# Sher Singh & Ors v. State of U.P

- **Citation:** (2024) 11 ILRA 478
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-11
- **Case number:** Criminal Appeal No. 4508 of 2024
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sher-singh-ors-v-state-of-u-p-51079
- **Pages:** 10

## Headnote

evidence
-Neither
any
complaint was made in respect of the alleged
incident occurred four months back- nor any
Police report etc is on record-alleged enmity not
been
substantiated
by
the
prosecution-
prosecution has not confronted the accused
persons with the circumstance of the incident-in
the absence of such facts/circumstances having
been referred to the accused persons- the facts
in that regard cannot be relied upon by the
prosecution as an evidence not confronted to
the accused under Section 313 Cr.P.C.- cannot
be read or relied upon in evidence- in the
second St.ment the motive has been introduced
in the testimony of witnesses- neither motive is
convincing - circumstantial evidence not been
carefully dissected by the trial court and the
contradictions in the version of witnesses have
been overlooked- related witnesses-impugned
judgment and order set aside.

Appeal allowed. (E-9)

List of Cases cited:

Nizam Vs St. of Raj., (2016) 1 SCC 550

## Text

478 INDIAN LAW REPORTS ALLAHABAD SERIES
law.-No person shall be deprived of his
property save by authority of law."

Once we proceed on that premise,
the answer to the question posed by us in the
beginning of this judgment becomes too
obvious. A person cannot be deprived of this
pension without the authority of law, which is
the constitutional mandate enshrined in
Article 300-A of the Constitution. It follows
that attempt of the appellant to take away a
part of pension or gratuity or even leave
encashment without any statutory provision
and under the umbrage of administrative
instruction cannot be countenanced."

30. The Hon'ble Supreme Court of India
in a matter reported in 2020 (4) SCC 46 in
re: Dr. Hiralal Vs. State of Bihar & others,
while reiterating the law laid down in State
of Jharkhand (Supra), has held that pension
is property within the meaning of Article
300-A of the Constitution of India. For ready
reference relevant paragraph of the said
judgment is being reproduced below :-

"24. The right to receive pension
has been held to be a right to property
protected under Article 300-A of the
Constitution even after the repeal of Article
31 (1) by the Constitution (forty-Fourth
Amendment) Act, 1978 w.e.f. 20-6-1979, as
held in State of W.B. v. Haresh C. Banerjee
[State of W.B. v. Haresh C. Banerjee, (2006)
7 SCC 651 : 2006 SCC (L&S) 1719]."

31. In a recent judgment dated
23.8.2023, passed in Writ-A No.3180 of
2023 (Prof. Ranjana Sharma & another
Vs. State of U.P. & others), this Court while
allowing the writ petition, has followed the
dictum of Hon'ble Supreme Court in State of
Jharkhand (Supra) and Dr. Hiralal (Supra)
while reiterating inter-alia that right to
receive pension is included in Right to
property under Article 300-A of the
Constitution of India.

32. The impugned punishment order
dated 20.12.2019 issued by respondent No.1,
whereby the full pension of the petitioner was
stopped and the consequential order dated
12.4.1991 issued by respondent No.2 and
order dated 20.12.1990 issued by the State
Government are in gross violation of right to
receive pension which is included in right to
property as envisaged in Article 300-A of the
Constitution of India as well as in violation of
principles of natural justice and the copy of
the enquiry report has not been supplied to
the petitioner by the Administrative Tribunal
nor by the disciplinary authority in the matter.

33. In view of the above, the submission
of learned Standing Counsel as well as
statement made in the counter affidavit
cannot make the impugned order good,
therefore, submission advanced by learned
Standing Counsel is hereby rejected being no
merit.

34. For all the reasons and discussions
recorded above, the impugned orders dated
20.12.1990, 12.4.1991 and 7.5.1991 do not
sustain and are hereby quashed. The writ
petition succeeds and is allowed.
----------
(2024) 11 ILRA 478
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4508 of 2024

Sher Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent
11 All. Sher Singh & Ors. Vs. State of U.P.
479
Counsel for the Appellants:
Pradeep Kumar Rai, Sr. Advocate

Counsel for the Respondent:
G.A.

