# Shiv Baran Singh & Ors v. State of U.P

- **Citation:** (2021) 9 ILRA 155
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-27
- **Case number:** Criminal Appeal No. 546 of 1982
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-baran-singh-ors-v-state-of-u-p-47557
- **Pages:** 47

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
374(2)-
challenge to-conviction-PW-1 and PW-2
supported the prosecution case as they
are the eyewitnesses to the incidentwhen accused fired, the deceased fell
down on the earth, thereafter, other
accused assaulted the deceased with
Kanta,
ballam
and
lathis-deceased
received
26
ante-mortem
injuriestestimony of injured witness PW-3 is
supported from medical evidence as well
as statement of Investigating OfficerWhile
injuries
of
the
accused
are
superficial one as per statement of DW-1
and DW-2-the injuries are self suffered
or self-manufactured-their injuries report
is suspected-if plea of defense that
accused/appellants have been attacked
by the miscreants or by the complainant's
party, is taken to be true, then, certainly
some of the accused would have
received grievous injuries but DW-1 and
DW-2 who examined the accused have
not found any grievous injuries-trial
court
rightly
observed
that
defence
version is only an afterthought and
rightly convicted the accused/appellantsbail are cancelled directed to surrender
and
serve
out
remaining
period
of
sentence. (Para 1 to 117)

The appeals are dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,951 of 162,733. This is a partial read: ask again with offset=39951 for what follows._

9 All. Shiv Baran Singh & Ors. Vs. State of U.P.
155
(2021)09ILR A155
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.09.2021

BEFORE

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

Criminal Appeal No. 546 of 1982
connected with
Criminal Appeal No. 547 of 1982
with
Criminal Appeal No. 548 of 1982

Shiv Baran Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Kr. M. Rakesh, Arun Sinha, Jyotiendra
Misra, K.S. Prakash, Kapil Misra, O.P.
Srivastava, R N S Chauhan, Ram Naresh
Singh Chauhan, U.P. Singh

Counsel for the Respondent:
Govt. Advocate, Amarjeet Singh Rakhra,
Anil Kumar Tripathi, Manish Bajpai, N.
Mohan, Nagendra Mohan, Rajit Krishan,
Sharad Dixit, Shishir Pradhan

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
374(2)-
challenge to-conviction-PW-1 and PW-2
supported the prosecution case as they
are the eyewitnesses to the incidentwhen accused fired, the deceased fell
down on the earth, thereafter, other
accused assaulted the deceased with
Kanta,
ballam
and
lathis-deceased
received
26
ante-mortem
injuriestestimony of injured witness PW-3 is
supported from medical evidence as well
as statement of Investigating OfficerWhile
injuries
of
the
accused
are
superficial one as per statement of DW-1
and DW-2-the injuries are self suffered
or self-manufactured-their injuries report
is suspected-if plea of defense that
accused/appellants have been attacked
by the miscreants or by the complainant's
party, is taken to be true, then, certainly
some of the accused would have
received grievous injuries but DW-1 and
DW-2 who examined the accused have
not found any grievous injuries-trial
court
rightly
observed
that
defence
version is only an afterthought and
rightly convicted the accused/appellantsbail are cancelled directed to surrender
and
serve
out
remaining
period
of
sentence. (Para 1 to 117)

The appeals are dismissed. (E-6)

List of Cases cited:

1. Arjun Pradhan & anr. Vs St. of Orissa (1979)
AIR SC 1259

2. Gotti Pulla Venkete Siva Vs St. of A.P. & anr.
(1970) AIR 1079

3. Munshi Ram & ors. Vs Delhi Administration
(1968) AIR 702

4. James Martin Vs St. of Ker.(2004) 2 SCC 203

5. Lakshmi Singh & ors. Vs St. of Bih.(1976) AIR
SC 2263

6. Jagdish Vs St. of Raj.(1979) AIR 1010

7. Onkarnath Singh & ors. Vs St. of U.P. (1975)
3 SCC 276

8. Lalji & ors. Vs St. of U.P. (1989) JIC 172 SC

9. Kattukulangara Madhvan Vs Majeed & ors.
(2017) 2 SCC (Cri.) 611

10. Supdt. of Police,C.B.I. Vs Tapan Kumar
Singh (2003) 6 SCC 175

11. St. of U.P. Vs Naresh (2011) 4 SCC 324

12. Dalip Singh & ors. Vs St. of Punj.(1954) 1
SCR 145

13. Kartik Malhar Vs St. of Bih.(1996) 1 SCC 614

14. St. of U.P. Vs Krishna Master (2010) 12 SCC
324
156 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Shamim Vs State (GNCT of Delhi) (2018)
AIR SC 4529

16. Mano Dutt & anr. Vs St. of U.P. (2012) 4
SCC 79

17. Nathuni Yadav Vs St. of Bih.(1998) 9SCC
238

18. Pruthviraj Jayantibhai Vanol Vs Dinesh
Dayabhai Vala & ors.CRLA No. 177 of 2014

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The above-captioned appeals along
with Criminal Appeal No. 589 of 1982
were allowed and all the appellants were
acquitted by a Co-ordinate Bench of this
Court vide judgment and order dated
17.09.1998 inter alia on the grounds that
all the records including those which were
called for from the trial Court, were found
missing in the High Court and it would not
be appropriate to proceed on the basis of
carbon copies supplied by the complainant.

