# Rajveer Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 178
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-11
- **Case number:** Criminal Appeal No. 826 of 1991
- **Bench:** Manoj Misra, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajveer-singh-ors-in-jail-v-state-of-u-p-44672
- **Pages:** 16

## Headnote

A. Indian Penal Code, 1860 - Section
147, 148 , Section 307 read with Section
149 - criminal appeal under Section 374
of Code of Criminal Procedure, 1973 -
Delay in lodging F.I.R - Section 313
Cr.P.C - appellants convicted under
Section 307 read with Section 149 and
148
I.P.C.
-
entitles
the
surviving
appellant the benefit of doubt - entitled
to be acquitted of all the charges levelled
against him.

The inordinate delay in lodging the F.I.R. as well
as delay in medical examination; material
contradiction between the statement of injured
eye witnesses made during investigation and
statement made during trial; reasonable doubt
regarding sharing of common object by appellant
as a member of unlawful assembly or having
knowledge of any such common object, have
created serious doubts in the prosecution case as
against the sole surviving appellant which entitles
the surviving appellant the benefit of doubt -
entitled to be acquitted of all the charges levelled
against him. (Para 28,31 & 40)

(B) Indian Penal Code, 1860 - applicability
of Section 149 IPC - Mere presence of any
person at the place of occurrence like a
mute spectator or as witness would not
create any liability upon him with aid of
section 149 IPC unless it is proved or could
be logically inferred from the facts of the
case that he was part of that unlawful
assembly and had knowledge that such an
act would be committed or is likely to be
committed in prosecution of the common
object of the unlawful assembly. (Para 32)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

## Text

_Characters 0–39,921 of 53,103. This is a partial read: ask again with offset=39921 for what follows._

178 INDIAN LAW REPORTS ALLAHABAD SERIES

37. The appellants are on bail. Chief
Judicial
Magistrate,
Moradabad,
is
directed to take them into custody and
send them to jail for serving out their
remaining sentence.
----------

(2019)10ILR A 178

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 826 of 1991

Rajveer Singh & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ravindra Singh, Sri Dinesh Kumar
Bhaskar, Sri Pawan Singh.

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

A. Indian Penal Code, 1860 - Section
147, 148 , Section 307 read with Section
149 - criminal appeal under Section 374
of Code of Criminal Procedure, 1973 -
Delay in lodging F.I.R - Section 313
Cr.P.C - appellants convicted under
Section 307 read with Section 149 and
148
I.P.C.
-
entitles
the
surviving
appellant the benefit of doubt - entitled
to be acquitted of all the charges levelled
against him.

The inordinate delay in lodging the F.I.R. as well
as delay in medical examination; material
contradiction between the statement of injured
eye witnesses made during investigation and
statement made during trial; reasonable doubt
regarding sharing of common object by appellant
as a member of unlawful assembly or having
knowledge of any such common object, have
created serious doubts in the prosecution case as
against the sole surviving appellant which entitles
the surviving appellant the benefit of doubt -
entitled to be acquitted of all the charges levelled
against him. (Para 28,31 & 40)

(B) Indian Penal Code, 1860 - applicability
of Section 149 IPC - Mere presence of any
person at the place of occurrence like a
mute spectator or as witness would not
create any liability upon him with aid of
section 149 IPC unless it is proved or could
be logically inferred from the facts of the
case that he was part of that unlawful
assembly and had knowledge that such an
act would be committed or is likely to be
committed in prosecution of the common
object of the unlawful assembly. (Para 32)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

1. Nagesar Vs St. of CG. (2014) CrLJ 2948

2. Thulia Kali Vs St. of T.N. AIR 1973 SC 501

3. Baladin & ors. Vs St. of U.P. AIR 1956 SC
181

4. Rajendra Shantaram Todankar Vs St. of
Mah. & ors. 2003 SCC (Cri) 506

5. Dani Singh Vs St. of Bihar (2004) 13 SCC
203

6. Kuldip Yadav Vs St. of Bihar (2011) 5 SCC
324

7. Nagesar Vs St. of CG. (2014) Cr.LJ. 2948
(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant appeal has been filed
under Section 374 of Code of Criminal
Procedure, 1973 (hereinafter referred to as
"Code") against the judgment and order
2 All. Rajveer Singh & Ors. Vs State of U.P.
179
dated 23.4.1991 passed by Special Judge,
Moradabad in Session Trial No. 586 of
1988 (State vs. Rajveer Singh and others),
P.S. Naugawa Sadat, District Moradabad,
U.P., whereby, appellants Rajveer Singh
and Jagat Veer Singh have been convicted
and sentenced to imprisonment for life,
whereas, appellants Suresh, Viresh and
Teeka Ram have been convicted and
sentenced to undergo 7 years rigorous
imprisonment for offence under Section
307 read with Section 149 and all the
appellants have further been convicted for
offence under Section 148 IPC and
sentenced
to
undergo
rigorous
imprisonment for a term of 2 years. All
the sentences have been directed to run
concurrently.