Circumstantial
evidence
-Neither
any
complaint was made in respect of the alleged
incident occurred four months back- nor any
Police report etc is on record-alleged enmity not
been
substantiated
by
the
prosecution-
prosecution has not confronted the accused
persons with the circumstance of the incident-in
the absence of such facts/circumstances having
been referred to the accused persons- the facts
in that regard cannot be relied upon by the
prosecution as an evidence not confronted to
the accused under Section 313 Cr.P.C.- cannot
be read or relied upon in evidence- in the
second St.ment the motive has been introduced
in the testimony of witnesses- neither motive is
convincing - circumstantial evidence not been
carefully dissected by the trial court and the
contradictions in the version of witnesses have
been overlooked- related witnesses-impugned
judgment and order set aside.

Appeal allowed. (E-9)

List of Cases cited:

Nizam Vs St. of Raj., (2016) 1 SCC 550

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This appeal is directed against the
judgment and order of conviction and
sentence dated 30.03.2024, passed by the
Sessions Judge at Firozabad in Sessions
Trial No.300669 of 2013 (State of U.P. Vs.
Sher Singh and others), arising out of Case
Crime No.297 of 2012, Police Station
Tundla, District Firozabad, whereby the
accused appellants Sher Singh, Arjun Singh
and Sanju have been convicted and
sentenced to undergo ten years rigorous
imprisonment
alongwith
fine
of
Rs.10,000/-, each, and in default of
payment of fine, they shall undergo six
months additional imprisonment and under
Section 302 I.P.C. read with Section 34 of
I.P.C. to undergo life imprisonment and a
fine of Rs.10,000/-, each, and in default of
payment of fine, they shall undergo six
months additional imprisonment. All the
sentences are directed to run concurrently.

2. The father of the deceased,
namely, Charan Singh has lodged a written
report stating that his 25 year old son Amar
Pal @ Rinku (deceased) was running a
shop of toys near the Vaishnav Dham
Shrine. He used to sleep in the night at his
shop. As per his routine, he had gone at
about 7.00 p.m. on 29.04.2012 after having
his meals to the shop but did not return in
the morning. The informant visited the
shop and found his son missing. On inquiry
from the nearby shop owners, it transpired
that two unknown persons had taken his
son on a motorcycle, whereafter his
mutilated body was found near the
Agricultural University, having multiple
stab wounds. Apprehension was expressed
that due to enmity his son has been done to
death. The body has been recovered near
Kishan Dhabba, which is close to NH-2 in
Village Kushayni. On this report FIR came
to be lodged on 30.04.2012, under Section
302 I.P.C. Inquest was held on 30.04.2012
at 12.30 p.m. The inquest witnesses found
multiple stab wounds on the body of the
deceased
and
it
was
resolved
that
postmortem be conducted to ascertain the
cause of death. The postmortem has been
conducted in which following injuries were
found on body of the deceased:

"1-A L/W of size 3.0 c.m. x
3.0 c.m. x bone deep over middle of
front of fore head clotted blood
present.
2-A L/W of size 5.0 x 3.0 x
bone deep over left cheek just
480 INDIAN LAW REPORTS ALLAHABAD SERIES
below
left
eye
clotted
blood
present.
3-Multiple abrasion over
neck 7.0 c.m. below chin. In an
area 14.0 c.m. x 8.0 c.m. over hyoid
bone.
4-Multiple abrasion over
back. In whole chest and abdomen
up to hip."

