# State of U.P v. Hariprasad & Anr - **Citation:** (2024) 5 ILRA 345 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2024-05-31 - **Case number:** Government Appeal No. 3433 of 1985 - **Bench:** Rajiv Gupta, Shiv Shanker Prasad - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-hariprasad-anr-52106 - **Pages:** 17 ## Headnote Criminal Law-Indian Penal Code-1860Sections 307 - The Arms Act-1959-Section 25 - The Code of Criminal Procedure, 1973- Section 313 & 378-- Government Appeal against the judgment and order whereby the accused-respondents have been acquitted of all the charges- Police constables were in plain dress and not in police uniform at the time of alleged incident and were armed with 12 bore guns and not with their rifles as alleged in the F.I.R which adversely effects the very genesis of the prosecution story that the police personnels had gone to discharge their picketing duties in the village- Victim-deceased being in plain clothes is further fortified from the inquest report wherein it has been pointed out that the investigating officer has not found any clothes on his person. Accused-respondent Lal Diwan suffered pellet injuries on his person and his injuries has been proved by D.W.-2, however the prosecution has miserably failed to tender any explanation in respect of the said injuries received by Lal Diwan- Pellets injuries could not be caused by a rifle shot- Testimony of the pocket witnesses of the police cannot be said to be of impeccable nature- The St.ment of the accused u/s 313 Cr.P.C. cannot be read in evidence so as to convict him Appeal Dismissed. (E-15) List of Cases cited: ## Text _Characters 0–39,960 of 59,706. This is a partial read: ask again with offset=39960 for what follows._ 5 All. State of U.P. Vs. Hariprasad & Anr. 345 56. In our opinion, the trial court has passed a well reasoned and detailed order, which, in view of settled principle of law regarding reversal of acquittal, needs no interference by this Court. The view taken by the trial court cannot be said to be perverse, impossible and illegal and as such, present Government Appeal filed by the State has no force and is accordingly dismissed. 57. Let a copy of this judgment and order be forwarded to the court concerned alongwith trial court record for information and necessary compliance. ---------- (2024) 5 ILRA 345 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 31.05.2024 BEFORE THE HON'BLE RAJIV GUPTA, J. THE HON'BLE SHIV SHANKER PRASAD, J. Government Appeal No. 3433 of 1985 State of U.P. ...Appellant Versus Hariprasad & Anr. ...Respondents Counsel for the Appellant: A.G.A. Counsel for the Respondents: N.K. Saxena, Rakesh Kr. Verma Criminal Law-Indian Penal Code-1860Sections 307 - The Arms Act-1959-Section 25 - The Code of Criminal Procedure, 1973- Section 313 & 378-- Government Appeal against the judgment and order whereby the accused-respondents have been acquitted of all the charges- Police constables were in plain dress and not in police uniform at the time of alleged incident and were armed with 12 bore guns and not with their rifles as alleged in the F.I.R which adversely effects the very genesis of the prosecution story that the police personnels had gone to discharge their picketing duties in the village- Victim-deceased being in plain clothes is further fortified from the inquest report wherein it has been pointed out that the investigating officer has not found any clothes on his person. Accused-respondent Lal Diwan suffered pellet injuries on his person and his injuries has been proved by D.W.-2, however the prosecution has miserably failed to tender any explanation in respect of the said injuries received by Lal Diwan- Pellets injuries could not be caused by a rifle shot- Testimony of the pocket witnesses of the police cannot be said to be of impeccable nature- The St.ment of the accused u/s 313 Cr.P.C. cannot be read in evidence so as to convict him Appeal Dismissed. (E-15) List of Cases cited: 1. Rajesh Prasad Vs St. of Bihar & anr. 2. H.D. Sundara & ors. Vs St. of Karn. (Delivered by Hon'ble Rajiv Gupta, J.) 1. Heard Sri Arun Kumar Pandey, learned AGA assisted by Sri Kamlesh Kumar Nishad, learned brief holder for the State-appellant and Sri Sanjeev Kumar Khare, learned counsel for the accusedrespondents. 2. The instant Government Appeal has been filed against the judgment and order dated 4.9.1985 passed by 4th Addl. Sessions Judge, Hamirpur in Session Trial No. 246 of 1978 (State Vs. Halkey and 3 others) arising out of Case Crime No. 120 of 1978, under Section 307 IPC, Case Crime No. 121 of 1978, under Section 25 Arms Act and Case Crime No. 122 of 1978, under Section 25 Arms Act, by which the accusedrespondents have been acquitted of all the charges framed against them. 346 INDIAN LAW REPORTS ALLAHABAD SERIES 3. During pendency of the said appeal, accused-respondent No. 1 Har Prasad had passed away, as such the instant government appeal qua appellant No. 1 has been abated vide order dated 10.12.2021 passed by this Court. Now the appeal survives only in respect of accused-respondent No. 2 Lal Diwan. 