2. The brief facts of the prosecution
case are that appellants Rajveer Singh,
Jagat Veer Singh, Suresh, Viresh and
Teeka Ram; PW-1, Hari Raj Singh; PW4, Dinesh Kumar and PW-5, Dushyant are
residents of Village Jamuna Khas, P.S.
Naugawa Sadat, District Moradabad.
Appellants, namely, Rajveer Singh and
Jagat Veer Singh, are real brothers.
Appellants Suresh and Viresh are also real
brothers. PW-2, Shoorveer Singh is
brother-in-law of PW-1, Hari Raj Singh.

3. It is the prosecution case that while,
on 29.1.1984, PW-1, Hari Raj Singh was
irrigating his field by a diesel pump set of
PW-4, Dinesh Kumar, at about 10:00 p.m.,
PW-2, Shoorveer Singh came there and told
that appellants Rajveer, Jagat Veer, Suresh
and Viresh armed with guns, whereas,
appellant Teeka Ram armed with sword,
were coming from the Haveli of appellant
Suresh towards him ( Hari Raj Singh). PW1, Hari Raj Singh told him not to worry as
appellants Viresh and Suresh were also with
them. As a result, both of them sat under the
bullock cart with lantern, emmitting light,
hanging at its back. At about 11:00 p.m., all
the appellants reached the place of
occurrence, where PW-1, Hari Raj Singh,
PW-2, Shoorveer Singh and PW-4, Dinesh
were sitting. Seeing them, PW-1, Hari Raj
Singh came out from under the bullock cart.
Whereafter, appellant Jagat Veer fired at
PW-2, Shoorveer Singh which hit his
hands; PW-1, Hari Raj Singh caught
appellant Jagat Veer Singh by his arms and
bit his shoulder. Upon which, appellant
Rajveer Singh exhorted appellant Teeka
Ram to attack him with sword. As appellant
Teeka Ram was about to attack Hari Raj
Singh (PW-1), he released appellant Jagat
Veer Singh and as soon as PW-1, Hari Raj
released him, appellant Rajveer fired at PW1, Hari Raj Singh which hit his left hand,
whereby, he fell down. After the firing,
appellants came near PW-2, Shoorveer, to
verify whether PW-2, Shoorveer was alive
or not. Upon information from Suresh that
he was about to die, upon sensing that on
alarm raised by PW-1, Hari Raj Singh and
PW-2, Shoorveer Singh, persons present at
a crusher nearby were coming, the
appellants ran away. In the night, PW-1,
Hari Raj Singh sent PW-5, Dushyant along
with one Subhash and Ravindra to P.S.
Naugawa Sadat to lodge First Information
Report (hereinafter referred to as "F.I.R."),
but the same was not lodged as Station
Officer of P.S. Naugawa Shadat advised
them to arrange for treatment of injured first
instead of bothering to lodge an F.I.R. Next
day, in the morning, PW-1, Hari Raj and
PW-2, Shoorveer Singh were taken to
Combined Health Centre (CHC), Amroha
by tractor of PW-5, Dushyant.

4. PW-3, Dr. A.K. Mehrotra,
Medical
Officer,
Combined
Health
Centre, Amroha, examined the injuries of
PW-1, Hari Raj Singh and PW-2,
180 INDIAN LAW REPORTS ALLAHABAD SERIES
Shoorveer Singh on 30.1.1984. The
injuries noticed were as follows:

(a) Injuries on PW-1, Hari Raj
Singh.

(i) fire arm wound of entry, size
3.2 cm x 3.2 cm through and through on
inner side of left upper arm, 4 cm above
from the left elbow joint, margins everted,
bleeding present after cleaning of wound.

(ii) fire arm exit wound, size
15.0 cm x 13.0 cm through and through
on the injury no. 1; interior portion of left
upper arm, left elbow joint and upper
portion of left forearm, margins everted,
bleeding present after cleaning the
wound.

(iii) lacerated wound size 3 cm x
3 cm x muscle deep on the inner portion of
left upper arm 2 cm below the injury no. 1,
bleeding present, after cleaning of wound.

(b) Injuries on PW-2, Shoorveer
Singh.

(i) fire arm wound of entry, size
3 cm x 3 cm through and through on the
back of right elbow joint, inner side and
margin everted, bleeding was present
after cleaning. Blackening is present.

(ii) fire arm wound exit size 4.5 cm
x 4.0 cm through and through to the injury
no. 1 right in the arm, inner side. Margin
everted 8 cm below the right elbow joint.
Bleeding after cleaning the wound was
present. Injuries was surrounded by swelling
size 20.0 cm x 15.0 cm on the right upper
arm and right forearm.

5. After medical examination, on the
dictation of PW-1,Hari Raj Singh,written
report Ex ka1 was prepared by Satyaveer
Singh. After putting his thumb impression
on it, PW-1, Hari Raj Singh , sent
Satyaveer Singh to P.S. Naugawa Sadat to
lodge
the
same.
Whereafter,
FIR
(Ex.ka.4) was lodged at 12:30 on
30.1.1984.

