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

- **Citation:** (2019) 1 ILRA 391
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-04-10
- **Bench:** Bala Krishna Narayana, Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kunwar-pal-singh-in-jail-v-state-of-u-p-44466
- **Pages:** 26

## Headnote

effect on conviction - Evidence of P. W. 2
Shanti Devi found not wholly reliable -At
least three persons, Rahim Baksh, Narsi
and her daughter-Brij Bala were present
at the place of incident who had been
deliberately withheld by the prosecution.
Prosecution in order to prove the charges
framed against the appellants- accused,
examined 15 witnesses of fact. P. W. 3, P. W.
4, P. W. 5, P. W. 6 and P. W. 13 Gulab Singh
failed to support the prosecution case as spelt
out in the F.I.R. and were declared hostile. In
their cross-examination conducted with the
permission of the Court, they denied having
made any statement to the investigating
officer. Prosecution failed to examine the
investigating officer who had recorded the
statements of P. W. 3, P. W. 4, P. W. 5, P. W.
6 and P. W. 13 under Section 161 Cr.P.C.
Therefore, the true genesis of the incident has
been suppressed and the prosecution has not
come with clean hands and under the facts
and circumstances of the case.

The possibility of appellants-Rajendra, Hariom,
Anil @ Pappey, Santosh, Shambhoo, Dinesh
Darji, Mukesh, Anil @ Bhola, Umashankar
havingbeen falsely implicated in the present
case cannot be ruled out.
Thus, the prosecution has not been able to
prove
its
case
against
those
accusedappellants beyond all reasonable doubt-
entitled
to
benefit
of
doubt.
(Para-89) (E-7)

## Text

_Characters 0–39,951 of 88,177. This is a partial read: ask again with offset=39951 for what follows._

1 All. Kunwar Pal Singh Vs. State of U.P.
391
Further, it is expected that courts would
operate the sentencing system so as to impose
such sentence which reflects conscience of
society and sentencing process has to be stern
where it should be. The Court will be failing
in its duty if appropriate punishment is not
awarded for a crime which has been
committed not only against individual victim
but also against society to which criminal and
victim belong. Punishment to be awarded for
a crime must not be irrelevant but it should
conform to and be consistent with the atrocity
and brutality which the crime has been
perpetrated, enormity of crime warranting
public abhorrence and it should 'respond to the
society's cry for justice against the criminal'.
[Vide: Sumer Singh vs. Surajbhan Singh
and others, (2014) 7 SCC 323, Sham
Sunder vs. Puran, (1990) 4 SCC 731, M.P.
v. Saleem, (2005) 5 SCC 554, Ravji v. State
of Rajasthan, (1996) 2 SCC 175].

49. Hence, applying the principles laid
down in the aforesaid judgments and having
regard to the totality of facts and circumstances
of case, motive, nature of offence, weapon used
in commission of murder and the manner in
which it was executed or committed, we find
that punishment imposed upon accusedappellants by Trial Court in impugned
judgment and order is not excessive and it
appears fit and proper and no ground appears to
interfere in the matter on the point of
punishment imposed upon him.

50. We, therefore, find no merit in
appeal. Present jail appeal lacks merit and
is accordingly, dismissed and judgement
and order dated 23.01.1998 passed by
Additional Sessions Judge/Special Judge
E.C. Act, Lalitpur in Session Trial No. 99
of 1997, (State v. Preetam Singh), arising
out of Case Crime No. 19 of 1997, Police
Station Saujna, under Sections 302 and
201 IPC., is maintained and confirmed.

51. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

52. Before parting, we provide that
Smt. Rajshree Malviya, Advocate, who
has appeared as Amicus Curiae for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 10,000/- for her
valuable assistance. State Government is
directed to ensure payment of aforesaid
fee
through
Additional
Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
-------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

CRIMINAL APPEAL (CAPITAL CASE) No. 1368
OF 2017

Connected With
Reference No. 3 OF 2017
Connected With
CRIMINAL APPEAL CASES No. 1289 OF 2017, 1296
OF 2017, 1302 OF 2017, 1370 OF 2017, 1371 OF
2017, 1440 OF 2017, 1473 OF 2017 AND CRL.
MISC. APPL. U/S 372 Cr.P.C. (LEAVE TO APPEAL)
No. 284 OF 2017

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

Counsel for the Appellant:
Sri Ravi Prakash Singh, Sri Ajay Kumar
Pandey, Sri Afshan Shafaut, Sri Satish
Trivedi.
392 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
G.A.

A. Non-examination of three witness-
effect on conviction - Evidence of P. W. 2
Shanti Devi found not wholly reliable -At
least three persons, Rahim Baksh, Narsi
and her daughter-Brij Bala were present
at the place of incident who had been
deliberately withheld by the prosecution.
Prosecution in order to prove the charges
framed against the appellants- accused,
examined 15 witnesses of fact. P. W. 3, P. W.
4, P. W. 5, P. W. 6 and P. W. 13 Gulab Singh
failed to support the prosecution case as spelt
out in the F.I.R. and were declared hostile. In
their cross-examination conducted with the
permission of the Court, they denied having
made any statement to the investigating
officer. Prosecution failed to examine the
investigating officer who had recorded the
statements of P. W. 3, P. W. 4, P. W. 5, P. W.
6 and P. W. 13 under Section 161 Cr.P.C.
Therefore, the true genesis of the incident has
been suppressed and the prosecution has not
come with clean hands and under the facts
and circumstances of the case.