4. Shorn of unnecessary details, the prosecution case as unfurled in the first information report dated 15.8.1978 is that one Ali Hasan, police constable of Police Station Rath, District- Hamirpur has lodged a first information report based on the recovery memo, wherein it is alleged that on the fateful day, he alongwith constable Suresh Singh and constable Krishna Swaroop had set out for picketing duty after getting issued one rifle alongwith 30 cartridges each. After completing the picketing duty in village Galiha they proceeded towards village-Mawai, however as soon as they crossed the boundaries of village-Galiha and reached near the canal culvert, they were informed by the informer that Halkey Darji of village- Akauna alongwith his companions, armed with illegal weapons is proceeding towards village-Mawai. Believing the said information, they picked up three witnesses, Shri Chandra, Jhagru and Maheshwari, who were sitting on the culvert alongwith informer proceeded towards village-Mawai. As soon as they reached near the grove of Aadhar at about 6 p.m., the miscreants, who were sitting in the grove stood up. The informer pointed towards them to be the miscreants. The police party exhorting, proceeded further. In the meantime one of the miscreant fired a shot upon them and all the miscreants proceeded towards the east, however the shot fired by the miscreants narrowly missed the target. The police party tried to chase them, however again the miscreants, with an intention to kill them, resorted to firing, consequent to which, they in order to defend themselves also fired one shot from their respective rifles. In the meantime, one of the shot fired by miscreants hit constable Suresh Singh who after receiving injuries fell down. In the meantime, Har Prasad and Lal Diwan, who were having guns tried to escape towards Suklahari, whereas the other two miscreants, who were armed with gun and country made pistol ran towards Mawai, who were chased and two of the miscreants were apprehended, whereas other two miscreants armed with guns succeeded in running away. On interrogation, the arrested accused-persons disclosed their names to be Halkey son of Paltu, R/o Akauna and other name disclosed to be Narayan son of Gyasi, R/o Village-Kurra of Police Station- Rath. On their search being made, SBBL gun were recovered from the right hand of Halkey alongwith three cartridges and from the right hand of apprehended accused Narayan, a country made pistol of 12 bore was recovered alongwith two cartridges, which were taken in possession by the police and sealed in a bundle. On the basis of said recoveries, fard recovery memo was prepared and the injured constable was taken at the police station- Akauna. On the basis of said recovery memo, a first information report is said to have been lodged at police station- Rath, District- Hamirpur registered vide Case Crime Nos. 120, 121 and 122 of 1978 respectively under Section 307 IPC and 25 Arms Act, which has been proved and marked as Exbt. Ka-1. The Corresponding G.D. entry was also prepared vide G.D. Report No. 22 at 9.10 p.m., which has been proved and marked as Exbt. Ka-9 and 10. 5. Thereafter, the arrested accused persons were lodged in lock-up and the 5 All. State of U.P. Vs. Hariprasad & Anr. 347 investigation of the said case was entrusted to (P.W.-7) Gaya Prasad in whose presence the FIR was registered who thereafter set out for the place of incident alongwith Ali Hasan and recorded the statement of constable Ali Hasan and made spot inspection of the case and prepared its site plan, which has been proved and marked as Exbt. Ka-12. During spot inspection, the Investigating Officer recovered seven cartridges alleged to be fired by miscreants, which were taken in possession and prepared its recovery memo, which has been proved and marked as Exbt. Ka-13, however blood stained earth could not be taken as on account of heavy rain the blood had already been wiped out. On 20.8.1978 statement of S.O. V.K. Sinha was recorded who informed that the physical condition of constable Suresh is serious and he is admitted in Hallet Hospital, Kanpur. On 30.8.1978 statement of Shri Chand (P.W.-3) and Jhagru (P.W.-2) was recorded. On 30.8.1978, itself a death memo was received from the office of Deputy C.M.O., Kanpur informing about the death of injured constable Suresh, which was reduced in writing vide G.D. Report No. 9 at 8.55 a.m. 6. Thereafter, on the basis of said information, P.W.-4 Netrapal Singh, S.O. Police Station Swarup Nagar reached at the hospital and conducted the inquest on the person of the deceased and prepared the inquest memo, which has been proved and marked as Exbt. Ka-4. At the time of inquest other relevant documents including challan-nash, photonash, chitthi R.I., chitthi C.M.O. and sample sealed were prepared, which has been proved and marked as Exbt. Ka- 5, 6 and 7. After conducting the inquest, the body was wrapped and sealed in a cloth and despatched for post-mortem. 