# State of U.P v. Balram Singh & Anr

- **Citation:** (2022) 9 ILRA 965
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-06
- **Case number:** Government Appeal No. 23 of 2019
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-balram-singh-anr-49291
- **Pages:** 13

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 154, 378 & 378(3) -
Indian Penal Code,1860 - Sections 302,
323, 504 & 506 - Scheduled Castes and
Scheduled Tribes Prevention of Atrocities
Act,1989 - Sections 3(2) & 5 - Arms Act,
1959- Section - 25 - Constitution of India,
1950 - Article 136 - Government Appeal -
against order of Acquittal - offence of murder
with fire arm injuries - FIR - recovery of rifle &
cartridges - Post-mortem - site plane all are
against accused - trial court acquitted all the
accused - appeal - while analysing the case from
four
concerns
it
reflect
that,
not
only
unexplained delay in lodging FIR but also non
presence of signature of first informant (PW1) in
Punchnama, coupled with material contradiction
in St.ments of PW1 & PW4, with the facts that
ballistic report does not supports the story of
persecution and why first informant (PW1)
leaving the injured deceased from the place of
incident at mercy of nature - shows that entire
prosecution case is concocted and encompasses
with weak evidence - acquittal by trial court is
well reasoned which needs no interference -
Leave to appeal rejected - consequently,
Government.(Para - 39, 40, 43) Appeal stands
dismissed.

Appeal dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,871 of 44,262. This is a partial read: ask again with offset=39871 for what follows._

9 All. State of U.P. Vs. Balram Singh & Anr.
965
stand cancelled and he be taken into
custody for serving his remaining sentence,
and the appellant Firoz shall be released
from Jail, forthwith, unless he is wanted in
any other case, subject to compliance of
Section 437A Cr.P.C. Fine imposed upon
the accused appellants is maintained.

32. Both the appeals are thus partly
allowed on above terms.
----------
(2022) 9 ILRA 965
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 23 of 2019

State of U.P. ...Appellant
Versus
Balram Singh & Anr. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:

Criminal Law - Criminal Procedure Code,
1973 - Sections 154, 378 & 378(3) -
Indian Penal Code,1860 - Sections 302,
323, 504 & 506 - Scheduled Castes and
Scheduled Tribes Prevention of Atrocities
Act,1989 - Sections 3(2) & 5 - Arms Act,
1959- Section - 25 - Constitution of India,
1950 - Article 136 - Government Appeal -
against order of Acquittal - offence of murder
with fire arm injuries - FIR - recovery of rifle &
cartridges - Post-mortem - site plane all are
against accused - trial court acquitted all the
accused - appeal - while analysing the case from
four
concerns
it
reflect
that,
not
only
unexplained delay in lodging FIR but also non
presence of signature of first informant (PW1) in
Punchnama, coupled with material contradiction
in St.ments of PW1 & PW4, with the facts that
ballistic report does not supports the story of
persecution and why first informant (PW1)
leaving the injured deceased from the place of
incident at mercy of nature - shows that entire
prosecution case is concocted and encompasses
with weak evidence - acquittal by trial court is
well reasoned which needs no interference -
Leave to appeal rejected - consequently,
Government.(Para - 39, 40, 43) Appeal stands
dismissed.

Appeal dismissed. (E-11)

List of Cases cited:

1. Rajesh Prasad Vs St. of Bihar& anr., 2022 (3)
SCC 471,

2. Apren Joseph @ Current Kunjukunju & ors.
Vs The St. of Kerala, (1973) 3 SCC 114,

3. Tara Singh & ors. Vs St. of Pun. 1991 Supp
(1) SCC 536

4. P. Rajagopal & ors. Vs St. of T. N. , (2019) 5
SCC 403

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Challenge in this appeal u/s 378 of
code
of
Criminal
Procedure
1973
(hereinafter referred to as Cr.P.C.) is made
to the judgment and order dated 29.08.2018
passed by Second Special Judge/Additional
District and Sessions Judge, Hamirpur in
Session Trial No. 128/1997 (State of U.P.
Vs. Balram Singh and 2 others) u/s 302,
323, 504, 506 IPC read with section 3(2)5
SC/ST Act, P.S. Khanna, District Hamirpur
in Case Crime No. 141/1997 as well as
Session Trial No. 143/1997 (State of U.P.
Vs. Khalbhaliya) in Case Crime No.
148/1997, u/s 25 Arms Act, P.S. Khanna,
District Hamirpur acquitting the accused
herein.