The possibility of appellants-Rajendra, Hariom,
Anil @ Pappey, Santosh, Shambhoo, Dinesh
Darji, Mukesh, Anil @ Bhola, Umashankar
havingbeen falsely implicated in the present
case cannot be ruled out.
Thus, the prosecution has not been able to
prove
its
case
against
those
accusedappellants beyond all reasonable doubt-
entitled
to
benefit
of
doubt.
(Para-89) (E-7)

(Delivered by Hon'ble Bala Krishna Narayana, J.
 Hon'ble Rahul Chaturvedi,J. )

The
arguments
of
this
case
concluded on 10.04.2019. We then passed
the following order :-

Heard Sri Satish Trivedi, Senior
Advocate assisted by Sri Ajay Kumar
Pandey and Sri Ravi Prakash Singh,
learned counsel for the appellants in
Capital Case No. 1368 of 2017 along with
connected Criminal Appeal No. 1370 of
2017 and 1371 of 2017, Sri Ajay Kumar
Pathak learned counsel for the appellant
in Criminal Appeal No. 1473 of 2017, Sri
A.B.L. Gour, Senior Advocate assisted by
Sri Saurabh Gour, learned counsel for the
appellant in Criminal Appeal No. 1289 of
2017, Sri Hemendra Pratap Singh, learned
counsel for the appellant in Criminal
Appeal Nos. 1440 of 2017 and 1296 of
2017, Sri G.S. Hajela, learned counsel for
the appellant in Criminal Appeal No.
1302 of 2017 and Sri Ravi Prakash Singh,
learned counsel for the appellant in
Criminal Misc. Application u/s 372
Cr.P.C. (Leave to Appeal) No. 284 of
2017 and Sri J. K. Upadhyay, learned
A.G.A. appearing for the State-respondent
assisted by Sri Awadhesh Kumar Shukla,
State Law Officer.

We are making the operative
order here and now and will give reasons
later.

The Capital Case No. 1368 of
2017 along with connected Criminal
Appeal Nos. 1289 of 2017, 1296 of 2017,
1302 of 2017, 1370 of 2017, 1371 of
2017, 1440 of 2017, 1473 of 2017 are
allowed. The impugned judgment and
order dated 15.02.2017 passed by learned
Additional Session Judge, Court No. 3,
Hathras in S.T. No. 311 of 1999 (State
Vs. Rajendra and others) arising out of
Case Crime No. 78 of 1990, under
Sections 147, 148, 149, 435, 436, 395,
397, 427, 307, 302, 295, 364 I.P.C. and
Section 3(2)(5) SC/ST Act, P. S. Sasni,
District Hathras are hereby set aside.

The appellants are acquitted of
all the charges framed against them. All
the appellants are in jail. They shall be
released forthwith unless they are wanted
1 All. Kunwar Pal Singh Vs. State of U.P.
393
in any other case subject to their
complying
with
the
mandatory
requirements of provision of Section 437A Cr.P.C.

However, Reference No. 03 of
2017 and Criminal Misc. Application u/s
372 Cr.P.C. (Leave to Appeal) No. 284 of
2017 are dismissed.

There shall be however no order
as to costs.