2. Against the aforesaid judgment and
order dated 17.09.1998, the de facto
complainant, namely, Kunwar Bahadur
Singh had approached the Hon'ble Supreme
Court by filing Criminal Appeal No. 10781083 of 2000 arising out of SLP (Crl.) Nos.
1459-1463/99, whereas State of U.P. had
also approached the Hon'ble Supreme
Court by filing Criminal Appeal Nos. 10831086 of 2000 arising out of SLP (Crl.) Nos.
1928-31/99. The Hon'ble Supreme Court
had heard the aforesaid criminal appeals
together with as the common question as to
whether the High Court erred in law in not
disposing of the said appeals filed by the
respondents on merits on the basis of the
re-constructed records, was raised. After
considering the submissions advanced by
the learned Counsel for the parties and
gone through the record, the Hon'ble
Supreme Court opined that the reason
given by the High Court for doubting the
authenticity of the reconstructed records, is
untenable
as
in
the
instant
cases,
reconstructed file was proper, therefore, the
Hon'ble Supreme Court, vide judgment and
order dated 29.11.2000, has passed the
following order :-

"From the above discussion, it
follows that in the instant cases, there is
properly reconstructed file, therefore, the
High Court erred in not going into the
merits of the case and acquitting the
convict appellants before it by allowing the
appeals. Ergo we set aside the impugned
order and restore the aforementioned
criminal appeals to the file of the High
Court to be heard and disposed of on
merits. The High Court shall now consider
and decide the appeals on merits on the
basis of the reconstructed records.

It is needless to mention that
while examining the merits of the case, it
would be open to the High Court to
examine the copies of statements in the
reconstructed record on the basis of
intrinsic
inconsistency
between
the
reconstructed records as the contents of the
judgment of the learned Sessions Judge or
with reference to any irrefragible evidence
placed before it by the appellants therein.

The
appeals
are
accordingly
allowed."

3. It appears that after remand from
the Hon'ble Supreme Court by the aforesaid
judgment and order dated 29.11.2000, the
above-captioned appeals have been listed
before different Benches of this Court.
Vide order dated 04.03.2021, Hon'ble the
Chief Justice has nominated this Bench and
directed to place all the connected matters
before this Bench. In these circumstances,
9 All. Shiv Baran Singh & Ors. Vs. State of U.P.
157
the above-captioned criminal appeals have
been listed before this Bench.

4. Before proceeding further, it would
be relevant to mention here that during the
course of arguments, none of the parties
have raised any objection with regard to the
authenticity of the paper book of the instant
case, which has been supplied to them or
any document relating to this case and,
therefore, with the consent of the learned
Counsel for the parties, we proceed to hear
the
above-captioned
criminal
appeals
finally.

5. The twelve accused persons,
namely, Hari Shanker Singh, Bhagwat
Singh, Shiv Baran Singh, Badri Singh,
Amar Bahadur Singh, Shiv Prasad Singh,
Sardar Bahadur Singh, Sharda Bux Singh,
Jitendra Bahadur Singh, Indra Bahadur
alias Dhunni Singh, Shiv Narayan Yadav
and Indra Bahadur Singh, were tried by the
II Additional Sessions Judge, Raebareli in
Sessions Trial No. 43 of 1982 : State Vs.
Hari Shankar and 11 others. In addition,
accused Bhagwat Singh was also tried by
the II Additional Sessions Judge, Raebareli
in Sessions Trial No. 44 of 1982 : State Vs.
Bhagwat Singh, for the offence punishable
under Section 25 of the Arms Act.

6. Vide common judgment and order
dated 15.07.1982/ 16.07.1982, the learned
II Additional Sessions Judge, Raebareli has
convicted and sentenced the accused
persons in the aforesaid Sessions Trial Nos.
43 of 1982 and 42 of 1982 in the manner as
indicated hereinbelow :-

"Accused Hari Shanker Singh,
Bhagwat Singh, Shiv Baran Singh and
Shiv Prasad Singh

"(i) Under section 148 of the
Indian
Penal
Code
to
undergo
imprisonment for one year's R.I.;

(ii) Under Section 302 read with
Section 149 of the Indian Penal Code to
undergo imprisonment for life;

(iii) Under Section 323 read with
Section 149 of the Indian Penal Code to
undergo six months' R.I.; and

(iv) Under Section 395 of the
Indian Penal Code to undergo five years'
R.I."

Accused Badri Singh, Amar
Bahadur Singh, Sardar Bahadur Singh,
Sharda Bux Singh, Jitendra Bahadur
Singh,
Indra
Bahadur
Singh
alias
Dhunni Singh, Shiv Narain Yadav and
Indra Bahadur Singh son of Shitla Bux
Singh

(i) Under section 147 of the
Indian
Penal
Code
to
undergo
imprisonment for nine months' R.I.;

(ii) Under section 302 read with
Section 149 of the Indian Penal Code to
undergo imprisonment for life;

(iii) Under section 323 read with
Section 149 of the Indian Penal Code to
undergo imprisonment for six months' R.I.;
and

(iv) Under section 396 of the
Indian
Penal
Code
to
undergo
imprisonment for five years' R.I."

