# Ram Autar Singh & Ors v. State Of U.P

- **Citation:** (2016) 7 ILRA 485
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-28
- **Bench:** Bharat Bhushan, Alok Kumar Mukherjee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-autar-singh-ors-v-state-of-u-p-44109
- **Pages:** 12

## Text

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7 All. Ram Autar Singh & Ors. Vs State Of U.P.
485
20. Admittedly, Net Ram was living with deceased and his family, therefore, their
association was not at all surprising. The evidence regarding recovery of dead body at the instance
of accused appellant is full of holes. The witnesses have testified in contradictory manner in this
regard, therefore, in our opinion they cannot be relied. We have carefully gone through the entire
record. We believe that prosecution has failed to bring home the guilt of accused by trustworthy
evidence.

21. In view of the aforesaid, the judgment and order dated 9.3.1983 passed by the Sessions
Judge, Budaun in S.T. No.422 of 1982 (State Vs. Net Ram) arising out of Crime No.44 of 1982 is,
hereby, set aside. The appeal is allowed. The appellant is acquitted. His sureties are discharged.
The appellant be released forthwith if he is in custody and not wanted in any other case. Let a copy
of this order be certified to concerned court through Sessions Judge, Budaun within a fortnight for
compliance. The court concerned shall report the compliance within a month thereafter.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 697 Of 1983

Ram Autar Singh & Ors. ...Appellants

Versus

State Of U.P. ...Respondent

Counsel for Appellants:
Ram Prasad Singh, J.R.S. Tomar

Counsel for Respondent:
A.G.A.

Unlawful Assembly - Common Object - Murder - Culpable Homicide - Hostile Witnesses -
Injured Witness Exonerating Accused - Inconsistency Between Two Medical Reports -
Affidavits as Substantive Evidence - Abatement of Appeal on Death of Accused - Benefit of
Doubt - Acquittal - Sections 147, 148, 149 and 304, Indian Penal Code, 1860.

1. Abatement of appeal on death of accused - Surviving co-appellants - Adjudication confined
to surviving appellants: Where one of the convicted appellants dies during the pendency of a criminal
appeal, the appeal of such appellant abates and the High Court is thereafter concerned only with the appeals
of the surviving appellants. In the present case, the appeal of Appellant No. 1 Ram Autar Singh stood abated
on account of his death vide order dated 19.05.2016, and accordingly the Court adjudicated only the appeals
of surviving appellants Ram Vishal Singh and Raj Bahadur Singh.
486 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Hostile witnesses - Majority of prosecution witnesses turning hostile - Four out of six
witnesses of fact not supporting prosecution version - Effect on prosecution case - Conviction
not sustainable: Where, out of six witnesses of fact produced by the prosecution, four witnesses -
including the scribe of the FIR (PW-3 Munna Singh), an eyewitness (PW-1 Subedar Singh), another
eyewitness (PW-4 Shiv Baran Singh), and the sole injured witness (PW-5 Jagat Prasad) - entirely disown the
prosecution version, deny their respective statements made to the Investigating Officer during investigation,
and refuse to support the FIR, the prosecution case rests only on the evidence of the remaining two
witnesses. Where those two witnesses are themselves found unreliable and contradictory inter se, conviction
of the accused cannot be sustained. The mass turning hostile of prosecution witnesses in a case of this nature
severely impairs the prosecution case.

3. Injured witness exonerating accused - Testimony of sole injured witness (PW-5 Jagat
Prasad) completely denying involvement of accused - High evidentiary value - Prosecution
story demolished: The testimony of an injured witness is generally accorded a high degree of evidentiary
value since the fact of his injuries establishes his presence at the scene of occurrence. Where the sole injured
witness (PW-5 Jagat Prasad), whose presence on the spot is admitted by both parties, completely exonerates
the accused persons - stating that he and the deceased were attacked by unknown miscreants, that the
incident occurred at 8:00 p.m. (and not 5:00 p.m. as alleged by prosecution), and that he denied giving any
statement to the Investigating Officer implicating the accused - such testimony is a powerful circumstance
militating against the prosecution. The court cannot lightly discard the testimony of the injured witness and
sustain a conviction on the basis of two other interested and contradictory witnesses.

4. FIR - Scribe of FIR denying authorship - FIR not written or signed by alleged scribe -
Denial of prosecution story regarding lodging of FIR - Serious infirmity: Where the person named
as the scribe of the FIR (PW-3 Munna Singh) categorically denies having written or signed the FIR, denies
being present at the police station at the time of its lodging, and further denies having gone to the police
station in the company of the informant, the very foundation of the FIR is rendered suspect. The denial by the
alleged scribe of both the authorship of and his presence during the registration of the FIR constitutes a
serious infirmity going to the root of the prosecution case, particularly where the informant himself gave
shifting and contradictory accounts of the circumstances of the FIR's registration.

