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

- **Citation:** (2022) 1 ILRA 34
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-13
- **Case number:** Criminal Appeal No. 387 of 1985
- **Bench:** Ramesh Sinha, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-pratap-singh-ors-v-state-of-u-p-47688
- **Pages:** 17

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Section 154- Prompt
F.I.R - The F.I.R. of the incident was
promptly lodged. Prior to lodging the
F.I.R., there is no chance for the
informant to consult anyone.

Where the F.I.R is lodged promptly then any
chances of fabricating the story are ruled out
and the case of the prosecution cannot be
doubted on this ground.

Criminal Law - Indian Evidence Act,
1872- Section 3- Injured eye witness - It
is to be kept in mind that the evidentiary
value of an injured witness carries great
weight-The
prosecution
has
been
successful in proving the presence of
PW1 & PW2 at the time and place of
incident.
They
are
found
to
be
trustworthy
and
reliable-The
injury
report as well as post-mortem report
has fully supported the prosecution
case.

The injuries of an injured witness, duly
corroborated by the medical evidence and
bereft of any major contradictions, establishes
his presence at the time and place of the
occurrence and hence testimony of an injured
witness is accorded a special status.

Criminal Law - Indian Evidence Act,
1872- Section 8- The prosecution has
successfully proved the motive. There
was a prior long-time enmity between
the deceased and the accused.
1 All. Shiv Pratap Singh & Ors. Vs. State of U.P.
35
Where the prosecution establishes the motive
then the defence of false implication of the
accused cannot be accepted. (Para 32, 41, 42)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

## Text

_Characters 0–39,845 of 57,490. This is a partial read: ask again with offset=39845 for what follows._

34 INDIAN LAW REPORTS ALLAHABAD SERIES
been disputed and rather has been
admitted by the learned Counsel for the
Respondent NCB that there is no dispute
that the drug in question fulfils the first
condition for falling within the exception
to Entry 35 of the Notification dated 1411-1985
issued
by
the
Central
Government
containing
the
list
of
Narcotic Drugs, i.e. being "compounded
with one or more other ingredients and
containing not more than 100 milligrams
of the drug per dosage unit and with a
concentration of not more than 2.5% in
undivided preparations", Phensedyl New
Cough Linctus is not a Narcotic Drug and
any dealing in this drug would not be
subject to the provisions of the NDPS
Act. The search and seizure conducted by
the NCB Officials in Jaunpur on 17-012021 was without any authority of law
and so is the complaint filed on 15-072021 by the Intelligence Officer, NCB
under Sections 8, 21 (c), 22, 25, 29 and
60 (3) of the NDPS Act in the Court of
Special Judge, NDPS Act at Jaunpur.

41. Accordingly, both the Writ
Petitions are allowed. The proceedings of
the aforesaid complaint in Case No.
NCB/LZU/CR No. 04 of 2021 under
Sections 8, 21 (c), 22, 25, 29 and 60 (3) of
the NDPS Act pending in the Court of
Special Judge, NDPS Act, Jaunpur and the
investigation against the petitioners in
relation to the aforesaid complaint are
quashed.
----------
(2022)01ILR A34
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.12.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.
Criminal Appeal No. 387 of 1985

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

Counsel for the Appellants:
R.K.
Singh,
Anurag
Kumar
Singh,
Ghanshyam Tripathi, ML Syal, M.L. Syal,
Shashi Kiran Arya, Shishir Pradhan

Counsel for the Respondent:
Govt. Advocate

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 154- Prompt
F.I.R - The F.I.R. of the incident was
promptly lodged. Prior to lodging the
F.I.R., there is no chance for the
informant to consult anyone.

Where the F.I.R is lodged promptly then any
chances of fabricating the story are ruled out
and the case of the prosecution cannot be
doubted on this ground.

Criminal Law - Indian Evidence Act,
1872- Section 3- Injured eye witness - It
is to be kept in mind that the evidentiary
value of an injured witness carries great
weight-The
prosecution
has
been
successful in proving the presence of
PW1 & PW2 at the time and place of
incident.
They
are
found
to
be
trustworthy
and
reliable-The
injury
report as well as post-mortem report
has fully supported the prosecution
case.

The injuries of an injured witness, duly
corroborated by the medical evidence and
bereft of any major contradictions, establishes
his presence at the time and place of the
occurrence and hence testimony of an injured
witness is accorded a special status.

Criminal Law - Indian Evidence Act,
1872- Section 8- The prosecution has
successfully proved the motive. There
was a prior long-time enmity between
the deceased and the accused.
1 All. Shiv Pratap Singh & Ors. Vs. State of U.P.
35
Where the prosecution establishes the motive
then the defence of false implication of the
accused cannot be accepted. (Para 32, 41, 42)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

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

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

INTRODUCTION

(1) Six accused persons, namely, Shiv
Pratap Singh, Vijay Vikram Singh, Kali
Charan, Nanhey, Ram Autar and Jaskaran
were tried by the IV Additional Sessions
Judge, Hardoi in Sessions Trial No.314 of
1984 : State Vs. Shiv Pratap Singh and others
arising out of Case Crime No.188 of 1983,
under Sections 147, 148, 149, 302 I.P.C. at
police station Bilgram, District Hardoi.

