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

- **Citation:** (2021) 5 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-13
- **Case number:** Gonda in Sessions Trial No.174 of 1983
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitin-singh-in-jail-v-the-state-of-u-p-46961
- **Pages:** 10

## Headnote

Code of Criminal Procedure 1973- Section
313- It is also evident that appellant-Amit
Singh had categorically stated in his
statement recorded under Section 313
Cr.P.C. that he wear trouser of 34 inches
of waist, but the alleged recovered trouser
was of 28 inches of waist, which is
fabricated and no report of FSL is
available and the weapon was also not
produced before the court and the trial
court failed to deal with the contents
mentioned in statement under Section 313
Cr.P.C., as the enmity has been shown by
the prosecution with the appellants.

Where the explanation given by the accused, in
his statement u/s 313 Cr.Pc , is corroborated by
the own material of the prosecution which on
the other hand does not support the story of the
prosecution, then its incumbent upon the trial
court to consider the explanation of the
accused.
5 All. Nitin Singh Vs. The State of U.P.
267
Indian Evidence Act, 1872- Section 3-
Chance
Witness-
Evidence
of-
The
evidence of PW-1 informant and PW-2 are
the
chance
witnesses
and
claimed
themselves to be the eye witnesses of the
incident- Their evidence does not appear
to be reliable and trustworthy particularly
the manner in which the incident has
taken place in the night which does not
found corroborated with the medical
evidence, therefore, prosecution story
creates doubt and benefit of doubt goes in
favour of the appellants. Hence it would
be unsafe to uphold the conviction and
sentence of the appellants as has been
ordered by the trial court-If there are
inherent improbabilities in the prosecution
story with ordinary course of human
nature, then it would be safe not to
convict the appellants merely on the
testimony of the alleged eye witnesses.

It is settled law that the evidence of a chance
witness requires cautious and close scrutiny and
the same has to be discarded when his
presence at the place of occurrence is doubtful
and not corroborated with other material
evidence.( Para 20, 21, 22)

Criminal appeal allowed. (E-2)

Judgements/ Case law relied upon:-

## Text

266 INDIAN LAW REPORTS ALLAHABAD SERIES
evidences has been rightly relied by learned
trial court because there is no ground for
rejection of prosecution evidences.

25. Thus, we find no reason to interfere
with the aforesaid findings of the learned trial
court. Hence, the judgment of conviction and
order of sentence dated 16/17.01.1985 passed
by learned Additional Sessions Judge-I,
Gonda in Sessions Trial No.174 of 1983
(State Vs. Bhagwati and Others) arising out
of Case Crime No.135 of 1982, under
Sections 147, 148, 149, 324, 323, 302 I.P.C.,
Police Station Intiathoke, District Gonda
against the appellants namely Amerika
Prasad, Chinta @ Chinta Ram @ Chinta
Prasad @ Sheo Shankar and Bachhraj is
hereby affirmed.

26. In the result, this appeal fails and is
accordingly dismissed.

27. From perusal of the record, it
appears that the appellants are in jail and they
shall remain in jail and serve out the sentence
as awarded by the trial court.

28. Let the lower court record along
with the present order be transmitted to the
trial
court
concerned
for
necessary
information and compliance forthwith.

29. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by it along with a self
attested identity proof of the said person(s)
(preferably Aadhar Card) mentioning the
mobile number(s) to which the said Aadhar
Card is linked, before the concerned
/Authority/Official.

30. The concerned Court /Authority
/Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad and
shall make a declaration of such verification
in writing.
----------
(2021)05ILR A266
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.05.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 540 of 2014

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

Counsel for the Appellant:
Siddhartha Sinha, Ajay Veer Singh, Atin
Krishna, Prakhar Kankan, Sarojini Bala
Yadav

Counsel for the Opposite Party:
Govt. Advocate

Code of Criminal Procedure 1973- Section
313- It is also evident that appellant-Amit
Singh had categorically stated in his
statement recorded under Section 313
Cr.P.C. that he wear trouser of 34 inches
of waist, but the alleged recovered trouser
was of 28 inches of waist, which is
fabricated and no report of FSL is
available and the weapon was also not
produced before the court and the trial
court failed to deal with the contents
mentioned in statement under Section 313
Cr.P.C., as the enmity has been shown by
the prosecution with the appellants.