3. The FIR, admittedly, was lodged
against unknown persons and the role of
the accused appellants surfaced on the basis
of an application of informant dated
17.05.2012, which is exhibited as Ka-2. In
his report, the informant alleged that he has
come to know that his son was done to
death by the accused persons, namely, Sher
Singh and Arjun Singh sons of Bhogi Ram
and brother-in-law of accused Arjun Singh,
namely, Sanju who lives with Arjun Singh.
This application further stated that about
four months earlier accused Sher Singh had
alleged that informant's younger son
Deepchand had an affair with his daughter.
Deepchand was engaged in running cable
business.
On
this
apprehension,
the
aforesaid three accused had assaulted
Deepchand and Amarpal and had extended
threats that they would not leave them. It is
also asserted that ever since the death of the
deceased the accused persons are missing
and
consequently
apprehension
was
expressed that these appellants have
committed the murder of the deceased. It is
on the basis of the apprehension expressed
in the application of 17.05.2012 that the
accused appellants have been implicated
and a charge-sheet was submitted by the
Investigating
Officer
on
16.08.2012.
Cognizance was taken on the charge-sheet
and case was committed to the court of
Sessions which was registered as Sessions
Trial No.300669 of 2013 (State of U.P. Vs.
Sher Singh and others). Charges were
framed against the accused appellants
under Sections 364 I.P.C. as well as under
Section 302 I.P.C. read with Section 34
I.P.C. Charges were read out to the accused
persons, who denied the accusations and
demanded trial.

4. During the course of trial
following documentary evidences have
been produced:-

"i. F.I.R., Ex.Ka.11, dt.
30.04.2012.
ii. Written Report, Ex.Ka.1,
dt. 30.04.2012.
iii. Application to S.O.,
Ex.Ka.2, dt. 17.05.2012.
iv.
Recovery
Memo
of
pieces of Blood Stained & Plain
Soil, Ex.Ka.10, dt. 30.04.2012.
v. P.M. Report, Ex.Ka.4, dt.
30.04.2012.
vi.
'Panchayatnama',
Ex.Ka.3, dt. 30.04.2012.
vii. Charge-sheet 'Mool',
Ex.Ka.14, dt. 16.08.2012.
viii. Charge framed by S.J.,
dt. 18.12.2013.
ix.
Note
of
S.J.,
dt.
18.12.2013."

5. In addition to the above, oral
testimony has been adduced of the informant
as P.W.-1. P.W.-2 Bhagwan Singh as well as
P.W.-4 Mohar Singh are two witnesses of
inquest. P.W.-3 and P.W.-5, namely, Kuldeep
Singh and Shyamveer Singh are the
witnesses of last seen. P.W.-6 is Dr. NM
Pathak, who has conducted the autopsy. P.W.-
7 to P.W.-10, namely, Nand Kishor Gaud,
Shyam Sundar Gautam, Dashrath Singh and
Harpal Singh, are all formal Police witnesses.

6. The evidence led against the
accused persons by the prosecution has
11 All. Sher Singh & Ors. Vs. State of U.P.
481
been confronted to the accused who all
have stated that they have been falsely
implicated on account of Village Partiband.
The trial court on the basis of evidence led
in the matter has convicted and sentenced
the accused appellants as per above.
Aggrieved by the aforesaid judgment of
conviction and sentence, the accused
appellants are before this Court.

7. Shri Kamal Krishna, learned
Senior Counsel assisted by Shri Pradeep
Kumar Rai, learned counsel for the
appellants submits that this is a case of
circumstantial evidence in which chain of
circumstances is not complete. It is also
submitted that except for the testimony of
P.W.-3 and P.W.-5, there is no other
evidence
to
implicate
the
accused
appellants. Learned counsel also argues that
the testimony of P.W.-3 and P.W.-5 are not
reliable. Learned counsel also averred that
the motive for the offence has been
introduced
for
the
first
time
vide
application dated 17.05.2012 and was not a
part of the statement of the prosecution
witnesses in their statement under Section
161 Cr.P.C. or in the first information
report.

8. Shri Pankaj Kumar Tripathi,
learned A.G.A. for the State, on the other
hand,
submits
that
the
chain
of
circumstances
has
been
successfully
connected by the prosecution in the present
case inasmuch as there exists prior enmity
between the parties and the testimony of
two witnesses of last seen clearly and
categorically
connects
the
accused
appellants with the commissioning of the
offence.