(2) Vide judgment and order dated
07.06.1985, the learned IV Additional
Sessions Judge, Hardoi, while acquitting the
accused
Jaskaran
from
all
the
offences/charges
levelled
against
him,
convicted and sentenced the rest of the
accused persons, namely, Shiv Pratap Singh,
Vijay Vikram Singh, Ram Autar, Kalicharan
and Nanhey in the manner as stated herein
below:-

"i. Under Sections 302/149 I.P.C.
to undergo life imprisonment; and

ii. Under Section 323/149 I.P.C. to
undergo six months R.I."

In addition, the IV Additional
Sessions Judge, Hardoi had also convicted
the accused Shiv Pratap Singh, Nanhey Lal
and Ram Autar under Section 148 I.P.C. and
sentenced them to undergo one year's
imprisonment and other two accused
persons, namely, Vijay Vikram Singh and
Kali Charan were convicted under Section
147 I.P.C. and sentenced them to undergo six
months' R.I.

All the sentences were directed to
run concurrently by the IV Additional
Sessions Judge.

(3) During pendency of the instant
appeal, appellant no.1-Shiv Pratap Singh,
appellant no.3-Kalicharan and appellant no.5Ram Autar died and, as such, vide order
dated 13.08.2018, the instant appeal filed
against the aforesaid appellants no.1, 3 and 5
stand abated.

(4) Now, the instant appeal is surviving
only in respect of appellant no.2-Vijay
Vikram Singh and appellant no.4-Nanhey,
who are said to be in jail since 08.07.2019.

FACT

(5) Shorn off, unnecessary details the
facts of the case are as under :-

On 28.10.1983,
informant-Lal
Bahadur Singh (PW1) and his elder brother
Vijay Bahadur Singh Pradhan (deceased)
had gone to Cold Store, Bilgram for taking
the seed of potato and after taking it, they
were returning home on their respective
bicycle and when they reached near the
Sorghum (Jowar) farm of one Kunwar Pal
of Chakarpurwa at about 4 p.m. in the
evening,
accused/appellant
no.1-Shiv
Pratap Singh armed with Kanta and his son
accused/
appellant
no.2-Vijay
Vikram
Singh armed with Lathi challenged them
(informant and his brother Vijay Bahadur
Singh Pradhan) and said that "घेर कर मार
डालो दुश्मन आज जाने न पाए". Thereupon,
36 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant no.3-Kalicharan armed with lathi,
appellant no.4-Nanhey armed with Banka,
appellant no.5-Ram Autar armed with
Kanta and other two other persons armed
with lathi, to whom identified by him by
their face but not by name, came out from
Sorgum (Jowar) field and started assaulting
the brother of the informant Vijay Bahadur
Singh (deceased). Thereafter, informantLal Bahadur Singh (P.W.1) and his brother
Vijay Bahadur Singh (deceased) raised
alarm and on hearing their alarm, Raj
Kumar, son of Hardayal and Vishwanath
Singh son of Thakur Bux Singh, r/o
Kuluwapur, who were ploughing their field
nearby and one Ram Saroop Singh (P.W.2),
son of Ujagar Singh, who was going
towards his home from Bilgram, came at
the place of occurrence and they all asked
the accused persons not to assault Vijay
Bahadur
Singh
(deceased)
and
also
challenged them. Thereafter, appellant
No.3-Kalicharan started assaulting the
informant-Lal Bahadur Singh (P.W.1) with
lathi, as a consequence of which, he also
sustained injuries on his left hand wrist,
elbow and arm and on right leg.

It has also been stated in the F.I.R.
by the informant-Lal Bahadur Singh (P.W.1)
that about five years ago from the date of the
incident, his aunt Smt. Bittan Devi, who is the
samdhin of appellant no.1-Shiv Pratap Singh
and mother-in-law of appellant no. 2-Vijay
Vikram Singh, was murdered, in which his
brother Vijay Bahadur Singh (deceased) was
named as accused but was later on acquitted
by the competent Court. On account of the
aforesaid, the appellants had a lot of animosity
in their heart against informant-Lal Bahadur
Singh (P.W.1) and his brother Vijay Bahadur
Singh (deceased). Because of this enmity, all
the appellants formed an opinion and assaulted
the deceased Vijay Bahadur Singh with Kanta,
Banka and Lathi.

In the F.I.R., it has also been stated
that Vijay Bahadur Singh (deceased) fell on
the spot and died and injuries of Kanta,
Banka and Lathi were appearing on his body.
On challenging by the informant Lal Bahadur
Singh (P.W.1) and other persons, all seven
accused persons ran towards the southern
direction. The informant P.W.1-Lal Bahadur
Singh and other witnesses, who were present
there, saw the accused persons assaulting the
deceased and they identified the two
unknown persons by their face and they can
recognize them when they came in front of
him.

(6) The informant Lal Bahadur Singh
(P.W.1) got the written report (Ext. Ka. 1)
scribed by himself at Bilgram Chauraha.
He, thereafter, put his signature on it. He,
then, proceeded to Police Station Bilgram,
district Hardoi and lodged it.