Where the explanation given by the accused, in
his statement u/s 313 Cr.Pc , is corroborated by
the own material of the prosecution which on
the other hand does not support the story of the
prosecution, then its incumbent upon the trial
court to consider the explanation of the
accused.
5 All. Nitin Singh Vs. The State of U.P.
267
Indian Evidence Act, 1872- Section 3-
Chance
Witness-
Evidence
of-
The
evidence of PW-1 informant and PW-2 are
the
chance
witnesses
and
claimed
themselves to be the eye witnesses of the
incident- Their evidence does not appear
to be reliable and trustworthy particularly
the manner in which the incident has
taken place in the night which does not
found corroborated with the medical
evidence, therefore, prosecution story
creates doubt and benefit of doubt goes in
favour of the appellants. Hence it would
be unsafe to uphold the conviction and
sentence of the appellants as has been
ordered by the trial court-If there are
inherent improbabilities in the prosecution
story with ordinary course of human
nature, then it would be safe not to
convict the appellants merely on the
testimony of the alleged eye witnesses.

It is settled law that the evidence of a chance
witness requires cautious and close scrutiny and
the same has to be discarded when his
presence at the place of occurrence is doubtful
and not corroborated with other material
evidence.( Para 20, 21, 22)

Criminal appeal allowed. (E-2)

Judgements/ Case law relied upon:-

1. Amar Singh Vs State (NCT of Delhi), 2020
SCC online SC 826

(Delivered by Hon'ble Rajeev Singh, J.)

1. Both the appeals have been filed by
appellants namely Nitin Singh and Amit
Singh against the judgment of conviction and
order of sentence dated 29.03.2014, passed
by Additional Sessions Judge-Court No.5,
Faizabad in Session Trial No.31 of 2012,
arising out of Case Crime No.552 of 2011,
under Section 302 I.P.C. Police Station-Cantt,
District Faizabad, whereby learned trial court
has convicted the appellants, namely Nitin
Singh and Amit Singh under Section 302 of
the Indian Penal Code and sentenced
them to undergo imprisonment for life and
fine of Rs. 12,000/- each, in default of
payment of fine to undergo additional
imprisonment for one year. Both the
appellants have filed two separate appeals.
The aforesaid appeals are being decided by
way of common judgment.

2. As per the prosecution story, on
22.03.2011 at about 10:00 p.m., the
informant-Ashok Kumar Singh and Ram
Kumar Singh riding on one motorcycle and
Bhushan Veer Singh and Neeraj Singh riding
on another motorcycle were returning from
Faizabad to their village-Manapur, when they
reached at Raipur canal bridge, they saw in
the head light of their motorcycle that the
appellants-Nitin Singh and Amit Singh were
assaulting one person on the south lane of
bridge with danda and axe. When the
assailants saw that the bikers are approaching
towards them, they left the person and ran
away. Thereafter, informant and three other
persons reached on the spot and found that
the injured (Arun Kumar Singh) was real
brother of the informant, they tried to move
the injured, who was in pool of blood and
found that he was dead. On the written
complaint
of
Ashok
Kumar
Singh
(informant), the FIR in question was lodged
as Case Crime No.552 of 2011 (Exhibit K-7)
and the same was entered into general diary.
On the basis of FIR, the police officers
reached on the spot and prepared the site plan
and body was sent for postmortem, thereafter
the
postmortem
was
conducted
on
23.03.2011 at 2:30 p.m.

3. The postmortem of the body of the
deceased was conducted by Dr. B.M.
Maurya, Medical Officer, who appeared
before the trial court as PW-5. As per
postmortem report, he found eight ante
268 INDIAN LAW REPORTS ALLAHABAD SERIES
mortem injuries and opined that the cause of
death is due to coma as a result of
antemortem injury. The ante mortem injury
mentioned in the postmortem report are as
follows:-

" (i) Abraded contusion of size
0.7 cm x 0.5 cm present on right side of
forehead 5.0 cm above the middle of right
eyebrow.