9. We have heard Shri Kamal
Krishna, learned Senior Counsel assisted
by Shri Pradeep Kumar Rai, learned
counsel for the appellants and Shri Pankaj
Kumar Tripathi, learned A.G.A. for the
State and have perused the materials on
record including the trial court record.

10. Admittedly, this is a case based
on circumstantial evidence. The first
information report is on record which
clearly goes to show that the informant was
intimated by the nearby shop owners that
two unknown persons have taken the
deceased on a motorcycle, thereafter, his
dead body was recovered from near a
dhabba on the next morning. P.W.-1,
admittedly, is not an eye witness. He is also
not a witness of last seen. The persons from
whom information was received by P.W.-1
about two unknown persons having taken
the deceased on a motorcycle has also not
been specified in the testimony of P.W.-1.

11. The primary witnesses of
prosecution to implicate the accused
appellants are Kuldeep Singh (P.W.-3) and
Shyam Veer Singh (P.W.-5). These two
witnesses in their examination-in-chief
have stated that they had gone to offer
prayers at the Vaishno Devi Temple at 8.00
p.m. and they saw that accused Sher Singh
on one motorcycle, whereas accused Arjun
Singh and Sanju on another motorcycle
arrived near the shop of the deceased and
were talking to them. It is, thereafter, that
the deceased Amar Pal was made to sit
behind Arjun Singh on his motorcycle and
he saw this incident in the light of the
temple. P.W.-3 has stated that he had not
objected to the going of the deceased with
the accused as this was an internal matter
of the villagers.

12. P.W.-3 in his testimony stated
that at about 12.00 in the afternoon of
30.04.2012, he came to know that the dead
body of the deceased has been found and
482 INDIAN LAW REPORTS ALLAHABAD SERIES
being a relative he visited the house of
Charan Singh (P.W.-1) at about 4.00 p.m.
He had not met Shyam Veer Singh on that
day. He states that what he saw at about
8.00 p.m. on 29.04.2012 was not disclosed
on 30.04.2012 as he himself was scared. He
claims that on 16.05.2012 he informed
Charan Singh about the incident and later
his statement was recorded by the I.O. on
17.05.2012. This witness has further stated
that he had not disclosed the I.O. about
having told Charan Singh of the incident on
16.05.2012. He has denied the fact that
such a fact was told by the informant to the
I.O. P.W.-3 had not met Charan Singh
between 12.05.2012 to 16.05.2012. He met
Charan singh on 16.05.2012 and P.W.-5
was sitting there from before. This witness
has denied the suggestion that being a
related witness, he has made a false
statement
to
implicate
the
accused
appellants. He has admitted that prior to
16.05.2012, he had not told such facts to
the Police. He has also stated that the fact
about affair between Deepchand and the
daughter of Sher Singh came to his
knowledge
after
the
murder
of
the
deceased-Amar Pal. He had not disclosed
anything to Charan Singh on 29.04.2012.
He has also denied the allegation of affair.

13. P.W.-5 is the other witness of
last seen. He has stated that along with
P.W.-3 he had gone to the temple on
29.04.2012 at about 8.00 p.m. He too has
stated that the three accused came on two
motorcycles and took the deceased with
them. On the next day, he came to know
about the incident. P.W.-5 has categorically
stated that he visited the house of P.W.-1
the very next day and explained what he
had seen to P.W.-1. He later came to know
about the affair between daughter of Sher
Singh and Deepchand. In the crossexamination, P.W.-5 has stated that he
informed Charan Singh about the incident
on 16.05.2012. He has denied his previous
statement
under
Section 161 Cr.P.C.
wherein he told Charan Singh about the
incident on the date his statement was
recorded. He also stated that the affair
between Deepchand and daughter of Sher
Singh came to his notice only on
16.05.2012 from P.W.-1. This witness has
further stated that he has no knowledge that
any incident occurred, wherein accused
persons had done anything to Deepchand
earlier. He has also admitted that P.W.-3 is
his friend.