The trial Court directed the
sentences of all accused persons on all the
counts to run concurrently.

7. However, II Additional Sessions'
Judge, Raebareli had acquitted the accused
Bhagwat Singh in Sessions Trial No. 44 of
1982 for the offences punishable under
Section 25 of the Arms Act vide aforesaid
judgment
and
order
dated
15.07.1982/16.07.1982.
158 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Aggrieved by the aforesaid
conviction and sentences, accused Shiv
Baran Singh, Badri Singh, Amar Bahadur
Singh, Shiv Prasad Singh, Jitendra Bahadur
Singh, Indra Bahadur Singh, Shiv Narain
Yadav and Indra Bahadur Singh have
preferred Criminal Appeal No. 546 of
1982, whereas accused Sardar Bahadur
Singh and Sharda Bux Singh have
preferred Criminal Appeal No. 547 of 1982
and accused Hari Shanker Singh preferred
Criminal Appeal No. 548 of 1982 and
accused Bhagwat Singh preferred Criminal
Appeal No. 589 of 1982.

9. As per office report dated
04.09.2019 appended in Criminal Appeal
No. 547 of 1982 : Sardar Bahadur Singh
Vs. State of U.P., accused/appellant of
Criminal Appeal No. 589 of 1982, namely,
Bhagwat Singh, died during pendency of
the said appeal, hence his appeal has
already been abated vide order dated
08.09.2015 and, therefore, his appeal has
not been listed in the today's cause list
along with the above-captioned appeals.

10. It transpires from the record that
accused/appellant no.1-Shiv Baran Singh,
accused/appellant
no.6-Indra
Bahadur
Singh
alias
Dhunni
Singh
and
accused/appellant
no.8-Indra
Bahadur
Singh of Criminal Appeal No. 546 of 1982
and accused/appellant no.1-Sardar Bahadur
Singh of Criminal Appeal No. 547 of 1982
died, during pendency of the abovecaptioned appeals, hence their appeals have
already been abated vide order dated
06.02.2020.

11. Now, we proceed to examine the
correctness of the conviction and sentences
as awarded vide impugned order passed by
the
trial
Court
to
the
surviving
accused/appellant
no.2-Badri
Singh,
accused/ appellant no.3-Amar Bahadur
Singh, accused/appellant no.4-Shiv Prasad
Singh,
accused/appellant
no.5-Jitendra
Bahadur Singh, accused/appellant no.7Shiv Narain Yadav in Criminal Appeal No.
546 of 1982, accused/appellant no.2-Sharda
Bux Singh in Criminal Appeal No. 547 of
1982
and
accused/sole
appellant-Hari
Shanker Singh in Criminal Appeal No. 548
of 1982.

12. Since the above-captioned appeals
arise out of a common factual matrix and
impugned judgment, we are disposing them
of by a common judgment.

13. Shorn off unnecessary details, the
case of the informant P.W.1-Kunvar
Bahadur Singh, as narrated in the written
report (Ext. Ka.1), is as under :-

In the evening of 01.09.1981, at
the village of informant- Kunvar Bahadur
Singh (P.W.1), namely, Parmanpur, Aalha
(madrigals) was going on at the door of
Bhagwati Gadariya. The informant-Kunvar
Bahadur
Singh
(P.W.1),
his
brother
Avadhesh Bahadur Singh (deceased) and
his father Chandra Bhushan Singh had
gone to listen Aalha (madrigals). At the
time
of
listening
Aalha
(madrigals),
altercation took place between the father of
the informant (Chandra Bhushan Singh),
his brother (Avadhesh Bahadur Singh) and
some villagers with accused Shiv Baran
Singh (appellant no.1 in Criminal Appeal
No. 546 of 1982), upon which accused Shiv
Baran Singh, after using abusive language
and threatening them, went away from
there.