5. Inconsistency between two medical reports - Initial examination report and post-mortem
report at variance - Number and nature of injuries inconsistent - Prosecution failing to explain
inconsistency - Non-production of first examining doctor - Adverse inference: Where the
deceased was initially examined by one doctor who found five injuries including four incised wounds, but the
post-mortem report prepared by another doctor after death recorded eleven ante-mortem injuries with no
incised wound at all - the death being attributed primarily to a blunt-force head injury - such a glaring and
unexplained inconsistency between the two medical reports is a serious infirmity. The inconsistency is further
aggravated by the fact that the first examining doctor, though available (he had merely gone to Bangalore for
training), was not produced as a prosecution witness, thereby depriving the court of an explanation for the
variance. Non-production of an available material witness gives rise to an adverse inference against the
prosecution. Further, where the surviving appellants were charged specifically with using a sharp-edged
weapon (Farsa/spade), the absence of any incised wound in the post-mortem report is a material
circumstance favouring the defence.

6. Affidavits - Not substantive evidence - Cannot substitute testimony recorded in court - Use
of affidavits confined to limited purpose during trial - Trial court erred in relying on affidavits
for conviction: Affidavits allegedly executed by witnesses cannot be treated as substantive evidence and
cannot substitute the evidence recorded by the court during trial. Their use is confined to limited purposes
during the course of trial, such as confrontation of a witness with a prior inconsistent statement. The trial
7 All. Ram Autar Singh & Ors. Vs State Of U.P.
487
court committed an error in relying upon affidavits allegedly executed by witnesses for the purpose of
convicting the accused persons, particularly when the witnesses themselves had explained the circumstances
under which such affidavits were prepared and had cast serious doubt on their veracity and authenticity by
stating that they were prepared by counsel for the complainant.

7. Witnesses of prosecution - Testimony of sole informant (PW-2 Nathu Singh) riddled with
contradictions - Self-contradictions regarding FIR registration, time of meeting Investigating
Officer, and composition of the party - Not credible: Where the testimony of the informant is replete
with material self-contradictions - such as giving conflicting accounts of whether the FIR was scribed before
or after reaching the police station, stating at one place that the FIR was lodged at 12:00 midnight and at
another that it was lodged at 7:00 a.m., contradicting himself on whether he met the Investigating Officer
after four days or five-to-six days of the incident, and admitting that he alone accompanied the deceased
contrary to his earlier claim that he was accompanied by a large group - his testimony fails to inspire
confidence and is not reliable enough to sustain a conviction. Acknowledged enmity with the accused further
diminishes the weight of his testimony.

8. Selective conviction by trial court - Same evidence used to convict some accused and acquit
others - Approach unsustainable - Standard of evaluation of evidence must be uniform: Where
the trial court relies upon the same body of evidence to convict three accused persons while simultaneously
giving benefit of doubt to the remaining six accused persons on account of the same evidence, the selective
approach of the trial court is unsustainable. The standard of evaluation of evidence must be uniform. Where
the evidence is found insufficient to establish the guilt of some of the accused, the same insufficiency is
equally applicable to the remaining accused unless there is a specific, particularised basis for differentiation.
In the present case, no such differentiated basis was available, and the trial court's approach of relying on the
same evidence selectively was not justified.

9. Unlawful assembly - Common object - Section 149 IPC - Liability of members -
Prosecution must first establish membership of unlawful assembly - Where basic prosecution
case not proved - Aid of Section 149 IPC cannot be invoked: Before invoking Section 149 IPC to
fasten vicarious liability on members of an unlawful assembly for an offence committed in prosecution of the
common object, the prosecution must first establish beyond reasonable doubt: (i) the formation of an
unlawful assembly; (ii) the common object of such assembly; and (iii) the accused's membership of such
assembly. Where the prosecution fails to prove even the basic facts of the incident through reliable and
credible evidence - the majority of witnesses having turned hostile, the injured witness having exonerated
the accused, and the medical evidence being inconsistent and unexplained - the aid of Section 149 IPC
cannot be invoked to sustain a conviction.