2. Brief facts of the case so unfolded
by the prosecution are to the effect that the
informant Dully Chand S/o Kamtu R/o
966 INDIAN LAW REPORTS ALLAHABAD SERIES
Village
Akbai,Police
Station
Khanna,
District Hamirpur claimed to be of Dhobi
caste and according to the prosecution
theory
he
along
with
his
brother
Moolchand, Shiv Narain, Chunna has
proceeded towards the southern portion of
the village near a pond for answering
nature's call on fateful day i.e. 27.04.1997
at 5-6 in the evening and when they were
crossing towards the outer portion of the
pond then the accused who were three in
number one of them being village Pradhan
Balram Singh jointly obstructed movement
of the aforesaid persons and directed the
complainant fraction to do fishing work for
them and when the complainant fraction
exhibited their resistance then the accused
fraction hurled abuses and threatened them
that the complainant fraction will not be
tolerated in the village and they will be
ousted. Suddenly, when Mool Chand (since
deceased) protested then the accused
Balram Singh took out his rifle and the
accused Khalbalia also took out single bore
rifle and deceased Chuttan took out his
double bore rifle and fired upon Mool
Chand who fell down. It is further alleged
that Shiv Charan tried to safe then with the
rifle butt he was given a blow and he
sustained
injuries
and
thereafter
the
complainant fraction being Dully Chand,
Shiv Narain and Chunna ran away from the
site and went to their respective houses and
after taking all necessary precautions
regarding their life they stayed in their
house in the night and they submitted a
written report before the police station in
the next morning.

3. Consequent to the submission of
the written report, FIR was lodged in Police
Station Khanna, Hamirpur on the next day
i.e. 28.04.1997 at 08:30 am u/s 302, 323,
504, 506 IPC read with section 3(2)5
SC/ST Act. As per the prosecution,
recovery was also sought to be made of the
rifle which was made the basis of
commission of crime and three numbers of
cartridges were also found so a FIR u/s 25
Arms Act was also lodged.

4. After lodging of the FIR
Investigating Officer was nominated and
consequent to the death of Mool Chand
Panchayatnama was prepared, body was
sent for postmortem and the deposition of
the prosecution witnesses were recorded
and all the formalities which were required
for conduction of the investigation was
pressed into service.

5. As Mool Chand (since deceased) is
stated to have subjected to fatal fire arm
injuries so charge sheet was submitted in
Case Crime No. 141/1997 u/s 302, 323,
504, 506 IPC read with section 3(2)5
SC/ST Act, P.S. Khana, Hamirpur and
section 25 of the Arms Act in the subject
Police Station in Case Crime No. 148/1997
(State of U.P. Vs. Khalbalia). During the
pendency of the trial the accused Chuttan
Singh expired and thus the present accused
respondents were proceeded in the criminal
case.

6. Case was committed to Sessions.

7. Charges were read over to the
accused who are two in number they
claimed
to be
tried
while
pleading
innocence.

8. The prosecution in order to bring
home the charges produced the following
prosecution witnesses namely, (i) P.W. 1
Dully Chand, (ii) P.W. 2 Shiv Charan, (iii)
P.W. 3 S. I. Atul Pradhan, (iv) P.W. 4
Chunna, (v) P.W. 5 Chakkan, (vi) P.W. 6
Dr. R.K. Khattar, (vii) P.W. 7 C. O. Ashok
Kumar Verma, (viii) P.W. 8 S.H.O. Madhu
9 All. State of U.P. Vs. Balram Singh & Anr.
967
Sudan Singh, (ix) P.W. 9 H.C. Lala Ram,
(x) P.W. 10 Pharmacist Pusawa Prajapati,
(xi) P.W. 11 C.O. Ramyagya.

9. The defence also produced the
following witnesses namely, (i) D.W. 1
Pharmacist Virendra Singh, (ii) D.W. 2
Lekhpal Bjagwat Prasad.

10. The learned trial court by virtue of
the judgement and the order under
challenge has acquitted the accused who
are two in number. Challenging the said
judgment and the order of acquittal now the
State is before this Court in the present
proceedings.

