# Nathoo Singh & Ors v. State Of U.P

- **Citation:** (2016) 5 ILRA 1760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-05
- **Bench:** Ramesh Sinha, Vinod Kumar Srivastava-Iii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nathoo-singh-ors-v-state-of-u-p-43819
- **Pages:** 11

## Headnote

Singh, Jagbhan Singh, and Veer Singh) for murder (Section 302,149 IPC) and rioting, sentencing them to life
imprisonment.
Para 2: Notes that appellants Nathoo, Dhanua, and Veer died during the appeal; proceedings against them
are abated.
Para 3: Outlines the prosecution story: The accused, motivated by past enmity and cattle theft disputes,
ambushed and killed Govind Singh with axes, lathis, and luhangis on September 8, 1982.
Para 4: Details the police investigation, including the filing of the FIR, arrests, and the recovery of weapons
(axes and lathis) based on the accused's statements.
Para 5: Confirms the formal framing of charges against the six accused under relevant sections of the IPC.
Para 6: Lists the evidence produced: Two eyewitnesses (PW-1 and PW-2), a doctor (PW-3), and the
Investigating Officer (PW-4).
Para 7: Details the Post-Mortem findings: 16 major injuries including incised wounds, contusions, and
fractures to the skull and legs.
Para 8: Medical opinion confirms the cause of death was shock and hemorrhage from injuries caused by
weapons like axes and lathis.
Para 9-10: Summarizes the Investigating Officer's actions, including preparing the site plan and recovering
blood-stained items from the scene.
Para 11-13: Covers the statements of the accused (Section 313 Cr.P.C.); all denied the charges, claiming
false implication due to village election rivalry and "bad character" of the deceased.
Para 14: Notes the defense evidence produced to label the deceased as a "history-sheeter."
Para 15-17: Records the Sessions Judge's original conviction and the commencement of the current High
Court appeal.
Para 18: Defines the legal issue: Whether the appellants formed an "unlawful assembly" with a common
object to murder Govind Singh.
Para 19-22: Addresses the "interested witness" argument. The Court held that in faction-ridden villages,
relatives are natural witnesses, and their testimony cannot be discarded solely due to their relationship with
the victim.
Para 23-25: Dismisses minor contradictions in witness statements (regarding distances and timings), noting
that small discrepancies often prove a witness is not "tutored."
Para 26-29: Analyzes eyewitness testimony (PW-1 and PW-2), finding them natural and credible as they
lived near the crime scene or were accompanying the deceased.
Para 30-32: Rejects the defense claim that the brother (PW-2) was lying because he wasn't injured; the
Court ruled that "self-preservation" is a natural instinct when facing armed attackers.
Para 33: Validates the promptness of the FIR, which was filed within 3.5 hours, leaving no room for a
concocted story.
Para 34-37: Confirms that medical evidence perfectly matches oral testimony regarding the types of
weapons used and the nature of the wounds.
Para 38-39: The Court concludes the guilt is established. The trial court's judgment is upheld, and the
appeal is dismissed.
Para 40-41: Orders the surviving appellants (Jagbhan, Durg, and Lakhan) to be taken into custody to serve
their life sentences.
 Appeal Dismissed.

Case Laws Cited:-
1762 INDIAN LAW REPORTS ALLAHABAD SERIES
Badri etc. Vs. State of U.P., 1975 Cri.L.J. 1739 (SC)
Sucha Singh and another Vs. State of Punjab, (2003) 7 SCC 643
Ramesh Harijan Vs. State of U.P., (2012) 5 SCC 777

## Text

1760 INDIAN LAW REPORTS ALLAHABAD SERIES
20. We may further record that the Tribunal for the purposes of making the impugned order
has relied upon the judgement in the case of United India Company Limited Vs. Rejendra
Singh, reported in 2000 (11) 202, Durghatna Muawaja Patrika, as well as upon the order of the
High Court passed in Writ Petition No. 2880 of 2012 (Smt. Rita Vs. State of U.P.). The paragraph
of the judgement which have been so having relied upon by the Tribunal only confer a power, to
recall an order which has been made in absence of a party and in cases where an order has been
obtained by fraud. It is settled law that every authority has inherent power to recall an order which
has been obtained by fraud. Similarly every authority has a right to recall an order which has been
made ex-parte on an proper ground being made out for the purpose. But the aforesaid powers
cannot be extended to mean that the Commissioner had a power of review.