14.

Prosecution
case
since
primarily relies upon the statement of P.W.-
3 and P.W.-5 as such we are required to
consider the evidentiary value of these two
witnesses. P.W.-3 and P.W.-5 admittedly are
related to P.W.-1 and being an interested
witnesses their testimony will have to be
analysed with care and caution. In the FIR,
nobody has been named by the informant.
It is for the first time by an application filed
on 17.05.2012 (Ka-2) that apprehension
was expressed against the accused persons
by the informant. In his application, P.W.-1
has not stated that he gathered information
about the incident from P.W.-3 or P.W.-5.
This application dated 17.05.2012 although
implicates the accused persons but contains
no reference to any disclosure made by
P.W.-3 or P.W.-5 to P.W.-1.

15. P.W.-1 in his testimony states
that only on 16.05.2012, he was informed
by P.W.-3 and P.W.-5 that they saw the
accused persons taking the deceased on a
motorbike
at
about
8.00
p.m.
on
29.04.2012.

16. As against the testimony of
P.W.-1, P.W.-3 and P.W.-5 both state that
they visited the house of P.W.-1 on
11 All. Sher Singh & Ors. Vs. State of U.P.
483
30.04.2012 itself. If P.W.-3 and P.W.-5
visited the house of P.W.-1 on 30.04.2012
itself, there is no reason why these persons
withheld the information with regard to
implication of the accused persons on
account of their having taken the deceased
with them on the motorcycle.

17. There is a contradiction in the
version of P.W.-3 and P.W.-5 vis-a-vis the
statement of P.W.-1 with regard to the
manner in which disclosure was made by
P.W.-3 and P.W.-5 to P.W.-1. P.W.-1 states
that only on 16.05.2012 such disclosure
was made by P.W.-3 and P.W.-5 to him,
whereas P.W.-3 and P.W.-5 stated that the
incident and the facts relating thereto were
told to P.W.-1 by them on 30.04.2012 itself.
This contradiction has a material bearing
on
the
reliability
of
the
witness,
particularly, as in the FIR, none is named.
P.W.-3 and P.W.-5 are otherwise related
witnesses and their testimony would
require careful evaluation. The version of
P.W.-3 and P.W.-5 since is contradicted by
the statement of P.W.-1, we do not find the
testimony of witnesses of last seen to be
entirely reliable.

18. Before coming to a conclusion
on the evidentiary value of P.W.-3 and
P.W.-5, we would like to refer to the
evidence on the aspect of motive relied
upon by the prosecution.

19. Prosecution case is that about
four months prior to the incident, Sher
Singh challenged the deceased and his
brother Deepchand on account of alleged
affair between Deepchand and the daughter
of Sher Singh. It is also the prosecution
case that accused persons had assaulted
Deepchand and Amar Singh and had also
extended threats. This fact, however, has
neither been referred to in the FIR nor has
been referred by any of the prosecution
witness in their statement under Section
161 Cr.P.C. It is otherwise a matter of
record that neither any complaint was made
in respect of the alleged incident occurred
four months back nor any Police report etc
is on record. The alleged enmity on the
basis of such incident has otherwise not
been substantiated by the prosecution. We
also find it some what illogical for the
accused persons to have killed the deceased
when the motive was against Deepchand on
account of Deepchand having an affair with
the daughter of the accused Sher Singh.
Merely because the brother of the deceased
was having an affair with the daughter of
Sher Singh, it would be difficult to believe
that the accused persons instead of picking
Deepchand would eliminate Amar Pal.