(7) The evidence of PW4-Ishtiyaq
Mohammad shows that he was posted as
Head Constable, police station Bilgram on
28.10.1983. On the date itself i.e. on
28.10.1983, Lal Bahadur Singh (P.W.1)
gave a written report (Ex. Ka-1) at the
police station at about 4.30 p.m., on the
basis of which, he prepared Chik Report
(Ex. Ka-2) and made entry to this effect in
GD (Ex. Ka-3). The recovered items from
the place of incident was received in a
sealed condition at 1.05 p.m. on 29.10.1983
at police station, which was submitted in
Malkhana and entry of it was made in GD
as No.15 and the signed copy (Ex. Ka-4) of
the same was submitted to the Court. The
recovered material related to this case was
sent to Sadar Malkhana, Hardoi in a sealed
condition through Constable Ajay Singh on
08.11.1983 and the entry of the same was
made in GD and copy of the same is
submitted to the Court as Ex. Ka-5.
1 All. Shiv Pratap Singh & Ors. Vs. State of U.P.
37

In
cross-examination,
P.W.4Ishtiyaq Mohammad denied the suggestion
that the report of the case was written by him
after Sub-Inspector returned from the place of
incident and after taking opinion of the people.

(8) The evidence of P.W.9-R.K. Tiwari
shows that in the month of October, 1983, he
was posted as Station Officer, Bilgram. The
case of the incident was lodged in his
presence. He started the investigation of the
case on the date itself. He recorded the
statement of informant-Lal Bahadur Singh
(PW1) and sent him for medical examination.
Thereafter, he went to the place of occurrence.
The evidence of PW9 R.K. Tiwari further
shows that after sending the informant for
medical examination, he went to the place of
the incident and found that the dead body of
the deceased Vijay Bahadur Singh was lying
in the field of Kunwar Pal. Thereafter, he
prepared the Panchayatnama (Ex. Ka-7) of the
dead body of deceased and also prepared the
photo lash (Ext. Ka.8), challan lash (Ext.
Ka.7), letters to C.M.O. (Ext. Ka. 10 and 11).
Thereafter, he sealed the deadbody of the
deceased and sent it for post-mortem at
District Hospital, Hardoi along with Constable
Ishtiaq Ali and Constable Harnath Singh.

PW9 R.K. Tiwari further deposed
that before sealing the dead body of the
deceased, he took in occupancy the blood
stained muffler, sadri and kurta from the body
of the deceased and sealed it and prepared
recovery memo of the same (Ex. Ka-13). He
found from the pocket of sadari of Vijay
Bahadur Singh (deceased) two currency note
of One denomination each, stamp by the name
of Vijay Bahadur Singh (Pradhan), one
fountain pen, tobacco in box and prepared
recovery memo of the said articles (Ex. Ka14). He, then, collected samples of blood
stained earth, parts of blood stained
sorghum (Jowar) plant, plain earth, plain
sorghum (Jowar) plant from the place of
occurrence and sealed them in separate
containers and prepared memo Ext. Ka-15. At
the place of incident, he also found a cycle and
a pair of slippers and which were given to the
son of deceased and memo of the same was
prepared as Ex. Ka-16. On the pointing out of
witnesses he prepared Site Plan (Ex. Ka-17).
He next deposed that on 29.10.1983 he
arrested accused Jaskaran and Nanhey, and
recorded their statement. Accused Nanhey has
stated that he will help in the recovery of
Banka, which was used in the murder of
deceased Vijay Bahadur Singh. Thereafter, he
took both the accused in jeep to Kutuapur
village, from where witnesses Umaar and
Khetai were taken also accompanied them.
Accused Nanhey in front of witnesses took out
Banka from the bushes of Acacia (Babool) and
grass, which was blood stained. The recovery
memo (Ex. Ka-18) of the Banka was prepared
by Hari Mohan Shukla on his dictation.

After preparing recovery memo
(Ex. Ka-18) of the Banka, PW9 R.K. Tiwari,
then, sent the recovered material and both the
accused appellants, Jaskaran and Nanhey, to
the police station through H.C. Hari Mohan,
Constable
Radhey
Shyam,
Constable
Gurdayal and Constable Chandra Pal. He then
prepared site plan of the place where recovery
was made (Ex. Ka-19). He then went on for
search of other accused and when they were
not found he came back to the police station.
Inspector S.N. Mishra also investigated the
case in the meantime. He recorded the
statement of complainant/ informant PW1
once again. Accused appellant Ramautar and
Kalicharan were arrested by Sub-Inspector
Lallu Singh and he recorded their statement.
Thereafter, investigation of this case was again
done by him.
38 INDIAN LAW REPORTS ALLAHABAD SERIES

On 03.11.1983 accused Vijay
Vikram Singh surrendered before the
Court. He sent the recovered materials for
chemical examination to Agra. After
completing the investigation he filed the
charge sheet against the accused appellants
on 12.11.1983 (Ex. Ka-20).