Here are the reasons :-

(1) Briefly stated the facts of this case
are that P. W. 16 Harishankar gave a written
report at police station Sasni, sub-district
Hathras, district Aligarh on 11.3.1990 at
about 18:15 hours in respect of an incident
which had allegedly taken place on the same
day at about 4 P.M. in village Rudayan,
Ward no. 1 alleging therein that he belonged
to Jatav community and was a resident of
village Rudayan. On the date of occurrence
the festival of holi was being celebrated in
the village. At about 4 P.M. Udayveer Singh
had gone to the house of Sonpal who also
belonged to his caste to smear him with
colours and when after playing holi with him
he was returning to his house he met Kunwar
Pal Singh, Rajendra Singh, Jagendra Singh
sons of Bhagwan Singh, Shyam Veer Singh
son of Bhoori Singh, Prem Singh son of Pop
Singh Jat, Banwari son of Sadhu, caste
kadere and Insafi Khan son of Fateh Khan
who came out from the 'Nouhre' of Kunwar
Pal Singh and after catching hold of
Udayveer
Singh
started
beating
him.
Udayveer Singh somehow escaped from
their clutches and started running towards his
house followed by the aforesaid persons who
were joined in their chase by Umesh Kumar
son of Shahshi Pal, Vijendra Singh son of
Soran Singh, Manoka son of Sadhu, Gulab
Singh son of Gulla, Kahar, Nanak Chandra
son of Kanhaiya Lal Kahar, Harishchandra
son of Chandrapal Khatik, Mahendra Singh
son of Radheylal, Raju son of Brahmdutta,
Dinesh son of Mathura Prasad, Shambhu son
of Shivshankar, Santosh son of Shivshankar
Sharma, Rajeev @ Chhotey son of Narayan,
Hari, Hariom Pandit, nephew of Lala, Komal
Prasad, Mukesh Kumar, Bhola son of Rishi
Kumar, Nempal Bhatiya son of Khyaliram,
Bijuwa son of Ram Singh Jat, Udayveer
Singh son of Pop Singh, Daryav Singh son
of Popo Singh Jat, Purshottam son of
Ramsahai all residents of village Rudayan,
Sahab Singh Pradhan Bikhlaura Khurd,
Netrapal son of Udayveer Jat, Brijveer
Bikhlaura Khurd, Shyam Singh son of Shiv
Singh Bikhlaura Khurd, Pappe son of
Mathura Prasad, Pappu son of Mishri Lal,
Vashisht, Nannu, Dinesh son of Rajkumar
(Pathak), Premchandra son of Gangasharan,
Mahesh and Vishnu sons of Gendalal,
Nathuram son fo Sunehri Lal, Sunil son of
Ramkesh, Dinesh son of Roopkishore,
Rajanlal Advocate, Narayannahri Mishra son
of Ramgopal, Kamruddin Pradhan village
Bheeka Nagla, police station Sasni, district
Aligarh and several other persons Narayan
Singh village Bilkhaura, Resham Singh
Bikhlaura Khurd, Girraj Kishore Bikhlaura
Khurd and Mathura Prasad Pradhan Member
Leader and Ravendra Pathak Ex-Chief
armed with their licenced and unlicenced
guns, lathi, ballam, pharsa etc. The aforesaid
persons entered into his locality exhorting
each other and surrounded therein from
the side of boundary wall of the house of
Kunwar Pal Singh. The miscreants who
were also carrying torches in their hands
started setting their houses ablaze. They
also desecrated the statue of Indira Gandhi
and started hurling stones and firing at the
persons belonging to the Jatav caste who
became helpless and started running helter
skelter shouting for help while shots were
being fired at them. They endeavoured to
douse the fire but the fire was so fierce that
394 INDIAN LAW REPORTS ALLAHABAD SERIES
they had to run towards the fields to save
their lives chased by the accused. They
saw their sisters and daughters being
beaten and within no time not only they
had burnt all the houses in the locality
belonging to the Harijans but even their
harvested crops kept in the farmyards and
their tubewells were set on fire. Data Ram
(deceased), his wife and his daughter were
forcibly dragged out from their house.
Such atrocities had been committed by
them on the Harijans in the past also and
they would continue to indulge in same
activities in future also. The accused were
openly threatening that they would not let
the Harijans live in the village. On account
of the atrocities committed on the Harijans
by the accused, cries of sorrow could be
heard throughout the village. While they
hid
themselves
to
save
their
lives
abandoning their houses, the same were
looted and plundered by the accused. The
extent of damages caused to the houses of
Harijans and details of looted property
could be ascertained only after the same
were assessed by the affected persons on
returning to their homes.

(2) In the written report it was also
stated that apart from the persons named
in the written report there were several
other persons who had participated in the
incidents of looting and arson who could
be identified by face. While the incident
was being committed the police had also
arrived at the place of occurrence.

(3) On the basis of the written report of
the occurrence, case crime no. 78 of 1990, u/s
147, 148, 149, 435, 436, 395, 397, 427, 307,
302, 295, 364 I.P.C. and Section 3(2)(5)
S.C./S.T. Act was registered at P. S. Sasni,
district-Aligarh against Kunwarpal Singh,
Rajendra Singh, Jagendra Singh, Shyamveer
Singh, Prem Singh, Banwari, Insafi Khan,
Umesh Kumar, Vijendra Singh, Manoka,
Gulab Singh @ Gulla, Nanak Chandra all
resident of village Rudayan, P. S. Sasni and
several other persons. Chek F.I.R. Ext. Ka1
and the relevant G.D. entry vide rapat no. 35
time 17:15 hours date 23.3.1990 and vide
rapat no. 43 time 19:00 hours date 14.3.1990.

(4) It appears that after a charred
dead body was recovered from the field of
Data Ram which was identified as that of
Data Ram, section 302 I.P.C. was also
added.

(5) The first investigating officer of
the case reached the place where the
charred dead body of Data Ram was lying
and after collecting ash from the places
near the tubewell and under the Mango
tree he prepared the recovery memo on
12.3.1990. He also collected plain and
bloodstained soil from the field of Data
Ram and prepared it's recovery memo
Ext. Ka13. He then proceeded to collect
burnt ash from the 55 burnt houses
belonging to the Harijans which were
allegedly burnt by the accused during the
occurrence and prepared a composite
recovery memo. The recovery memo
indicates that the ash collected from the
houses which were allegedly burnt in the
incident was not kept separately but was
packed and sealed in a simple piece of
cloth on the spot. He also inspected the
place from where the dead body of Data
Ram
was
allegedly
recovered
and
prepared it's site plan. He also inspected
each of the fifty five houses which were
burnt in the occurrence and prepared
separate site plan of each house.

(6) The inquest on the body of
deceased-Data Ram was conducted on
11.3.1990. The inquest report and other
connected documents namely challan
1 All. Kunwar Pal Singh Vs. State of U.P.
395
lash, letter addressed to C.M.O., photo
nash, letter addressed to R.I., letter for
postmortem examination were prepared
on the spot. Thereafter, the dead body of
Data Ram was sealed by the investigating
officer and dispatched to the mortuary for
postmortem
examination.
The
postmortem on the body of Data Ram was
conducted on 12.3.1990 at about 3:30
P.M. The postmortem report of the
deceased was admitted by the defence
during the trial and hence it's formal proof
was dispensed with. The postmortem
report of the deceased indicates following
antemortem injuries :

(i) Gunshot wound of entry on
his back rt. Side 6 cm below from angle
of scapula size 2 x 2 cm x cavity deep.

(ii) Gunshot wound on the front
of chest rt. Side in mid auxiliary line, 8
cm below from rt. Nipple .................

