# Manna Singh & Ors v. State of U.P. Opp. Party

- **Citation:** (2016) 1 ILRA 11
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-06
- **Case number:** Criminal Appeal No. 213 of 1983
- **Bench:** Huluvadi G. Ramesh, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manna-singh-ors-v-state-of-u-p-opp-party-43394
- **Pages:** 9

## Headnote

INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal
Appeal-conviction
of
life
imprisonment-offence u/s 302, 34 IPCchallenged on ground of enmity with of
eye witness with appellant/accusedsuch statement wrongly relied by Trial
Court-held-no ground for rejection of
their testimony.
Held: Para-20
In view of above as has been discussed
above, the evidence of eye witnesses
examined
by
prosecution
cannot
be
discarded only on the ground that Chhote
Singh and other neighbour witnesses were
not examined.
Case Law discussed:
(2015) 1 SCC 737; AIR 2013 SC 308; 2012 (5)
SCC 777; AIR 2010 SC 1378.

## Text

1 All. Manna Singh & Ors. Vs. State of U.P.
11
investigation and the protection of section 8
(f) comes into play.
9. In the instant case, we have already
extracted the provision under Section 173(8)
hereinabove and we are of the considered
opinion that once the charge-sheet was filed
before the Court of competent jurisdiction,
fresh investigation could not be ordered by
respondent no.2 on a mere application filed
by a third party, as such the application filed
by the petitioner was rightly rejected by the
Information Officer on 03.02.2015 and
09.03.2015 which orders have not been
assailed in the Ist or IInd appeal. It is also not
the case of the petitioner that respondent no.2
was ever entrusted with any further
investigation of the case registered against
his brother under the provisions of Section
158 of the Code of Criminal Procedure,
therefore, his application was maintainable
due to that reason. The application filed by
the petitioner on 23.01.2015 rather makes a
prayer for fresh investigation and the said
jurisdiction as per law vests in the State
Government but no such application was
ever filed by the accused person before the
State Government either himself or in
representative capacity.
10.
We have no hesitation to record
that
inaction
on
non-statutory
applications/complaints filed by any person
where the State Authorities are not obliged to
take a decision would not fall within the
definition of information giving rise to a
cause under Section-6 of the Act. If all such
inactions are construed to be cognizable
under the Right to Information Act, the
misuse of the Act would become rampant
and the provisions of the Act in that view of
the matter would result into an abuse of the
process of law. Once it is held that the
application filed by the petitioner did not fall
within the scope of information under the
Right to Information Act, the impugned
order passed by respondent no.1 on
24.11.2015 does not call for any interference
and the writ petition being devoid of merit
deserves to be dismissed.
11. We may also put on record that in
various cases it is noticed that cognizance of
proceedings under Section 18 of the Act is
taken without discharging the obligation to
examine the maintainability of appeals and
complaints. Once the Information Officers
either fail to discharge their duties or there is
some other grievance which is amenable to
the remedy of first appeal, the provisions of
Section 18 of the Act have to be scrupulously
applied so that the purpose of Section 19 of
the Act is not frustrated but is rather
strengthened to serve better. Needless to say
that exceptions carved out under Section-8 of
RTI Act, 2005 remain protected under the
Official Secrets Act, 1923 or any other law
for the time being in force.
12. The writ petition lacks merit and
the same is hereby dismissed.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2016
BEFORE
THE HON'BLE HULUVADI G. RAMESH, J.
THE HON'BLE SHAMSHER BAHADUR
SINGH, J.
Criminal Appeal No. 213 of 1983
Manna Singh & Ors.
 ..Appellants
Versus
State of U.P.
...Opp. Party
Counsel for the Appellants:
R.P. Singh, S.L. Singh
Counsel for the Respondents:
D.G.A.
12
 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal
Appeal-conviction
of
life
imprisonment-offence u/s 302, 34 IPCchallenged on ground of enmity with of
eye witness with appellant/accusedsuch statement wrongly relied by Trial
Court-held-no ground for rejection of
their testimony.
Held: Para-20
In view of above as has been discussed
above, the evidence of eye witnesses
examined
by
prosecution
cannot
be
discarded only on the ground that Chhote
Singh and other neighbour witnesses were
not examined.