In his cross-examination, P.W.9
deposed that he started the investigation of
the case fifteen minutes after the case was
registered. He made a copy of the report in
his Case Diary and also made copy of GD
which took him ten minutes. It took him
about five to seven minutes to record the
statement of PW1 informant Lal Bahadur
Singh. He reached at the place of the
incident at 17:20 hour. The time of
panchayatnama was written as 16:00 hour.
He further stated that the dot (.) occurring
after 16 hour was overwriting and on this,
he put his signature. He denied the
suggestion that FIR was not written till the
time of writing the Panchayatnama and also
that he got the written report prepared with
his own advise. He further deposed that
thickness between two crops of Sorghum
(Jowar) was around one feet. The Sorghum
(Jowar) crops in the field of Sudarshan was
8 to 10 feet tall but the Sorghum (Jowar)
crops in the field of Kunwarpal was not
that tall. Accused Jaskaran, Nanhey and
brother of accused Shiv Pratap met in
Gonda. Gun and cartridges were recovered
from accused Jaskaran and that is why he
too was arrested. Only Nanhey told him
about the Banka. He denied the suggestion
that Banka was not recovered at the
pointing out of Nanhey and he prepared its
fake memo. He did not detected about the
tractor and trolly but he saw in the register
that deceased Vijay Bahadur Singh came to
cold storage and got potatoes.

(9) P.W.6 Constable Ajay Singh in
his deposition before the trial Court stated
that on 08.11.1983 he took the recovered
material related to this case and deposited
the same in Sadar Malkhana, Hardoi in a
sealed and packed condition. The recovery
material was deposited in the same
condition as was received by him.

(10) P.W.7 Ram Pal deposed before
trial Court that he was posted as Constable,
polce station Bilgram, Hardoi and on
07.12.1983 he took the sealed packed
recovered material for examination to
CMO office and after receiving the letter
from the office of CMO he took the same
to Agra for further examination of the
recovered material.

(11) P.W.8 Dammar in his deposition
before the trial Court deposed that around
one year and 21⁄2 months ago, he and Khetai
were going to Bilgram. The police met
them near Dakshina Usar of his village and
the police, who were in jeep, called them.
Accused Nanhey and one other person was
also there in the police jeep. Accused
Nanhey talked to them and told them that
he will hand over the Banka used in the
murder of Vijay Bahadur Singh to the
police. Accused Nanhey was followed by
P.W.9 R.K. Tiwari, Dammar, Khetai and
other policemen. After some distance
accused Nanhey took out Banka from the
bushes of acacia (babool) and grass, which
was blood stained. The Banka was
recovered near the Paddy fields of Ishwar
Chand. Recovery memo of the said Banka
was prepared by P.W.9 R.K. Tiwari and it
was 11 o' clock at that time. After doing the
paper work P.W.9 R.K. Tiwari affixed
thumb impression of his and Khetai and
also sealed the Banka.

In his cross-examination, PW8
Dammar deposed that apart from accused
Nanhey, accused Jaskaran was also present in
1 All. Shiv Pratap Singh & Ors. Vs. State of U.P.
39
the police jeep and they both are known to him
and all of them are resident of village Kutuapur.
Banka was not buried in the soil but was
covered with grass. Except the field belonging
to Ishwarchand no other field is present nearby
and there is only jungle. In the paddy fields of
Ishwarchand many people were working, who
came on spot and whose name he does not
know. People working in the field of
Ishwarchand did not affix their thumb
impression on the memo but in front of those
people, accused Nanhey took out Banka from
the bushes. He further denied the suggestion
that PW9 R.K. Tiwari called him in police
station to affix his thumb impression on
recovery memo. He did not remember whether
Bittana's bail was taken in the murder case of
Vijay Bahadur's case or not. PW9 R.K. Tiwari
met him after 12 to 14 days of recovery of
Banka. PW9 R.K. Tiwari did not investigate
anything further from him and did his paper
work from where the Banka was recovered and
further he does not remember whether he made
any copy of it or not. When he saw accused
Nanhey and accused Jaskaran sitting in the jeep,
he saw that they were tied with rope. He denied
the suggestions that he belonged to Vijay
Bahadur's party and that accused Nanhey did
not take out the Banka and also that PW9 R.K.
Tiwari called him in police station and he
affixed his thumb impression on recovery
memo thereon.

(12) P.W.11 Eqtada Hussain deposed
before the trial Court on 02.02.1983 that in the
month of October, 1983 he was posted as
Supervisor National Cold Storage, Bilgram,
District Hardoi and that he has brought delivery
register of the year 1983. He stated that
whenever any material is delivered its entry is
being made in the register. On 28.10.1983
deceased Vijay Bahadur Singh got the delivery
of 41 sacks of potato in two parts, payment of
which was made two nights earlier. He had
entered this delivery in two serial nos. 951
and 952 in his delivery register. Deceased Vijay
Bahadur Singh had made his signature in the
said entry. Copy of the said delivery register has
been entered as Ex. Ka-22 and the original is
with him.

In his cross-examination, PW11
deposed that timing is never mentioned in the
delivery register, but from his memory he stated
that potatoes were taken out from the cold
storage at around 4 p.m. in the evening. After
that he could not tell whether deceased Vijay
Bahadur
Singh
left
with
his
potatoes
immediately or later.

(13) P.W.12-Surendra Nath Bajpai has
stated in his deposition before the trial Court
that on 23.02.1978, he was posted as Petition
Clerk in the Court of District Magistrate. On the
said date, an application has been submitted
before the Court by a person named as Vijay
Bahadur whose address has been mentioned in
the
application.
He
received
the
said
application, in which his signature and seal of
District Magistrate appeared. The duplicate
copy of the said application (Ext. Ka.23) was
sent for inquiry. There is no order of the District
Magistrate on the duplicate copy of the said
application. This peititon was with regard to
peace. He further deposed that he did not know
the applicant personally nor he could say that
who has submitted the said application.