(iii) 100% burn injury of 2nd to
3rd degree present all over the body
vessels and charred at both hip bone &
line of redness & ventricle places also
present.

Cause of death was stated to be
shock and hemorrhage as a result of ante
mortem gunshot and burn injuries.

(7) The investigation of the case was
transferred to P. W. 18 Dayaram Dwivedi
who at that point of time was posted as
S.H.O. police station Sasni, district
Aligarh. He started the investigation on
17.3.1990 and during the course of
investigation he recorded the statements
of Pooran Chandra, Smt. Shanti Devi and
on 20.3.1990 Sonpal, Bheekam Singh,
Gulab. The investigation of the case was
transferred from local police to CBCID by
order dated 24.3.1990 passed by S.S.P.
Aligarh.

(8) P. W. 14 V. S. Sirohi, the third
investigating officer of the case after
completing
the
investigation
filed
chargesheet
on
8.4.1995
against
Umashankar, Rajendra, Gulab, Dinesh,
Santosh,
Mukesh,
Daryab
Singh,
Purshottam, Anil, Mahesh, Nathuram,
Dinesh, Rajanlal, Narayan Hari Ravindra
and
against
Umashankar,
Vishnu,
Mahesh,
Hariom,
Jitendra
and
on
18.9.1995
against
Mathura
Prasad,
Mahendra,
Kunwarpal,
Vijenra,
Harichandra, Mahendra, Umendra, Ashok
Banwari, Insaf Ali on 21.10.1995.

(9) Since the offences mentioned in the
chargesheet were triable exclusively by the
Court of Sessions, C.J.M. Aligarh committed
the case for the trial of the accused to the
Court of Sessions Judge Aligarh where case
crime no. 78 of 1990 was registered as S.T.
No. 311 of 1999 (State Vs. Rajendra and
others) made over for trial from there to the
Court of Additional Sessions Judge, Court
No. 3, Hathras/Special Judge (S.C./S.T.) Act
who on the basis of the material on record and
after affording opportunity of hearing to the
prosecution as well as the accused framed
charge under Sections 147, 148, 149, 435,
436, 395, 397, 427, 307, 302, 295 I.P.C. and
Section 3(2)(5) SC/ST Act. The accused
abjured the charge and claimed trial.

(10) The prosecution in order to
establish the charges framed against the
accused examined as many as 18 witnesses
out of whom P. W. 1 to P. W. 13 and P. W. 16
were examined as witnesses of various facts
while P. W. 14 V. S. Sirohi, the third
investigating officer of the case who had
completed
the
investigation
and
filed
chargesheet against the accused, P. W. 18
Dayaram Dwivedi, second investigating
officer of the case and P. W. 17 Dr. Gyan S.
Sharma who had examined the injuries of the
396 INDIAN LAW REPORTS ALLAHABAD SERIES
two injured namely Umesh Chandra and
Narsi who had allegedly received injuries in
the occurrence and prepared their injury
reports which have been brought on record as
Ext. Ka 34 to Ext. Ka36 were produced as
formal witnesses. The injury reports of the
injured (i) Umesh Chandra and (ii) Narsi
indicate following injuries on their persons :

(i) Injury report of Umesh
Chandra :

PkksV ua0 1%& ckbZ vksj ekFks ij HkkSa ls 2
ls-eh- Åij ,d dVk tek ?kko tks fd 3 ls0eh0 x
ely rd xgjk ;g lh/kk blds fdukjs dVs gq;s FksA

pksV ua0&2%& ,d dVk gqvk ?kko tks fd
nkfguh vksj ekFks ijA ;g Hkh lh/kk ukd dh tM+ ls
ekFks dh vksj ls 4 ls-eh- x 1 ls-eh- eklis'kh rd
xgjkA blds fdukjs lkQ dVs gq;s Fks vkSj Vsy Åij
dh vksj FkhA bldks tsjs fuxjkuh j[kdj ,Dljs dh
lykg Hkh nh FkhA

pksV ua0&3%& ,d dVk gqvk ?kko ukd
dh gM~Mh ds Åij frjNk nkfgus ls ukd dh tM+ ds
ikl 1 ls-eh- x 1ls-eh- gM~Mh rd xgjk Fkk tks tsjs
fuxjkuh j[kh x;h rFkk ,Dljs dh lykg nh xbZA
blds fdukjs lkQ dVs gq;s Fks rFkk Vsy Åij dh
vksj FkhA

pksV ua0&4%& ,d yEck [kqjlV dk
fu'kku tks cka;s dU/ks ij 7 ls0eh0 x -25 ls-eh- ;g
vkMk FkkA