20. In addition to the peculiarities
referred to above, we also find that
prosecution has not confronted the accused
persons with the circumstance of the
incident that occurred four months prior to
the incident in question. The statement
under Section 313 Cr.P.C. has been placed
before this Court and we find no reference
to the evidence with regard to the incident
which occurred four months prior to the
murder of the deceased, wherein the
deceased and Deepchand were allegedly
assaulted.
In
the
absence
of
such
facts/circumstances having been referred to
the accused persons, the facts in that regard
cannot be relied upon by the prosecution as
an evidence not confronted to the accused
under Section 313 Cr.P.C. cannot be read or
relied upon in evidence. Reliance has
placed upon the recent judgment of the
Supreme Court in Premchand Vs. The State
of Maharashtra (2023) 5 SCC 522.
Reliance has also placed upon the recent
judgment of the Supreme Court in
Maheshwar Tigga Vs. State of Jharkhand
484 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020) 10 SCC 108. Relevant para Nos. 7
to 9 of the later judgment are reproduced
hereinafter:-

"7. A bare perusal of the
examination of the accused under
Section 313 CrPC reveals it to be
extremely casual and perfunctory
in nature. Three capsuled questions
only were asked to the appellant as
follows which he denied:
"Question 1. There is a
witness against you that when the
informant V. Anshumala Tigga was
going to school you were hiding
near Tomra canal and after finding
the informant in isolation you
forced her to strip naked on
knifepoint and raped her.
Question 2. After the rape
when the informant ran to her
home crying to inform her parents
about the incident and when the
parents of the informant came to
you to inquire about the incident,
you told them that "if I have
committed rape then I will keep her
as my wife".
Question
3.
On
your
instruction, the informant's parents
performed
the
"Lota
Paani"
ceremony of the informant, in
which the informant as well as your
parents were present, also in the
said ceremony your parents had
gifted the informant a saree and a
blouse and the informant's parents
had also gifted you some clothes."
8. It stands well settled that
circumstances
not
put
to
an
accused under Section 313 CrPC
cannot be used against him, and
must
be
excluded
from
consideration. In a criminal trial,
the importance of the questions put
to an accused are basic to the
principles of natural justice as it
provides him the opportunity not
only to furnish his defence, but also
to
explain
the
incriminating
circumstances
against
him.
A
probable defence raised by an
accused is sufficient to rebut the
accusation without the requirement
of proof beyond reasonable doubt.
9. This Court, time and
again,
has
emphasised
the
importance of putting all relevant
questions to an accused under
Section 313 CrPC. In Naval
Kishore Singh v. State of Bihar
[Naval Kishore Singh v. State of
Bihar, (2004) 7 SCC 502 : 2004
SCC (Cri) 1967] , it was held to be
an essential part of a fair trial
observing as follows : (SCC p. 504,
para 5)
"5. The questioning of the
accused under Section 313 CrPC
was done in the most unsatisfactory
manner. Under Section 313 CrPC
the accused should have been given
opportunity to explain any of the
circumstances appearing in the
evidence against him. At least, the
various items of evidence, which
had
been
produced
by
the
prosecution, should have been put
to the accused in the form of
questions and he should have been
given opportunity to give his
explanation. No such opportunity
was given to the accused in the
instant case. We deprecate the
practice of putting the entire
evidence against the accused put
together in a single question and
giving an opportunity to explain the
same, as the accused may not be in
a position to give a rational and
11 All. Sher Singh & Ors. Vs. State of U.P.
485
intelligent explanation. The trial
Judge should have kept in mind the
importance
of
giving
an
opportunity to the accused to
explain the adverse circumstances
in the evidence and the Section 313
examination shall not be carried
out as an empty formality. It is only
after the entire evidence is unfurled
the accused would be in a position
to articulate his defence and to give
explanation to the circumstances
appearing in evidence against him.
Such an opportunity being given to
the accused is part of a fair trial
and if it is done in a slipshod
manner, it may result in imperfect
appreciation of evidence."

21. It is only after 17.05.2012 that
in the second statement the motive has been
introduced in the testimony of witnesses.
The motive was clearly missing in the first
statement of witnesses recorded under
Section 161 Cr.P.C.