At about 09.30 p.m., the brother
of the informant (Avadhesh Bahadur
Singh) went to his home and also after
listening Aalha (madrigals), the informantKunwar Bahadur Singh (P.W.1), Jai Singh,
9 All. Shiv Baran Singh & Ors. Vs. State of U.P.
159
son of Ram Bahadur Singh, Tej Bahadur
Singh (P.W.2) son of Ramdas Singh,
Balwant Singh, son of Bhagwati Deen
Singh and Peshkar Singh, son of Sunder
Singh also went behind the brother of the
informant (Avadhesh Bahadur Singh). As
soon as the brother of the informant
(Avadhesh Bahadur Singh) came out from
the street situated near the house of
Chhatarpal Singh, accused persons Hari
Shankar Singh (appellant in Criminal
Appeal No. 548 of 1982) son of Fateh
Bahadur Singh, Badri Singh (appellant no.2
in Criminal Appeal No. 546 of 1982),
Amar Bahadur Singh (appellant no.3 in
Criminal Appeal No. 546 of 1982), Shiv
Prasad Singh (appellant no.4 in Criminal
Appeal No. 546 of 1982), son of Kalika
Bux
Singh,
Sardar
Bahadur
Singh
(appellant no.1 in Criminal Appeal No. 547
of 1982), son of Vijay Bahadur Singh,
Indra Bahadur Singh (appellant no.6 in
Criminal Appeal No. 546 of 1982) son of
Shitla Bux Singh, Sharda Bux Singh
(appellant no.2 in Criminal Appeal No. 547
of 1982), son of Shitla Bux Singh, Jitendra
Bahadur Singh (appellant no.5 in Criminal
Appeal No. 546 of 1982) son of Balikaran
Singh, resident of Village Parmanpur and
Shiv Narayan Yadav (appellant no.7 in
Criminal Appeal No. 546 of 1982), resident
of village Pure Gosai, Majare Basar,
surrounded the brother of the informant
(Awadhesh Bahadur Singh) at once. Hari
Shankar Singh (appellant of Criminal
Appeal No. 548 of 1982) was armed with
country made pistol and other persons were
armed with Kanta, ballam and lathis.
Accused Bhagwat Singh instigated to kill
him, to which Hari Shanker Singh
(appellant of Criminal Appeal No. 548 of
1982) fired with country made pistol, as a
consequence of which, informant's brother
(Awadhesh Bahadur Singh) fell down in
the street near nabadan (cesspool) and
thereupon, all the accused persons started
beating him with lathis, kanta and ballam.
Thereafter, informant Kunvar Bahadur
Singh (P.W.1), his friends and his brother
raised alarm, upon which his grand-father
Dan Bahadur Singh (P.W.3) and his aunt
Ramraj Kumari, widow of Chandra Bhan
Singh ran to save the informant's brother
(Awadhesh Bahadur Singh), then, accused
persons had also beaten them. Thereafter,
when
informant's
brother
(Awadhesh
Bahadur Singh) ran in an injured condition,
then, accused persons surrounded him near
the house of Chattrapal Singh and killed
him. In the meantime, his father Chandra
Bhushan Singh came with licensee gun
single barrel twelve bore no. 197167 and
challenged the accused persons, then,
accused Bhagwat Singh and three-four
persons snatched the gun from his father.
The incident was seen by all the aforesaid
persons in the light of their torches and in
the
light
of
the
torches
of
the
accused/appellants. Prior to 12-13 years,
accused Sardar Bahdur Singh (appellant
no.1 in Criminal Appeal No. 547 of 1982)
had falsely implicated the informant's
father and his grand father and since then,
accused persons had ill-will against the
family members of the informant and
because of which, on seeing the chances,
accused persons killed the informant's
brother (Awadhesh Bahadur Singh) and the
dead body of his brother was lying there.

14. The informant P.W.1-Kunwar
Bahadur Singh himself wrote down the
F.I.R. (Ext. Ka.1), put his signature
thereron and along with it reached to the
Police
Station
Bhadokhar,
District
Raebareli at a distance of 7 1⁄2 Kms. and at
about 11:00 p.m., he handed over the
handwritten report to P.W.7-H.C. Ram Jas
Yadav. On the basis of the said report,
P.W.7-H.C. Ram Jas Yadav prepared a
160 INDIAN LAW REPORTS ALLAHABAD SERIES
chik F.I.R. (Ext. Ka.7) and made its entry
in the general diary and registered a case
(Ext. Ka.8).

15. The evidence of P.W.7-H.C. Ram
Jas Yadav shows that on 01.09.1981, he
was posted as Head Moharrir at police
station Bhadokhar and on the said date,
Kunvar Bahadur Singh (P.W.1) came along
with the written report (Ext. Ka.1), on the
basis of which, chik F.I.R. (Ext. Ka.7) was
prepared by him, for which entry was made
by him in report no. 39 in G.D. and also
lodged a case. A copy of the chik F.I.R.
(Ext. Ka. 8) has been filed. He further
deposed that on 02.09.1981, at about 5:45
p.m., S.O. Sri Shyampal Singh Rana
(P.W.11) came along with eight sealed
bundle items and one S.B.B.L Gun No.
197167 at police station and admitted
therein, for which entry was made by him
in report no. 24 in G.D.. The Sub-Inspector
had also taken four accused persons and
also detained them in jail, for which entry
was made by him in report no. 24.

In the cross-examination, P.W.7H.C. Ram Jas Yadav has deposed that
Kunvar Bahadur Singh (P.W.1) was
accompanied by Chowkidar for filing
report and at that time, Sub-Inspector was
present at police station. At about 11:30
P.M., the Sub-Inspector went to the place
of occurrence by Jeep. At the time of
lodging the accused in jail, accused
Bhagwat Singh, Hari Shanker (appellant in
Criminal Appeal No. 548 of 1982), Sharda
Bux Singh (appellant no.2 in Criminal
Appeal No. 547 of 1982), Sardar Bahadur
Singh (appellant no.1 in Criminal Appeal
No. 547 of 1982) had injuries, entry of
which was also made by him in G.D,
however, he had not made their medical
examination, for which no reason was
given. This witness has denied the
suggestion that the report was ante time and
the report was lodged after returning of the
Sub-Inspector
from
the
place
of
occurrence. The special report of the
incident was sent by Constable Kalluram
on 02.09.1981 at 4:30 a.m., which was
entered in report no.4 in G.D. Till
02.12.1981, he was posted at Police Station
Bhadokhar, by which time the items of the
case were at police station.