(ii) Injury report of Narsi :

pksV ua0&1%& ,d Qvk gqvk ?kko ekFks
ij cka;h rjQ ckbZ HkkSa ds 4 ls0eh0 ÅijA 3 ls-eh-
x 0-5 ls0eh0 ekalislh rd xgjk rFkk [kwu ugha FkkA

pksV ua0&2%& QVk gqvk ?kko flj ds
lh/kh rjQ lh/ks dku ls 10 ls-eh- Åij tks fd 5
ls-eh- x 0-5 ls-eh- ely rd xgjk FkkA bl ij
[kwu tek gqvk FkkA

pksV ua0&3%& dVk gqvk ?kko ck;ha iSj ds
lkeus dh vksj ?kqVus ls 6 ls-eh- uhps 1-5 ls-eh- x 05 ls-eh- tks fd [kky rd xgjk FkkA

pksV ua0&4%& QVk gqvk ?kko cka;s iSj ds
Åij dh rjQ Åij ds 1@3 Hkkx esa tks fd 1ls-eh-
x 1ls-eh- ely rd xgjk FkkA

pksV ua0&5%& [kqjlVuqek uhyxw fu'kku
nk;ha vxz ckgq ds ihNs dh vksj fupys 1@3 fgLls es
tks fd 3 ls-eh- x 1-5 ls-eh- dk Fkk bl dk jax
yky FkkA

pksV ua0&6%& ,d [kqjlV dk fu'kku
Nkrh ds fiNys Hkkx ij tks fd lkeus dh ykbu ij
ilyh ls fcYdqy uhps Fkk tks fd 2 ls-eh- x 1-5 lseh- FkkA

(11) After the closure of the
recording of the prosecution evidence, the
accused were examined under Section
313 Cr.P.C. All the accused denied the
prosecution case as concocted and alleged
false implication due to village party
bandi and enmity. Appellant-Anil @
Pappey in criminal appeal no. 1289 of
2017 in addition stated that he was not
present at the place of occurrence at the
time of the incident as he was employed
in Delhi while appellant-Babu Singh @
Vijendra in criminal appeal no. 1370 of
2017 stated that the persons belonging to
the informant's side had set the house of
his brother Rajendra ablaze and he was
busy trying to douze the fire and had not
participated in the occurrence. The
defence neither adduced any documentary
evidence nor examined any witness in
defence.

(12) Learned Additional Sessions
Judge Court No. 3, Hathras
after
considering the submissions advanced
before him by the learned counsel for the
parties and scrutinizing the evidence on
record convicted the appellants under the
aforesaid offences and awarded above
mentioned sentences by the impugned
judgment and order. However, co-accused
Dinesh, Rajanlal, Insaf Ali, Purshottam,
Vishnu, Mahesh, Jeetu @ Jitendra,
Harishchandra, Umesh, Mahendra Kumar
Vashishth @ Mahesh were acquitted of
all the charges.

(13) Reference made by the Additional
Sessions Judge Court No. 3, Hathras to this
Court for confirmation of death sentence
passed by him against Kunwarpal Singh,
appellant in capital case no. 1368 of 2017
1 All. Kunwar Pal Singh Vs. State of U.P.
397
which was registered as reference no. 3 of
2017 before this Court and connected with
these bunch of appeals by order dated
15.2.2017 is also being considered with these
appeals.

(14) Hence these appeals.

(15) These appeals as well as the
application seeking leave to appeal which
have been preferred by the different
appellants can be broadly divided into
three sets.

(16) The first set comprises of
capital case no. 1368 of 2017 (Kunwar
Pal Singh Vs. State) and criminal appeal
no. 1370 of 2017 (Babu Singh @
Vijendra and another).

(17)

In
these
two
appeals,
appellants-Kunwar Pal Singh, Babu Singh
@ Vijendra and Jogendra @ Jogendra
Singh have been convicted under Sections
147, 148, 302/149 I.P.C. read with
Section 3(2)(5) SC/ST Act.

(18) The appellants in the aforesaid
appeals have not been convicted under
Sections 435, 436/149 I.P.C.

(19) The second set comprises of
criminal appeal nos. 1371 of 2017, 1473
of 2017, 1289 of 2017, 1440 of 2017,
1296 of 2017 and 1302 of 2017 which
have been
preferred by appellants-
Rajendra, Hariom, Anil @ Pappey,
Santosh,
Shambhoo,
Dinesh
Darji,
Mukesh, Anil @ Bhola, Umashankar who
have been convicted and sentenced under
Sections 147, 148, 435, 436/149 I.P.C.
read with Section 3(2)(5) SC/ST Act.

(20) The third set comprises
Criminal Misc. Application (Leave to
Appeal) u/S 372 Cr.P.C. No. 284 of 2017
which has been filed by Rajendra Singh,
appellant in criminal appeal no. 1371 of
2017 against the judgment and order
dated 14.7.2017 passed by Additional
Sessions Judge, Court No. 5, Hathras in
S.T. No. 153 of 2010 (State Vs. Niranjan
Singh and others) arising out of Case
Crime No. 78-B of 1990, under Sections
147, 148, 436, 323/149, 427, 295, 307
I.P.C., P. S. Sasani, District Hathras by
which he has acquitted opposite party nos.
2 to 5 from all the charges.

(21) We first proceed to decide
capital case no. 1368 of 2017 and criminal
appeal no. 1370 of 2017.

(22) Sri Satish Trivedi, learned
Senior
counsel
appearing
for
the
appellants in the aforesaid appeals has
submitted that the trial court patently
erred
in
convicting
the
appellantsKunwarpal Singh, Jogendra and Babu
Singh in the aforesaid appeals under
Sections 147, 148, 302/149 I.P.C. read
with Section 3(2)(5) SC/ST Act on the
basis
of
the
testimony
of
wholly
unreliable,
untrustworthy
and
highly
interested witness P. W. 2 Shanti Devi,
the wife of the deceased-Datam Ram
without seeking corroboration from any
other evidence on record.