22. On evaluation of the above
evidence, we find that neither motive is
convincing
nor
the
alleged
instance
occurred four months prior to the incident,
giving rise to the motive, can be read or
relied upon against the accused persons in
the absence of such facts having been
confronted to the accused persons under
Section 313 Cr.P.C.

23. Coming to the evidence of last
seen, we find that the two prosecution
witnesses of last seen, namely, P.W.-3 and
P.W.-5 have clearly stated that they visited
the house of the informant on 30.04.2012
itself. They are otherwise related to P.W.-1.
In such circumstances, it was expected that
these two persons would disclose P.W.-1
about what they saw on previous day,
wherein the accused persons took the
deceased on the motorcycle. The fact that
P.W.-1 for the first time introduced such
case
by
an
application
moved
on
17.05.2012 creates a doubt as the delay of
nearly 16 days in disclosing such facts to
the I.O. raises a doubt upon the credibility
of P.W.-3 and P.W.-5. In a recent judgment
of the Supreme Court in Shahid Khan Vs.
State of Rajasthan (2016) 4 SCC 96 the
Hon'ble Supreme Court viewed with
suspicion the non furnishing of explanation
in respect of three days delay in recording
of statement under Section 161 Cr.P.C. para
20 of the judgment, in this regard, is
reproduced hereinafter:-

"20. The statements of PW
25 Mirza Majid Beg and PW 24
Mohamed Shakir were recorded
after 3 days of the occurrence. No
explanation is forthcoming as to
why they were not examined for 3
days. It is also not known as to how
the police came to know that these
witnesses saw the occurrence. The
delay in recording the statements
casts a serious doubt about their
being
eyewitnesses
to
the
occurrence. It may suggest that the
investigating
officer
was
deliberately marking time with a
view to decide about the shape to
be given to the case and the
eyewitnesses to be introduced. The
circumstances in this case lend
such significance to this delay. PW
25 Mirza Majid Beg and PW 24
Mohamed Shakir, in view of their
unexplained silence and delayed
statement to the police, do not
appear to us to be wholly reliable
witnesses.
There
is
no
corroboration of their evidence
from any other independent source
486 INDIAN LAW REPORTS ALLAHABAD SERIES
either. We find it rather unsafe to
rely upon their evidence only to
uphold the conviction and sentence
of the appellants. The High Court
has
failed
to
advert
to
the
contentions
raised
by
the
appellants and reappreciate the
evidence
thereby
resulting
in
miscarriage of justice. In our
opinion, the case against the
appellants has not been proved
beyond reasonable doubt."

24. As against the delay of three
days in the above matter, we find that the
delay occasioned in the present case is of
16 days for which no plausible explanation
has been put-forth. In view of the fact that
the accused persons otherwise are related
witnesses, the delay in that regard would
raise a further doubt on the prosecution
case. Since the motive has otherwise not
been found convincing, we find that chain
of circumstances is not connected by the
prosecution, which may establish the
hypothesis of guilt specifically attributed to
the accused appellants. Even otherwise
merely on the strength of evidence of last
seen, the chain of circumstance would not
be complete. We find support in taking
such a view from the observations made by
the judgment of Supreme Court in Nizam v.
State of Rajasthan, (2016) 1 SCC 550. The
relevant para 14 of the judgment is
reproduced hereinafter:-

"14. The courts below
convicted the appellants on the
evidence of PWs 1 and 2 that the
deceased was last seen alive with
the
appellants
on
23-1-2001.
Undoubtedly,
the
"last
seen
theory" is an important link in the
chain of circumstances that would
point towards the guilt of the
accused with some certainty. The
"last seen theory" holds the courts
to shift the burden of proof to the
accused and the accused to offer a
reasonable explanation as to the
cause of death of the deceased. It is
well settled by this Court that it is
not prudent to base the conviction
solely on "last seen theory". "Last
seen theory" should be applied
taking into consideration the case
of the prosecution in its entirety
and
keeping
in
mind
the
circumstances that precede and
follow the point of being so last
seen."