10. Defective investigation - Investigating Officer not recording statements of important
witnesses - Failure to seize blood-stained mattress - Bicycle at scene not found despite injured
witness's statement - Failure to investigate pending revenue case - Effect: Defective
investigation, while not by itself a ground for acquittal, is a relevant circumstance which must be weighed in
evaluating the prosecution case when the evidence is otherwise weak and unreliable. In the present case, the
Investigating Officer failed to: (i) take possession of the blood-stained mattress; (ii) find or seize the bicycle
stated by the injured witness to have been at the spot; (iii) investigate the revenue dispute which formed the
alleged motive; and (iv) record the statements of witnesses consistent with his claim of having done so
immediately after the incident - a claim contradicted by the witnesses themselves. These infirmities,
collectively considered alongside the other weaknesses in the prosecution case, further weaken the
prosecution's case.
488 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Benefit of doubt - Acquittal - Prosecution failing to prove guilt beyond reasonable doubt -
Conviction set aside: Where the prosecution evidence is not convincing on any of the material aspects of
the case - being contradicted by four out of six witnesses of fact, including the sole injured witness; suffering
from a glaring and unexplained inconsistency between two medical reports; resting only on two unreliable and
contradictory witnesses whose presence at the spot is itself doubtful; and further vitiated by defective
investigation - the accused persons are entitled to the benefit of doubt. Conviction and sentence recorded by
the trial court set aside; surviving appellants acquitted.

RESULT:
Criminal Appeal allowed. Judgment and order dated 18.03.1983 passed by the VIIIth Additional
Sessions Judge, Kanpur in Sessions Trial No. 222 of 1981 (State vs. Ram Autar and others)
arising out of Crime No. 46 of 1980, under Sections 148 and 304 read with Section 149 IPC,
Police Station Musa Nagar, District Kanpur set aside. Surviving appellants Ram Vishal Singh and
Raj Bahadur Singh acquitted. Sureties discharged. Appellants directed to be released forthwith if
in custody and not wanted in any other case.

(Delivered by Hon'ble. Bharat Bhushan, J.)

1. Surviving appellants Ram Vishal Singh and Raj Bahadur Singh have been convicted
under Sections 148, 304 and 149 of Indian Penal Code (In short I.P.C.) and sentenced to undergo
life imprisonment under Section 304 read with Section 149 I.P.C. and rigorous imprisonment of
one year under Section 148 I.P.C. vide judgment and order dated 18.3.1983 passed by VIIIth
Additional Sessions Judge, Kanpur in Sessions Trial No. 222 of 1981 (State Vs. Ram Autar and
others) arising out of Crime No.46 of 1980 P.S. Musa Nagar, District Kanpur.

2. Appellant no.1 Ram Autar Singh has died, therefore, his appeal stand abated in view of
the order dated 19.5.2016 of this Court.

3. Prosecution story in brief is that one revenue case was pending between Munna Singh
and Mukta Singh in the Tehsil Ghatampur. Deceased Harnam Singh was the Pairokar of Munna
Singh while appellants Raj Bahadur Singh, Ram Vishal Singh and late appellant Ram Autar Singh
were supporting Mukta Singh. Deceased Harnam Singh had also quarreled with appellants
regarding some water dispute, one year prior to the incident. On day of occurrence i.e. on
28.3.1980 at about 5 pm. informant Nathu Singh (P.W.2), Subedar Singh (P.W. 1), Munna Singh
(P.W. 3) Shiv Baran Singh (P.W. 4), Jagat Prasad (P.W. 5) and Shyam Singh (P.W. 6) were coming
back from Tehsil Ghatampur towards their own village. As soon as they reached village Vallahan,
(near an agricultural farm of one Jawaharlal) they were accosted by appellants Raj Bahadur, Ram
Vishal, late appellant Ram Autar, Shiv Baran, Vishwanath, Surendra Singh, Madan Pal Singh,
Suresh Singh and Jaipal Singh. They were armed with various weapons. Appellants Ram Vishal,
Raj Bahadur and late Ram Autar were holding Farsa (spade) and remaining persons were wielding
lathies. Appellant Raj Bahadur forcibly put down deceased Harnam Singh on the ground.
Appellants Ram Vishal Singh and late Ram Autar Singh started beating deceased Harnam Singh
with Farsa (spade) on the instigation of appellant Raj Bahadur Singh. Remaining persons used lathi
in assaulting deceased Harnam Singh. Injured Jagat Prasad also received lathies blow. Informant
and his companions raised alarm whereupon accused persons fled away from the spot. In this
7 All. Ram Autar Singh & Ors. Vs State Of U.P.
489
assault deceased Harnam Singh and injured Jagat Prasad sustained injuries. Deceased Harnam
Singh was taken to the Police Station on bullock cart where informant Nathu Singh, P.W. 2 dictated
first information report (F.I.R.) Ext. Ka-2 to scribe Munna Singh which was then lodged at 12:30 in
the night.