(ii) Four incised wound of size
4.0 to 4.5 cm length bone deep and 0.8 to
1.0 cm width present in area of 9.0 cm x 6.0
cm on left occipital region and is 5.0 cm
postero superior to left ear. Underlying
bone is fractured.

(iii) Incised wound of size 6.0 cm
x 1.0 cm present on right parietal region
and is bone deep 8.0 cm above right ear.

(iv) Contusion size 5.0 cm x 2.0
cm present on tip of left shoulder joint.

(v) Abraded contusion of size
10.0 cm x 3.0 cm present on lateral aspect
of left arm 5.0 cm below the tip of left
shoulder joint.

(vi) Abraded contusion of size 3.0
cm x 0.5 cm present on exterior aspect of
left forearm 6 cm below the elbow joint.

(vii) Abraded contusion of size
3.0 x 1.0 cm present on exterior aspect of
right elbow joint.

(viii) Abraded contusion of size
3.0 x 1.0 cm present on medial aspect of
right forearm 9.0 cm above the wrist joint."

4. The injury and external condition of
the body of the deceased clearly reveals that
death of the deceased is a case of homicide.

5. On the basis of site plan, recovery
memo, postmortem report and statements of
the accused persons as well as of witnesses
recorded under Section 161 Cr.P.C., the
Investigating Officer came to the conclusion
that it was a case of homicide which was
caused by the appellants, thereafter, chargesheet was filed and case was committed
before the Court of Sessions, which was
registered as S.T. No.31 of 2012 and charge
was framed against the appellants on
18.02.2012, under Section 302 I.P.C.

6. In support of prosecution case, five
witnesses appeared before the trial court as
Ashok Kumar Singh (eye witness) PW-1,
Ram Kumar Singh (eye witness) PW-2, SubInspector- Bacchu Singh PW-3, ConstableSurendra Kumar Singh-PW-4 and Dr. B.M.
Maurya-PW-5.

7. The prosecution has relied on twelve
documentary evidences as Exhibit:Ka-1 is the
written complaint of Ashok Kumar Singh
(PW-1), Exhibit Ka-2 is the site plan, Exhibit
Ka-3 is the site plan in relation to the
recovery of axe and rectangular wooden rod,
Exhibit Ka-4 is the arrest memo of both the
appellants, Exhibit Ka-5 is the recovery
memo by which the trouser of accused-Amit
Singh was taken into custody, Exhibit Ka-6 is
the recovery memo of bloodstained and plain
mud, and one cycle found from the site,
Exhibit Ka-7 is the chick FIR, Exhibit Ka-7A
is the inquest report, Exhibit Ka-8 is the D.G.
of rapat No.54 dated 22.03.2011, Exhibit Ka9 is the postmortem report, Exhibit Ka-10 is
the charge-sheet, Exhibit Ka-11 is the police
Form-13 and Exhibit Ka-12 is the sample
seal.

8. After closure of the evidence of
prosecution, the trial court took the
statement of appellants under Section 313
Cr.P.C., in which their defence was of total
5 All. Nitin Singh Vs. The State of U.P.
269
denial. The appellants also produced two
witnesses, namely Mansharam-(DW-1) and
Pappu Lal-(DW-2).

9. After hearing, learned trial court
had passed the judgment of conviction and
order of sentence dated 29.03.2014, which
is under challenge.

10. Heard, Sri Ajay Veer Singh along
with Sri Atin Krishna, learned Counsel for
the appellants and Sri Vishwas Shukla,
learned A.G.A. for the State and perused
the lower court record.