(23) He next submitted that as far as
the two witnesses namely P. W. 1
Chhatrapal
Singh
and
P.
W.
16
Harishankar who were also examined by
the prosecution during the trial to
establish the charge framed against the
appellants are concerned, it is indisputed
that none of them had witnessed the
occurrence. The facts deposed by P. W. 1
Chhatrapal Singh, son of the deceased
were as per his own evidence, conveyed
398 INDIAN LAW REPORTS ALLAHABAD SERIES
to him by his mother, P. W. 2 Shanti Devi
after she had been brought to village
Rudayan with the help of police from the
house of her brother-in-law (Bahnoi),
Raja Ram in village Jasrana on the night
of the occurrence. Moreover the statement
of P. W. 1 Chhatrapal Singh under
Section 161 Cr.P.C. was recorded after
more than 22 days of the occurrence
without any satisfactory explanation for
the inordinate delay. As far as P. W. 16
Harishankar is concerned, he in the F.I.R.
qua deceased-Data Ram and P. W. 2
Shanti Devi had stated that the rioters had
dragged deceased-Data Ram, his wife, P.
W. 2 Shanti Devi and their daughter-Brij
Bala from their house and taken them
away somewhere but the eye-witness
account of P. W. 2 Shanti Devi does not
contain any such statement.

(24) He further submitted that the
medical evidence on record does not
corroborate the manner of assault on
deceased-Data Ram as narrated by P. W.
2 Shanti Devi in her statement recorded
before the trial court which totally belies
her claim of being the eye-witness of the
occurrence. He also submitted that the
admitted case of the prosecution qua
deceased-Data Ram is that he was shot by
appellant-Jogendra thrice and all the three
shot had hit him and thereafter appellantKunwarpal Singh had thrown him into
"Laha". The incident was witnessed by P.
W. 2 Shanti Devi alone and as per her
own evidence after her husband had been
thrown into Laha she had fled to village
Bilkhaura and from there she had gone to
her brother-in-law's house in village
Jasrana and she had been brought back to
her village Rudayan by the police but
there is no link evidence on record
proving when and by whom the dead
body of Data Ram was recovered and
identified and brought to the village and
kept under the neem tree. There is further
no evidence on record indicating how the
police came to know that P. W. 2 Shanti
Devi was in Jasrana. From the evidence of
P. W. 2 Shanti Devi herself, it is
established that P. W. 1 Chhatrapal Singh
was neither present at the time and place
of occurrence nor she had informed him
about her fleeing to Jasrana.

(25) The aforesaid loopholes and
lack of link evidence give rise to a very
strong
suspicious
that
the
entire
prosecution story qua deceased-Data Ram
is concocted and false.

(26) He next submitted that as far as
Babu Singh, appellant in criminal appeal
no. 1370 of 2017 is concerned, neither
any motive nor any overt act of any kind
has been attributed to him and his
conviction recorded by the trial court by
invoking Section 149 I.P.C., although the
evidence on record indicates that only
three persons had allegedly participated in
committing the murder of Data Ram, is
per se illegal.

(27) He lastly submitted that such
being the state of evidence, neither the
recorded conviction of the appellants nor
the sentences awarded to them can be
sustained and are liable to be set aside.

(28) Rebutting the submissions
made by Sri Satish Trivedi, learned
counsel for the appellants in capital case
no. 1368 of 2017 and criminal appeal no.
1370 of 2017 Sri J.K. Upadhyay, learned
A.G.A. appearing for the State submitted
that the prosecution case stands fully
proved from the consistent and clinching
testimony of P. W. 2 Shanti Devi, the sole
eye-witness of the occurrence who has
given correct and cogent description of
1 All. Kunwar Pal Singh Vs. State of U.P.
399
the
occurrence
which
finds
full
corroboration from the medical evidence
on record. The contradictions and the
discrepancies in the testimony of P. W.
Shanti Devi and the inconsistency in the
medical evidence and the ocular version
pointed out by the learned counsel for the
appellants are of trivial nature which do
not go to the core of the prosecution case
rendering it unreliable. The discrepancy
between her evidence given by her before
the trial court and the medical evidence
on record with regard to the manner of
assault is absolutely natural considering
the fact that she is an illiterate lady who
had seen her husband being shot and
thrown into Laha in her presence.

(29) The factum of deceased-Data
Ram being shot by Jogendra, appellant in
criminal appeal no. 1370 of 2017 and later
thrown by Kunwarpal Singh, appellant in
capital case no. 1368 of 2017 into Laha
stands fully proved from her evidence.

(30) Both the appeals lacks merit
and are liable to be dismissed.

(31) We have heard the learned
counsel for the parties and perused the
material brought on record.

(32) Record shows that the written
report of the occurrence which had
allegedly taken place on 11.3.1990 in
village Rudayan was lodged by P. W. 16
Harishankar who is admittedly not the
eye-witness of the occurrence, at police
station Sasni, district Aligarh on the same
day at 18:50 hours.