6. Investigation was taken over by
Hukum Singh Yadav, Inspector, P.S.
Naugawa, (hereinafter referred to as
''I.O.') who inspected the place of
occurrence and took sample of blood
stained and plain earth, blood stained bed
sheet, empty cartridges from the place of
occurrence and prepared recovery memo
(Ex.Ka.14
and
Ex.Ka.16);
he
also
inspected the lantern, took it into his
custody and prepared its recovery memo
(Ex.Ka.17). During investigation, two
persons, namely, Ram Singh and Om Pal
Singh, were arrested and, it appears, from
their possession, country made pistols
were recovered which were sent for
forensic science laboratory, Lucknow,
along with empty cartridges found at the
place of occurrence. On the application of
Hari Raj Singh (PW-1), as he was not
satisfied with investigation, investigation
was transferred to CBCID, Lucknow and
entrusted
to
PW-8,
Sri
Krishna
Srivastava, Inspector in CBCID, Lucknow
who inspected the place of occurrence,
prepared site plan (Ex.Ka.9) and recorded
the statement of witnesses. Meanwhile,
PW-8,
Sri
Krishna
Srivastava
was
transferred and investigation was handed
over to another investigating officer.
Thereafter, charge-sheet Ex.Ka.10 and
Ex.Ka.11 u/s 147,148, 149 and 307 IPC,
was filed against the appellants upon
which cognizance was taken by the
concerned Magistrate and since the
offences were exclusively triable by a
Court of Session, after providing copies
2 All. Rajveer Singh & Ors. Vs State of U.P.
181
of necessary documents, as required u/s
207 of the Code, to the appellants,
committed the case for trial to Court of
Session, Moradabad.

7. Charges u/s 307 and 148 IPC
were framed against appellants Jagatveer
Singh and Rajveer Singh whereas u/s 148
and 307 read with 149 IPC were framed
against appellants Suresh, Viresh and
Teeka Ram, which were read over to the
appellants. The appellants denied the
charges and claimed for trial.

8. The prosecution examined eight
witnesses, out of whom PW-1, Hari Raj
Singh, PW-2, Shoorveer Singh and PW-4,
Dinesh Kumar are witnesses of fact and
rest are formal witnesses. PW-3, Dr. A.K.
Mehrotra had examined the injuries of
PW-1 Hari Raj Singh and PW-2,
Shoorveer Singh; PW-5, Dushyant is a
formal witness, who was sent after the
occurrence to inform the police and on
whose tractor the injured were sent next
day to the hospital.

9. PW-6, Const. Ibrahim Khan is a
witness who has registered the chick
F.I.R. and made entry of the occurrence in
General Diary. PW-7, Hareram Singh is
recordkeeper Safadarjang Hospital, New
Delhi and PW-8, Sri Krishna Srivastava is
investigating officer of the case.

10. After closure of prosecution
evidence, appellants were examined under
Section 313 of the Code. They denied the
prosecution version and stated that they
are innocent and have falsely been
implicated. They had further stated that
during investigation, Ram Singh and Om
Pal
Singh
were
arrested
by
the
Investigating Officer who had confessed
their guilt.

11. Appellants were afforded
opportunity to lead evidence in their
defence. DW-1 Basdev Prasad Sharma,
Head Const. Sadar Malkhana, Moradabad
was produced by the appellants in their
defence.

12. After hearing counsel for the
parties, Trial Court found accusedappellants guilty of the charge under
Sections 307 read with Section 149 and
Section 148 I.P.C. and, accordingly,
convicted and sentenced them as above.
Aggrieved by the impugned judgment and
order, appellants have preferred this
appeal.

13. At the very outset, it is pertinent
to note that during the pendency of this
appeal, appellants nos. 1, 2, 3 and 5
namely Rajveer Singh, Jagat Veer Singh,
Suresh and Teeka Ram had died and
appeal in regard to them had been abated
vide order dated 1.7.2019. Therfore, the
appeal of only Viresh survives.

14. We have heard Sri Pawan Singh
Pundir, learned counsel for the appellant
(Viresh) and learned A.G.A. for the State.

15. Learned counsel for the
appellant Viresh has submitted that he is
innocent and has been falsely implicated.
He was not a member of any unlawful
assembly; from the evidence on record, it
has not been proved as to whether he had
a common object or had knowledge
regarding any such object; no evidence
has been produced by the prosecution in
this regard. Learned counsel has further
submitted that F.I.R. was lodged after a
delay of more than 13 hours of the
occurrence without any satisfactory and
plausible explanation. Medical evidence
is also not corroborated with ocular
182 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence. All the prosecution witnesses
are interested witness. Conduct of injured
witnesses
is
neither
natural
nor
trustworthy. Appellant has no motive
either to commit any offence or to be a
member of any unlawful assembly. The
impugned judgment and order passed by
the Trial Court is against the settled
principle of law and liable to be set aside.
Appellant is entitled for acquittal. He has
placed reliance on Nagesar Vs. State of
Chhatisgarh (2014) CrLJ 2948.