11. Learned counsel for the appellants
submitted that the informant namely Ashok
Kumar Singh (PW-1) deposed in his
examination-in-chief that on 22.03.2011 at
about 10:00 p.m. he was coming back to
the village by one motorcycle along with
Ram Kumar Singh, and Bhushan Veer
Singh and Neeraj Singh on another
motorcycle and when they reached to the
bridge of Raipur Canal, then they saw in
the head light of their motorcycle that the
appellants namely Nitin Singh and Amit
Singh were causing injury to one person on
right lane of the bridge with axe and danda
respectively. As the informant along with
others approached near the appellants, then
the appellants ran away towards the East
side of the canal. Thereafter, informant
(Ashok Kumar Singh) along with others
went to the victim and found that the
person lying on the ground was his brother,
then he shook him and found that he was
dead. They tried to catch the accused
persons, but they disappeared. Thereafter,
the informant went to the Police Station
and made a written complaint, i.e., Exhibit
Ka-1 and it was proved by him. The
informant also deposed in his crossexamination that on the date of incident, he
went to Hanuman Gadhi temple for
offering his prayer. After visiting the
temple, he was waiting for taxi and at the
same time his brother Ram Kumar Singh
also visited Hanuman Gadhi for offering
his prayer, then he went along with his
brother on his motorcycle at Naka, where
Neeraj Singh and Bhushan Veer Singh met
them, thereafter, they started journey
together back to their village. Informant
also deposed that he was the pillion rider
and when he saw the incident, then he
found that the person who was being
assaulted was in bend position towards
South West and his back was visual, due to
which he could not identify the victim at
the first instance that he was his brother,
but he identified the assailants.

12. Learned counsel for the appellants
submitted that as per the deposition of PW1, deceased was in bend position, but no
injury was found on his back, therefore, his
statement is contradictory to the ante
mortem injuries found in the postmortem
report (Exhibit Ka-5) which was duly
proved by Dr. B.M. Maurya (PW-5). He
further submitted that the PW-1 deposed in
his cross-examination that he went to the
spot and oscillated the injured and also put
the hand on the nose of the injured to verify
whether he was breathing or not, then he
found that there was no response from body
of the injured and then he understood that
he is no more. Learned counsel for the
appellants further submitted that when the
incident was seen by PW-1, he found that
the victim was standing in bend position
and within a minute, he reached to victim
but he found him dead, which is highly
improbable. Learned counsel for the
appellants further submitted that the
informant (PW-1) also deposed that when
he touched his brother, then he found that
270 INDIAN LAW REPORTS ALLAHABAD SERIES
he was dead, therefore, he made no attempt
to provide any medical aid.

13. Learned counsel for the appellants
submitted that the autopsy of the body of
the deceased was conducted by Sri. B.M.
Maurya (PW-5) on 23.03.2011 and he was
examined before the court below and in his
cross-examination, he deposed that after
receiving the injuries, the injured may have
gone into coma, but there is a possibility of
him being alive for sometime and if he had
been subjected to medical facilities in time,
then there was a possibility to save his life.
PW-5 also deposed that after death, the
dead body remains warm about one hour,
therefore, the statement of PW-1 who is
claiming
as
an
eye
witness
are
contradictory to the injuries found on the
body of the deceased. Hence, the testimony
of PW-1 who is the real brother of the
deceased being a relative and interested
witness is not reliable and the trial court
has wrongly considered the testimony
without considering the aforesaid facts.

14. Learned counsel for the appellants
submitted that PW-2 (brother of PW-1)
deposed in his statement that on the date of
incident his brother met him near Hanuman
Gadhi, then both were returning to their
village by one motorcycle and on another
motorcycle, Bhushan Veer Singh and
Neeraj Singh. On 22.03.2011 at about
10:00 p.m. when they reached near the
place of incident, then they saw in the head
light of motorcycle that on the South lane
of the bridge, Nitin Singh and Amit Singh
armed with axe and danda were beating one
person, then Ashok Kumar Singh (PW-1)
and Ram Kumar Singh (PW-2) along with
Bhushan Veer Singh and Neeraj Singh
reached on the spot, and seeing them the
appellants ran away. Thereafter, they
identified that the person who was being
beaten was the real brother of Ashok
Kumar Singh (informant) and he was
having injury on his head and arm. In his
statement he also deposed that on the North
point of the bridge, one house of Bhujwa is
situated, but his testimony was not taken by
the prosecution and he also deposed that
when he left his motorcycle and reached on
the spot, then they saw that the victim was
fallen down. Learned counsel for the
appellants submitted that neither PW-1 nor
PW-2 stated in their statement that the
cycle of the deceased was lying on the spot
and this fact was also not mentioned in the
FIR. The inquest was prepared by PW-3In-charge, Station House Officer-Bacchu
Singh and he categorically mentioned in
the inquest report that no article was found
near the body. It is highly improbable that
when the deceased was coming back from
his duty neither he was having any
footwear nor any cycle, as in the inquest
prepared by PW-3, he has written in the
aforesaid column as Nil, but later, the
recovery of cycle has been shown by
preparing a separate recovery memo which
is contradictory, therefore, the testimony of
PW-2 is not reliable, as he is an interested
witness.