(14) Going backwards, the injuries of
the informant PW1-Lal Bahadur Singh was
examined on 28.10.1983 at 5:00 P.M. by
PW5-Dr.
S.N.
Mishra,
who,
after
examining him, found the following
injuries (Ext. Ka. 6) on his person :-

"Injuries
of
informant-Lal
Bahadur Singh (P.W.1)
40 INDIAN LAW REPORTS ALLAHABAD SERIES

(I) An abraded contusion of 6
cms x 2 cms present on the dorsomedial
aspect of the left wrist joint and above on
the left fore-arm. Reddish in colour.

(II) A transmative swelling with
contusion of 4

cms. x 2 cms. present on the
dorsal aspect of

the left elbow joint. Reddish in
colour.

(III)
A
superficial
lacerated
wound of 1.5 cms. x 0.5 cm present on the
anterior aspect of the Rt. leg 22 cms. above
from the Rt. medial malecus. The aspect of
the Rt. Leg 22 cms. above from the medial
malecus. The wound is skin deep and the
marigs
are
lacerated
and
irregular.
Complaint of pain on the left shoulder
without any mark of apparent Injury
present on the part.

As per the opinion of PW5-Dr.
S.N. Mishra, all the injuries are simple in
nature and could be caused by blunt
weapons.

(15) It is significant to mention that
P.W.5-Dr. S. N. Mishra has reiterated the
aforesaid cause of injuries on the person of
P.W.1-Lal Bahadur Singh before the trial
Court and deposed before the trial Court
that on 28.10.1983, he was posted as
Medical Officer, PHC, Bilgram, Hardoi.
On 28.10.1983 in the evening at about 5
p.m. he examined the body of injured Lal
Bahadur Singh (P.W.1) and prepared the
injury report (Ext. Ka.6). He stated that all
the injuries could be attributable to the
injured/informant
Lal
Bahadur
Singh
(P.W.1) on 28.10.1983 at about 4:00 p.m.

In
cross-examination,
P.W.5-Dr.
S.N. Mishra has deposed that it is wrong to say
that there was no injury on the body of the
injured and all the injuries could not be
attributable by its own. He denied the
suggestion that he had prepared the injury
report on the dictate of Hari Shanker Tiwari,
M.L.A.

(16) P.W.3 Har Nath Singh, who was
posted as Constable at police station Bilgram,
District Hardoi, has deposed before the trial
Court that on 28.10.1983, at about 7 p.m., R.K.
Tiwari (P.W.9) handed over him the dead body
of deceased Vijay Bahadur Singh in a sealed
condition and also relevant documents in the
field of Kunwarpal for the purpose of postmortem. He brought the dead body of deceased
Vijay Bahadur Singh at Police Lines, Hardoi at
1.30 a.m. in the morning, got its entry done and
after taking letter from R.I. he produced papers
in front of C.M.O. and after obtaining orders
from there, he took the dead body and relevant
papers and produced it before the doctor. He
further deposed that the body was in a sealed
condition till the time it was with him and did
not sustain any injury or loss.

P.W.3 Har Nath Singh further
deposed that after the post mortem was
conducted by the doctor, he brought the post
mortem report and sealed belongings found on
the dead body of the deceased to the police
station and did its entry.

In his cross-examination, PW3 Har
Nath Singh has deposed that he left the place of
occurrence with the dead body at around 7 p.m.
in the evening and the same reached at police
line at around 1.30 a.m. in the night. He met
PW10 Dr. P.K. Gangwar at around 8 a.m. and
he asked him to get the post mortem of the
body conducted. He denied the suggestion that
he produced the relevant documents relating to
post mortem before the doctor at around 1:00
p.m. and also denied that he took the dead body
from the place of occurrence in the morning.

(17) The post-mortem of the corpse of
the deceased Vijay Bahadur Singh was
conducted on 29.10.1983 at about 03:15
1 All. Shiv Pratap Singh & Ors. Vs. State of U.P.
41
p.m. at District Hospital, Hardoi by PW10
Dr. P.K. Gangwar, who, found the
following ante mortem injuries on the dead
body of the deceased Vijay Bahadur
Singh:-

"Ante-mortem
injuries
of
deceased Vijay Bahadur Singh :

1. Incised wond 14 cm x 2 cm x
muscle deep on Rt. side of face semi front of
Rt.Ear

2. Incised wound 3 cm x 1 cm x
Trachea deep on the front of neck at Layeal
proumace Trachea cut.

3. Incised wound 4 cm x 1.5 cm x
muscle deep on Lt. side of neck just below and
mandible cut.

4. Incised wound 7 cm x 2 cm x
bone deep on the Lt. Side of face at chin,
mandible cut.

5. Incised wound 10 cm x 2 cm x
bone deep on the Lt. Side of face, upper jaw,
lower jaw present, Lip cut.

6. Incised wound 14 cm x 3 cm x
bone deep on the Lt. Side face eye brow to
nose, eye damaged maxilla x zygoumatra bone
cut.