4. It is stated that the report was transcribed by Munna Singh out side the Police Station
and thereafter it was submitted to Police personnel. Deceased Harnam Singh succumbed to injuries
after two days. Autopsy was conducted. The Sub-Inspector started investigation. Samples of blood
stained earth and simple earth were taken. Site plan was prepared. A charge sheet was submitted
against the accused.

5. Trial Judge charged accused persons, namely, Raj Bahadur, Ram Vishal and late Ram
Autar under Sections 148, 304 read with Section 149 I.P.C. vide order dated 3.11.1982. Similarly,
remaining six accused were also charged under Sections 147, 304 read with Section 149 I.P.C. on
the same day by VIIIth Additional Sessions Judge, Kanpur. Accused pleaded not guilty and
claimed that they have been falsely implicated on account of previous enmity. The defence version
is that deceased Harnam Singh was beaten to death by some unknown persons in the night and the
accused persons have been falsely implicated in this case due to village rivalry.

6. Prosecution adduced the evidence of P.W. 1 Subedar Singh, P.W. 2 Nathu Singh, P.W. 3
Munna Singh, P.W. 4 Shiv Baran Singh, P.W. 5 Jagat Prasad, P.W. 6 Shyam Singh, P.W. 7.
Advocate Harish Chandra Singh, P.W.8 Dr. R.B. Mishra, P.W. 9 D.S. Dixit (S.O.), P.W. 10 R.V.
Verma, P.W. 11 Advocate Vijay Narain Singh and P.W.12 Advocate Sangram Singh.

7. Deceased Harnam Singh was initially examined by Dr. Vimal Bhattacharya who found
following injuries on the person of deceased Harnam Singh:

"(i) Abraded contused swelling 6 cm.x3.5 cm. at the inner side of left forearm at
middle 1/3 part. 10 cm. below the elbow joint. Clot shoft over abrasion present.

(ii) Incised wound 5 cm. x0.3 cm.x skin deep at the back of left hand. 4.0 cm.
below the left wrist joint. Clotted blood present.

iii) Incised wound 5 cm. through x through from back to forward. Left little finger
x ring finger is missing and ring finger hanging.

vi) Incised wound 2 cmx 0.5 cm. x muscle deep at the front of middle 1/3 of right
leg. 22.0 cm below the right knee joint. Clotted blood present.

v) Incised wound 12.0 cm x 4 cm x bone deep at the out side of left ankle joint.
Clotted blood present."

8. The same Doctor found following injury on the person of Jagat Prasad:
490 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Contusion 4.0 cm.x 1.0 cm. at the right side of back 1.0 cm right to mid line
and 10.0 cm. above the right iliac crest reddish."

9. Injured Harnam Singh was sent to hospital where he died on 31.3.1980 at about 3:15 pm.
Postmortem was conducted by Dr. R.B. Mishra (P.W. 8) who found following ante mortem injuries
on his corpse:

(i) Contusion 10 cm. x 4 cm. on a temporal region of head.

(ii) Abraded contusion 12 cm.x 1.5 cm. on back of left forearm.

(iii) Abraded contusion 14 cm.x 4 cm. on back of left foreard.

(iv) Stitched wound 5 cm. long with 6 stitches with amputation of left finger. Left
right finger also amputated but stitched.

(v) Stitched wound 5 cm. long with two stitches on front and middle of right leg
with fracture of underlying bone.

(vi) Abraded contusion 9 cm. x5 cm. on outer side of right leg.

(vii) Stitched wound 13 cm. long with 11 stitches on front and outer side of right
ankle joint.

(viii) Contusion 9 cm. x 4 cm. on front of middle of left leg.

(ix) Abraded contusion 13 cm. x 1.5 cm on back of left side below clavicle region.

(x) Abraded contusion 5 cm.x 3 cm. on the side of the left upper arm.

(xi) Abraded contusion 5 cm. x 3 cm. on right linear of right ear.

A) Clotted blood under the scalp in temporal region of head under injury no. 1 and
clotted blood in temporal region in an area 6 cm.x 4 cm.

B) There is long spinal fracture of right tibia.

C) Cut injury of right ankle through and through and also the vessels in front of
ankle joint cut.
The death was due to shock and haemorrhage as a result of multiple injuries."