15. Learned counsel for the appellants
submitted that the statement of PW-3
Bacchu Lal, (S.H.O) was recorded before
the trial court in which he categorically
stated that in the inquest report, he has not
mentioned any article or weapon found at
the place of incident. The relevant part of
the deposition of PW-3 is reproduced as
under:-

iapk;rukek ds dkye ua0 3 ^^lEifRr
rFkk mu gfFk;kjksa dh lwph tks 'ko es ;k mlds ikl
feys gSa vkSj muds O;oLFkkiu dh fof/k^^ ds lkeus ;fn
dksbZ oLrq 'ko esa ;k 'ko ds ikl feyrh gS rks mldk
bUnzkt iapk;rukek fd;k tkrkA pwafd eq>s LikV ij
'ko ds ikl vxy&cxy dksbZ oLrq ugha feyh Fkh
5 All. Nitin Singh Vs. The State of U.P.
271
blfy, mDr dkye ds lkeus eSus Nil fy[k fn;k
x;k gSA LikV ij 'ko ds ikl vxy&cxy e`rd ds
twrs vFkok pIiy ;k lSafMy] dye vkfn dqN Hkh ugha
feyk FkkA

PW-3 has also stated that as per
the prosecution case, relevant part of the
trouser of appellant-Amit Singh was sent
along with the blood stained soil, plain soil
and weapon to FSL, but no report of FSL is
available on record. He also stated that call
detail reports of appellants, Ashok Kumar
Singh (PW-1) & Ram Kumar Singh (PW2) and deceased had not collected to get
their respective location at the time of
incident. He also deposed before the trial
court that the investigation was concluded
by Sub-Inspector Bharat Ram Singh and
submitted the charge-sheet against the
appellants.
Learned
counsel
for
the
appellants submitted that in the statement
of appellant, Amit Singh, recorded under
Section 313 Cr.P.C., he has categorically
stated that he was falsely implicated and a
false recovery of trouser was made by the
Investigating Officer, as the size of waist of
alleged recovered trouser was 28 inches,
but he was wearing the trouser of waist
having 34 inches, therefore, prosecution
story is not reliable.

16. Learned counsel for the appellants
submitted that Dr. B.M. Maurya (PW-5)
who
conducted
the
postmortem
was
produced before the trial court and he
stated that injury Nos.1, 4, 5, 6, 7 and 8
may be caused with the blunt object, injury
nos.1, 4 and 7 may be caused from falling
on the ground, and injury nos.2 and 3 may
be caused with heavy or small cutting
weapon. He also stated that after causing
such injuries, there is a possibility that the
victim remains alive in coma, in case the
medical facilities were provided, then there
was a possibility to save his life, but in
the present case, PW-1 as well as PW-2
deposed that when the injured fell down,
they reached to him within a minute and
they found that he was not breathing. PW-5
also deposed that after death, body remains
warm for a period of one hour. In such
circumstances, the testimony of PW-1 and
PW-2 are contradictory with the testimony
of PW-5 and the medical evidence,
therefore, the court below has wrongly
convicted the appellants.