11. Before delving into the exercise so
sought to be undertaken for determining as
to whether the judgment and the order of
acquittal has been proceeded in correct
perspective or not this Court is to bear in
mind that that the present proceedings
emanates against the judgment and the
order of acquittal so bestowing double
presumption
of
innocence
upon
the
accused. To put it otherwise this Court
cannot venture into the judgment in a
routine and cursory manner until and unless
the circumstances are such which explicitly
show that there has been palpable illegality
committed by the learned trial court while
recording perverse finding and misread the
evidences on record. Without burdening the
present
judgment
while
reciting
the
mandate of the Hon'ble Apex Court as
reduced in plethora of judgments this Court
finds appropriate to refer to the recent
judgments which itself is pregnant with the
judgment which are on the same line right
from inception.

12. Nevertheless in the Case of
Rajesh Prasad Vs. State of Bihar And
Another reported in 2022 (3) SCC 471 the
Hon'ble
Apex
Court
in
following
paragraphs have observed as under:-

"21. Before proceeding further, it
would be useful to review the approach to
be adopted while deciding an appeal
against acquittal by the trial court as well
as by the High Court. Section 378 of the
Cr.P.C deals with appeals in case of
acquittal. In one of the earliest cases on the
powers of the High Court in dealing with
an appeal against an order of acquittal the
Judicial Committee of the Privy Council in
Sheo Swarup vs. R. Emperor, AIR 1934 PC
227(2) considered the provisions relating to
the power of an appellate court in dealing
with an appeal against an order of
acquittal and observed as under:

"16. It cannot, however, be
forgotten that in case of acquittal, there is a
double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person should be
presumed to be innocent unless he is
proved to be guilty by a competent court of
law. Secondly, the accused having secured
an acquittal, the presumption of his
innocence is certainly not weakened but
reinforced, reaffirmed and strengthened by
the trial court.

But in exercising the power
conferred by the Code and before reaching
its conclusions upon fact, the High Court
should and will always give proper weight
and consideration to such matters as (1)
the views of the trial Judge as to the
credibility of the witnesses; (2) the
presumption of innocence in favour of the
accused, a presumption certainly not
weakened by the fact that he has been
acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4)
the slowness of an appellate court in
968 INDIAN LAW REPORTS ALLAHABAD SERIES
disturbing a finding of fact arrived at by a
judge who had the advantage of seeing the
witnesses. To state this, however, is only to
say that the High Court in its conduct of the
appeal should and will act in accordance
with rules and principles well known and
recognised in the administration of justice."

It was stated that the appellate
court has full powers to review and to
reverse the acquittal.

22. In Atley vs. State of U.P., AIR
1955 SC 807, the approach of the appellate
court while considering a judgment of
acquittal was discussed and it was
observed that unless the appellate court
comes to the conclusion that the judgment
of the acquittal was perverse, it could not
set aside the same. To a similar effect are
the following observations of this Court
speaking through Subba Rao J., (as His
Lordship then was) in Sanwat Singh vs.
State of Rajasthan, AIR 1961 SC 715:

"9. The foregoing discussion
yields the following results: (1) an
appellate court has full power to review the
evidence upon which the order of acquittal
is founded; (2) the principles laid down in
Sheo Swarup case afford a correct guide
for the appellate court's approach to a case
disposing of such an appeal; and (3) the
different phraseology used in the judgments
of this Court, such as, (i) ''substantial and
compelling
reasons',
(ii)
''good
and
sufficiently cogent reasons', and (iii)
''strong reasons' are not intended to curtail
the undoubted power of an appellate court
in an appeal against acquittal to review the
entire evidence and to come to its own
conclusion; but in doing so it should not
only consider every matter on record
having a bearing on the questions of fact
and the reasons given by the court below in
support of its order of acquittal in its
arriving at a conclusion on those facts, but
should also express those reasons in its
judgment, which lead it to hold that the
acquittal was not justified."

The need for the aforesaid
observations
arose
on
account
of
observations of the majority in Aher Raja
Khimavs. State of Saurashtra, AIR 1956 SC
217 which stated that for the High Court to
take a different view on the evidence "there
must also be substantial and compelling
reasons for holding that the trial court was
wrong."

23. M.G. Agarwal vs. State of
Maharashtra, AIR 1963 SC 200 is the
judgment of the Constitution Bench of this
Court, speaking through Gajendragadkar,
J. (as His Lordship then was). This Court
observed that the approach of the High
Court (appellate court) in dealing with an
appeal against acquittal ought to be
cautious because the presumption of
innocence in favour of the accused "is not
certainly weakened by the fact that he has
been acquitted at his trial."