7. Incised wound 8 cm x 2 cm x
bone deep just front of left ear, Temporal bone
cut.

8. Incised wound 5 cm x 1 cm x
muscle deep on the Lt. ear. Pippa cut nuddle.

9. Incised wound 5 cm x 2 cm x
bone deep on the Lt. side of head 04 cm above
the Lt. eye brow frontal bone fractured.

10. Incised wound 10 cm x 0.5 cm x
skin deep on the Lt. side of Lt. shoulder and tail
facing downward.

11. Incised wound 10 cm x 0.5 cm c
skin deep on the Lt. side of chest just on the Lt.
nipple.

12. Incised wound 6 cm x 2 cm x
muscle deep on 10 cm above Lt. wrist joint
on it, fore- arm back.

13. Two abrasion on the back
of left arm back 4 cm. above the Elbow
joint size 2 x 1 cm and

14. Incised wound 3 x 1 cm x
muscle on the inner side of Lt. hand palm 4
cm below wrist joint.

15. Incised wound 6 cm x .5 cm x
skin on Lt. arm back just above axilla.

16. Incised wound 6 cm x .5 cm x
skin deep on the Lt. side back just above
axilla.

17. Contusion 15 x 2 cm on the
Lt. side of ABD. 12 cm below Lt., nipple 6
O'clk.

18. Contusion 12 x 2 cm on the
Lt. side of ABD 2 cm below the Inj. No.17

19. Contusion 14 cm x 2 cm on
the Lt. side of ABD 20 cm below the Lt.
nipple.

20. Incised wound 2 x 1 cm x
bone deep on back on Rt. Index fingure
fractured 4 cm above tip.

21. Incised wound 2 x 1 cm x
bone deep on the back of Rt. middle
fingure fractured 5 cm above tip.

22. Abrassion 1 x 1 cm on the Lt.
knee joint."

As per the opinion of Dr. P.K.
Gangwar (P.W.10), deceased died due to
shock and haemorrhage due to ante-mortem
injuries sustained by him.

(18) It is significant to mention that
P.W.10-Dr. P.K. Gangwar has reiterated
the cause of death of the deceased and has
stated in his deposititon before the trial
Court that on 29.01.1983, he was posted at
District Hospital, Hardoi and on that date,
at about 03:15 p.m., he conducted the postmortem of the deceased Vijay Bahadur
Singh. He further stated that Constables
Harnath Singh and Ishtiyaq Ali had brought
the sealed deadbody of the deceased Vijay
Bahadur Singh for post-mortem. They had
42 INDIAN LAW REPORTS ALLAHABAD SERIES
also identified the deadbody of deceased
Vijay Bahadur Singh before him. He also
deposed that on internal examination, he
found that membrane of the brain of the
deceased was torned; blood was oozing out
from there; the brain of the deceased was
also torned; four ounces of indigestive food
was present in the stomach of the deceased;
the deceased was died one day before; the
death of the deceased could be attributable
on 25.10.1983 at 4:00 p.m.; and he
prepared the post-mortem report (Ext. Ka.
21) by itself.

In cross-examination, P.W.10 Dr.
P.K. Gangwar has stated that documents
relating to post-mortem was received by
him on 29.10.1983 at about 01:00 p.m. He
further deposed that injuries no. 13 and 22
could be attributable by felling on a hard
object. Injuries no.17, 18 and 19 could not
be attributable when a man gone through
bicycle. There could be a difference of six
hours of the duration of both side.

(19) The case was committed to the
Court of Session by the Munsif Magistrate
(West), Hardoi on 13.06.1984. The learned
Sessions Court framed charges against
accused/appellants
Shiv
Pratap Singh,
Nanhey and Ram Autar under Section 148
I.P.C.; against all accused/ appellants under
Sections
302/149
I.P.C.;
against
accused/appellants
Shiv
Pratap Singh,
Nanhey, Ram Autar, Vijay Vikram Singh
and Jai Karan under Section 323 I.P.C.;
against accused/appellants Vijay Vikram
Singh, Kali Charan and Jai Karan under
Section 147 I.P.C. They pleaded not guilty
to the charges and claimed to be tried.
Their defence was of denial.

(20) During trial, in all, the
prosecution examined 12 witnesses. Two of
them, namely, the informant Lal Bahadur
Singh (P.W. 1) and Ram Saroop Singh
(P.W.2) were examined as eye-witnesses.
Constable Harnath Singh, who handed over
the sealed deadbody of the deceased for
post-mortem, was examined as P.W.3; H.C.
Ishtiyaq Mohammad, who had written the
chik FIR on the basis of the written report,
was examined as P.W.4; Dr. S.N. Misra,
who
medically
examined
the
injured/informant
Lal
Bahadur
Singh
(P.W.1), was examined as P.W.5; CP Aajay
Singh, who deposited the recovered articles
to Malkhana, was examined as P.W.6; CP
Ram Pal, who brought the recovered
articles from Malkhana for chemical
examination to Agra, was examined as
P.W.7; Dammar, who is witness of
recovery of Banka on the pointing out of
accused Nanhey, was examined as P.W.8;
R. K. Tiwari, who is the Investigating
Officer of the case, was examined as
P.W.9; Dr. P.K. Gangwar, who conducted
the post-mortem of the deceased, was
examined as P.W.10; Eqtada Hussain, who
was the Supervisor of National Cold
Storage, Bilgram, was examined as P.W.11
to prove the fact that on 28.10.1983,
deceased Vijay Bahadur Singh came at
Cold Storage for purchasing the potatoes;
and Surendra Nath Bajpai, who was posted
as Petition Clerk in the office of District
Magistrate, was examined as P.W.12.