17. Learned counsel for the appellants
submitted
that
after
recording
the
statements of the appellants under Section
313 Cr.P.C, two co-villagers namely,
Mansharam and Pappu Lal as DW-1 and
DW-2 were produced before the trial court.
Mansharam-DW-1,
has
categorically
deposed that he was working at Goyal
Medical Store along with the deceased and
he also deposed that duty of the deceased
was in the store from 9:00 a.m. up to 7:00
p.m. and duty of DW-1 was from 11 a.m.
up to 8:30/9:00 p.m. DW-1 further deposed
that on the date of incident the deceased
left the medical store at about 6:45 p.m.
and DW-1 left the medical store at 9:00
p.m as he had to deliver medicine at one
place and he stayed there for about 15 to 20
minute, then he moved towards his village
and at about 10:00 to 10:15 p.m., he
crossed the Canal Bridge (alleged place of
incident) and no one was present there and
thereafter, he also delivered medicine in
Purwa and reached his house at 11 p.m.,
then PW-1 Ashok Kumar Singh and PW-2
Ram Kumar Singh reached at his house and
asked for Arun Kumar Singh (deceased), as
he had not reached his house, then DW-1
informed them that Arun Kumar Singh
(deceased) left the shop in the evening,
therefore, he is not aware about him. The
272 INDIAN LAW REPORTS ALLAHABAD SERIES
family members of DW-1 also informed
that before DW-1 returned home, Ashok
Kumar Singh (PW-1) and Ram Kumar
Singh (PW-2) visited the house of DW-1
asking for Arun Kumar Singh (deceased).
Mansharam-DW-1 was cross examined by
the
Government
Counsel
and
the
Government counsel failed to dislodged the
evidence of DW-1. Pappu Lal-DW-2 is also
the resident of the same village residing in
front of the house of DW-1, he deposed
that at about 11:00 p.m. Ashok Kumar
Singh PW-1 and Ram Kumar Singh-PW-2
came to the house of DW-1 and asked
about Arun Kumar Singh (deceased), then
they were informed by DW-1 that the
deceased left the shop in evening, but he is
not aware about his current location. Ashok
Kumar (PW-1) and Ram Kumar Singh
(PW-2) also asked Pappu Lal (DW-2)
about the whereabouts of the deceased, but
he showed his unawareness about the same.
Pappu
Lal
(DW-2)
was
also
cross
examined by Government Counsel and he
categorically deposed that in the night he
had no information about the death of Arun
Kumar Singh (deceased) and on the next
morning, it came into his knowledge that
Arun Kumar Singh (deceased) was killed.
Learned counsel for the appellants has
submitted that the trial court had failed to
test the deposition of DW-1 and DW-2. As
DW-1 has categorically deposed that he
crossed Raipur Canal Bridge at about 10:00
to 10:15 p.m., but as per the prosecution
story, the incident was taken place at 10:00
p.m., therefore, the court below has
wrongly convicted the appellants, as no one
has seen the incident and due to inimical
relations, the appellants were falsely
implicated. Therefore, the appeal is liable
to be allowed.

18. On the other hand, learned
counsel for the State supported the view
taken by the trial court and submitted that
having
regard
to
the
facts
and
circumstances the trial court assessed in
proper perspective and delivered a reasoned
judgment. The conviction and sentenced
passed against the accused is liable to be
affirmed and the finding of the trial court
does not require interference of this Court.
Learned A.G.A further submitted that the
F.I.R. was lodged by Ashok Kumar Singh
(PW-1) and supported the prosecution story
and stated that alleged incident was taken
place at 10:00 p.m., thereafter, chik FIR
was prepared at the same time. In-charge
Station House Officer-Bacchu Singh (PW3) reached on the spot and prepared the
inquest and the body was sent for
postmortem which was conducted by Dr.
B.M. Maurya (PW-5). The ante mortem
injuries corroborated with the prosecution
story as deposed by PW-1 and PW-2. The
recovery memo was prepared by PW-3 and
he also recovered the trouser of Amit
Singh. The weapon and trouser was sent for
forensic examination. He also submitted
that the statement of DW-1 and DW-2 was
rightly considered by the court below,
therefore, the appeal is liable to dismissed.