16. Per-contra, learned A.G.A. ,
vehemently opposing the submission
advanced by the learned counsel for the
appellant, has submitted that alleged
offence
has
been
caused
in
the
prosecution of a common object of
member of unlawful assembly. Presence
of appellant Viresh at the place of
occurrence with deadly weapon has been
proved
by
the
prosecution
beyond
reasonable doubt. Learned A.G.A. further
submitted that though the remaining
appellants, who played active role in
causing grievous injuries as also attempt
to take the life of injured witnesses, have
died, but appellant (Viresh) cannot be
given any benefit on that score as he was
part of the unlawful assembly. He has
further submitted that the statement of
injured witnesses supported with medical
evidence cannot be disbelieved only on
the ground of delay in F.I.R. because
delay has been explained and is not fatal
to the prosecution case.

17. We have considered rival
submission of the learned counsel for the
parties and have gone through the entire
record.

18. PW-1, Hari Raj Singh has stated
that accused-appellants, Rajveer Singh,
Jagat Veer Singh, Suresh, Viresh and
Teeka Ram are residents of his village
and he knew them very well; appellants
Raj Veer Singh and Jagat Veer Singh are
real brothers; Suresh and Viresh are also
real brothers who were his real nephews.
He stated that at the time of occurrence,
he had hired an engine of Dinesh (PW-4)
to irrigate his field and when he was
irrigating his field, Dinesh (PW-4) and his
servant Khem Singh was present at his
field. He stated that on the fateful day,
irrigation started at 2:00 p.m. At about
8:00 p.m., his brother-in-law Shoorveer
Singh (PW-2) and Balbeer Singh, (father
of PW-4) brought their dinner at the tube
well. After dinner, Balbeer Singh and
Shoorveer Singh (PW-2) returned back.
He stated that at about 10:00 p.m.,
Shoorveer Singh (PW-2) came and told
him
that
appellants
Rajveer
Singh,
Jagatveer Singh, Suresh, Viresh armed
with gun and Teekaram armed with sword
had emerged from the house of appellant
Suresh and were coming towards him. On
hearing that he told Shoorveer Singh
(PW-2) that as his nephews were there
with appellant Rajveer Singh, he does not
apprehend any danger and therefore he sat
under the bullock cart with Shoorveer
Singh (PW-2) and Dinesh (PW-4). At that
point in time a lantern was hanging from
the rear side of bullock cart and was
emmitting light. At about 11:00 p.m., all
the five appellants appeared there. Seeing
them, he (PW-1) came out from under the
bullock cart. Whereafter, appellant Jagat
Veer Singh fired from his gun at PW-2,
Shoorveer Singh thereby causing injury to
him (PW-2). PW-1 stated that he caught
hold appellant Jagatveer Singh and bit his
shoulder. Consequently, appellant Jagat
Veer Singh cried. Seeing that appellant
Rajveer Singh asked appellant Teeka Ram
to attack PW-1 with sword. As appellant
2 All. Rajveer Singh & Ors. Vs State of U.P.
183
Teeka Ram raised his sword towards him,
he (PW-1) released appellant Jagat Veer
Singh and let him move away. Thereafter,
appellant Rajveer Singh fired at him (PW1) from his gun which hit PW-1 on his
left arm. As a result, he fell down.
Thereafter, appellants went to PW-2,
Shoorveer Singh. Appellant Jagat Veer
Singh asked appellant Suresh to verify
whether Shoorveer Singh was alive.
Whereupon , he replied that although PW2 was still breathing but was almost dead.
Whereafter, appellants ran away from the
place of occurrence towards west.

He further stated that, hearing
the sound of fire, persons present at the
crusher in village Dakhawada raised
alarm but nobody came there. As a result,
he called Dinesh (PW-4) to take him out
of the water. Some how, he got up and
sent Dinesh to the crusher with instruction
to call persons present there to carry him
from there. He narrated in detail as to how
he and PW-2, Shoorveer Singh reached
their house and from there he sent
Ravindra @ Munne, Subhash and PW-5,
Dushyant to lodge F.I.R. but at the police
station, Station Officer Hari Raj Singh
Tyagi told them that they should take
injured for treatment and refused to lodge
F.I.R. He further stated that they (PW-5,
Dushyant and others) returned and told
him about refusal to register the F.I.R.
Thereafter, he and Shoorveer (PW-2)
went to Amroha Hospital by tractor of
Dushyant (PW-5) where they were
medically examined. He dictated the
F.I.R. (Ex.Ka.1) to Satyaveer Singh, who
read it over to him and after putting his
thumb
impression
on
it;
he
sent
Satyaveer, with medical report, to police
station to lodge the F.I.R.. According to
him, they were referred to District
Hospital, Moradabad for treatment and
thereafter to Safadarjung Hospital, New
Delhi. During treatment, his left hand and
right hand of PW-2, Shoorveer Singh
were amputated. It was further stated by
PW-1 that there is a pond in the village
for Sigharha of which there was dispute
between appellant Rajveer Singh and one
Vikram Singh. In respect of which, PW-1
stood as surety for Vikram Singh and that
once
appellant
Rajveer
Singh
had
prevented him from irrigating from the
canal. Stating that Hari Raj Singh Tyagi
(I.O.) was favouring the appellants as he
was married in the family where sister of
appellant Rajveer Singh was married, he
had given an application for transfer of
investigation, whereupon, investigation
was transferred to CID, he has stated that
at the time of incident, lantern (Material
Ex.Ka.1) emitting light at the place of
occurrence was taken by the I.O. and
returned to him.