16. A perusal of the chik FIR shows
that the distance between the place of
incident and Police Station Bhadokhar was
seven and a half kilometers. It is significant
to mention that a perusal of the chik FIR
also shows that on the basis of written
report (Ext. Ka.1), a case crime no. 207 of
1981, under Sections 147, 148, 149, 302,
395 I.P.C. was registered against appellants
at police station Bhadokhar, District
Raebareli.

17. The investigation of the case was
conducted by SI Shyampal Singh Rana
(P.W. 11). His evidence shows that on
01.09.1981, he was posted as Station
Officer at Police Station Bhadokhar. On the
said date, informant Kunvar Bahadur Singh
(P.W.1) has lodged the written report in his
presence. The investigation of the case was
conducted by him. He made entry of the
relevant papers in the case diary and also
recorded the statement of informant Kunvar
Bahadur Singh (P.W.1) at police station.
Thereafter, at about 11:30 p.m., he along
with the police personnel went to the place
of incident at village Parmanpur by Jeep.
At the place of incident, the deadbody of
deceased Avadhesh was lying near the door
of Chattrapal Singh. He left Constable
Brahma Deen and Constable Uma Dutt
near the deadbody of the deceased for
protection and himself went in search of the
accused persons in the night but he could
9 All. Shiv Baran Singh & Ors. Vs. State of U.P.
161
not find them. However, at about 5:00 a.m.,
he recorded the statement of witnesses Jai
Singh and Tej Bahadur Singh (P.W.2) and
thereafter he came back to the door of
Chattrapal Singh, wherein identification of
the deceased was done and at about 06:30
a.m., panchayatnama along with photo
laash, challan laash and letter for postmortem were prepared. He also deposed
that the documents were prepared on his
dictation by S.I. Babu Singh, who was an
under trainee, which was marked as Ext.
ka-14 to Ext. Ka. 17. Thereafter, the sealed
dead body with cloth was sent for postmortem along with Constable Ramadhar
(P.W.8) and Chowkidar Harcharan Lal.
Thereafter, he inspected the place of
occurrence and prepared the site plan (Ext.
Ka. 18). He had also collected the plain
earth and blood stained earth in a sealed
container from the place of occurrence as
well as from the place where the corpse
was lying and also prepared two recovery
memos duly signed by him (Ext. Ka 19 and
Ext.20).

18. P.W.11-Shyampal Singh has
further deposed that at the place of
occurrence, a used cartridge was recovered,
which was sealed under the recovery memo
(Ext. Ka.21). Thereafter, he inspected the
torches of witnesses Tej Bahadur (P.W.2),
Jai Singh and Kunvar Bahadur (informantP.W.1), which were found in a running
condition and after inspection, the same
were handed over to them but their memos
were not prepared, however, there is an
endorsement in the case diary with respect
to
the
inspection
of
their
torches.
Thereafter, statements of the witnesses,
Balwant Singh, Peshakar Singh, Das
Bahadur Singh, Ramraj Kumari, Chandra
Bhushan Singh and others were recorded.
In the meanwhile, SI Raghuraj Singh, who
was on patrol duty and later on came at the
place of occurrence, was deputed for
searching the accused. Thereafter, accused
Sharda Bux Singh (appellant no.2 in
Criminal Appeal No. 547 of 1982) and
Sardar Bahadur Singh (appellant no.1 in
Criminal Appeal No. 547 of 1982) were
arrested.
Thereafter,
accused
Sardar
Bahadur Singh was interrogated and on his
pointing out, lathi, which was used at the
time of the incident by him, was recovered
from the chappar of his house in the
presence of witnesses Dal Bahadur Singh
(P.W.5) and Ayodhya Singh, in which
blood stains were present. The lathi was
taken in the custody and prepared recovery
memo
(Ext.
Ka.22).
Thereafter,
he
inspected the place of recovery of lathi and
also prepared the site plan (Ext. Ka.23).
Thereafter, he interrogated accused Sharda
Bux Singh (appellant no.2 in Criminal
Appeal No. 547 of 1982) and on his
pointing out, lathi was recovered from his
house, wherein blood stain was present. He,
thereafter, took the lathi in his custody,
sealed it and prepared recovery memo for
the same (Ext. Ka. 24). Thereafter, he
inspected the place of occurrence of
recovery of lathi and prepared the site plan
(Ext.
Ka.
25).
Thereafter,
Constable
Guruprasad and Uma Datt had arrested
accused persons Bhagwat Singh and Hari
Shanker Singh (appellant in Criminal
Appeal No. 548 of 1982). Thereafter, he
interrogated accused Bhagwat Singh and on
his pointing out, the licensee gun, which
was snatched at the place of incident, was
recovered from his house and, thereafter,
he took the said licensee gun in custody,
sealed it and a recovery memo for the same
was prepared as Ext. Ka. 2. Thereafter, he
inspected the place of recovery of licensee
gun and prepared site plan (Ext. Ka. 26).
Thereafter,
accused
Hari
Shanker
(appellant in Criminal Appeal No. 548 of
1982)
was
interrogated
and
on his
162 INDIAN LAW REPORTS ALLAHABAD SERIES
interrogation, accused Harishanker told him
that Kanta of accused Bhagwat Singh,
which he used at the time of incident, was
hidden at the house of Chetrapal Singh,
wherein he resided. Thereafter, on the
pointing out of accused Hari Shanker, one
Kanta was recovered, which was sealed and
recovery memo (Ext. Ka. 3) was prepared.
He also inspected the place of occurrence
and prepared the site plan (Ext. Ka. 27).
Thereafter, he recorded the statements of
witnesses of recovery, namely, Baijnath
Singh
(P.W.4)
and
Ayodhya
Singh,
however, rest of the accused persons could
not be traced out. Thereafter, he came back
with the recovered items and accused
persons at police station and thereafter, he
lodged the recovered items and the accused
persons at police station vide report no. 24
at 05.45 p.m.