From the side of defense, Ramesh
Chandra Dwivedi, who was the Deputy
Inspector of School, Hardoi, was examined
as DW-1.

(21) P.W.1-Lal Bahadur Singh, in his
examination-in-chief, has stated before the trial
Court that around 1 and 11⁄2 months ago from
today (10.12.1984), at about 3-4 p.m., he and his
brother Vijay Bahadur was going from Bilgram
to his village Kulluwapur and when they reached
in between the field of Kuwarpal and Sudarshan,
1 All. Shiv Pratap Singh & Ors. Vs. State of U.P.
43
accused Shiv Pratap Singh and Vijay Vikram
Singh came out from the field of Jawar of
Kuwarpal. Accused Shiv Pratap was having
Kanta and accused Vijay Vikram Singh was
having lathi. They told them that "?ksj yks lkyksa dks
ekj Mkyks tkus u ik;sA" Vijay Bahadur was in front
of him (P.W.1). On this statement, Kalicharan
armed with lathi, Nanhey armed with Banka,
Ram Autar armed with Kanta and two other
persons to whom he did not recognize armed
with lathi, came out from the field of Kuwarpal
and when they challenged, then, his brother
Vijay Bahadur and he went towards north
direction and raised alarm and Vijay Bahadur
tried to run. Thereafter, in the field of
Kunwarpal, 2-3 lathi blow was occurred upon
Vijay Bahadur, as a consequence of which,
Vijay Bahadur fell down. Thereafter, accused
armed with Kanta and Banka assaulted Vijay
Bahadur. He was assaulted by Kalicharan with
lathi. This incident was also seen by Ram
Swaroop (P.W.2), Rajkumari and Vishwanath.
His brother Vijay Bahadur died on the spot. On
his hue and cry, the aforesaid witnesses and
several other persons were came there and
thereafter, accused ran towards south direction.

P.W.1 has further deposed that his
grand-father was Gajraj Singh. The brother of his
father was Netrapal Singh. Smt. Bittan Devi was
the wife of Netrapal. Prior to 5-6 years ago, Smt
Bittan Devi was murdered and a case in this
regard was lodged against his brother Vijay
Bahadur, Raj Kumar, Munne and Hardayal, in
which they were acquitted. The report of the case
was lodged by accused Shiv Pratap. Vitana and
Netrapal had no son and they had three
daughters, namely, Prem Kumari, Jaidevi and
Sail Kumari. He further deposed that Sail
Kumari was married with accused Vijay
Vikram. A case in respect of assets of Netrapal
was lodged by Prem Kumari and Jaidevi against
Vitana.

P.W.1 has also stated in his
deposition before the trial Court that Vijay
Vikram was the son of Shiv Pratap,
whereas other accused were beloging to his
party. Prior to this murder, a case under
Section 107 Cr.P.C. was instituted between
his brother Vijay Bahadur and accused
Shiv Pratap and others. He further stated
that he scribed the F.I.R. of the incident at
Bilgram Chauraha and also lodged the
report at police station Bilgram on the date
of the incident itself.

In cross-examination, P.W.1 has
deposed that he was stayed at about 08-10
minutes at the place of the incident. He did
not go to his village Kulluwapur for giving
information. He had also not sent anyone to
his village for giving information. The
distance between the place of occurrence
and Bilgram Chauraha was about three
mile. He lodged the written report of the
incident at police station at about 4-41⁄2. He
had received a duplicate copy of the F.I.R.
from the police station. He further stated
that he was studying at Class-VIII. Since
report has to be scribed, therefore, he
scribed the report at Bilgram Chauraha and
did not go at police station directly. He
denied the suggesstion that Ext. Ka.1 was
not written by him nor his signature was
there.

P.W.1 has also stated that the
Inspector has recorded his statement and he
was sent for medical. He was stayed at
police station about 6-7 minutes. He
reached in the hospital from police station
about 5-6 minutes. After reaching the
hospital, 2-4 mintues took place to meet the
doctor. After reaching the hospital, he ate
medicine, took injuection and after 2-4
minutes, doctor told him to go home and
the doctor handed over the documents to
the
constable.
After
returning
from
hospital,
he
went
to
the
place
of
44 INDIAN LAW REPORTS ALLAHABAD SERIES
occurrence, where his brother died. He
reached at the place of occurrence at about
06:00-05:45 p.m. When he reached at the
place of occurrence, the deadbody was
lying in the field; Inspector was there and
was preparing the documents relating to the
incident; and after five minutes when he
reached there, the Inspector sealed the
deadbody of his brother.