19. In cross-examination, he stated
that he had moved from his house for
Amroha at 8:00 a.m. and had reached
there at 11:00 a.m., whereafter he was
medically examined there. He specifically
stated in cross-examination that after
medical examination, he got the report
written and sent to Police Station . He
also stated that in the night of occurrence,
he had sent Ravindra @ Munne, Subhash
and Dushyant (PW-5) to police station
with direction to inform the police that he
and Shoorveer had received fire arm
injuries. He stated that he could not assign
any reason as to why he did not send any
written report to police station then.

20. PW-2, Shoorveer Singh, stating
that he knows all the appellants Rajveer
Singh, Jagat Veer Singh, Suresh, Viresh
and Teeka Ram; and that PW-1, Hari Raj
Singh is his brother-in-law and appellants
184 INDIAN LAW REPORTS ALLAHABAD SERIES
Suresh and Viresh are cousin of PW-1,
Hari Raj Singh, narrated the same story,
as stated by PW-1, Hari Raj Singh. In
cross-examination, he has stated that after
the occurrence, Ravindra, Dushyant (PW5) and Subhash were sent by motorcycle
to P.S. Naugawa Sadat. He stated that
report which was prepared at Amroha was
prepared in his presence and he was
aware that no report had been lodged at
P.S. Naugawa Sadat in the night. He has
specifically stated that he had said to his
brother-in-law (PW-1), Hari Raj Singh to
mention the fact in report that three
persons were sent to Naugawa Sadat for
lodging the report, but it was not lodged.

21. PW-3, Dr. A.K. Mehrotra is a
medical officer who has inspected the
injuries of PW-1, Hari Raj Singh and PW2, Shoorveer Singh and prepared injury
report (Ex.Ka.2 and Ex.Ka.3) (details of
injuries of these witnesses have already
been mentioned in preceding paras of this
judgment). He has stated that the injuries
of both the witnesses may be caused on
29.1.1984 at about 11:00 p.m. According
to him, injury no. 1 and 2 of P.W.1, Hari
Raj Singh and all the injuries of PW-2,
Shoorveer Singh were caused by fire arm,
whereas, injury no. 3 of PW-1 could have
been caused by a blunt object.

22. PW-4, Dinesh Kumar has stated
that he was present with PW-1, Hari Raj
Singh and PW-2, Shoorveer Singh at the
time of occurrence. Stating that at the
time of occurrence he was sitting under
the bullock cart and saw the whole
occurrence from that place he narrated the
whole incident as narrated by PW-1, Hari
Raj Singh. He further stated that during
investigation, police of P.S. Naugawa
Sadat had forcibly taken his signature on
plain paper and thereafter appellants
kidnapped him and took his photographs
forcibly and got his affidavit in their
favour. According to him, a report had
been lodged by his brother in this regard.
In cross-examination he stated that he
could not tell as to after how many days
his
affidavit
was
prepared
and
photographs
taken.
During
crossexamination, he admitted his photo and
signature on affidavit (Ex.Kha.1) and
(Ex.Kha.2) but stated that the paper
pertaining to affidavit was a plain paper
on which he had put his signatures.

23. PW-5, Dushyant has stated that,
in 1982, Mohd. Ali, Baburam Jatav and 23 other persons of his village had
contested election of Village Pradhan. He
supported Baburam, whereas, appellants
supported Mohd. Ali. Mohd. Ali won the
election. In 1983, Village Pradhan Mohd.
Ali had auctioned a village pond in favour
of the appellants against which he had
filed a suit before court. According to
him, due to above mentioned incident,
appellants were inimical towards him and
a proceeding under Section 107/117 of the
Code was initiated against him, wherein,
Hari Raj Singh had submitted a surety
bond for him; due to which, appellants
Rajveer and others were also inimical to
PW-1, Hari Raj Singh and had obstructed
him from irrigating his field from that
canal. On how he got information of
occurrance, he stated that the said
occurrence was narrated to him by PW-1,
Hari Raj Singh and on his request, he,
Ravindra and Subhash had gone to P.S.
Naugawa Sadat at 3:30 a.m. where Station
Officer Hari Raj Singh Tyagi and Head
Constable (Diwan) had advised him to
carry the injured to Hospital for treatment
and report could be lodged at any time.
According to him, he returned thereafter
to his village and told PW-1, Hari Raj
2 All. Rajveer Singh & Ors. Vs State of U.P.
185
Singh that report could not be lodged. He
has stated that Satyaveer had written the
report at Hospital on the dictation of PW1, Hari Raj Singh who put his thumb
impression on it. In cross-examination, he
admitted that he had not requested police
to lodge F.I.R. According to him, at
Naugawa Sadat, there was a post office
and also facility of telephone but he had
made no attempt to inform any police
officer
telephonically
or
through
radiogram.

24. PW-6, Const. 587 Ibrahim Khan
has stated that on 30.1.1984, he was
posted at P.S. Naugawa Sadat as Head
Moharrir and had lodged the Chick F.I.R.
(Ex.Ka.4) on the basis of written report
and entered the same in General Diary
(Ex.Ka.5).