21. We may further record that even if, it is presumed that the Commissioner could have
reviewed the order, then to such review could have done, if there had been an error apparent on the
face of the record. The power of review cannot be extended so as to re appreciable the entire
evidence afresh and to come on a different conclusion on the basis of the same evidence which was
considered earlier. The legal principle in that regards, with regard to the scope of power of review
has also been settled by the Apex Court.

22. For both the aforesaid reasons, we are more than satisfied that the order made by the
Commissioner dated 20.07.2012, cannot be legally sustained and is hereby quashed for want of
jurisdiction.

23. We however, clarify that this order shall not affect the rights of the employer to file an
appeal under Section 13 of Act 1923 against the original award.

24. With the aforesaid observation, the appeal is allowed.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2016

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VINOD KUMAR SRIVASTAVA-III, J.

Criminal Appeal No.- 2045 Of 1983

Nathoo Singh & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
Shri Rahul Mishra Amicus Cureia, Shri Nanhe Lal Tripathi
5 All. Nathoo Singh & Ors. Vs State Of U.P.

1761
Counsel for the Respondent:
D.G.A.

Held -

Para 1: Details the initial conviction (1983) of six appellants (Nathoo Singh, Dhanua Kori, Durg Singh, Lakhan
Singh, Jagbhan Singh, and Veer Singh) for murder (Section 302,149 IPC) and rioting, sentencing them to life
imprisonment.
Para 2: Notes that appellants Nathoo, Dhanua, and Veer died during the appeal; proceedings against them
are abated.
Para 3: Outlines the prosecution story: The accused, motivated by past enmity and cattle theft disputes,
ambushed and killed Govind Singh with axes, lathis, and luhangis on September 8, 1982.
Para 4: Details the police investigation, including the filing of the FIR, arrests, and the recovery of weapons
(axes and lathis) based on the accused's statements.
Para 5: Confirms the formal framing of charges against the six accused under relevant sections of the IPC.
Para 6: Lists the evidence produced: Two eyewitnesses (PW-1 and PW-2), a doctor (PW-3), and the
Investigating Officer (PW-4).
Para 7: Details the Post-Mortem findings: 16 major injuries including incised wounds, contusions, and
fractures to the skull and legs.
Para 8: Medical opinion confirms the cause of death was shock and hemorrhage from injuries caused by
weapons like axes and lathis.
Para 9-10: Summarizes the Investigating Officer's actions, including preparing the site plan and recovering
blood-stained items from the scene.
Para 11-13: Covers the statements of the accused (Section 313 Cr.P.C.); all denied the charges, claiming
false implication due to village election rivalry and "bad character" of the deceased.
Para 14: Notes the defense evidence produced to label the deceased as a "history-sheeter."
Para 15-17: Records the Sessions Judge's original conviction and the commencement of the current High
Court appeal.
Para 18: Defines the legal issue: Whether the appellants formed an "unlawful assembly" with a common
object to murder Govind Singh.
Para 19-22: Addresses the "interested witness" argument. The Court held that in faction-ridden villages,
relatives are natural witnesses, and their testimony cannot be discarded solely due to their relationship with
the victim.
Para 23-25: Dismisses minor contradictions in witness statements (regarding distances and timings), noting
that small discrepancies often prove a witness is not "tutored."
Para 26-29: Analyzes eyewitness testimony (PW-1 and PW-2), finding them natural and credible as they
lived near the crime scene or were accompanying the deceased.
Para 30-32: Rejects the defense claim that the brother (PW-2) was lying because he wasn't injured; the
Court ruled that "self-preservation" is a natural instinct when facing armed attackers.
Para 33: Validates the promptness of the FIR, which was filed within 3.5 hours, leaving no room for a
concocted story.
Para 34-37: Confirms that medical evidence perfectly matches oral testimony regarding the types of
weapons used and the nature of the wounds.
Para 38-39: The Court concludes the guilt is established. The trial court's judgment is upheld, and the
appeal is dismissed.
Para 40-41: Orders the surviving appellants (Jagbhan, Durg, and Lakhan) to be taken into custody to serve
their life sentences.
 Appeal Dismissed.

Case Laws Cited:-
1762 INDIAN LAW REPORTS ALLAHABAD SERIES
Badri etc. Vs. State of U.P., 1975 Cri.L.J. 1739 (SC)
Sucha Singh and another Vs. State of Punjab, (2003) 7 SCC 643
Ramesh Harijan Vs. State of U.P., (2012) 5 SCC 777

(Delivered by Hon'ble Vinod Kumar Srivastava-III, J.)