Case Law discussed:
(2015) 1 SCC 737; AIR 2013 SC 308; 2012 (5)
SCC 777; AIR 2010 SC 1378.
(Delivered by Hon'ble Shamsher Bahadur
Singh, J.)
1. This appeal challenges the
judgment and order dated 14.01.1983
passed by 2nd Additional Sessions Judge,
Hamirpur in S.T. No.60 of 1979 (State
Vs. Manna Singh and others) arising out
of Case Crime No.205 of 1978, under
Section 302 IPC, P.S.-Sumerpur, District
Hamirpur,
whereby
the
accusedappellants namely Manna Singh, Ganpat
Singh, Lallu Singh and Subedar Singh
have been convicted and sentenced to
undergo imprisonment for life under
Section 302 read with Section 34 IPC.
2. In pursuance of the order of this
Court dated 07.05.2015, a report has been
submitted by learned C.J.M. Hamirpur on
22.05.2015, mentioning therein that the
appellant no.2 Ganpat Singh and appellant
no.3 Subedar Singh have died, therefore,
the appeal filed on behalf of appellant
nos.2 and 3 stand abated.
3. The deceased Ram Sanehi Singh
son of Bhagwan Deen Singh was resident
of village Pachkhura Mahan within the
jurisdiction of Police Station Sumerpur,
District Hamirpur. Accused Manna Singh,
Ganpat Singh @ Mihi Lal and Subedar
Singh are real brothers and accused Lallu
Singh is their cousin and all of them are
residents of the same village.
4. The prosecution case, in brief, is
that before the date of incident the
deceased
Ram
Sanehi
Singh
had
purchased a 'Bakhri' (house) of one Jaitpal
Khori, a portion of which was in
possession of accused Manna Singh. The
dispute led to a prolonged civil litigation
which terminated in favour of the
deceased. Manna Singh was upset by this
judicial defeat, his ego was lacerated and
the fire of revenge was smouldering in his
heart. On 09.12.1978 after mid-day meal
Binda Singh, Manni Lal Shukla @ Manni,
Chhote Singh and the deceased Ram
Sanehi Singh were basking in the sun and
playing cards sitting on the eastern
'chabutra' situate in front of the house of
Manni Lal Shukla. At about 1.30 p.m.
accused Manna Singh armed with a
double barrel gun, Ganpat Singh @
Mihilal with a rifle, Lallu Singh with a
single barrel gun came there and watched
the play for a while. In the meantime,
Subedar Singh armed with a 'Lathi' also
reached there from the western side and
exhorted the other accused to eliminate
the enemy as it was a good opportunity.
Thereupon, all the gun men rained
multiple gun shots on Ram Sanehi Singh.
Several shots were fired from a very close
range which grievously wounded Ram
Sanehi Singh and he succumbed to the
injuries then and there. Manni Lal Shukla,
Binda Singh and others entreated the
accused to forbear but they were
intimidated by the accused with dire
consequence. After commission of the
1 All. Manna Singh & Ors. Vs. State of U.P.
13
murder all the accused escaped towards
the west. At the time of incident Raja
Bhaiya Singh son of the deceased was at
his door. The sound of gun shots hijacked
his attention and he along with Pratap
Singh and Lallu Singh rushed towards the
scene of occurrence and on his way
witnessed the four accused, with their
weapons, fleeing away by the same
pathway. Raja Bhaiya Singh saw the
corpse of his father lying in a pool of
blood on the 'chabutra' of Manni Lal
Shukla. Manni Lal Shukla and others
playing the cards narrated the details of
the incident to him and he went back to
his house and scribed the report Ext. Ka-2
and transmitted the same through Sheo
Prasad, Chowkidar of the village, to the
reporting Chowki Surauli of the Police
Station Sumerpur. The written report was
submitted at 5.30 p.m. on the same day at
Police Chowki Surauli situate at a
distance of about three miles from the
village. The written report was received
by constable Moharrair Jodha Singh who
prepared the Chik report Ext. Ka-4 and
registered the crime at serial number 9 of
the General Diary Ext. Ka-5. The
information of the crime was sent to Shri
Babu
Singh Sengar, Station Officer,
through Constable Govind Ram and
Constable Moharrair Jodha Singh left for
the scene of occurrence to keep vigil over
the corpse. Information of the crime was
received by the Station Officer the next
day in village Terha, wherefrom he
proceeded to the place of incident direct.