24. In Shivaji Sahabrao Bobade
vs. State of Maharashtra, (1973) 2 SCC
793, Krishna Iyer, J., observed as follows:

"In short, our jurisprudential
enthusiasm for presumed innocence must
be moderated by the pragmatic need to
make criminal justice potent and realistic.
A balance has to be struck between chasing
chance possibilities as good enough to set
the delinquent free and chopping the logic
of preponderant probability to punish
marginal innocents."

25. This Court in Ramesh Babulal
Doshi vs. State of Gujarat, (1996) 9 SCC
225, spoke about the approach of the
appellate court while considering an
appeal against an order acquitting the
accused and stated as follows:

"While sitting in judgment over
an acquittal the appellate court is first
required to seek an answer to the question
whether the findings of the trial court are
9 All. State of U.P. Vs. Balram Singh & Anr.
969
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can thenand then only
reappraise the evidence to arrive at its own
conclusions."

The object and the purpose of the
aforesaid approach is to ensure that there
is no miscarriage of justice. In another
words, there should not be an acquittal of
the guilty or a conviction of an innocent
person.

26. In Ajit Savant Majagvai vs.
State of Karnataka, (1997) 7 SCC 110, this
Court set out the following principles that
would regulate and govern the hearing of
an appeal by the High Court against an
order of acquittal passed by the Trial
Court:

"16.
This
Court
has
thus
explicitly and clearly laid down the
principles
which
would
govern
and
regulate the hearing of appeal by the High
Court against an order of acquittal passed
by the trial court. These principles have
been set out in innumerable cases and may
be reiterated as under:

(1) In an appeal against an order
of acquittal, the High Court possesses all
the powers, and nothing less than the
powers it possesses while hearing an
appeal against an order of conviction.

(2) The High Court has the power
to reconsider the whole issue, reappraise
the evidence and come to its own
conclusion and findings in place of the
findings recorded by the trial court, if the
said findings are against the weight of the
evidence on record, or in other words,
perverse.

(3) Before reversing the finding of
acquittal, the High Court has to consider
each ground on which the order of
acquittal was based and to record its own
reasons for not accepting those grounds
and not subscribing to the view expressed
by the trial court that the accused is
entitled to acquittal.

(4) In reversing the finding of
acquittal, the High Court has to keep in
view the fact that the presumption of
innocence is still available in favour of the
accused and the same stands fortified and
strengthened by the order of acquittal
passed in his favour by the trial court.

(5) If the High Court, on a fresh
scrutiny and reappraisal of the evidence
and other material on record, is of the
opinion that there is another view which
can be reasonably taken, then the view
which favours the accused should be
adopted.

(6) The High Court has also to
keep in mind that the trial court had the
advantage of looking at the demeanour of
witnesses and observing their conduct in
the Court especially in the witness box.

(7) The High Court has also to
keep in mind that even at that stage, the
accused was entitled to benefit of doubt.
The doubt should be such as a reasonable
person would honestly and conscientiously
entertain as to the guilt of the accused."

27. This Court in Ramesh Babulal
Doshi vs. State of Gujarat, (1996) 9 SCC
225 observed visàvis the powers of an
appellate court while dealing with a
judgment of acquittal, as under:

"7. ... While sitting in judgment
over an acquittal the appellate court is first
required to seek an answer to the question
whether the findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
970 INDIAN LAW REPORTS ALLAHABAD SERIES
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can then--and then only--
reappraise the evidence to arrive at its own
conclusions."

28. This Court in Chandrappa &
Ors. vs. State of Karnataka, (2007) 4 SCC
415,
highlighted
that
there
is
one
significant difference in exercising power
while hearing an appeal against acquittal
by the appellate court. The appellate court
would not interfere where the judgment
impugned is based on evidence and the
view taken was reasonable and plausible.
This is because the appellate court will
determine the fact that there is presumption
in favour of the accused and the accused is
entitled to get the benefit of doubt but if it
decides to interfere it should assign reasons
for differing with the decision of acquittal.

29. After referring to a catena of
judgments, this Court culled out the
following general principles regarding the
powers of the appellate court while dealing
with an appeal against an order of
acquittal in the following words:

"42. From the above decisions, in
our considered view, the following general
principles
regarding
powers
of
the
appellate court while dealing with an
appeal against an order of acquittal
emerge:

(1) An appellate court has full
power
to
review,
reappreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(2)
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to
come to its own conclusion.

(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is further reinforced, reaffirmed
and
strengthened by the trial court.

(5) If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court."