1. This appeal has been filed against the judgment and order dated 30.8.1983 passed by
Sessions Judge, Lalitpur in Sessions Trial No. 7 of 1983 (State Vs. Nathoo Singh and others),
whereby Sessions Judge has convicted the appellants Nathoo Singh, Dhanua Kori, Durg Singh and
Lakhan Singh for the offences punishable under Sections 148, 302/149 Indian Penal Code
(hereinafter referred to as I.P.C.) and sentenced to undergo each appellants three years rigorous
imprisonment under Section 148 I.P.C. and also sentenced to undergo life imprisonment under
Section 302/149 I.P.C. whereas, appellants Jagbhan Singh and Veer Singh have been convicted for
the offences punishable under Section 147, 302/149 I.P.C. and sentenced to undergo each of them
two years rigorous imprisonment under Section 147 I.P.C. and also sentenced to under go life
imprisonment under Section 302/149 I.P.C. However, all the sentences have been ordered to run
concurrently.

2. At the out set, it is pertinent to note that the appellants Nathoo Singh, Dhanua and
Veer Singh died during the pendency of this appeal and therefore, appeal against them have been
abated vide order dated 9.10.2014 of this Court.

3. Brief facts giving rise to the present appeal are as under:

The complainant Pyare Raja (PW-2) lodged an F.I.R. on 8.9.1982 with the Police
Station Bar District Lalitpur with the allegations that Nathoo Singh resident of his village was a
man of bad character. Nathoo Singh, one and a half month before the incident had stolen the calf of
Gulabiya Chamar resident of his village and in that matter Govind Singh had supported Gulabia
and had told Nathoo to mend his way. Nathoo Singh felt aggrieved. A case of murder and dacoity
was going on against Veer Singh appellant in which Govind Singh (deceased) was a witness.
Therefore, Veer Singh also was not happy with Govind Singh (deceased). It was alleged that on
8.9.1982 at about 06:00 A.M. Govind Singh deceased and his step brother Pyare Raja-(PW-2)
complainant were going to "Kuan" and when they reached in front of the house of Dhanuwa Kori,
on the lane, all these appellants came out from the house of Dhanuwa Kori. Appellants Nathoo
Singh, Durg Singh were armed with axe, while Jagbhan Singh and Veer Singh were armed with
lathis. Dhanuwa Kori and Lakhan Singh were armed with luhangi. Veer Singh exhorted his
associates to kill Govind Singh. All the accused-appellants assaulted with their respective weapons
as a result of which Govind Singh fell down after receiving numerous injuries. On hearing the cry
of complainant Pyare Raja, Lakhoo (PW-1), Ramla, Punua, Lakhan Singh s/o Kamal Singh and
others reached on spot. They challenged the accused-appellants, then the accused-appellants fled
away towards north. Govind Singh was seriously injured. Laying him on cot, he was rushed to
hospital but on the way near Bamhori Kharait Nala, he died. The dead body was taken to police
station where the report was lodged by the Pyare Raja complainant.
5 All. Nathoo Singh & Ors. Vs State Of U.P.

1763
4. On the basis of oral information of Pyare Raja (PW-2) complainant F.I.R. was lodged on
8.9.1982 at case crime no. 30 of 1982, under Sections 147, 148, 302/149 I.P.C. Thereafter,
investigation was started by I.O. Sub-Inspector Phool Chandra Tewari (PW-4). During the course
of the investigation accused-appellant Durg Singh was arrested 16.9.1982 and other accused
surrendered before the Court. Accused-appellants Veer Singh and Jagbhan Singh were taken in
police remand and on their pointing out lathis were recovered from the Tapra of Veer Singh on
13.10.1982. The relevant fard is Ex.Ka-17. An axe of accused-appellant Nathoo Singh and luhangi
of Dhanuwa were also recovered on their pointing out from village Khaira Dang, from the Tapri of
Raghubir Singh on 13.10.1982 and recovery memo Ex.Ka-18 was prepared. After completion of
the investigation, charge-sheet was filed against all the accused-appellants in the Court.

5. After committal proceedings, charges were framed against the appellants Nathoo Singh,
Dhanuwa, Durg Singh and Lakhan Singh under Section 148, 302/149 I.P.C. and against the
appellants-accused Jagbhan Singh and Veer Singh under Section 147, 302/149 I.P.C.