He held inquest at 8.30 A.M. on
10.12.1978 vide Ext. Ka-6, inter alia,
recovered the dead body of the deceased
and two blood-stained playing cards lying
under the corpse of the deceased, plain
and
blood-stained
earth,
tiklies
of
cartridges and pellets from the spot and
prepared a memo ext. Ka-7. Photo of the
dead body Ext. Ka-8 and challan of the
corpse ext. Ka-9 were prepared. The
corpse was sealed and sent for autopsy.
Statements of the witnesses were recorded
and a site plan Ext. Ka-10 was prepared.
Autopsy on the corpse was conducted by
Dr. T.D. Singh of District Hospital,
Hamirpur on 11.12.1978 from 10.15 A.M.
onward and the autopsy report is Ext. Ka1.
5. The following ante mortem
injuries were found on the person of the
deceased;
1. Gun shot wound of inlet with
scorched margin and also blackening and
tattooing of margin present 4 cm x 3 cm x
c.c deep on the medial part of left
clavicle. Direction front to backwards and
slightly downwards. Fracture of the left
clavicle and 1st to 4th ribs anteriorly
present under the wound. Wadding
material found on the track. It severely
lacerates the upper lobe of the left lung. It
communicates with wound no.20 (exit
wound).
2. Gun shot wound of inlet 4 1⁄2 cm x
3 1⁄2 cm x abdominal cavity deep, on the
left costal margin at 7 O'clock position, 7
cms away from the left nipple. Margin
scorched,
blackened
and
tattooed.
Direction left to right and slightly
downwards. An scorched area size 5 cm x
3 1⁄2 cms present above the wound
contiguous with it. Fracture of the 10th
anterior rib of the left side present, under
the wound. It perforates the stomach
through and through and extensively
lacerated the liver. Wadding pieces found
on the stomach and liver.
3. Gun shot wound of inlet 6 1⁄2 cm x
2 cm x muscle deep left side of the
abdomen horizontally disposed between
12 to 1 O'clock position 4 1⁄2 cms above
14
 INDIAN LAW REPORTS ALLAHABAD SERIES
the umbilicus. Margin scorched and
blackened and tattooed. Direction left to
right and horizontally.
4. Gun shot wound of outlet 2 cm x 1
1⁄2 cm x muscle deep right side of the
abdomen at 11 O'clock position 7 cm
away from the umbilicus. Edges everted.
Wadding material found on the muscle
plane. It communicate to injury No.3.
5. Gun shot wound of inlet 4 cm x 3
cm x muscle deep. Margins scorched,
blackened and tattooed right side of the
abdomen lower part 3 cm above the right
iliac crest. Direction left to right and
slightly upward in the muscle plane.
6. A grazed and scorched area
closely lateral to the wound no.5.
7. Gun shot wound of exit 1 1⁄2 cm x 1
1⁄2 cm x 1 1⁄2 cm x communicating to the
wound no.5. Margin everted right side of
the abdomen lower part. It is 3 cm away
from the wound no.5 lateral to it. Margin
everted.
8. Gun shot wound of exit 1 cm x 1⁄2
cm x communicating the wound no.5.
Margins everted 4 cm lateral to injury
no.5.
9. Gun shot wound of exit 2 cm x 1 1⁄2
cm x communicates with injury no.5.
Margin everted on the right lower
abdomen.
10. Gun shot wound of exit 1 cm x 1⁄2
cm x communicating to the injury no.5.
Margin everted. It is 10 cm lateral to the
injury no.5.
11. Gun shot wound of exit 1 cm x 1⁄2
cm x communicating with injury no.5.
Margin everted. It is 14 cm away and
lateral to the injury no.5.
12. Gun shot wound of exit 1 1⁄2 cm x
1⁄2 cm x communicating with wound no.5.
Margin everted. It is 9 1⁄2 cm away and
lateral to the injury no.5.
13. Gun shot wound of exit 1 cm x 1⁄2
cm x communicating with injury no.5.
Margin everted. It is 9 cm away lateral
and downwards to the injury no.5.