19. P.W.11 S.I. Shyam Pal Singh
Rana, in his examination-in-chief, has
further deposed that after recording the
statements
of
Ramraj
Kumari,
Ram
Bahadur Singh at the place of the incident,
they were sent for medical examination
from the place of incident to Sadar Hospital
Raibareli and when he reached back to the
police
station,
he
received
medical
examination report as well as post-mortem
report at 06.20 p.m., for which entry was
made in the case diary. On 03.09.1981, he
searched for the rest of the accused
persons. However, on 04.09.1981, when he
came to Sadar to search the accused person,
he came to know in the Court that accused
Indra Bahadur Singh alias Dhunni Singh
(appellant no.6 in Criminal Appeal No. 546
of 1982) had surrendered in the Court. On
the same day, when he was on the way to
Parmanpur via Sadar police station, he
came to know about the presence of
accused Shiv Narain (appellant no.7 in
Criminal Appeal No. 546 of 1986) at the
tea shop of Kallu situated in Mullahganj,
whereby he went there and arrested him
and also interrogated him on the way to
Parmanpur. On 05.09.1981, informant's
father Chandra Bhushan Singh was called
at the police station and saw his licensee
gun. On the same day, when he reached
Sadar, he came to know that accused Badri
Singh (appellant no.2 in Criminal Appeal
No. 546 of 1982), Amar Bahadur Singh
(appellant no.3 in Criminal Appeal No. 546
of 1982), Shiv Narayan Singh (appellant
no.7 in Criminal Appeal No. 546 of 1982)
and Jitendra Singh (appellant no.5 in
Criminal Appeal No. 546 of 1982) had
surrendered in the Court and thereafter, he
interrogated them. On 08.09.1981, on being
called by C.O., he reached there, from
where the pairokar told him that accused
Shiv Prasad Singh (appellant no.4 in
Criminal Appeal No. 546 of 1982) had
surrendered before the Court and thereafter,
he
interrogated
him.
Thereafter,
on
09.09.1981, he filed charge-sheet (Ext. Ka.
28) against the accused persons, namely,
Hari Shanker Singh, Bhagwat Singh, Shiv
Narayan
Singh,
Badri
Singh,
Amar
Bahadur Singh, Shiv Pratap Singh, Sardar
Bahadur Singh, Sharda Bux Singh, Jitendra
Bux Singh, Indra Bahadur Singh alias
Dhunni Singh and Shiv Narain. As the
accused Indra Kumar Singh (appellant no.6
in Criminal Appeal No. 546 of 1982) could
not be arrested, therefore, his name in the
charge-sheet
has
been
mentioned
as
absconder. He also stated that recovered
items were to be sent for the chemical
examiner but he was transferred, hence
further action could not be made.

20. In his cross-examination, P.W.11S.I. Shyampal Singh Rana has deposed that
on 28.09.1981, he left the charge of police
station Bhadokhar. Till that time, recovered
items were still in the police station and he
9 All. Shiv Baran Singh & Ors. Vs. State of U.P.
163
did not get an opportunity to send the items
to the malkhana (warehouse). The items
were not with him and he did not remember
that seal was his or other S.I. He further
stated that it is not possible that he had
given the seal to any innocent person of
public. The seal is being used frequently
and it is being kept in custody and used it
and do not keep it in secure place.

21. It has further been stated by
P.W.11-S.I. Shyampal Singh Rana, in his
cross-examination, that he started to search
the accused persons in the night at around
1:00 a.m. and also raided their houses in
the night. He did not enter their houses and
on enquiry their around, it was confirmed
that the accused were not at home. The
names of the people who were questioned
in this regard are not known. He didn't
think it was right to search the houses at
night and in the morning, he was busy in
investigation and informer was put to give
clues of the accused, on account of which,
he did not searched their houses. He further
submitted that when he reached at the place
of incident, he did not find Kunvar Bahadur
Singh (P.W.1) and on the next day, Kunvar
Bahadur Singh (P.W.1) met him but by
what time he met, he do not remember. He
also stated that he also went to the house of
Chandra Bhushan Singh in the night but he
did not know about his whereabout. He
also stated that the time at which the
statement of Chandra Bhushan Singh was
taken is not mentioned in the case diary. He
stated that most probably it would be
around 12-1 p.m. and prior to his statement,
statement of Dan Bahadur Singh (P.W.3)
was recorded. When he recorded the
statement of Chandra Bhushan, he did not
remember it. He did not see the license of
Chandra Bhushan's gun at the time of
recording his staement nor did he see how
many
cartridges
were
with
Chandra
Bhushan. He submitted that empty catridge,
which
was
found
at
the
place
of
occurrence, was not sent by him to the
ballistic expert in order to verify as to
whether it was fired with the gun of
Chandra Bhuhan or not. He did not get the
gun inquired as to whether it was used or
not as during the investigation, firing from
it was not told. He also stated that house of
Kunvar Bahadur Singh (P.W.1) and Dan
Bahadur Singh (P.W.3) was 127 steps away
from the place of incident. He did not
record the statement of all the persons of
the houses situated within the radius of 127
steps, but he recorded some of them. He
recorded the statement of Shambhu and
Pancham and may be others fled at that
place on account of the terror that they too
would be made accused. He further stated
that he did not tell as to whether Kunvar
Bahadur (P.W.1) came at Sadar with the
corpse or not.