6. The prosecution examined as many as four witnesses in support of its case. Out of which
PW-1 Lakhoo and PW-2 Pyare Raja are eye witnesses of the occurrence, while PW-3 Dr. K.C.
Gupta and Phool Chandra Tewari Investigating officer are formal witnesses. The prosecution relied
upon 24 documents and filed 13 material exhibits.

7. PW-3 Dr. K.C. Gupta, has conducted post-mortem on the dead body of deceased Govind
Singh on 9.9.1982 and has proved the post-mortem report as Ex.Ka-7. In the post-mortem report,
PW-3 Dr. K.C. Gupta has found the following ante mortem injuries on the dead body of the
deceased Govind Singh:-

1. Abraided contusion 3 cm x 1 cm over the upper lid of left eye.
2. Contusion 3 cm x 2 cm over the left side cheek, 2 cm below the left eye.
3. Incised wound 1"x1 cm muscle deep over the right shoulder.
4. Two contusions measuring 1-1/2 x Â1⁄2 cm, 2 cms apart from each other over the
lower 1/2 of the right forearm, back.
5. Abrasion Â1⁄2 cm x Â1⁄4 cm over the middle finger & terminal phalanx of the left
hand.
6. Incised wound 1 cm x Â1⁄2 cm x muscle deep over the lower 1/3 &
front of the left thigh, 3 cm above the knee joint.
7. Incised wound 1-1/2 cm x Â1⁄2 x bone deep over the middle of the left leg.
8. 2 incised wound 2 cm x 1 cm Â1⁄2 to 1 cm x bone deep with the underlying
fracture of the tibia bone, lower 1/2nd.
9. Lacerated wound 3 cm x Â1⁄2 cm x bone deep over the lower 1/3 of the right leg
with the underlying fracture of both tibia & fibula.
10. Contusion 7 cm x 4 cm over the middle & front of the right leg.
11. Incised wound 3 cm x 1-1/2 cm x bone deep over the right knee joint front.
12. Abrasion 1 cm x Â1⁄4 cm. Over the front of the left knee joint.
1764 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Four contusions measuring from 6 cm x 8 cm x Â1⁄2 cm to 1 cm, Â1⁄2 cm apart
from each other, over the right scapular region.
14. Incised wound 6 cm x 1 cm x bone deep over the right temporal region with the
underlying fracture of the right parital bone with the laceration of membrane & brain.
15. Incised wound 1 cm x 1 cm x bone deep over the right side & back of the scalp,
4 cm above & lateral to the previous injury with the underlying fracture of the occipital bone with
the laceration of the membrane & brain
16. Incised wound 6 cm x 1-1/2 cm x bone deep over the top & middle of the scalp
with the under line fracture of the frontal & acciptial bone with the laceration of membrane &
brain.

8. PW-3 Dr. K.C. Gupta has also mentioned in the post-mortem report that the stomach and
small intestine were empty. Faecal matter was present in the large intestine. PW-3 Dr. K.C. Gupta,
has further opined that cause of death was due to shock and haemorrhage due to ante-mortem
injuries. The period of death was about one and half day before conducting the post-mortem. He
has also opined that injuries on the body of deceased Govind Singh could be caused by lathi,
luhangi and axe.

9. PW-4 S.I. Phool Chandra Tiwari I.O. has stated that he started investigation on 8.9.1982
and prepared the inquest report Ex.Ka-8 and other papers, challan lash, photo lash, namuna seal and
letter for post-mortem Ex.Ka-9 to Ex.Ka-12. The dead body was sealed and sent with relevant
papers through Constable Ramesh Chandra for post-mortem during the investigation. He recovered
two blood stained towels and one blood stained tahmad near dead body of the deceased Govind
Singh Ex-2 to 4 and prepared their fard Ex.Ka13. Blood stained Ban of cot Ex-1 was taken and
kept under sealed cloth. The cot was given in supurdagi of Pyare Raja PW-2. He has further stated
in his evidence that he went to the spot of occurrence and recorded the statement of witnesses and
prepared the site plan Ex.Ka-14. The sample of the blood stained and plain earth of the spot of
occurrence were taken and separately sealed, which is Ex-8 and Ex-9. The relevant fard was
prepared, which is Ex.Ka 15. The articles were deposited in Malkhana as per G.D. Entry Ex.Ka-16.
He has further stated that after completion of the investigation, charge-sheet Ex.Ka-20 against the
appellants was filed by him.