14. A grazed and scorched area size
2 cm x 1 1⁄2 cm at 7 O'clock position 13 cm
away from the umbilicus.
15. Two grazed and scorched spots 1
cm x 1 cm on the right iliac crest. They
are 14 cm apart.
16. A grazed, scorched spot 5 cm x 1
cm right side of the thigh front aspect 14
cms below right iliac crest.
17. Gun shot wound of exit 1 cm x 1⁄2
cm x c.c. Deep right side of the back on
the posterior axillary line 1-8 cm below
the right armpit.
18. Gun shot wound of exit 5 cm x 4
cm x c.c. deep on the left scapula. Margin
everted. Fracture of the 4th and 5th
posterior ribs and scapula present. It is
an exit of injury no.1.
19. Confluent gun shot wound of entry
and exit (grazing) 23 cm x 5 cm x muscle
deep left back lower part obliquely disposed.
Margin scorched, tattooed and blackened. A
scorched and blackened area size 11 cm x 4
cm is present above the wound continuous
with it. Another scorched and blackened are
size 6 cm x 3 cm present below the wound in
continuation.
20. A gun shot wound of entry 5 cm x 4
cm x pelvic cavity deep on the right buttock,
upper part. Direction back to front and
medially wadding material found on the
track. Four gun shots found on the right
ground and iliac crest. Right iliac crerst
fractured and bladder perforated through
and through.
6. In the opinion of the doctor, the
death
occurred
due
to
shock
and
haemorrhage as a result of the firearm
injuries mentioned above.
7.
The first I.O. was transferred and
the remaining investigation was conducted
1 All. Manna Singh & Ors. Vs. State of U.P.
15
by the Sub-Inspector Ravendra Kumar who
submitted the charge-sheet Ext. Ka-11.
Thereafter, the case was committed to the
Court of Session on 6.04.1979. To the
charge under Section 302/34 IPC, the
accused pleaded not guilty and attributed
their prosecution to enmity with the
deceased and with the witnesses.
8. To bring home guilt of accused,
the prosecution has examined as many as
six witnesses. Out of them PW 1 Dr. T.D.
Singh, PW 5 Constable Moharrair Jodha
Singh and PW 6 Babu Singh Senger,
Station Officer are formal witnesses. PW
2 Manni Lal Shukla, P.W. 4 Binda Singh
are the eye witnesses and PW 3 Raja
Bhaiya Singh son of the deceased is
scribe of the First Information Report Ext.
Ka-2. He has also stated that while
coming to the scene of occurrence he
witnessed
the
four
armed
accused
escaping by the same pathway. He has
further proved the motive for murder of
his father as mentioned in the First
Information Report.
9. We have heard Sri R.P. Singh,
learned counsel for the appellants, learned
AGA for the State and perused the
evidence and material available on record
as well the impugned judgment.
10. The First Information Report
was promptly lodged on the same day at
5.30 P.M. It mentions the names of the
accused, a rifle and two guns used in the
commission of offfence, date, time and
place of occurrence, motive for the crime
and names of the witnesses present at the
time of incident. Thus, the F.I.R.
corroborates
the
version
of
the
prosecution.
The
medical
evidence
(statement of Dr. T.B. Singh and autopsy
report prepared by him) establishes the
fact that the deceased died of multiple
gunshots injuries and his death was
neither natural nor accidental.
11. The First Information Report,
the ocular evidence of eye witnesses and
the evidence of Investigating Officers,
coupled with the site plan, leave no room
for doubt that the death of the deceased
was caused on the eastern 'chabutara'
situate in front of the main door of the
house of Manni Lal Shukla wherefrom the
corpse of the deceased Ram Sanehi Singh
was recovered. The date, time and scene
of occurrence have not been challenged
by the defence.
12. According to the prosecution
version, Manni Lal Shukla, Binda Singh,
Chhote Singh and deceased Ram Sanehi
Singh were playing cards on the eastern
'Chabutara' of Manni Lal Shukla, when
Ram Sanehi Singh was done to death by
the multiple gunshots rained on him by
the three accused Manna Singh, Ganpat
Singh and Lallu Singh who were all
armed with firearms. PW 2 Manni Lal
Shukla whose presence on the scene of
occurrence cannot be doubted by any
stretch of imagination, has confirmed the
prosecution version. He has frankly
admitted that he is 'purohit' (family priest)
of both accused Manna Singh and the
deceased Ram Sanehi Singh. Manna
Singh wanted to retrieve the land already
given to Manni Lal Shukla by his family.