22. P.W.11-S.I. Shyampal Singh
Rana, in his cross-examination, has denied
the suggestion that report was lodged after
he reached the place of incident. He did not
record the statement of S.I. Raghuraj Singh
during the investigation. He did not record
the statement of the persons in whose
presence he saw the torches. The torches
were in running condition as it was seen in
a day time, therefore, he could not assess
the range of the light of the torches in
night. He did not record the difference of
two places from whom he collected the
blood in the site plan and he did not record
the difference during the investigation nor
he is able to recall the same. However, it
could be assumed to be 14-20 feet. He did
not prepare any memo prior to recovery.
He further stated that in the houses of the
accused persons from where recovery was
said to be made by him on their pointing
out, he did not know who lived therein but
164 INDIAN LAW REPORTS ALLAHABAD SERIES
their family members were living there. He
further stated that lathi was recovered from
the open shed (chappar) outside the house
of accused Sardar Bahadur Singh, which is
the first room while entering his house and
the said lathi was recovered on the pointing
out of accused Sarda Bux Singh. The two
doors of the said room was opened inward
and one door of the said room was opened
outward. He enquired both the accused
persons beneath the trees, situated in front
of the house of Shambhoo Chamar. He
denied that he did not explain as to how
many persons gathered there. He, however,
stated that it must have taken 10-15
minutes to inquire. First of all, he enquired
from accused Sardar Bahadur Singh,
recovered the lathi, prepared the site plan
and thereafter he enquired from accused
Sarda Bux Singh and during this period,
Sarda Bux Singh was with him and was in
custody of the Constables. Thereafter,
Constables and accused Sarda Bux Singh
did not go to the house of Sardar Bahadur
Singh after the recovery being made. He
further stated that he did not know that if
the Constables kept talking with accused
Sarda Bux Singh, then what they talked to
him about. At that relevant time, several
small children were there but he could not
give numbers of that. The older person
probably were not in that crowd. After
sometime from the recovery of two
persons, the Constables took by arresting
accused Bhagwat Singh and accused Hari
Shanker Singh. He did not remember the
place from where they were arrested and
also did not remember the place from
where they were enquired. He, however,
first of all, recorded the statement of
accused Bhagwat Singh and also completed
the recovery process and then he enquired
from accused Bhagwat Singh. He further
stated that he did not remember whether he
enquired from accused Bhagwat Singh
about Kanta or not and also he did not
remember the place where he enquired
from accused Hari Shanker. He further
stated that he did not search the accused
person because he was brought there by
other personnel. He did not record the
statement of said personnel. He further
stated that the gun from where it was
recovered, was the outer room of the house,
which was also known as Takotha. He did
not mention the doors of the room from the
place where the recovery was made. No
recovery memo was prepared by him prior
to arrest of accused Bhagwat Singh and
accused Hari Shanker Singh. He further
stated that he did not know whether
Chatrapal and accused Hari Shanker Singh
were having relation or not. He did not see
the family register nor see ration card for
ascertaining the fact as to who lives to
whom house. He further stated that the
sand that came out from the canal in the
construction of the house was piled up but
he did not remember that which part of the
house was to be constructed.

23. P.W.11-S.I. Shyampal Singh
Rana, in his cross-examination, has further
stated that he did not beat up or harshly
treated the accused. He did not remember
that when accused Hari Shanker was
brought before him after arresting, did he
get any injury or not. He also stated that he
knows Sri Jagannath Singh. After the
incident, Sri Jagannath Singh made an
application against the conduct of the
police. He stated that in relation to the
investigation, he lastly visited the village,
where the incident occurred, on 04.09.1981
and on 04.09.1981, he did not search the
house of any accused person. He denied the
suggestion that the mark of blood on the
recovered items were not present. He did
not send it to Chemical Examiner. He
further stated that he could not trace
9 All. Shiv Baran Singh & Ors. Vs. State of U.P.
165
Bhagawati Gaderiya nor did he recorded
his statement. He stated that he did not try
to find out the cause of heated verbal
exchange in the madrigals but on seeing the
Case Diary, he stated that he got to know
that Chandra Bhushan Singh had stated the
reason for the dispute in madrigals. He
stated that he did not search accused
persons for the torches. P.W.2-Tej Bahadur
Singh has made statement that entire
incident was seen by every person from
their own torches as well as from the light
of the torches of the killer. P.W.3 Dan
Bahadur Singh has made statement that he
listened the alarm that Awadhesh Bahadur
Singh was being beaten and this witness
did not tell him about listening of any blast
and also did not tell him about seeing the
incident in the torchlight. He also stated
that it is not written in the statement made
by P.W.3-Dan Bahadur Singh that accused
Bhagwat told the Sub-Inspector in front of
him about the gun which he was carrying
would be made recovered by him. He did
not record any statement of the brother of
the complainant Faujdar Singh. He did not
make any identification of the recovered
Katta. He denied the suggestion that
accused, who were said to be arrested
during the daytime, were actually arrested
at night and also no recovery was either
made at the pointing out of accused or from
their house. He further stated that in the
recovery memo, it has not been noted as to
whether the copy of it has been given to the
accused or not. He also stated that when he
reached the police station along with the
accused persons, copy of the recovery
memo was not along with them. He also
stated that it would be wrong to say that
Jagannath Singh identified against him and
according to him, accused were the men of
Jagannath Singh and because of that he was
falsely implicated. Jagannath Singh made
applications for identification against the
higher officials only after the incident and
not prior to it. The complainant belongs to
a family of simple living. He further stated
that during his posting, the complainant did
not visit the police station. It would be
wrong to say that due to influence of
complainant or pressure of higher officials,
unfair investigation was conducted and also
no recovery memo was prepared at police
station. He did not record the statement of
Chaukidar.

