kaptan
Singh and Deshraj.

39. Learned counsel for the appellants
has vehemently argued that the FIR lodged
against the appellants and other accused
persons with an elaborate narration of
previous individual enmity of the first
informant with different accused persons
which gives rise of suspicion that the FIR
has been lodged after due deliberation that
too with so promptitude. Not only this, the
FIR has been lodged at Kayamganj within
2 hours and 20 minutes of the alleged
incident which is about 4 Km. from the
police station. It was unnatural on the part
of the first informant who is the son of the
deceased Ram Sahay to narrate the
previous history with regard to the dispute
and cases pending between the parties in
place of narrating actual incident with
respect to killing of his father. It is also
very unusual on the part of the police to
mention the sections of IPC in the chik FIR
which are in variance with the sections
mentioned in the inquest report of the
deceased. This gives reasonable inference
that initially the panchayatnama was done
by mentioning sections 302/201 IPC and
after the FIR was lodged nominating more
than five persons by adding Sections
147,148,149 IPC which was subsequently
added. The last page of the panchayatnama
of the deceased in the list of documents
which were sent to the mortuary enclosed
with the report the FIR is mentioned to
contain one page and thereafter by
interpolating "2" in place of 1 has been
mentioned which shows that another FIR
was registered under Sections 302 & 201
IPC and subsequently, it was suppressed by
the prosecution by introducing the FIR
named different person as accused with
whom the first informant was inimical.
Hence it can very well be said that the FIR
was ante-timed and anti-dated which has
been lodged by suppressing the genesis of
the occurrence. The appellants have been
implicated on account of previous enmity
merely on suspicion by the first informant.

40.