There was a prolonged litigation before
the consolidation court between Manni
Lal Shukla and the accused in which Ram
Sanehi Singh had appeared as his witness.
This witness has also stated that when the
accused were aiming at Ram Sanehi
Singh to fire, he had entreated them with
folded hands to forbear but the accused
did not relent, intimidated him with dire
16
 INDIAN LAW REPORTS ALLAHABAD SERIES
consequence and culminated their design.
The testimony of this witness is natural,
convincing
and
devoid
of
any
concealment.
13. PW 4 Binda Singh while
corroborating
the
version
of
the
prosecution has admitted that after this
incident a case under Section 107 of the
Cr.P.C.
was
instituted
between
his
brothers and the accused. The element of
animosity is also manifest in the statement
of PW 2 Manni Lal Shukla who has
deposed that Binda Singh and Parasuram
are real brothers and Parasuram's daughter
is married to Ram Narain Singh son of
deceased Ram Sanehi Singh.
14. PW 3 Raja Bhaiya Singh who is
son of deceased Ram Sanehi Singh has
proved the motive that impelled the
accused to eliminate the deceased. He has
specifically stated that on hearing the
sound of gun shots while he was
proceeding to the scene of occurrence he
saw all the four armed accused at the door
of Jagmohan coming from opposite
direction. He ascertained the facts from
Manni Lal Shukla, Binda Singh and
Chhote Singh and prepared the written
report Ext. Ka-2. Thus, this witness has
corroborated the evidence of the eye
witnesses Manni Lal Shukla and Binda
Singh regarding participation of the
accused in the commission of the offence
of murder.
15. The ocular testimony of all the
above three witnesses i.e. Manni Lal
Shukla, Binda Singh and Raja Bhaiya
Singh is natural and straightforward and
the conscience of the Court is convinced
about its veracity. The medical evidence
corroborates the ocular evidence of the
eye witnesses and there is no conflict
between the medical evidence and the eye
witnesses account.
16. The eye witnesses and the
accused are sworn enemies of each other
and resident of the same village. The
incident occurred in bright sun shine, and
therefore, possibility of any mistake in
identification of accused is out of
question.
17. The learned counsel for the
appellants has vehemently contended that
if the eye witnesses Manni Lal Shukla and
Binda Singh and the deceased were
playing cards sitting on a small 'chabutra'
in close physical proximity and multiple
gunshots were fired at the deceased then
the eye witnesses examined and Chotey
Singh (not examined) must have sustained
gunshot injuries and absence of any such
injuries on the persons of above three
witnesses, renders their presence on spot
at the time of occurrence very doubtful.
The argument is attractive but an analysis
of the eye witness account and human
conduct make it without strength. Both
Manni Lal Shukla and Binda Singh have
made specific mention that they tried their
best to dissuade the accused from
assaulting Ram Sanehi Singh but the
accused
threatened
them
with
dire
consequence to move away. As they were
only fair-weather-friends and not blood
relation of the deceased, it was very
natural for them to have left the deceased
to his fate. Moreover, the accused had no
intention to harm the witnesses and
therefore they isolated the deceased and
ensured that the witnesses kept away.
18. The next contention on behalf of
the appellants is that both the eye
witnesses are inimical to the accused and
they have falsely stated before the trial
1 All. Manna Singh & Ors. Vs. State of U.P.
17
court to implicate the accused. It is
noteworthy that the evidence of witnesses
cannot be discarded solely on this basis.
The Hon'ble Apex Court in case of
Dilabar Singh Vs. State of Haryana
(2015) 1 SCC 737, Dhari Vs. State of
U.P., AIR 2013 SC 308, and Ramesh
Harijan Vs. State of U.P., 2012 (5) SCC
777 and Dharamveer Vs. State of U.P.,
AIR 2010 SC 1378 propounded that the
enmity of the witnesses with the accused
is not a ground to reject their testimony
and if on proper scrutiny, the testimony of
such witness is found reliable, the accused
can
be
convicted.