(33) A perusal of the written report
of the occurrence indicates that on the
date of occurrence holi festival was being
celebrated in the village, one Udayveer
Jatav by caste while returning from the
house of Sonpal who also belonged to his
caste after playing holi with him was
accosted by Kunwarpal Singh, appellant
in capital case no. 1368 of 2017, Rajendra
Singh, appellant in criminal appeal no.
1371 of 2017, Jogendra @ Jogendra
Singh A2 in criminal appeal no. 1370 of
2017, Shyamveer Singh, Prem Singh,
Banwari Lal and Insafi Khan who
suddenly came out from the 'Nouhre' of
Kunwarpal Singh and they after catching
hold of Udayveer Singh started beating
him. Udayveer Singh somehow managed
to escape and started running towards his
village followed by the aforesaid persons
who were joined in their chase by Umesh
Kumar son of Shahshi Pal, Vijendra
Singh son of Soran Singh, Manoka son of
Sadhu, Gulab Singh son of Gulla, Kahar,
Nanak Chandra son of Kanhaiya Lal
Kahar, Harishchandra son of Chandrapal
Khatik,
Mahendra
Singh
son
of
Radheylal, Raju son of Brahmdutta,
Dinesh son of Mathura Prasad, Shambhu
son of Shivshankar, Santosh son of
Shivshankar Sharma, Rajeev @ Chhotey
son of Narayan, Hari, Hariom Pandit,
nephew of Lala, Komal Prasad, Mukesh
Kumar, Bhola son of Rishi Kumar,
Nempal Bhatiya son of Khyaliram,
Bijuwa son of Ram Singh Jat, Udayveer
Singh son of Pop Singh, Daryav Singh
son of Popo Singh Jat, Purshottam son of
Ramsahai resident of village Rudayan,
Sahab Singh Pradhan Bikhlaura Khurd,
Netrapal son of Udayveer Jat, Brijveer
Bikhlaura Khurd, Shyam Singh son of
Shiv Singh Bikhlaura Khurd, Pappe son
of Mathura Prasad, Pappu son of Mishri
Lal, Vashisht, Nannu, Dinesh son of
Rajkumar (Pathak), Premchandra son of
Gangasharan, Mahesh and Vishnu sons of
Gendalal, Nathuram son fo Sunehri Lal,
Sunil son of Ramkesh, Dinesh son of
400 INDIAN LAW REPORTS ALLAHABAD SERIES
Roopkishore,
Rajanlal
Advocate,
Narayannahri Mishra son of Ramgopal,
Kamruddin
Pradhan
village
Bheeka
Nagla, police station Sasni, district
Aligarh and other persons Narayan Singh
village
Bilkhaura,
Resham
Singh
Bikhlaura
Khurd,
Girraj
Kishore
Bikhlaura Khurd and Mathura Prasad
Pradhan Member Leader and Ravendra
Pathak
Ex-Chief
armed
with
their
licenced and unlicenced guns, lathi,
ballam, pharsa etc. The aforesaid persons
entered into his locality exhorting each
other and surrounded their locality from
the side of boundary wall of the house of
Kunwar Pal Singh. The miscreants who
were also carrying torches in their hands
started setting their houses ablaze. They
also desecrated the statue of Indira
Gandhi and started hurling stones and
firing at the persons belonging to the
Jatav caste who became helpless and
started running helter and skelter shouting
for help while shots were being fired at
them. They endeavoured to douse the fire
but the fire was so fierce that they had to
run towards the fields to save their lives
followed by the accused. They saw their
sisters and daughters being beaten and
within no time not only they had burnt all
the houses of Harijan locality. Even their
harvested crops kept in the farmyards and
their tubewells were set on fire. Data Ram
(deceased), his wife and his daughter
were forcibly dragged from their house.
Such atrocities had been committed by
them on the Harijans in the past also and
they would continue to indulge in such
activities in future also. The accused were
openly threatening that they would not let
the Harijans live in the village. On
account of the atrocities committed on the
Harijans by the accused, cries of sorrow
could be heard throughout the village. As
they hid themselves to save their lives
abandoning their houses which were
looted by the accused. The extent of
damages caused to the houses of Harijans
and details of looted property could be
ascertained only after the same was
assessed by the affected persons on
returning to their homes.

(34) The prosecution in order to
prove
the
charge
framed
against
Kunwarpal Singh, appellant in capital
case no. 1368 of 2017, Babu Singh @
Vijendra and Jogendra @ Jogendra Singh,
appellants in criminal appeal no. 1370 of
2017, primarily placed reliance upon the
evidence of P. W. 1 Chhatrapal Singh and
P. W. 2 Shanti Devi, son and wife of the
deceased-Data Ram respectively, P. W.
15 Soorajpal, witness of recoveries, P. W.
16 (informant) Harishankar and P. W. 18
Dayaram Dwivedi, I.O. of the case.

(35) P. W. 1 Chhatrapal Singh, son
of the deceased and P. W. 2 Shanti Devi
on page 27 of the paper book in his
examination-in-chief
has
categorically
deposed that her mother had told him in
the evening that at about 5 P.M. accusedJogendra, Kunwarpal Singh, Babu Singh
@ Vijendra, Banwari Lal, Manoka,
Komal Prasad, Dinesh Kumar etc. whom
his mother knew and of whom Jogendra
was armed with katta and rest of the
accused were carrying lathi-danda first
had beaten his father and thereafter
Jogendra Singh had fired at him 2-3 times
and then his father was thrown by them
into Laha of 35 bighas alive and set
ablaze by Kunwarpal Singh. On page 33
of the paper book, he admitted in his
cross-examination that his mother had
returned to the village after the police had
brought the dead body of his father. In his
cross-examination on page 29 of the paper
book, he admitted that he had not gone to
1 All. Kunwar Pal Singh Vs. State of U.P.
401
the place where his father had been
murdered on 11.3.1990 and on page 30 of
the paper book he further stated that his
statement under Section 161 Cr.P.C. was
recorded by the investigating officer after
10-12 days of the incident in which he
stated that he had neither seen his father
being murdered nor he had gone to the
place of the incident on 11.3.1990. There
is nothing in his evidence which may
show that he had provided the address of
Raja Ram of Jasrana to the police and his
mother had been brought from Jasrana to
her village by the police. Thus whatever
he deposed before the court qua the
incident was hearse.