10. The statements of accused persons were recorded under Section 313 Cr.P.C. wherein
they denied all allegations. Incidentally accused appellants did not produce any oral evidence in
7 All. Ram Autar Singh & Ors. Vs State Of U.P.
491
defence, though they have filed an application given by one Mulayam Singh in a case of Mulayam
Singh Vs. Bhagga Singh pending in the court of Nayeb Tehsildar village Ghatampur. The Sessions
Judge, Kanpur on the conclusion of said sessions trial, found appellants Raj Bahadur, Ram Vishal
and late Ram Autar guilty of offence under Sections 148, 304 read with Section 149 I.P.C. The
other accused namely, Shiv Baran, Vishwanath, Surendra Singh, Madan Pal, Suresh Singh and
Jaipal were given benefit of doubt and acquitted. The convicted appellants were sentenced as
aforesaid vide judgment and order dated 18.3.1983 which is under challenge before this Court in
the appeal. After the abatement of appeal of Ram Autar Singh on account of his death, this Court is
concerned only with the appeal of surviving appellants Ram Vishal and Raj Bahadur.

11. Heard Sri Jai Ram Singh Tomar Advocate on behalf of both surviving appellants and
Sri Sayed Ali Murtaza on behalf of State.

12. Learned counsel for appellant has submitted that all independent prosecution witnesses
have not supported the prosecution version and they in fact have been declared hostile. Submission
is that there remains the solitary testimony Nathu Singh which is full of contradiction. He has
argued that despite absence of any reliable evidence, the trial Judge has convicted the appellants
primarily on conjectures, surmises and speculations. Further submission is that deceased Harnam
Singh did not sustain any injuries caused by sharp edged weapon. He submits that appellants were
allegedly using sharp edged weapon Farsa (Spade) and yet the corpse of deceased did not show
even a single injury of sharp edged weapon.

13. On the other hand, learned A.G.A. has submitted that the responsibility of attack on
deceased Harnam Singh lies on the shoulder of all accused and that; appellants can be held guilty of
the same offence with the aid of Section 149 I.P.C. He claimed that large number of accused
persons attacked the deceased. The accused persons, who were acquitted by the trial Judge were
wielding the lathies and they used those lathies in the attack. He submits that surviving appellants
can be and should be convicted with the aid of Section 149 I.P.C.

14. Before embarking to discuss the prosecution evidence in detail, it is pertinent to point
out that as many as six witnesses of fact were produced by prosecution, out of which P.W.1
Subedar Singh, P.W. 3 Munna Singh, P.W. 4 Shiv Baran Singh and P.W. 5 Jagat Prasad (injured)
did not support prosecution version at all. All of them have been declared hostile at the instance of
prosecution itself.

15. P.W. 1 Subedar Singh has clearly stated that he went to the place of occurrence after
receiving information of this attack. He has stated that he did not witness any person assaulting
either deceased Harnam Singh or injured Jagat Prasad. He has completely disowned his statement
allegedly given to the Investigating Officer during course of investigation. Similarly, P.W. 3
Munna Singh, P.W. 4 Shiv Baran Singh and P.W. 5 injured Jagat Prasad have not supported the
prosecution story. All of them have disowned their statements allegedly given to the Investigating
Officer during course of investigation.
492 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Interestingly, the so called scribe of F.I.R. Munna Singh (P.W. 3) has not only denied
his presence on the place of occurrence at the time of incident but also rejected the prosecution
claim that F.I.R. was written by him on the dictation of P.W. 2 Nathu Singh. He has clearly
asserted that the F.I.R. was not written by him nor was it signed by him. He has refused to support
the claim of the prosecution that he went to police station along with informant etc. for lodging the
F.I.R. Prosecution has claimed that this witness Munna Singh (P.W.3) had also executed the
affidavit supporting prosecution version but he has also debunked this claim. The statement of one
Jagat Prasad (injured) is vital but he too has denied the involvement of accused persons in the
attack upon him and deceased Harnam Singh. This witness has stated that incident occurred at
about 8 pm. in the night. He and deceased Harnam Singh was accosted by unknown persons. They
were attacked by those unknown miscreants. This injured witness has clearly exonerated accused
persons of any involvement in this attack. This witness has also denied that he had given any
contrary statement to the Investigating Officer (I.O.) during investigation.

17. The testimony of P.W. 5 Jagat Prasad (injured) is very important. Both parties accept
his presence on the place of occurrence. It is said by rival parties that deceased Harnam Singh was
accompanied by P.W. 5 Jagat Prasad at the time of incident. Jagat Prasad also sustained injuries in
the same attack. He was examined by the same doctor. Now this witness has totally denounced the
prosecution story. He has shifted time of incident to 8 pm. while original prosecution story is that
incident occurred at 5 pm. and the F.I.R. was lodged on the same night at about 12:30 pm. Distance
between place of occurrence and Police Station is said to be 8 kilometers as per chick report (Ext.
Ka-5).