However,
the
possibility of falsely involving some
persons in the crime or exaggerating the
role of some of the accused by such
witnesses should be kept in mind and
ascertained on the facts of each case. As
has been enunciated above, though there
is some enmity between the accused and
witnesses prior to and after the incident
but the evidence of eye witnesses i.e.
Manni Lal Shukla and Brinda Singh is
natural, straightforward and trustworthy,
and therefore, the same is fit to be relied
on for conviction. They are residents of
the same village and their houses are in
the close proximity of the scene of
occurrence, therefore, their presence on
spot was quite probable.
19. Further in support of above
contention, it was contended that Chhote
Singh who has no enmity with the
accused had been purposely withheld by
the
prosecution
apart
from
nonexamination of Kunj Bihari, Laxmi
Prasad, Guru Prasad Langra, Babu Singh,
Jagmohan and others who have their
houses in the vicinity of the place of
occurrence. The presence of above
neighbours at the scene of occurrence was
natural, and their non-examination by
prosecution renders the prosecution case
doubtful. This contention has no legs to
stand as most of the villagers are usually
reluctant to get themselves involved in an
occurrence specially when the accused are
desperadoes and no blame can be laid at
the prosecution for not examining other
witnesses. It is nor the case of prosecution
or defence that above neighbors were
present at the scene of occurrence. So far
as
non-examination
of
independent
witnesses and its effect are concerned, the
Hon'ble Apex Court in the case of Kripal
Singh Vs. State of Haryana, AIR 2013 SC
286, Sandeep Vs. State of U.P. (2012) 6
SCC 107 and Mano Dutt and another Vs.
State of U.P. 2012 77 ACC 2009 SC
propounded that if a witness examined in
the court is otherwise found reliable and
trustworthy, the facts sought to be proved
by that witness need not be further proved
through other witnesses though there may
be other witnesses available who could
have been examined but were not
examined. Non-examination of material
witness is not mathematical formula for
discarding the weight of testimony
available on record however, natural,
trustworthy and convincing it may be. It is
settled law that non-examination of eye
witness cannot be pressed into service like
a ritualistic formula for discarding the
prosecution case with a stroke of pen.
Court
can
convict
an
accused
on
statement of sole witness even if he is
relative of deceased and non-examination
of independent witness would not be fatal
to the case of prosecution.
20. In view of above as has been
discussed above, the evidence of eye
witnesses
examined
by
prosecution
cannot be discarded only on the ground
that Chhote Singh and other neighbour
witnesses were not examined.
18
 INDIAN LAW REPORTS ALLAHABAD SERIES
21.
Learned counsel for the
appellants further submitted that only two
playing cards were found on spot and
there is no trace of the remaining cards
and therefore the theory of playing cards
on 'chabutra' appears to be manufactured
and concocted. There is no force in this
submission because recovery of two
blood-stained playing cards was effected
on the next day at 8.30 A.M. from the
place of occurrence and that too from
beneath the corpse. In natural course the
remaining cards could not remain in their
original place as there are several agents
like children, animals and wind to disturb
their status quo.
22. It has been further submitted that
place of occurrence is doubtful as no
empty cartridges were recovered from the
spot. It is essential to mention that PW 6
Babu Singh Sengar who investigated the
case, has deposed that, inter alia, he
recovered pellets and ticklies from the
scene of occurrence and this fact is
specified in recovery memo Ext. Ka-7.
Moreover, there is no suggestion by
defence to the eye witness account that
Ram Sanehi Singh was done to death
elsewhere. Therefore, contention loses
strength.
23. No other point has been
highlighted before us nor mentioned
during the course of argument.
24.
To appreciate the testimony of
eye witness, it has to be kept in mind
whether the witness is credible and his
presence on spot is probable and he has
seen the incident. In this background, the
witnesses examined by the prosecution
are consistent in their version despite
searching cross examination and there is
no material contradiction or inconsistency
which
may
militate
against
their
credibility or trustworthiness. Further, the
evidence
of
the
eye
witnesses
is
strengthened by medical evidence on
record. The motive for crime is also
proved by PW 3 Raja Bhaiya Singh son of
the deceased Ram Sanehi Singh. The
prosecution has proved its case beyond
reasonable
doubt
and
verdict
of
conviction
is
legally
and
factually
justified by the evidence on record.