(36) Nothing turns upon the
evidence of P. W. 15 Soorajpal who was
produced by the prosecution to prove Ext.
Ka32 and Ext. Ka33, the recovery memo
of ash, plain and bloodstained earth from
the place of occurrence from the field of
Data Ram where he was shot dead and
burnt.
However,
he
in
his
crossexamination deposed that he did not
remember the day and date on which ash,
plain simple earth was recovered, his
signatures were obtained.

(37) P. W. 16 Harishankar who is
the informant of the case in his evidence
tendered before the trial court supported
the prosecution case as spelt out by him in
the F.I.R. and also deposed that accusedKunwar Pal Singh, Rajendra, Jogendra,
Banwari, Manoj and Mulla @ Gulab had
after setting the houses of Harijans in the
village on fire had gone to the field of his
brother-Data Ram and caused his death by
throwing him in burning fire, although the
aforesaid fact was conspicuous by its
absence in the written report of the
incident. He in his cross-examination on
page 107 of the paper book admitted that
he had not seen the incident which had
taken place in the field of Data Ram. On
page 110 of the paper book, he further
admitted
that he had no personal
knowledge about the persons who had
participated
in
the
occurrence
and
whatever he had stated in the F.I.R. was
communicated to him by other people. On
page 109 of the paper book, he stated that
he was not aware whether on the date of
occurrence,
'Nauhra'
of
appellantsRajendra, Jogendra Singh and Kunwar Pal
Singh was set on fire or not. However in
the same page he admitted that appellantRajendra Singh and others had filed a
criminal case against Sonpal and others
alleging that their 'Nauhar' had been set
on fire by Sonpal and others which was
pending before the trial Court.

(38) P. W. 18 who at the relevant
point of time was posted as S.H.O. P.S.
Sasni was entrusted with the investigation
of the case on 17.3.1990 stated before the
trial court that he started the investigation
on 17.3.1990 and recorded the statements
of Pooranchand, Smt. Shanti Devi on
19.3.1990
while
the
statement
of
witnesses Sonpal, Bheekam Singh, Gulab
@ Mulla were recorded on 20.3.1990 and
223.1990 respectively. On 24.3.1990, the
investigation of the case was transferred
to CBCID under the orders of S.S.P. He
also stated that he had not recorded the
statement of Smt. Shanti Devi before
19.3.1990 and she in her statement made
before him had not disclosed the time at
which she had gone to her field. She had
also not told to him about the exact place
where she was cutting grass at the time of
the incident but she had told him that she
was cutting grass at a place which was
adjacent to the grove of Harishankar. He
admitted
having
not
recorded
the
statements of either Rahim Baksh or
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Narsi. He had also stated that although
Shanti Devi had told her that gunshot was
fired but she had not told him that the
accused had fired thrice. He also stated
that P. W. 2 Shanti Devi had not stated
before him that if she had raised cries for
help the accused would have killed her
also. She had neither told him that on the
date of incident she had remained
unconscious for 10-15 minutes nor that
she had become unconscious at all. She
had also not told him that after she had
gone to Jasrana, she had told about the
incident to anyone. She had also not told
him that she had not gone to the police
station Sasni on account of being a lady.

(39) We now proceed to evaluate the
evidence of P. W. 2 Shanti Devi, the
solitary eye-witness of the murder of Data
Ram allegedly committed by appellants,
Kunwarpal
Singh,
Babu
Singh
@
Vijendra and Jogendra @ Jogendra Singh.

(40) P. W. 2 Shanti Devi in her
statement recorded before the trial court
deposed that her name was Shanti Devi
and she was aged about 50 years and
resident of Rudayan, police station Sasna,
district Aligarh. About 19-20 years before
on the day of holi she, her husband and
her daughter-Brij Bala had gone from
their house to their tubewell. She had left
her son-Chhatrapal Singh in her house.
They had left their house and had gone to
tubewell because they did not want to
participate in holi revelry. Her husband
had gone to sleep at the tubewell. Strong
breeze was blowing. In order to avoid
damage to their standing crops she had
not switched on the tubewell. While he
and Brijbala were cutting grass Raheem
Baksh told her that when he was sleeping
he had heard a lot of noise coming from
the side of the village. While Raheem
Baksh was talking to her she saw about
30-40 persons coming towards her from
the side of the village, some of whom
went towards the house of Netrapal and
Narsi while others came to the tubewell.
After beating Narsi, his tubewell and hut
were set ablaze by them, Kunwarpar
Singh, Jogendra, Babu Ji, Banwari,
Manoka, Komal etc who were previously
known to her beat her husband. Amongst
them Jogendra was carrying a katta with
him while others were armed with 'lathidanda'. Jogendra had shot her husband
thrice. P. W. 2 Shanti Devi and her
daughter-Brijbala ran away due to fear
towards Ganda Nala. The aforesaid
persons had set on fire her 'Burjiyan',
'Moonj' and four mango trees. She had
seen the entire incident while lying on the
ground. Her daughter was also lying on
the ground but she had not seen seen
anything. She had witnessed the whole
occurrence and after the mob had gone
she went away from the place of
occurrence.