30. In Nepal Singh vs. State of
Haryana- (2009) 12 SCC 351, this Court
reversed the judgment of the High Court
which had set aside the judgment of
acquittal pronounced by the trial court and
restored the judgment of the trial court
acquitting the accused on reappreciation of
the evidence.

31. The circumstances under
which an appeal would be entertained by
this Court from an order of acquittal
9 All. State of U.P. Vs. Balram Singh & Anr.
971
passed
by
a
High
Court
may
be
summarized as follows:

31.1. Ordinarily, this Court is
cautious in interfering with an order of
acquittal, especially when the order of
acquittal has been confirmed upto the High
Court. It is only in rarest of rare cases,
where the High Court, on an absolutely
wrong process of reasoning and a legally
erroneous and perverse approach to the
facts of the case, ignoring some of the most
vital facts, has acquitted the accused, that
the same may be reversed by this Court,
exercising jurisdiction under Article 136 of
the Constitution. [State of U.P. v. Sahai,
AIR 1981 SC 1442] Such fetters on the
right to entertain an appeal are prompted
by the reluctance to expose a person, who
has been acquitted by a competent court of
a criminal charge, to the anxiety and
tension of a further examination of the
case, even though it is held by a superior
court. [Arunachalam v. Sadhananthan, AIR
1979 (SC) 1284] An appeal cannot be
entertained against an order of acquittal
which has, after recording valid and
weighty reasons, has arrived at an
unassailable, logical conclusion which
justifies acquittal. [State of Haryana v.
Lakhbir Singh, (1990) CrLJ 2274 (SC)] B)

31.2. However, this Court has on
certain occasions, set aside the order of
acquittal passed by a High Court. The
circumstances under which this Court may
entertain an appeal against an order of
acquittal and pass an order of conviction,
may be summarised as follows:

31.2.1. Where the approach or
reasoning of the High Court is perverse:

a)
Where
incontrovertible
evidence has been rejected by the High
Court based on suspicion and surmises,
which are rather unrealistic. [State of
Rajasthan v. Sukhpal Singh, AIR 1984 SC
207] For example, where direct, unanimous
accounts
of
the
eyewitnesses,
were
discounted
without
cogent
reasoning;
[State of UP v. Shanker, AIR 1981 SC 879]

b) Where the intrinsic merits of
the testimony of relatives, living in the same
house as the victim, were discounted on the
ground
that
they
were
''interested'
witnesses; [State of UP v. Hakim Singh,
AIR 1980 SC 184]

c) Where testimony of witnesses
had been disbelieved by the High Court, on
an unrealistic conjecture of personal
motive on the part of witnesses to implicate
the accused, when in fact, the witnesses had
no axe to grind in the said matter. [State of
Rajasthan v. Sukhpal Singh, AIR 1984 SC
207]

d) Where dying declaration of the
deceased victim was rejected by the High
Court on an irrelevant ground that they did
not explain the injury found on one of the
persons present at the site of occurrence of
the crime. [Arunachalam v. Sadhanantham,
AIR 1979 SC 1284]

e) Where the High Court applied
an unrealistic standard of ''implicit proof'
rather
than
that
of
''proof
beyond
reasonable doubt' and therefore evaluated
the evidence in a flawed manner. [State of
UP v. Ranjha Ram, AIR 1986 SC 1959]

f) Where the High Court rejected
circumstantial evidence, based on an
exaggerated and capricious theory, which
were beyond the plea of the accused; [State
of Maharashtra v. ChampalalPunjaji Shah,
AIR 1981 SC 1675] or where acquittal rests
merely in exaggerated devotion to the rule
of benefit of doubt in favour of the accused.
[Gurbachan v. Satpal Singh, AIR 1990 SC
209].

g)
Where
the
High
Court
acquitted the accused on the ground that he
had no adequate motive to commit the
offence, although, in the said case, there
was strong direct evidence establishing the
972 INDIAN LAW REPORTS ALLAHABAD SERIES
guilt of the accused, thereby making it
unnecessary on the part of the prosecution
to establish ''motive.' [State of AP v. Bogam
Chandraiah, AIR 1986 SC 1899]