(22) P.W.2 Ram Swaroop Singh, in his
examintion-in-chief, has stated that he known
to all the accused persons. He also known to
Vijay Bahadur Singh. Prior to 1 year and 11⁄2
months from today (11.12.1984), Vijay
Bahadur was murdered. He was going from
Bilgram to his house through bicycle and in
front of him, Vijay Bahadur Singh and Lal
Bahadur Singh was going through bicycles.
When Vijay Bahadur and Lal Bahadur
reached between the field of Kuwarpal and
Sudharshan, he reached near the tree of
Pakariaya. He listened the voice of Vijay
Bahadur and his brother. At that time, it was
03:45 p.m. He immediately reached there and
saw that Shiv Pratap Singh, Vijay, Kalicharan,
Nanhey, Ram Autar and other two unknown
persons were assaulting Vijay Bahadur with
Kanta, Lathi and Banka in the field of
Kunwarpal. Out of these persons, Shiv Pratap,
Ram Autar were having Kanta and Vijay
Vikram, Kalicharan and two other unknown
persons were having lathis and Nanhey was
having Banka. Apart from him, Raj Kumar
and Vishwa Nath Singh were also came there
and they also saw the incident. When they
challenged, Kalicharan had assaulted 2-3 lathi
blows upon Lal Bahadur. Thereafter, accused
ran towards the south direction of the field of
Kunwarpal. Vijay Bahadur Singh died on the
spot. The bicycle and slipper of Vijay Bahadur
Singh were there.

In cross-examination, P.W.2 has
stated that when the family members of the
deceased came there, then, he went with his
bicycle to home. At that time, son of Vijay
Bahadur and several other villager came
there on listening hue and cry. He further
stated that there was no need to stay there
as he brought articles from market and the
same had to go home. When the family
members were reached there, then, there
was no need to stay there for him. He was
coming from Bilgram. The distance from
Bilgram to place of incident was about 11⁄2
kosh and the distance from the place of
incident to his village was about one mile.
He further staed that he was not having any
weapon at that time.

P.W. 2 has further stated that the
uncle of Vijay Bahadur, namely, Netrapal
was murdered. In this case, he was
sentenced to undergo life imprisonment.
Visjwa Nath was the witness of this case
and his father Thakur was awarded capital
punishment.

(23) The defense has produced
Ramesh Chandra Bajpai, who was the
Deputy Inspector of School, Hardoi, as
D.W.1. He, in his examination-in-chief, has
deposed
before
the
trial
Court
on
27.03.1985 that the attendance register of
teachers of Suratipur Junior High School
was in front of him, in which, the presence
of Shiv Pratap Singh on 28.10.1983 has
been mentioned in the register. The timing
of the school was 10:00 am to 04:00 pm.
He further stated that on 28.10.1983, he
inspected the school. He reached in the
school at about 02:30 p.m. and was present
there till 04:00 p.m.

(24) The learned trial Judge believed
the evidence of Lal Bahadur Singh (P.W.1)
and Ram Saroop Singh (P.W.2) and found
the appellants Shiv Pratap Singh, Vijay
Vikram Singh, Ram Autar, Kalicharan and
Nanhey guilty for the offences punishable
1 All. Shiv Pratap Singh & Ors. Vs. State of U.P.
45
under Sections 302/149 and 323/149 I.P.C.,
whereas appellants Shiv Pratap Singh,
Nanhey and Ram Autar for the offences
under Section 148 I.P.C. and appellants
Vijay Vikram Singh and Kalicharan for the
offence under Section 147 I.P.C. and,
accordingly, convicted and sentenced the
appellants
in
the
manner
stated
in
paragraph 2. The trial Court, however,
acquitted the appellant Jaskaran from all
the offences.

(25) It is pertinent to mention that the
State of U.P. has not filed any appeal
against the acquittal of accused Jaskaran by
preferring an appeal under Section 378 (1)
of the Code of Criminal Procedure.

(26) As mentioned earlier, aggrieved
by
their
convictions
and
sentences
appellants preferred the instant appeal and
during the pendency of this appeal,
appellant nos. 1, 3 and 5 died and their
instant appeal stand abated. The present
appeal is surviving on behalf of the
appellant no.2 and 4, thus this Court
proceeds to hear the appeal of behalf of the
said two appellants, namely, appellant
no.2-Vijay Vikram Singh and appellant
no.4-Nanhey.

APPELLANTS' ARGUMENTS

(27) On behalf of appellant no.2Vijay Vikram Singh, Shri M.L. Sayal,
learned Counsel has argued as under :-

A) There were six accused
persons, namely, Shiv Pratap Singh, Vijay
Vikram Singh, Kali Charan, Nanhey, Ram
Autar, Jaskaran armed with Kanta, Lathi,
Lathi, Banka, Kanta respectively, and one
unknown person. Out of the said accused
persons, four accused, namely, Vijay
Vikram Singh, Kali Charan, Jaskaran and
one unknown person were armed with lathi.
The
deceased
Vijay
Bahadur
Singh
sustained three contusions i.e. injury
nos.17, 18, 19, which could be a result of
injury from lathi and perusal of the said
injuries shows that they were on the left
side of abdomen and no internal damage
was caused. Moreover, out of the four
accused who were armed with lathi the
appellant Vijay Vikram Singh along with
Kali Charan have been convicted, whereas
Jaskaran, who was armed with lathi, and
one of the unknown person whose
whereabouts could not be traced out, were
acquitted by the trial court. He further
argued that out of the four accused persons,
who were armed with lathi, the surviving
appellant Vijay Vikram Singh, whether he
caused injuries to the deceased or not, is
doubtful. He submitted that even if the
injuries were caused by the appellant Vijay
Vikram Singh to the deceased, then the
injury nos.17, 18, 19, which are contusions,
were not fatal for his death, hence, the
appellant Vijay Vikram Singh is entitled
for a lesser punishment and the conviction
and sentence awarded by the trial Court is
too severe.