25. Being the court of first appeal,
we have carefully scrutinized the case
from every angle. The Court below has
rightly appreciated the evidence available
on record and rightly recorded the finding
of
conviction
against
the
accused
appellants.
We
do
not
find
any
justification
for
interference
in
the
impugned judgment and sentence and the
same deserves to be confirmed.
26.
The appeal against Manna Singh
and Lallu Singh is sans merit and deserves to
be dismissed and is hereby dismissed. The
conviction and sentence awarded by trial
court against the accused Manna Singh and
Lallu Singh is confirmed.
27. So far as accused Ganpat Singh
and Subedar Singh are concerned, their
appeals have been abated due to their
death.
28. The appellants/ accused Manna
Singh and Lallu Singh shall surrender
before the trial Court immediately to
serve out the sentence awarded by the
trial Court.
29. The copy of the Judgment and
entire record be transmitted back to the
learned trial court for compliance.
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1 All. P.N.O. 872080197 Cons. Bhupendra Singh Vs. State of U.P. & Ors.
19
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.01.2016
BEFORE
THE HON'BLE RAJAN ROY, J.
Service Single No. 560 of 2016
P.N.O. 872080197 Cons. Bhupendra Singh
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Surya Prakash Singh
Counsel for the Respondents:
C.S.C.
U.P.
Police
Regulation-Regulation 525Transfer
of
civil
police
constable-to
Government Railway Police-challenged on
ground being civil police their cadre can not
changed-held-in view of Full Bench decision
Govt. Railway Police and Civil Police are
same cadre-even after dismissal of petition
by Second petition-quashing the validity of
transfer-held-barred by constructive Resjudicata-moreover can approach by reviewsecond
petition-not
maintainabledismissed.
Held: Para-4
The action impugned in the present case is
merely consequential to the issuance of the
transfer order dated 07.10.2012 which was
challenged in the earlier writ petition,
therefore, now for the petitioner to file a
second writ petition saying that he has
attained the age of 47 years in July, 2014,
therefore, irrespective of the Full Bench
decision and in view of the circular dated
03.03.2012 he is not liable to be compelled
to join in the Government Railway Police
does not appear to be sustainable in the
eyes of law as the petitioner had attained
the age of 47 years when the earlier writ
petition filed by him was still pending,
therefore, he ought to have raised this issue
before this Court in the said writ petition
but not having done so, this writ petition is
barred by the principle of constructive resjudicata and res-judicata, therefore, no writ
of mandamus as prayed for can be issued.
If at all permissible, the petitioner may seek
appropriate remedy by way of review of the
judgment dated 30.07.2015 passed in his
earlier writ petition but no such relief can
be granted in this second writ petition.
(Delivered by Hon'ble Rajan Roy, J.)
1. Heard learned counsel for the
parties.
2.

The
petitioner
herein
has
challenged an order dated 05.07.2015 by
which the opposite party no. 3 has directed
the opposite party no. 5 to relieve the
petitioner consequent to the transfer order
passed on 07.10.2012 transferring him from
Civil Police to Government Railway Police
as the litigation in this regard has come to
an end and the legal position has been
settled by a Full Bench decision of the
Supreme Court in Om Prakash Singh's case.
3.
The petitioner herein had earlier
filed a writ petition bearing No. 5484(SS) of
2012 challenging the aforesaid transfer
order dated 07.10.2012. Initially stay order
was passed on 09.10.2012. Subsequently, in
view of the Full Bench decision in the case
of Om Prakash Singh and others Vs. State
of U.P. and others, 2014 (3) ALJ 420 the
writ petition was dismissed and the interim
order was vacated. The judgment dated
30.07.2015 passed in the Writ Petition No.
5484(SS) of 2012 filed by the petitioner is
quoted herein below:-
"Heard Sri Yashovardhan Swarup,
Sri Desh Deepak Singh, Sri Rajesh Kumar
Pandey, Sri Yogesh Kumar Awasthi and
other counsel appearing on behalf of
learned counsel for the petitioner in other