25. We have been taken through
the judgment of conviction and sentence
passed by the court below by the learned
A.G.A. in order to submit that the appeal
lacks merit. However, having perused the
judgment, we find that circumstantial
evidence relied upon by the prosecution has
not been carefully dissected by the trial
court and the contradictions in the version
of P.W.-1 vis-a-vis P.W.-3 and P.W.-5 have
been overlooked. The fact that P.W.-3 and
P.W.-5 were related witnesses and their
testimony required careful examination has
also escape the attention of the trial court.
Since we do not find the testimony of P.W.-
3 and P.W.-5 to be entirely reliable, in view
of
the
contradictory
statement
made
therein, as such, in the absence of any
cogent corroboration of the prosecution
case in order to implicate the accused
persons, we disapprove the conclusions and
findings returned by the trial court with
regard to conviction and sentence of the
accused
appellants,
consequently,
this
appeal succeeds and is allowed. The
judgment and order dated 30.03.2024,
passed by the Sessions Judge at Firozabad
in Sessions Trial No.300669 of 2013 (State
11 All. Phoolmati Vs. State of U.P. & Ors.
487
of U.P. Vs. Sher Singh and others), arising
out of Case Crime No.297 of 2012, Police
Station Tundla, District Firozabad against
the accused appellants is hereby set aside.

26.

The
accused-appellants,
namely, Sher Singh, Arjun Singh and Sanju
would be released, forthwith, unless they
are wanted in any other case, subject to
compliance of Section 437-A Cr.P.C./481
BNSS-2023.
----------
(2024) 11 ILRA 487
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2024
BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Writ C No. 14257 of 2024

Phoolmati ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Azaz Ahmad

Counsel for the Respondents:
C.S.C., Karuna Srivastava, Santosh Kumar
Srivastava

Dispossession-impugned
notice
issued
mentioning that the petitioner is illegally occupying
the house and to hand over the possession to the
owner
of
the
house-Petitioner
has
been
dispossessed -from the possession memo, it is
apparent that the possession was taken by the
joint revenue and police team-Respondent No. 3Sub-Divisional Magistrate has no authority in law
to interfere with the possession of the petitioner at
the behest of private respondents- admittedly a
civil dispute pending - Respondent No. 3 acted
against the settled law of the land -prohibiting the
executive authorities from interfering with the
private disputes between the parties, especially,
where the suits are pending before the competent
court-respondents are directed to restore the
possession of the petitioner. (E-9)
List of Cases cited:

1. Jitendra Bahadur Singh Vs St. of U.P. & ors.-
Writ C No. 50033 of 2015

2. Devmani Vs St. of U.P. & ors. in Writ C No.
17017 of 2018 decided on 06.12.2018

3. Vijai Vs St. of U.P. & ors. in Writ C No. 20102
of 2022 decided on 11.08.2022

4. Mohammad Aijaz Vs St. of U.P. & ors. in Writ
C No. 19053 of 2022 on 27.07.2022

5. Rame Gowda (Dead) By Lrs. Vs M. Varadappa
Naidu (Dead) By Lrs. & anr.reported in (2004) 1
SCC 769

6. Gulab Devi Vs St. of U.P. (Allahabad; reported
in 2007 (2) All LJ 220

7. Bishan Das & ors. Vs The St. of U.P. & ors.;
AIR 1961 SC 1570

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. Heard learned counsel for the
petitioner, learned Standing Counsel for the
State-respondents and perused the records.

2. This petition has been filed for
the following reliefs:-

 "(I) A writ order or direction in
the nature of certiorari to quash the
impugned order dated 25.03.2024 passed
by respondent No. 3.

(II) Issue a writ, order or
direction in the nature of Mandamus
directed the Respondent no.3 not to
dispossess to the petitioner from the house
In dispute."

3. By means of this writ petition,
the petitioner has challenged a notice dated
25.03.2024
issued
by
Sub-Divisional
Magistrate, Nizamabad, District Azamgarh-