25. PW-7, Hareram Singh, Medical
Record
Technician
at
Safdarganj
Hospital, New Delhi, has proved the bed
head ticket and other medical treatment
documents (Ex.Ka.6 and Ex.Ka.7) of PW2, Shoorveer Singh and PW-1, Hari Ram
Singh.

26. PW-8, Sri Krishna Srivastava,
Inspector in C.I.D., Lucknow has stated
that on 4.6.1985, he was posted as
Inspector
CID,
Lucknow
and
has
investigated this case; that he recorded the
statement of witnesses; and inspected the
place
of
occurrence
and
prepared
(Ex.Ka.9) site plan. According to him,
investigation was transferred to another
Inspector of CBCID and thereafter to
D.S.P, B.C. Saxena who had filed chargesheet (Ex.Ka.10 and Ex.Ka.11) against
the appellants.

27. DW-1, Basdev Prasad Sharma,
Head Const. 55 (Sadar Malkhana Muarir),
Moradabad
has
been
produced
by
appellants
to
prove
that
during
investigation, a country-made pistol of 12
bore and 2 cartridges in Case Crime No.
49/1984 under Section 25 Arms Act,
(State vs. Ram Singh), recovered by
Investigating Officer, was filed in Sadar
Malkhana.
According
to
him,
said
country-made
pistol
was
sent
for
examination
to
Forensic
Science
Laboratory, Lucknow along with empty
cartridges; and blood stained bed sheet
pertaining to Case Crime No. 12/1984
under Section 147/148/307/394 I.P.C.
(State vs. Jagveer Singh and others) was
filed.

28. F.I.R. when lodged promptly or
with justified delay, may lend credence to
the prosecution case. Neither the Indian
Evidence Act, 1872 nor the Code
prescribes any time limit for lodging the
F.I.R. But if it has been lodged after
considerable delay without any justifiable
cause, it may damage the prosecution
case. In Thulia Kali vs. State of Tamil
Nadu AIR 1973 SC 501, where delay in
lodging F.I.R., was of 20 hours without
any proper justification, Court, setting
aside conviction of appellant, held:-

"12.
.........First
information
report in a criminal case is an extremely
vital and valuable piece of evidence for
the purpose of corroborating the oral
evidence adduced at the trial. The
importance of the report can hardly be
overestimated from the standpoint of the
accused. The object of insisting upon
prompt lodging of the report to the police
in respect of commission of an offence is
to obtain early information regarding the
circumstances in which the crime was
committed, the names of the actual
culprits and the part played by them as
186 INDIAN LAW REPORTS ALLAHABAD SERIES
well as the names of eye witnesses present
at the scene of occurrence. Delay in
lodging the first information report quite
often results in embellishment which is a
creature of afterthought. On account of
delay, the report not only gets bereft of
the advantage of spontaneity, danger
creeps in of the introduction of coloured
version,
exaggerated
account
or
concocted story as a result of deliberation
and consultation. It is therefore, essential
that the delay in the lodging of the first
information
report
should
be
satisfactorily explained........."

29. Coming to the facts of this case,
F.I.R. (Ex.Ka.1) has been lodged by one
Satyaveer Singh, sent by PW-1, Hari Raj
Singh. Satyaveer Singh has not been
examined by prosecution. Prosecution has
also not placed any justification as to why
injured witnesses PW-1, Hari Raj Singh
or PW-2, Shoorveer Singh has not gone to
police station even on next day when they
had visited the hospital situated at
Amroha. According to PW-1, Hari Raj
Singh, the incident occurred on 29.1.1984
at 11:00 p.m. and, after occurrence, he
had sent Subhash, Munnesh and Dushyant
(PW-5) to lodge F.I.R. but the police did
not lodge the F.I.R. and suggested to
Dushyant for treatment of the injured.
Thereafter, Dushyant returned and told
him (PW-1) about non registration of the
F.I.R. According to him, he along with
PW-2,
Shoorveer
Singh
went
on
30.1.1984 by tractor of Dushyant (PW-5)
to Amroha Hospital where they were
medically examined and, thereafter, F.I.R.
was prepared on his dictation at hospital
and was sent through one Satyaveer Singh
to police station. In examination-in-chief,
neither PW-1, Hari Raj Singh nor PW-2,
Shoorveer Singh have stated as to when
they proceeded from their village for
Hospital and when they reached the
Hospital as also when their medical was
conducted and when they sent Satyaveer
Singh to police station to lodge the F.I.R.
The Medico Legal Certificates (MLC)
Ex.Ka.2 and Ex.Ka.3 of Hari Raj Singh
(PW-1) and Shoorveer Singh (PW-2)
reveals
that
they
were
medically
examined on 30.1.1984 at 11:15 a.m. and
11:30 a.m. From perusal of Chick F.I.R.
(Ex.Ka.4) and G.D. Report (Ex.Ka.5), it
transpires that F.I.R. was lodged on
30.1.1984 at 12:30 O' clock. Thus, F.I.R.
was lodged with a delay of 13:30 hours,
whereas, the distance between the place
of occurrence and police station has been
shown as only nine kilometres in Ex.Ka4, Chick FIR. According to prosecution
case, grievous fire arm injuries were
caused on the left arm of PW-1, Hari Raj
Singh and right arm of PW-2, Shoorveer
Singh. Neither PW-1, Hari Raj Singh nor
PW-2, Shoorveer Singh have stated in
their statement as to why they did not go
to the hospital for medical treatment of
their injuries till about noon next day. In
same way, PW-1, Hari Raj Singh has also
not stated as to why he had not
approached the police station next day
morning
of
30.1.1984.
In
crossexamination, he has stated that he had
proceeded from his house by tractor to
Amroha at 8:00 a.m. on 30.1.1984 and
reached at Amroha at 11:00 a.m. He
further
stated
that
after
medical
examination, he got the written report sent
to police station. It means that he had not
visited the P.S. Naugawa Sadat for
lodging the F.I.R. It is normal human
behaviour to either approach the police
station to lodge the F.I.R. or to go to the
hospital
for
medical
treatment,
particularly, when injury is grievous. In
addition to above, PW-1, Hari Raj Singh
has also stated in cross examination that
2 All. Rajveer Singh & Ors. Vs State of U.P.
187
he had not sent any written information in
the night with PW-5, Dusyant, Subhas
and Munne rather had told them only to
inform the police that fire arm injuries
had been caused to them (PW-1, Hari Raj
Singh and PW-2, Shoorbir Singh). Thus,
non sending of written information and
sending person with oral direction to
inform the police regarding receipt of fire
arm injuries without disclosing further
details of the incident and lodging FIR
next day after a delay of more than 13
hours, and approaching for medical
treatment after 13 hours, creates a serious
doubt about the prosecution case.