31.2.2. Where acquittal would
result is gross miscarriage of justice:

a) Where the findings of the High
Court, disconnecting the accused persons
with
the
crime,
were
based
on
a
perfunctory consideration of evidence,
[State of UP v. Pheru Singh, AIR 1989 SC
1205]
or
based
on
extenuating
circumstances which were purely based in
imagination and fantasy. [State of Uttar
Pradesh v. Pussu 1983 AIR 867 (SC)]

b) Where the accused had been
acquitted on ground of delay in conducting
trial, which delay was attributable not to
the tardiness or indifference of the
prosecuting agencies, but to the conduct of
the accused himself; or where accused had
been acquitted on ground of delay in
conducting trial relating to an offence
which is not of a trivial nature. [State of
Maharashtra v. ChampalalPunjaji Shah,
AIR 1981 SC 1675] [Source : Durga Das
Basu - "The Criminal Procedure Code,
1973" Sixth Edition Vol.II Chapter XXIX]"

13. Keeping in mind the aforesaid
aspects that the note of caution has been
mandating now the present judgment is to
analysed.

14. To start with the ocular testimony
of the prosecution witness is to be taken not
of.

15. P.W. 1 being the first informant
Dully Chand entered as a prosecution
witness and according to him he knows all
the three accused, according to him on
27.04.1997 at 5-6 in the evening he along
with the deceased Mool Chand, Chunna
and Shiv Narain had gone to answer the
nature's call and near the pond the accused
were armed with rifles as discussed above
and on controversy as regarding fishing
coupled with the resistance, the accused
were three in number with their respective
rifles fired upon Mool Chand he fell down
and when Shiv Narain tried to help Mool
Chand then the accused with the aid of rifle
butt hit him and Mool Chand died on the
spot and the accused ran away. Though the
incident of 5-6 in the evening on
27.04.1997 however, they were subjected
to fear and their life was in peril so they
came back to their house and stayed in the
night and while concealing their identity
they went to Echauli Station to catch the
train and went to Mahodaya got the written
report typed and after seeing the same they
went to the police station and got the FIR
lodged at 08:30 in the next i.e. 28.04.1997.

16. P.W. 2 Shiv Charan has appeared
as prosecution witness he turned hostile,
according to him though he knows accused
Khalbalia but he never met the S.I. Atul
Pradhan on 10.05.1997 in his presence no
arrest was made and no recovery was also
made.

17. P.W. 3 S.I. Atul Pradhan appeared
as prosecution witness he claims himself to
have conducted investigation consequent to
the lodging of the FIR and according to
him he prepared the site plan, sent the body
for postmortem and also got prepared
punchanama and recovery is being also
sought to be shown which he states to have
proved.

18. P.W. 4 Chunna deposed that he
knows the accused and he has also narrated
the incident which occurred on 5-6 in the
evening of the fateful day when he had
gone to answer the nature's call. Thus he
supported the prosecution story.
9 All. State of U.P. Vs. Balram Singh & Anr.
973

19. P.W. 5 Chakkan in his statement
has deposed that he knows the Khalbalia
according to him, police has gone to the
house of Khalbalia and recovery of one
single bore and one double bore rifle was
made from his house and according to
Khalbalia single bore rifle belongs to
accused Balrams's father. Thus he seeks to
prove recovery.

20. P.W. 6 Dr. R.K. Khattar has
proved postmortem according to him there
were as many as six injuries and being one
and two referable to temporal region three
and four being injuries of the lungs, five
and six are the injuries of the intestines.

21. P.W. 7 C.O. Ashok Kumar Verma,
claims himself to be the Investigating
Officer who had been entrusted with the
investigation on 03.05.1997.

22. P.W. 8 S.H.O. Madhisudan Singh
claims to be in the police station Khanna
and he has tried to prove the FIR and all
other aspects relating to recovery etc.

23. P.W. 9 H.C. Lala Ram has sought
to prove the aspects relating to recovery of
rifles as well as cartridges. As he claims to
be the Moharrir in the police station.

24. P.W. 10 being Pharmacist Puswa
Prajapati claims to be posted in the
Community Health Center as Pharmacist
from the period from 1990-2013 and claims
that Dr. Virendra was posted in the
Community Health Center.

25. P.W. 11 C.O. Ramyagya is
seeking to prove the fact the he also
conducted investigation in case crime no.
141/1997 and regarding preparation of site
plan and other formalities etc.

26. So far as defence is concerned,
they produced D.W. 1 Pharmacist Virendra
Singh who tried to prove facts relating to
medical aspects and D.W. 2 Lekhpal
Bhagwat Prasad had sought to prove the
issue relating to the fisheries auction of the
pond in question.

27.