10. PW-4 Phool Chandra Tiwari I.O. has also proved G.D. no. 11 dated 8.9.1982 written by
Constable Moharrir Balram as Ex.Ka22.

11. After closure of the prosecution evidence, statements of the appellants were recorded
under Section 313 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C.) and all the
incriminating material/ circumstances were put to them, one by one. They denied each allegations
levelled against them and stated for false implication.

12. Appellant Nathoo Singh (since deceased) asserted in statement under Section 313
Cr.P.C. that the case under Section 107/116 was lodged between Govind Singh and Pyare Raja and
his party. Govind Singh was notorious man and was history-sheeter. His sister was also dacoit.
5 All. Nathoo Singh & Ors. Vs State Of U.P.

1765
Govind Singh has inimical relations in the adjoining villages. He has been falsely implicated due to
enmity.

13. Appellant Jagbhan Singh and Veer Singh and Durg Singh have stated that in their
statements under Section 313 Cr.P.C., that Govind Singh was Pradhan of their village and they had
campaigned against the Govind Singh in election of Gram Pradhan, therefore, they have falsely
been implicated due to enmity. Appellant Lakhan Singh has stated that Nathoo Singh is his brotherin-law, therefore, he has been falsely implicated. Appellant Dhanuwa asserted that there was
litigation enmity between him and Govind Singh deceased, with the result that he has been falsely
implicated.

14. The appellants were called upon to enter into defence. The appellant produced one
witness namely S.I. Ram Karan Singh as DW-1 to prove Govind Singh deceased as history-sheeter.
Appellants also placed reliance on four paper Ex-Kha-1 to Ex-Kha-4 including two challan reports
under Sections 151, 107/116 marked as Ex.Kha-1 & Kha-2.

15. The learned Sessions Judge, after appreciating all the evidence and submissions made
by the Public Prosecutor and defence counsel convicted and sentenced the appellants as has been
referred to herein above.

16. Aggrieved, the appellants have filed this appeal.

17. We have heard the submissions made by Sri N.L. Tripathi, learned counsel for the
appellants and Sri R.K. Maurya, learned A.G.A. for the State and also scrutinized the oral as well
as documentary evidence available on record.

18. In view of the rival submissions made by the learned counsel for the parties, the
paramount point for determination arises that whether all the appellants armed with deadly
weapons constituted an unlawful assembly and have taken part in committing the murder of
deceased Govind Singh.

Submissions and conclusions:

19. Before entering into the merits of the case and appraisal of the evidence, it would be
relevant to note that some significant facts of the case are that the deceased Govind Singh was
Pradhan of Village Rajpura. There had been election of Gram Pradhan 2 or 3 months before the
incident. The election was won by the Govind Singh but the election had resulted in groupism and
enmity. Though some of the appellants are resident of other village, but their goan sabha was
village Rajpura of which deceased Govind Singh was resident. It also appears from the evidence of
DW-1 S.I. Ram Karan Singh Chauhan that proceedings under Section 107/116, 151 Cr.P.C. were
lodged between the groups, one led by deceased Govind Singh and other by Rao Raja. This fact in
itself signifies that in the village Rajpura where the occurrence took place there was two factions
and as such village Rajpura was faction ridden village.
1766 INDIAN LAW REPORTS ALLAHABAD SERIES
20. Learned counsel for the appellants submitted that prosecution has produced only two
eye witnesses of fact. Out of which one Pyare Raja (PW-2) complainant of the case is step brother
of the deceased Govind Singh and Lakhoo (PW-1) is said to be man of the party belonging to the
deceased Govind Singh. Therefore, both the witnesses are highly interested and inimical. The
prosecution has not produced any independent witness cited in charge-sheet namely Ramla to
corroborate the prosecution case, therefore, the evidence of only interested and inimical witnesses
is not of trustworthy.

21. In the present case, as it has been stated above that the village Rajpura, where the
incident of murder took place was faction ridden, having two groups one led by deceased Govind
Singh and other led by Rao Raja. In case 1975 Cri.L.J. Page 1739 SC, Badri etc Vs. State of U.P.,
It has been held by Hon'ble Supreme Court that in case where a murder takes place in a village,
where there are two factions, bitterly opposed to each other, it would be idle to expect independent
persons to come forward to give evidence and only partisan witnesses would be natural and
probable witnesses to the incident. In such a case, it would not be right to reject their testimony, out
of hand, merely on the ground that they belong to one faction or the other. Their evidence has to be
assessed on its own merits.