18. Prosecution case is that deceased Harnam Singh was immediately taken to the Police
Station. Injured Jagat Prasad also says that they went to the police station in the aftermath of the
incident. The extract of G.D. (Ext Ka-6) does indicate that injured Jagat Prasad and deceased
Harnam Singh reached the Police Station in the mid night by bullock cart. Now the question is if
incident occurred at 5 pm. and deceased Harnam Singh was taken to the police station on bullock
cart and yet it took 7 hours to traverse distance of 8 kilometers. Informant Nathu Singh( P.W. 2)
and Shyam Singh (P.W. 6) have claimed that they were present at the time of incident and yet their
story has not been supported by several witnesses. Injured witness (P.W. 5) has completely denied
the involvement of accused persons in the incident. Scribe informant Munna Singh has also denied
writing and signing the F.I.R. The refusal of aforesaid witnesses to support prosecution story leaves
only two witnesses, namely, P.W. 2 Nathu Singh and P.W. 6 Shyam Singh. Nathu Singh says that
he had gone in connection of revenue dispute between Munna Singh and Mukta Singh yet he could
not give the details of this case at all. In a very interesting turn of event, informant Nathu Singh
said that they reached police station around 12 pm. and then he claims that the Incharge of the
police station refused to register the F.I.R. and demanded written report. In his examination-inchief these witnesses have claimed that F.I.R. (Ext. Ka-2) had been dictated and scribed while still
on the road before reaching Police Station and thereafter it was lodged at police station with the
signature of scribe Munna Singh. But later on during the cross examination, he twisted this claim
and said that he went to police station for oral F.I.R. which was refused by police personnel and
7 All. Ram Autar Singh & Ors. Vs State Of U.P.
493
thereafter he went out and got the report scribed and signed by P.W. 3 Munna Singh.
Thereafter the report was lodged.

19. The claim of appellants is that the F.I.R. was registered in the morning but shown
to have been recorded at 12:30 pm. Now this claim of defence gets support from the evidence
of P.W. 2 Nathu Singh himself who says that he went to the Police Station in the night and
slept there. He woke up in the morning and came back to his residence, while Pyarelal,
Rajendra Singh and Nanku Singh took deceased Harnam Singh to Kanpur. Injured Jagat
Prasad (P.W. 5) accompanied deceased Harnam Singh to Kanpur. Injured Jagat Prasad does
not accept it. He has said that he left Harnam Singh at his residence. This witness has
asserted that Nathu Singh (P.W. 2), Munna Singh (P.W. 3) and Subedar Singh (P.W. 1) met
him in the village and he narrated the entire story to them and then all of them took Harnam
Singh to the Police Station. He further claimed that injuries were not noted by the constable
clerk who registered the F.I.R. He has denied the presence of all other witnesses except
himself on the place of occurrence. Interestingly, G.D. Ext. Ka-6 contains brief information
about the injuries of deceased Harnam Singh and Jagat Prasad but they do not tally with the
injuries found during the autopsy.

20. The testimony of Nathu Singh is full of contradictions and discrepancies. His
story of sleeping soundly at police station is rather weird. He conceded at one place that
F.I.R. was lodged at 7am. At one place he said that he met the Investigating Officer after
four days of the incident and another place, said that he met the Investigating Officer after 56 days. He has conceded the fully grown wheat crop existed on the agriculture field of
Jawahar Lal at the time of incident. Farmers were busy in cutting the crops. It is pertinent to
point out that incident did not occur either in Tehsil Ghatampur or in the village of accused
persons. The incident is said to have been occurred near the agriculture field of Jawahar Lal
at village Vallaham. Admittedly, the farmers were busy in cutting the crops at the time of
incident yet not a single witness of the vicinity has been produced by prosecution in support
of his story. All witnesses belong to distant places whose presence has been denied by the
sole injured witness, P.W. 5 Jagat Prasad.

21. The prosecution story is that deceased Harnam Singh was being accompanied not
only by P.W. 2 Nathu Singh but also by several other persons and yet the same witness has
admitted during cross examination that he alone went with deceased Harnam Singh.