30. F.I.R. (Ex.Ka.1) states that at the
time of occurrence, PW-1, Hari Raj Singh
was irrigating his field where PW-2,
Shoorveer Singh was also present along
with Dinesh (PW-4) and all of them were
sitting nearby a diesel engine pump set.
At about 11:00 p.m., appellants Jagat
Veer Singh and Rajveer Singh S/o
Ghanshyam Singh, Suresh and Viresh S/o
Om Prakash armed with their gun and
appellant Teeka Ram S/o Babu Ram
armed with sword appeared there, Jagat
Veer Singh fired at PW-2, Shoorveer.
Hari Raj Singh caught Jagat Veer Singh
by his arms. Thereafter, appellant Rajveer
Singh fired at Hari Raj Singh (PW-1). In
the F.I.R., no active role of appellants
Teeka Ram, Suresh and Viresh is
mentioned. It has also not been mentioned
that after the occurrence, on the direction
of appellant, Jagat Veer Singh, appellant
Suresh verified whether Shoorveer Singh
(PW-2) is alive but in their statements
they have added that Suresh verified
whether Shoorveer Singh was alive. It
appears that in order to justify the injury
caused to Hari Raj Singh (PW-1) on his
left arm, story of raising sword by
appellant
Teeka
Ram,
releasing
of
appellant Jagat Veer Singh by PW-1, Hari
Raj Singh, moving of Jagatveer Singh
away from Hari Raj Singh and then firing
of shot by appellant Rajveer Singh on the
hand of Hari Raj Singh (PW-1) was
developed.
Because
as
per
F.I.R.,
appellant Rajveer Singh fired at Hari Raj
Singh (PW-1) when he had caught hold
appellant
Jagat
Veer
Singh,
which
appeared improbable as appellant Jagat
Veer Singh could also have sustained gun
shot injury. Hence, the improvement in
prosecution story appears to have been
made to make the story appear more
probable but this deliberate effort on the
part of the prosecution casts a serious
doubt on the prosecution story.

31. All the appellants have been
convicted under Section 307 read with
Section 149 and 148 I.P.C. Section 148
I.P.C. deals with the offence of rioting by
any person armed with deadly weapons,
whereas, Section 149 I.P.C. declares
every member of unlawful assembly
guilty of an offence committed by any
member of an unlawful assembly in
prosecution of common object. Section
141 and Section 146 of I.P.C. defines the
unlawful assembly and offence of rioting
respectively. Sections 141, 146, 148 and
149 are as under:-

Section
141.
Unlawful
assembly.--An assembly of five or more
persons is designated an "unlawful
assembly", if the common object of the
persons composing that assembly is--

(First)
--
To
overawe
by
criminal force, or show of criminal force,
the Central or any State Government or
Parliament or the Legislature of any State,
or any public servant in the exercise of the
lawful power of such public servant; or
188 INDIAN LAW REPORTS ALLAHABAD SERIES

(Second)
--
To
resist
the
execution of any law, or of any legal
process; or

(Third) -- To commit any
mischief or criminal trespass, or other
offence; or

(Fourth) -- By means of criminal
force, or show of criminal force, to any
person, to take or obtain possession of any
property, or to deprive any person of the
enjoyment of a right of way, or of the use of
water or other incorporeal right of which he is
in possession or enjoyment, or to enforce any
right or supposed right; or

(Fifth) -- By means of criminal
force, or show of criminal force, to
compel any person to do what he is not
legally bound to do, or to omit to do what
he is legally entitled to do. Explanation.--
An assembly which was not unlawful
when it assembled, may subsequently
become an unlawful assembly.