22. Further, in case of (2003) 7 SCC 643, Sucha Singh and another Vs. State of Punjab
and (2012) 5 SCC 777, Ramesh Harijan Vs. State of U.P. Hon'ble Supreme Court has laid down
the principle that the testimony of a witness in a criminal case cannot be discarded, merely because
the witness is relative or family member of the victim of the offence or inimical. In such a case,
Court has to adopt a careful approach in analysing the evidence of such witnesses and if the
testimony of the related witness is otherwise found credible accused can be convicted on the basis
of testimony of such related witness.

23. The learned counsel for the appellants further tried to point out some contradictions in
the statement of eye witnesses (PW-1) Lakhoo and (PW-2) Pyare Raja. Regarding the
contradictions in the statement of prosecution witnesses, in the cases referred to herein above
Hon'ble Supreme Court has held that if, there are no material contradictions or discrepancies in the
testimony of a witness, his testimony cannot be disbelieved merely on the basis of some natural or
minor contradictions, inconsistencies, exaggeration and embellishment. Minor contradictions in the
testimony of prosecution witnesses are bound to be there and in fact they go to support the
truthfulness of the witnesses and shows that the witnesses were not tutored and they gave no parrot
like, stereo typed evidence.

24. Learned counsel for the appellants submitted that the (PW-1) Lakhoo has stated that the
distance between his house and the house of Dhanuwa (appellant), the spot of occurrence is 20-25
steps, while as per statement of Pyare Raja (PW-2) the distance is 60-70 steps. He further submitted
that as per statement of (PW-1) Lakhoo, he stayed at the spot of occurrence about 2 and 3 minutes,
as the deceased Govind Singh was taken to the hospital, he returned back, while PW-2 Pyare Raja
has stated that when the dead body of deceased Govind Singh was taken to P.S. Bar, Lakhoo PW-1
among others was also with him. While referring to above contradictions in the statement of
5 All. Nathoo Singh & Ors. Vs State Of U.P.

1767
prosecution witnesses, learned counsel for the appellants argued that the testimony of PW-1
Lakhoo and PW-2 Pyare Raja is not believable. But this submission of learned counsel for the
appellants is not acceptable, for the reason that the contradictions pointed by the learned counsel
for the appellants are minor contradictions, and immaterial and have no adverse effect on
prosecution case. Therefore, the above mentioned contradictions do not corrode the credibility of
prosecution witnesses and testimony of PW-1 Lakhoo and PW-2 Pyare Raja cannot be disbelieved
merely on the basis of above minor contradictions.

25. The instant case requires to be considered in the light of aforesaid submissions and
settled legal propositions.

26. PW-2 Pyare Raja complainant, who is the step brother of the deceased Govind Singh
has proved F.I.R. Ex-ka 1. He has stated that on the day of occurrence, he along with his brother
Govind Singh deceased was going to well, in the morning at about 06:00 A.M. when they reached
in front of the house of Dhanuwa Kori, all the accused persons came out from the house of
Dhanuwa Kori and Veer Singh exhorted to kill Govind Singh. Nathoo Singh and Durg Singh were
armed with axe, Jagbhan Singh and Veer Singh were armed with lathis, Lakhan Singh and
Dhanuwa Kori were armed with luhangi. On exhortation of Veer Singh all the accused assaulted to
Govind Singh with their respective weapons. Govind Singh fell down. On hearing his cry, Lakhoo,
Lakhan Singh, Ramla, Punwa reached on spot and challenged the accused persons then all the
accused persons, fled away towards north. He has further stated that his younger brother brought
the cot and laying down Govind Singh on cot, he rushed to the hospital, but on the way near
Bamhori Kharait Nala, Govind Singh died. Thereafter, the dead body of deceased Govind Singh
was taken to police station and he lodged the F.I.R. Ex.Ka 1.

27. PW-2 Pyare Raja has also proved the motive of the accused and had stated that one
month before this incident accused Nathoo Singh had stolen the bull of Gulabiya Chamar, in which
case Govind Singh was witness and he had helped the Gulabiya Chamar, therefore, Nathoo Singh
was aggrieved. Veer Singh had killed two women in a dacoity, in that case Govind Singh was
witness and Veer Singh was convicted. PW-2 Pyare Raja has specifically stated in his crossexamination that firstly Durga Singh assaulted with axe and Govind Singh fell down, then Nathoo
Singh assaulted with axe. At the time of occurrence, he was 10 steps behind the Govind Singh and
when he tried to interfere, the accused persons threaten to kill him also.