Undisputedly,
the
incident
occurred on 27.04.1997 at 5-6 pm wherein
the first informant being Dully Chand
along with Shiv Narian and Chunna had
gone with the deceased for answering the
nature's call wherein the accused who are
three in number resorted to gun shot firing
pursuant where to the deceased Mool
Chand died and Shiv Narain sustained
injuries by rifle butt. It has also come on
record that the deceased died on the spot
and the complainant fraction run away
from the place of occurrence leaving the
dead body over there which in fact was
near/adjacent to the pond and the first
informant and his associates went to their
respective house and stayed over their the
entire night and in the morning they
claimed to have proceeded to Echaula
Railway Station and they catch the train
boarded at Mahoda Railway Station while
coming up with stand that they caught the
train at 6 in the morning of the next day
reached Mahoda Railway Station at 07:15
am and from Mahoda they went to police
station Khanna in a truck which they could
able to board at 07:45 am and reach the
police station at 08:30 am. According to the
prosecution, the FIR was lodged at 08:30
am on 28.04.1997.

28. Though there has been a delay of
more than 14 hours in lodging of FIR and a
justification has been sought to be given by
the prosecution that their life and liberty
was under constant threat and that is why
they were hiding their identity went to the
974 INDIAN LAW REPORTS ALLAHABAD SERIES
police station next day for lodging of the
FIR but the fact remains that explanation
for delay in lodging of the FIR remains
unexplained particularly in view of the fact
that according to the prosecution the first
informant and their associates went to their
houses stayed in the night and left the body
all alone near the pond the entire night
without taking support of the resident
villagers so as to even take any prompt
action while lodging FIR and also doing
any activity relatable to the fact that at least
some body ought to have stayed in the
place of occurrence to save the dead body
from being exposed to wild animal and the
onslaught of climate or to take body to their
house. It is not a case wherein the deceased
is a stranger, however, the deceased
happens to be the real brother of the first
informant who has witnessed the said
incident.

29. Hon'ble Apex Court on the
question of delay in lodging the FIR and its
impact upon the prosecution theory has
observed in the case of (1973) 3 SCC 114
Apren Joseph Alias Current Kunjukunju
and others Vs. The State of Kerala
wherein para 11 following was mandated:

"11. Now first information report
is a report relating to the commission of an
offence given to the police and recorded by
it under Section 154, Cr. P. C. As observed
by the Privy Council in K. E. v. Khwaja, the
receipt and recording of information report
by the police is not a condition precedent to
the setting in motion of a criminal
investigation. Nor does the statute provide
that such information report can only be
made by an eye witness. First information
report under Section 154 is not even
considered a substantive piece of evidence.
It can only be used to corroborate or
contradict the informant's evidence in
court. But this information when recorded
is the basis of the case set up by the
informant. It is very useful if recorded
before there is time and opportunity to
embellish or before the informant's memory
fades.
Undue
unreasonable
delay
in
lodging the F. I. R., therefore, inevitably
gives rise to suspicion which puts the court
on guard to look for the possible motive
and the explanation for the delay and
consider its effect on the trustworthiness or
otherwise of the prosecution version. In our
opinion, no duration of time in the abstract
can be fixed as reasonable for giving
information of a crime to the police, the
question of reasonable time being a matter
for determination by the court in each case.
Mere delay in lodging the first information
report with the police is, therefore, not
necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so
in the light of the plausibility of the
explanation forthcoming for such delay
accordingly must fall for consideration on
all the facts and circumstances of a given
case."

30. In the case of Tara Singh and
others Vs. State of Punjab 1991 Supp (1)
SCC 536, the Hon'ble Apex Court in
paragraph 4 has observed as under:-

"4. It is well settled that the delay
in giving the FIR by itself cannot be a ground
to doubt the prosecution case. Knowing the
Indian conditions as they are we cannot
expect these villagers to rush to the police
station immediately after the occurrence.
Human nature as it is, the kith and kin who
have witnessed the occurrence cannot be
expected to act mechanically with all the
promptitude in giving the report to the police.
At times being grief-stricken because of the
calamity it may not immediately occur to
them that they should give a report. After all
9 All. State of U.P. Vs. Balram Singh & Anr.
975
it is but natural in these circumstances for
them to take some time to go to the police
station for giving the report. Of course the
Supreme Court as well as the High Courts
have pointed out that in cases arising out of
acute factions there is a tendency to implicate
persons belonging to the opposite faction
falsely. In order to avert the danger of
convicting such innocent persons the courts
are cautioned to scrutinise the evidence of
such interested witnesses with greater care
and caution and separate grain from the
chaff after subjecting the evidence to a closer
scrutiny and in doing so the contents of the
FIR also will have to be scrutinised carefully.
However, unless there are indications of
fabrication, the court cannot reject the
prosecution version as given in the FIR and
later substantiated by the evidence merely on
the ground of delay. These are all matters for
appreciation and much depends on the facts
and circumstances of each case."