Section 146. Rioting.--Whenever
force or violence is used by an unlawful
assembly, or by any member thereof, in
prosecution of the common object of such
assembly, every member of such assembly is
guilty of the offence of rioting.

Section 148. Rioting, armed
with deadly weapons. - Whoever is guilty
of rioting, being armed with a deadly
weapon or with anything which, used as a
weapon of offence, is likely to cause
death,
shall
be
punished
with
imprisonment of either description for a
term which may extend to three years, or
with fine, or with both.

Section149. Every member of
unlawful assembly guilty of offence
committed in prosecution of common
object.--If an offence is committed by any
member of an unlawful assembly in
prosecution of the common object of that
assembly, or such as the members of that
assembly knew to be likely to be
committed in prosecution of that object,
every person who, at the time of the
committing of that offence, is a member
of the same assembly, is guilty of that
offence.

32. To attract the applicability of
Section 149 IPC there must be an unlawful
assembly, accused must be a member of that
assembly having knowledge of the common
object of that assembly and that the offence
has been committed by any member of that
unlawful assembly in prosecution of the
common object. Mere presence of any
person at the place of occurrence like a mute
spectator or as witness would not create any
liability upon him with aid of section 149
IPC unless it is proved or could be logically
inferred from the facts of the case that he was
part of that unlawful assembly and had
knowledge that such an act would be
committed or is likely to be committed in
prosecution of the common object of the
unlawful assembly.

33. At this very juncture, the law
propounded by Hon'ble Supreme Court in
land mark judgment of Baladin and
others vs. State of Uttar Pradesh AIR
1956 SC 181 may be noticed wherein
Hon'ble Apex Court, while dismissing the
appeal of the appellant who had played
active role in the occurrence and allowing
the appeal of appellant who had not
played any active role, held as under:-

"28. ........It remains to consider
the cases of Thakur Das, Ishwari Prasad,
Mulloo
and
Jagdish.
These
four
2 All. Rajveer Singh & Ors. Vs State of U.P.
189
appellants had not been assigned any
particular part in the occurrence nor any
overt act has been attributed to them. Of
these, Thakur Das is a resident of another
village in another police station, though
he has cultivation in village Goran. They
might possibly have been spectators who
got mixed up in the crowd. They will,
therefore, be given the benefit of the doubt
and acquitted.........."

34. In Rajendra Shantaram
Todankar v. State of Maharashtra and
Others 2003 SCC (Cri) 506 Hon'ble
Supreme Court while discussing the true
scope and meaning of Section 149
observed that mere possibility of the
commission of the offence would not
necessarily enable the Court to draw an
inference
that
the
likelihood
of
commission of such offence was within
the knowledge of every member of the
unlawful assembly. The relevant protion
of the judgment is extracted below:-

"14. Section 149 of the Indian
Penal Code provides that if an offence is
committed by any member of an unlawful
assembly in prosecution of the common
object of that assembly, or such as the
members of that assembly knew to be
likely to be committed in prosecution of
that object, every person who at the time
of the committing of that offence, is a
member of the same assembly is guilty of
that offence. The two clauses of Section
149 vary in degree of certainty. The first
clause contemplates the commission of an
offence by any member of an unlawful
assembly which can be held to have been
committed in prosecution of the common
object of the assembly. The second clause
embraces within its fold the commission
of an act which may not necessarily be the
common
object
of
the
assembly,
nevertheless, the members of the assembly
had knowledge of likelihood of the
commission of that offence in prosecution
of the common object. The common object
may be commission of one offence while
there may be likelihood of the commission
of yet another offence, the knowledge
whereof is capable of being safely
attributable to the members of the
unlawful assembly. In either case, every
member of the assembly would be
vicariously liable for the offence actually
committed by any other member of the
assembly. A mere possibility of the
commission of the offence would not
necessarily enable the court to draw an
inference
that
the
likelihood
of
commission of such offence was within
the knowledge of every member of the
unlawful assembly. It is difficult indeed,
though not impossible, to collect direct
evidence of such knowledge. An inference
may be drawn from circumstances such as
the background of the incident, the
motive, the nature of the assembly, the
nature of the arms carried by the
members of the assembly, their common
object and the behaviour of the members
soon before, at or after the actual
commission of the crime. Unless the
applicability of Section 149 either clause
is attracted and the court is convinced,
on facts and in law, both, of liability
capable of being fastened vicariously by
reference to either clause of Section 149
IPC, merely because a criminal act was
committed by a member of the assembly
every other member thereof would not
necessarily become liable for such
criminal act. The inference as to
likelihood of the commission of the given
criminal act must be capable of being
held to be within the knowledge of
another member of the assembly who is
sought to be held vicariously liable for
190 INDIAN LAW REPORTS ALLAHABAD SERIES
the said criminal act...." (Emphasis
supplied)

35. Hon'ble Supreme Court in Dani
Singh vs. State of Bihar (2004) 13 SCC
203 while discussing the meaning of word
common object in paras 11, 12 and 13 has
held as under:-