19. Considering the arguments of
learned counsel for the parties and going
through the record, it is evident that Ashok
Kumar Singh (PW-1) and Ram Kumar Singh
(PW-2) categorically deposed that the
incident has taken place at 10:00 p.m. and
they reached on the spot and found that Nitin
Singh armed with axe and Amit Singh armed
with danda were beating one person who was
in bend position and after putting their
motorcycles on stand, they rushed to the
place of incident, then the appellants ran
away and within a minute, they reached to the
victim and found that the victim was the
brother of PW-1, then, PW-1 shook the body
and found that he was dead. Thereafter, they
5 All. Nitin Singh Vs. The State of U.P.
273
chased the appellants, but the appellants ran
away. It is also evident that a written
complaint was lodged by PW-1 at the police
station, then In-charge, Station House
Officer-Bacchu Lal (PW-3) reached on the
spot and prepared the inquest, but he did not
mentioned any cycle or footwear in the
inquest report and he categorically mentioned
the same in the column of inquest report in
which it has to be mentioned that the 'articles
and arms' found near the body as Nil and
thereafter, one recovery of cycle has been
shown. It is also evident that PW-1 has stated
that he saw the victim in a bend position, but
no such injury is found on the back of the
deceased. It is also evident that Mansharam
(DW-1) and Pappu Lal (DW-2) were also
examined and DW-1 has categorically stated
that on the date of incident at about 6:45 p.m,
Arun Kumar Singh (deceased) left the shop
and he also stated that while crossing the
bridge at about 10:00 to 10:15 p.m., he found
no person and there was pin drop silence,
thereafter, he delivered some medicines to the
adjoining Purwa and at about 11:00 p.m. he
reached his house, where his family members
informed him that PW-1 and PW-2 visited
the house asking for Arun Kumar Singh
(deceased). At the same time, they came
again and asked about Arun Kumar Singh
(deceased) and informed that till now Arun
Kumar Singh (deceased) has not come home
and they asked the same from DW-2 and then
they left. DW-1 and DW-2 were duly cross
examined by the Government Counsel, but
the prosecution failed to falsify their version
that at 11:00 p.m., PW-1 and PW-2 came to
the house of DW-1 and asked about Arun
Kumar (deceased).

20. It is also evident that appellantAmit Singh had categorically stated in his
statement recorded under Section 313
Cr.P.C. that he wear trouser of 34 inches of
waist, but the alleged recovered trouser
was of 28 inches of waist, which is
fabricated and no report of FSL is available
and the weapon was also not produced
before the court and the trial court failed to
deal with the contents mentioned in
statement under Section 313 Cr.P.C., as the
enmity has been shown by the prosecution
with the appellants. It is also evident from
judgment of the trial court that the trial
court has not considered the fact that DW-1
deposed before the trial court that at 11:00
p.m. PW-1 and PW-2 came to the house of
DW-1 and asked about Arun Kumar Singh
(deceased) and this fact was also not
considered that at about 10:00 to 10:15
P.M., DW-1 passed through the bridge and
no one was there.

21. The evidence of PW-1 Ashok
Kumar Singh (informant) and PW-2 Ram
Kumar Singh who are the chance witnesses
and claimed themselves to be the eye
witnesses of the incident. Their evidence
does not appear to be reliable and
trustworthy particularly the manner in
which the incident has taken place in the
night which does not found corroborated
with the medical evidence, therefore,
prosecution story creates doubt and benefit
of doubt goes in favour of the appellants.
Hence it would be unsafe to uphold the
conviction and sentence of the appellants as
has been ordered by the trial court.

22. As in the case of Amar Singh Vs.
State (NCT of Delhi) reported in 2020
SCC online SC 826, the Hon'ble Apex
Court is of the view that ordinarily Court
are reluctant to disturb the concurrent view,
but if there are inherent improbabilities in
the prosecution story with ordinary course
of human nature, then it would be safe not
to convict the appellants merely on the
274 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of the alleged eye witnesses. The
relevant paragraph Nos.29 to 32 of the
judgment reads as under:-

"29. In the facts and circumstances
of the case this was serious lapse on the part
of the investigating officer. Though normally
minor lapses on the part of the investigating
officer should not come in the way of
accepting eye witness account, if otherwise
reliable. But in the circumstances of the case
at hands where the conduct of sole eye
witness is unnatural and there are various
other surrounding circumstances which make
his presence at the site of incident doubtful,
such a lapse on the part of the investigating
officer assumed significance and is not liable
to ignored.