31. Yet, in the case of P. Rajagopal
and others Vs. State of Tamil Nadu
(2019) 5 SCC 403, the Hon'ble Apex Court
in paragraph 12 has held as under:-

"12. Normally, the Court may
reject the case of the prosecution in
case of inordinate delay in lodging the
first information report because of the
possibility of concoction of evidence by
the prosecution. However, if the delay is
satisfactorily explained, the Court will
decide the matter on merits without
giving much importance to such delay.
The Court is duty-bound to determine
whether the explanation afforded is
plausible enough given the facts and
circumstances of the case. The delay
may be condoned if the complainant
appears to be reliable and without any
motive for implicating the accused
falsely."

32. Keeping the issue of delay and its
impact upon the prosecution case aside this
Court has to also examine the fact as to
why during the cross-examination the
accused could not specify the name of the
person
who
had
typed
his
written
complaint. According to the prosecution,
first informant had gone to the police
station with Shir Chand, Ram Swaroop,
Shiv Narain and he got the FIR typed near
a shop adjacent to Tehsil. The entire story
so built up by the prosecution does not
inspire
any
confidence
as
normally
whenever deaths takes place in a close
vicinity where at it becomes a normal
routine for easing, a human being while
answering the nature's call and that to in the
presence of first informant along with two
other persons then the said incident catches
fire and everybody in a village comes to
know about the same then obviously there
cannot be a risk in not taking away the
body to their respective house particularly
when according to the prosecution the
accused after committing crime ran away
from the place of occurrence.

33. Another additional aspect of the
matter needs to be further examined is the
fact that P.W. 1 being Dully Chand had
deposed that he was not present when the
punchanama was being sought to be
conducted. On the other hand P.W. 1 has
further stated that he came with the police
officials from police station Khanna then
punchanama was done though he denies that
when the punchanama was being reduced in
writing he was not there. He has also shown
his ignorance about the date of punchanama.
The story was build up by the prosecution is
also thoroughly unbelievable that in case the
first informant was present when the incident
of firing took place and his brother Mool
Chand fell down after receiving gun shot
injuries then it is quite implorable that the real
976 INDIAN LAW REPORTS ALLAHABAD SERIES
brother will not leave the injured and run
away without even taking him for medication
particularly when the accused fraction is
stated to have ran away. The non effecting of
the signature of P.W. 1 in the punchanama
itself shows that the entire prosecution case is
under cloud.

34. Notably, as per the prosecution the
firing was administered from the front and
not from any side consequent there to the
deceased fell down and Shiv Narain also
sustained injuries through rifle butt however,
so far as the first informant is concerned, he
through was there for three to four minutes
but he was not subjected to any injury. Even
otherwise, once as per the prosecution the
firing was made by the accused who are three
in number then it is quite implorable that the
first informant would not have sustained even
a hair line injury also.

35. Nonetheless, one of the prime
witness would have been Shiv Charan
however, Shiv Charan who stated to have
sustained
injuries
was
not
put
to
examination in witness box to which
there is no explanation at all. So far as
P.W. 4 Chunna is concerned he happens
to be present when the alleged incident
took
place
and
he
in
his
cross
examination
had
seen
the
accused
committing crime but in his cross
examination he has come up with stand
that when the deceased Mool Chand was
administered gun shot injury he was in
the southern part of the pond and
according to him he had not seen where
the deceased sustained gun shot injury.
According to P.W. 4 Chunna after the said
incident he had gone to his house and he
remained there at till 4 O' clock after that
he went to Bibawar. P.W. 4 in his cross
examination has also stated that he does
not go for easing himself in the night.

36. As a matter of fact P.W. 1 who
happens to be the real brother of the
deceased and P.W. 4 happens to be the
cousin brother, however, there are vast
contradictions and inconsistency in the
statement of both the prosecution witnesses
which itself shows that some what a story
is being sought to be erected just in order to
implicate the accused herein.

37. Nonetheless, so far as the
recovery of the rifles and cartridges are
concerned, P.W.