22. The description of the event by P.W. 2 Nathu Singh itself creates doubt about his
presence on the spot. He said that deceased Harnam Singh was beaten for few minutes both
by Farsa (spade) and lathies. First Harnam Singh was put down on the ground and then
beaten by Farsa (spade) and lathies. Incidentally, P.W. 2 Nathu Singh escaped any injury
despite claim of raising hue and cry. He has said that he tried to save his uncle Harnam Singh
but surprisingly was not injured in this attack committed by as many as nine persons. Two
medical examination reports of deceased Harnam Singh are available on record. Dr. Vimal
Bhattacharya initially examined the injuries of deceased Harnam Singh and thereafter ante
494 INDIAN LAW REPORTS ALLAHABAD SERIES

mortem injuries were found in postmortem report. Both reports do not tally. They are
inconsistent with each other. It was the responsibility of prosecution to explain these
inconsistencies especially in the light of fact that several witnesses including injured witness
have not supported the prosecution version.

23. P.W. 2 Nathu Singh has admitted the previous enmity with the accused persons.
His testimony has to be appraised with care. The testimony of P.W. 2 Nathu Singh is not
credible at all and to rely solely upon him for conviction of appellant is risky. Similarly, the
testimony of P.W. 6 Shyam Singh is neither natural nor consistent with the basic prosecution
story. He has increased the number of assailants to more than 10-11. He could not describe
separately the weapons wielded by each accused. He said that Raj Bahadur Singh grabbed
deceased Harnam Singh, meaning thereby that Raj Bahadur Singh was not holding any
weapon otherwise it would have been impossible for him to grab the deceased Harnam Singh
by hands. Remaining persons were using weapons. P.W. 6 Shyam Singh has said that they all
were standing frozen due to sheer fear. But the fact of the matter is that Shyam Singh(P.W.
6) has named only two assailants Raj Bahadur and Surendra Singh. He could not name a
single other accused than these two. Surprisingly, this witness has not disclosed the presence
of injured Jagat Prasad. Shyam Singh (P.W. 6) has asserted that accused persons did not
attack any other person except deceased Harnam Singh. Now this claim is totally contrary to
the basic prosecution story because F.I.R. itself says that both deceased Harnam Singh and
injured Jagat Prasad were assaulted by miscreants. But P.W. 6 Shyam Singh clearly denies
this story. He has claimed that after this incident he went to his house. On the other hand,
G.D. (Ext. Ka-6) entry says that Shyam Singh (P.W.6) went to the Police Station.
Interestingly, this witness has also admitted that he along with informant Nathu Singh (P.W.
2) started going towards their village even during the attack. He also admitted that he did not
raise any alarm. He has also admitted that he did not try to rescue deceased Harnam Singh.
He has denied that he went to the Police Station but prosecution story states that Shyam
Singh went to the Police Station.

24. A perusal of prosecution evidence would reveal that out of six witnesses, four
witnesses have not supported prosecution version. Two witnesses, namely, P.W. 2 Nathu
Singh and P.W. 6 Shyam Singh have given evidence against the accused persons but their
testimony is full of discrepancies and contrary to each other. Their conduct during and after
the incident is not in accordance with normal human conduct. Their testimony reveals that
their presence on the spot is highly doubtful. Presence of only one witness, namely, Jagat
Prasad (P.W. 5) can be believed but he has completely denied the involvement of accused
persons. Remaining witnesses are formal witnesses. The medical evidence is also
inconsistence. Dr. Vimal Bhattacharya examined the deceased Harnam Singh and he found
only five injuries on his person. While during course of autopsy, as many as, 11 injuries were
found by Dr. R.B. Mishra (P.W. 8). The medical evidence is not inconsonance with the
ocular testimony which indicates that so called eye witnesses were perhaps not present on the
spot and they have been manufactured in order to implicate the accused persons.
7 All. Ram Autar Singh & Ors. Vs State Of U.P.
495
25. The trial Judge has relied upon some affidavit allegedly executed by some
witnesses. Those affidavits cannot be taken into consideration for convicting the accused
persons. Some of the witnesses have in fact explained circumstances in which these
affidavits were prepared. These affidavits were prepared by the counsel for complainant.
Veracity and authenticity of these affidavits are very much in doubt. In any case these
affidavits cannot substitute the evidence recorded in the court. They can be used for the
limited purpose during trial. They can not be treated substantive evidence at all. The trial
Judge believed the evidence with regard to appellants Ram Autar, Raj Bahadur and Ram
Vishal and disbelieved the same evidence against other six persons. Interestingly, autopsy
has shown no incised wound on the person of deceased. Dr. R.B. Mishra (P.W. 8) has
indicated that deceased primarily died on account of injury no. 1 which was caused by blunt
object. It is pertinent to point out all the surviving appellants were using Farsa (spade).
Initial medical examination of deceased Harnam Singh by Dr. Vimal Bhattacharya disclosed
at least four incised wounds. The inconsistency between two medical report is glaring and
has not been explained by prosecution.