24. The evidence of P.W.9-S.I. Hanoman
Singh shows that in September, 1981, he was
posted at Police Station Bhadokhar, Raebareli.
The investigation of the case under Section 25
of the Arms Act against accused Bhagwati was
conducted by him. From 03.09.1981, he started
the investigation of the case and on the said
date, he made entries the copy of the documents
in the case diary and recorded the statement of
S.I. Sri Shyam Pal Singh (P.W.11) and H.C.
Ramjas Yadav (P.W.7) at the police station. On
24.09.1981, he recorded the statement of
witnesses Jawahar Lal, Baijnath Singh. He
inspected the place of occurrence on the
pointing out of witness Jawahar Lal and
prepared the site plan (Ext. Ka. 10). Thereafter,
he made enquiry from Ved Prakash and Sahab
Datt. On 30.09.1981, after completion of
investigation, he submitted charge-sheet (Ext.
Ka.11) against the accused. He proved the chick
report (Ext. Ka.12) which was written and
signed by H.C. Ramjas Yadav.

In his cross-examination, P.W.9
S.I. Hanoman Singh has deposed that he
did not produce the gun before the District
Magistrate, Raibareli nor taken permission
for initiation of case under Section 25 of
the Arms Act.

25. The evidence of P.W.8-Ram
Adhar Rawat shows that on 02.09.1981, he
was posted as Constable at Police Station
166 INDIAN LAW REPORTS ALLAHABAD SERIES
Bhadokhar. On the said date, he went along
with the Inspector at Village Parmanpur. At
about 08:30 a.m., he was handed over the
sealed deadbody, which was taken by him
for post-mortem to hospital. He identified
the deadbody before the doctor. He also
handed over the requisite documents in
relation to deadbody to the doctor. When
the deadbody was in his custody, it was
being kept in a sealed condition and no one
was permitted to look or touch it.

In the cross-examination, P.W.8Ram Adhar Rawat has stated that he
brought the deadbody on a cart. He brought
the cart from Majorganj. He reached
hospital at 04:00 p.m.. He handed over the
documents to the doctor at 04:00 p.m.
Chaukidar was also with him and none
else.

26. The post-mortem on the dead
body of Awadhesh Bahadur Singh was
conducted on 02.09.1981, at 4.00 p.m., by
Dr. D.S. Shukla (P.W.10), who, found, on
his
person,
ante-mortem
injuries,
enumerated hereinafter :--

"Ante-mortem
injuries
of
deceased Awadhesh Bahadur Singh

(1) Incised wound with contused
margins at 4 cm x 2.5 cm x bone deep
medial part right eye nosal bone cut eye
ball cut and wound cut.

(2) Incised wound with contused
margins 10 cm x 2 cm x bone deem right
zygomatic part zygomatic process cut
(outer lable).

(3) Two overlapping incised
wound with contused margins 10 cm x 4
cm bone deep 2 cm above no.2.

(4) Lacerated wound 7 cm x 1.5
cm x bone deep right parietal region 11 cm
from right ear.

(5) Incised wound with contused
margins. over pinne of right ear 4 cm x 3
cm x through and through.

(6) Lacerated wound 2 cm x 0.5
cm x muscle deep 2 cm below right eye.

(7) Lacerated wound 2 cm x 1⁄2
cm x bone deep on right moral region.

(8) Lacerated wound 9 cm x 1 cm
x bone deep left parietal region 7 cm above
left ear.

(9) Abrasion 4 cm x 1 cm below
right clavicle.

(10) Lacerated wound 3 cm x 0.5
cm x bone deep back of right elbow joint.

(11) Lacerated wound 2 cm x 0.5
cm x bone deep inner side right lower 3rd
fore arm.

(12) Lacerated wound 5 cm x 1
cm x muscle deep on middle of right index
and middle finger.

(13) Lacerated wound 5 cm x 2
cm x bone deep 11 cm below right knee.

(14) Two contusion right chest.
20 cm x 3 cm, 12 cm below right asula.

(15) Lacerated wound 2 cm x 1
cm x bone deep outerside left elbow.

(16) Traumatic swelling 10 cm x
5 cm x lower part left forearm both bones
fractured.