28. PW-1 Lakhoo has stated that on the day of incident at about 06:00 A.M. in the
morning, he was going to answer the call of nature and when he reached near the house of Jagbhan
Singh, he heard cry of Pyare Raja, which was coming from near the house of Dhanuwa Kori. He
rushed to the spot, and Lakhan, Punuwa Chamar and Ramle Kanchi also reached on spot. He saw
that all the six accused persons were beating to Govind Singh, on the lane, in front of the house of
Dhanuwa Kori. Nathoo Singh and Durg Singh were armed with axe, Jagbhan Singh and Veer Singh
were armed with lathis, Lakhan Singh and Dhanuwa Kori were armed with luhangi. All the accused
persons were beating Govind Singh with their respective weapons. When they tried to interfere, all
the accused persons threatened that, if he would come near to them, he would be beaten like
1768 INDIAN LAW REPORTS ALLAHABAD SERIES
Govind Singh. After beating Govind Singh, all the accused persons fled away towards north.
Thereafter laying the Govind Singh on cot, Pyare Raja took Govind Singh to the hospital but
Govind Singh died on the way due to injuries.

29. From the above statements of the prosecution witnesses, it appears that prosecution has
produced the most natural and probable witness of the case PW-2 Pyare Raja complainant, who
was accompanying Govind Singh deceased at the time of incident, is the step brother of the
deceased. Since both used to live in one house and therefore, their company in the morning hours
for going to well cannot be said to be unnatural in any way. (PW-2) Lakhoo's house is just a few
steps away from the place of the occurrence, therefore, he is most probable and natural witness.

30. Learned counsel for the appellants submitted that the complainant Pyare Raja (PW-2)
who is the step brother of the deceased Govind Singh is said to be with the deceased at the time of
occurrence, but he has not received any injury and did not come to rescue his brother deceased
Govind Singh. The conduct and behaviour of (PW-2) Pyare Raja is quite unnatural and shows that
complainant Pyare Raja (PW-2) was not present on spot of the occurrence at the time of incident
and has not seen the incident therefore, his testimony is not of trustworthy.

31. In this context, where eye witnesses did not come to rescue of the deceased Hon'ble
Supreme Court in case of Sucha Singh and another Vs. State of Punjab (2003) 7 SCC 643 in
para 23, has held that such reactions, conduct and behaviour of the witness cannot be a ground to
discard their evidence, where they were unarmed and accused were armed with deadly weapons.

32. In view of the above legal preposition, so far as inaction of (PW-2) Pyare Raja in not
coming forward to rescue of the deceased is concerned, it has to be noted that at the time of
incident complainant Pyare Raja (PW-2) and deceased Govind Singh both of them were unarmed
and bare handed, while the appellants were armed with deadly weapons. How a person would react
in a situation like this cannot be encompassed by any rigid formula. In a given case, instinct of self
preservation can be the dominant instinct. Therefore, inaction of PW-2 Pyare Raja complaint, in not
coming, to the rescue of his deceased brother, cannot be a ground for discarding his evidence.

33. It is evident from the record that the incident took place on 8.9.1982 at about 06:00
A.M. in the morning in village Rajpura P.S. Bar. As per Chick F.I.R. Ex-Ka-1 the place of incident
is 8 miles away form P.S. Bar and F.I.R. has been lodged by the complainant Pyare Raja (PW-2) on
the same day, soon after the occurrence, at about 9:25 A.M. Considering the promptness in lodging
the F.I.R. By complainant Pyare Raja (PW-2), it cannot be said that it was after thought and
genuineness of prosecution story cannot be doubted.

34. Although it is admitted fact that there is enmity between complainant and
accused/appellants and prosecution witnesses (PW-1) Lakhoo Singh and (PW-2) Pyare Raja have
been cross-examined at length, but in spite of lengthy cross-examination accused-appellants have
failed to point out nothing, which could make out that the (PW-1) Lakhoo and (PW-2) Pyare Raja
were stating against the appellants due to inimical relations and revengeful attitude.
5 All. Nathoo Singh & Ors. Vs State Of U.P.