30.
While
emphasizing
the
importance of eliciting the opinion of medical
witness in such circumstances this Court in
the case of Kartarey v. State of U.P. has
observed as under:--

"We take this opportunity of
emphasizing the importance of eliciting the
opinion of the medical witness, who had
examined the injuries of the victim, more
specifically on this point, for the proper
administration of justice particularly in a
case where injuries found are forensically of
the same species, example stab wound, and
the problem before of the Court is whether all
or any those injuries could be caused with
one or more than one weapon. It is the duty
of the prosecution, and no less of the Court,
to see that the alleged weapon of the offence,
if available, is shown to the medical witness
and his opinion invited as to whether all or
any of the injuries on the victim could be
caused with that weapon. Failure to do so
may sometimes, cause aberration of the
course of justice".

31. The same has been again
asserted by this Court in Ishwar Singh v.
State of U.P. by observing as under:--

"It is the duty of the prosecution,
and no less of the Court, to see that the
alleged
weapons
of
the
offence,
if
available, is shown to the medical witness
and is opinion invited as to whether all or
any of the injuries on the victim could be
caused with that weapon. Failure to do so
sometimes, cause aberration of the course
of justice. On the basis of the evidence on
record it is difficult to say whether the
injury to the deceased was caused by the
knife with a broken tip which was ceased.
These variations relate to vital parts of the
prosecution case, and cannot be dismissed
as minor discrepancies. In such a case, the
evidence of the eye witness "cannot be
accepted at its face value", as observed by
this Court in Mitter Sen v. State of U.P."

32.
The
conviction
of
the
appellants rests on the oral testimony of
PW-1 who was produced as eye witness of
the murder of the deceased. Both the
Learned Sessions Judge, as well as High
Court have placed reliance on the evidence
of PW-1 and ordinarily this Court could be
reluctant to disturb the concurrent view but
since there are inherent improbabilities in
the prosecution story and the conduct of
eye witness is inconsistent with ordinary
course of human nature we do not think it
would be safe to convict the appellants
upon the incorroborated testimony of the
sole eye witness. Similar view has been
taken by a Three Judge Bench of this Court
in the case of Selvaraj v. The State of Tamil
Nadu. Wherein on an appreciation of
evidence the prosecution story was found
highly improbable and inconsistent of
ordinary
course
of
human
nature
5 All. Kailash Vs. The State of U.P.
275
concurrent findings of guilt recorded by the
two Courts below was set aside."

23. Thus, in view of the forgoing
discussion, we are not able to appreciate
the reason given by the Courts below for
convicting the appellants for the alleged
offences. On the contrary, we are of the
considered view that prosecution has failed
to establish the guilt of the accused beyond
reasonable doubt. The incident does not
appear to have happened in the manner in
which the prosecution wants the Court to
believe it had happened.

24. In view of the discussion made
hereinabove, the appellants become entitle
for the benefit of doubt and appeal deserves
to be allowed and is hereby allowed.

25. The Criminal Appeal No.669 of
2014 and Criminal Appeal No.540 of 2014
on behalf of appellants namely, Amit Singh
and Nitin Singh stand allowed. They are
said to be in jail. They shall be released
forthwith, if not wanted in any other
criminal case.

26. It is further directed that the
appellants namely, Amit Singh and Nitin
Singh shall furnish bail bond with sureties
to the satisfaction of the court concerned in
terms of the provision of Section 437-A
Cr.P.C.

27. Let the lower court record along
with the present order be transmitted to the
trial
court
concerned
for
necessary
information and compliance forthwith.

28. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked, before the
concerned Court/Authority/Official.

29.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)05ILR A275
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.05.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 1989 of 2009

Kailash ...Appellant(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Nagendra Mohan, Arshad Hafeez Khan,
Bhanu Dutt Dwivedi, Desh Ratan Mishra,
Dinesh Kr. Sharma, Salil Mohan, Shishir
Pradhan, Virendra Kumar Yadav

Counsel for the Opposite Party:
G.A.

Indian Penal Code, 1860- Section 34-
Absence of common intention- Appellants
Badey Lal, MunnaLal and Sipahi Lal alias
Nanh could not be said to have any
common intention to commit the murderof
the deceased Khushi Ram along with
appellant Kailash. Appellants Badey Lal,
Munna Lal and Sipahi Lal alias Nanh also
did not assualt the deceased Khushi Ram