26. It is also important to note that Dr. Vimal Bhattacharya despite his availability
was not produced during course of trial. He had merely gone to Bangalore for training. Had
he been produced during trial, the inconsistency between two medical reports could have
been explained. There are vital contradictions between the testimony of Investigating Officer
D.S. Dixit (P.W. 9) and other witnesses. This witness has said that the report was lodged at
about 12:30 hours in the night and he immediately started recording of statements of
witnesses at 1:00 am. in the night. He recorded the statement till 4 am. in the same night but
this claim does not find support from other witnesses. One witness has said that he never met
Investigating Officer; another has said that he met Investigator after 5-6 days. He did not
even investigate the files of revenue case said to be pending in Tehsil Ghatampur. He did not
take the blood stained mattress (Gadda) in his possession. Surprisingly, he did not find any
bicycle on the spot despite the statement of injured witness Jagat Prasad that he was traveling
on bicycle.

27. We have carefully examined all material on record. Evidence produced by
prosecution is not convincing at all. We believe that prosecution has failed to bring home the
stated guilt of surviving appellants with trustworthy evidence.

28. In view of the aforesaid, the judgment and order dated 18.3.1983 passed by
VIIIth Additional Sessions Judge, Kanpur in Sessions Trial No. 222 of 1981 (State Vs. Ram
Autar and others) arising out of Crime No.46 of 1980 P.S. Musa Nagar, District Kanpur, is
hereby, set aside. The appeal is allowed. Both surviving appellants, namely, Ram Vishal
Singh and Raj Bahadur Singh are acquitted. Their sureties are discharged. The appellants be
released forthwith if they are in custody and not wanted in any other case. Let a copy of this
order be certified to concerned court through Sessions Judge, Kanpur within a fortnight for
compliance. The court concerned shall report the compliance within a month thereafter.
---------
496 INDIAN LAW REPORTS ALLAHABAD SERIES

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2016

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.

First Appeal No.- 716 Of 2008

Central Coal Fields Ltd ...Appellant
Versus
Janardan Singh & Ors. ...Respondents

Counsel for Appellant:
Madhur Prakash

Counsel for Respondents:
Rajendra Pd. Giri, A.K. Dubey, K.K. Mani, K.L. Pandey, Manoj Kumar, P.K. Giri, Pradeep Giri.

Territorial Jurisdiction - Coal Supply under Sponsorship System - Cause of Action- Evidence
Act, 1872 - Section 101 - Burden of Proof - Elementary Rule - Proof of Payment - Bank
Drafts - Non-disclosure of Particulars - Adverse Inference - Concluded Contract - Proof of
Allotment - Supply of Coal -

Territorial Jurisdiction - Coal Supply under Sponsorship System - Cause of Action - Under the
sponsorship system for supply of coal prevalent in 1984, applications were required to be moved before the
District Supply Officer of the district concerned, who would process and recommend the same to the Director
of Movement, U.P., Lucknow, and upon consideration, a permit would be issued to the coal company. The
plaintiff-respondent moved his application before the District Supply Officer, Ballia, and the said application
was duly processed by the authorities concerned. Held: Since part of the cause of action, namely, the filing
and processing of the application, arose within the territorial limits of District Ballia, the Civil Judge (S.D.),
Ballia, was vested with territorial jurisdiction to entertain the suit. No illegality was committed by the court
below in deciding Issue No. 6 in favour of jurisdiction.

Evidence Act, 1872 - Section 101 - Burden of Proof - Elementary Rule - The burden of proving a
fact invariably lies upon the person who asserts it. Until such burden is discharged by the asserting party, the
opposite party cannot be called upon to prove its case. The court must first examine whether the party
bearing the burden has discharged the same; and only thereafter may it consider the weakness of the
opposing party's case. Ordinarily, the burden to prove an issue rests on the party who substantially asserts
the affirmative. The initial onus is always upon the plaintiff; once he discharges that onus, the onus shifts to
the defendant. Relied upon: Rangmmal v. Kuppuswami, (2011) 12 SCC 220; Anil Rishi v. Gurbaksh Singh,
(2006) 5 SCC 558; State of J. & K. v. Hindustan Forest Company, (2006) 12 SCC 198.

Proof of Payment - Bank Drafts - Non-disclosure of Particulars - Adverse Inference - Where a
plaintiff alleges payment of Rs. 4,10,000/- through two bank drafts but fails to disclose in the plaint, the
Section 80 C.P.C.