1769
35. In the present case, it is also worth to note that the incident had taken place at about
06:00 A.M. in the morning. All the accused/appellants, who are of the same village, though of
different puras, were expected to know the daily movements of the deceased Govind Singh and if
they had assembled in the morning hours, with deadly weapons at a particular house, on the route,
to take revenge, the action could not be termed as unnatural and unusual.

36. (PW-1)- Lakhoo and (PW-2)- Pyare Raja complainant have fully corroborated the
prosecution story as stated in F.I.R. and categorically stated in their statement that appellants
Nathoo Singh and Durg Singh have assaulted with axe, Jagbhan Singh and Veer Singh assaulted
with lathis and appellants Lakhan Singh and Dhanuwa Kori assaulted with luhangi. The oral
evidence of eye witness (PW-1)- Lakhoo and (PW-2)-Pyare Raja is corroborated by medical
evidence, as the post-mortem report Ex-Ka-7 transpires that there was contusions, incised wound,
abrasions and lacerated wound on the person of the deceased Govind Singh. (PW-3)-Dr. K.C.
Gupta, who has proved the post-mortem Ex-Ka 7, has specifically stated that the injuries on the
body of deceased Govind Singh could be caused by lathi, luhangi and axe. There is not a word in
cross-examination of (PW-3)- Dr. K.C. Gupta on that point and the statement of Dr. K.C. Gupta-
(PW-3) went unchallenged that the injures found on the body of Govind Singh deceased were
caused by such weapons.

37. The statement of (PW-1)- Lakhoo and (PW-2)- Pyare Raja regarding the spot of
occurrence is also corroborated by the site plan of the place of occurrence Ex.Ka-14, which has
been prepared and proved by (PW-4)-Phool Chandra Tiwari I.O. Accused-appellants have not
produced any evidence on record to show that the incident took place in any other manner,
therefore, the case of false implication on the basis of enmity is not established and defence plea
has no substance.

38. In view of the above of the oral evidence as well as medical evidence and other
relevant material available on record, it is established that the appellants Jagbhan Singh, Durg
Singh and Lakhan Singh along with the appellants Nathoo Singh (since deceased), Dhanuwa Kori
(since deceased), Veer Singh (since deceased) constituted an unlawful assembly, armed with
deadly weapons and in furtherance of their common object murdered the deceased Govind Singh
on 8.9.1982 at 06:00 A.M. In the morning in village Rajpura.

39. On the basis of above discussion, we are of the opinion that the trial Court had
meticulously considered the facts and circumstances and evidence adduced by the prosecution and
thereafter passed the judgment and order of conviction of the appellants dated 30.8.1983. The
judgment and order of learned Sessions Judge is based on evidence and conclusions reached by the
trial Court is not erroneous and sentence awarded to the appellants is not excessive, especially in
the circumstances, when it was directed that all the sentences would run concurrently. Therefore,
interference is not required and the appeal is hereby dismissed.
1770 INDIAN LAW REPORTS ALLAHABAD SERIES
40. The appellants Jagbhan Singh, Durg Singh and Lakha Singh are on bail their bail bonds
and surety bonds are cancelled and sureties discharged. They shall be taken into custody to served
out the sentence awarded by the trial Court.

41. Let a copy of this judgment be sent to the Sessions Judge, Lalitpur for ensuring
complaince.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.05.2016

BEFORE

THE HON'BLE MRS. RANJANA PANDYA, J.

Criminal Appeal No.- 2660 Of 2015

Anju ...Appellant
Versus
State Of U.P. ...Respondent

Counsels for the Appellant:
Shri Rajiv Kumar Saini, Shri Shailesh Kumar Shukla

Counsel for the Respondent:
G.A.

Held -

Para 1: Details the appeal against the 2015 conviction of Anju by the Sessions Court, Saharanpur, under
Sections 363, 366, and 376 IPC (Kidnapping and Rape), where he was sentenced to up to 7 years of rigorous
imprisonment.

Para 2-5: Summarizes the prosecution's case: Patiram (informant) alleged his minor daughter was kidnapped
by Anju on March 11, 2012. It details the medical examinations, the ossification test for age determination,
and the investigative steps taken by the police.

Para 6-9: Outlines the accused's denial under Section 313 Cr.P.C., asserting false implication due to extortion.
The defense argued there was an inordinate, unexplained delay in lodging the FIR.

Para 10-15: Analyzes the FIR delay. While the incident allegedly occurred on March 11, the report was
officially registered on March 17. The Court finds the informant's explanation for the 6-day gap "untenable,"
casting "shadow of doubt" on the entire case.