7. An autopsy was conducted on the person of the deceased on 30.8.1978 at 4.50 p.m. and the doctor has noted the following injuries on the person of the deceased :- 1. Healing wound with granulation tissue on the dorsal aspect of the right forearm near the wrist 1.5 cm x 1 cm. 2. Healing wound with granulation tissue 1 cm x 0.75 cm on the dorsal aspect of right forearm 2 cm above injury no. 1. 3. Healing wound 1 cm x 1 cm with granulation tissue on right forearm on dorsal aspect 9 cm above injury no. 2. 4. Healing wound 1 cm x 0.75 cm of flexor aspect of right forearm 7 cm above the right wrist joint. 5. Healing wound 1 cm x 0.75 cm on flexor aspect of right forearm 8 cm above injury no. 4 with a scab. 6. Healing wound with granulation tissue on the right iliac chest 2 cm x 1 cm, 4 cm lateral to right anterior superior iliac spine on probing abdominal cavity deep directed from right to left and slightly upwards and backwards. 7. Healing wound granulation tissue 2 cm x 1 cm, 6 cm above & lateral injury no. 6, abdominal cavity deep directed from right to left and backwards. 8. Healing wound 2 cm x 1.5 cm with granulation tissue in the right hypo condition just below the costal margin in the anterior axillary line. Abdominal cavity deep directed backwards and medially. 9. Healing wound 1.5 cm x 1 cm with granulation tissue on right side lower part of chest 3 cm above and lateral to injury no. 8, directed backwards and medially muscle deep. 10. Healing wound 2 cm x 1.5 cm on right lumbar region back 4 cm, above the lumbosacral joint abdominal cavity deep directed from left to right, downwards and forward in direction to injury no. 6. 348 INDIAN LAW REPORTS ALLAHABAD SERIES 8. While making internal examination, the doctor has recovered three pieces of metallic pellets recovered from spine, one metallic pellet recovered from muscles of back in the para spinal region under injury No. 1 mesentery found stitched at several places with pieces of pus present, one and a half litre blood mixed with pus and faecal matter in the abdominal cavity. The cause of death has been noted to be septicaemia and toxemia as a result of injuries described. 9. On 01.9.1978 an information about the death of constable Suresh was received at the police station and the case was converted from Section 307 IPC to 302 IPC. After concluding the investigation and recording the statement of other relevant witnesses, charge-sheet was filed against all the accused persons on 8.10.1978 under Section 302 IPC and further against Halkey and Narayan a charge sheet was also filed under Section 25 Arms Act, which has been proved and marked as Exbt. Ka-14, 15 and 16. Relevant sanction for prosecuting Halkey and Narayan u/s 25 Arms Act was also obtained from the District Magistrate. 10. On submission of the charge sheet, learned Magistrate had taken cognizance and since the case was exclusively triable by the court of Sessions, made over the case to the court of Sessions for trial, where it was registered as Session Trial No. 246 of 1978 (State vs. Halkey and 3 others). The trial court framed the charges against all the accused-respondents under Section 302 read with Section 34 IPC on 07.09.1979 and further against Halkey and Narayan u/s 25 Arms Act. The said charges were read out and explained to the accusedrespondents in hindi, who abjured the said charges, pleaded not guilty and claimed to be tried. 11. The trial court thereafter recorded the statement of seven witnesses, out of them P.W.-1- Krishna Swaroop, P.W.-2 Jhagru and P.W.-3- Shri Chand are the witnesses of fact, whereas P.W-4- Netrapal Singh, P.W-5- Shyam Swarup, P.W-6- Narayan Das Dwivedi and P.W.-7- Gaya Prasad are the formal witnesses. The Court has also recorded the statement of C.W-1- Shyam Lal Dixit, C.W-2- Ram Sajivan Singh and C.W-3- S.K. Shukla. The accused-respondents in their defence produced D.W.-1- Balak Ram Pandey and D.W.-2- Narottam Kumar. 12. To appreciate the entire evidence and material brought on record during the course of trial it would be apt to discuss in brief the statement of the witnesses. 13. Krishna Swaroop (P.W.-1) is the constable and member of the police party. He, in his statement has stated that on 15.8.1978, he was posted as constable in police station- Rath. Constable Ali Hasan and constable Suresh Singh were also posted at the said police station. At about 4.10 p.m. pursuant to G.D. Report No. 15, they had set out from the police station for picketing duty of village- Galiha. After completing their picketing duty in village-Galiha, they had proceeded towards village-Mawai and when they reached near the culvert of the canal, an information was given by an informer that the gang of Halkey Darji armed with illegal weapon is coming from Mawai. Jhagru (P.W.-2), Maheshwari (not examined) and Shri Chand (P.W.-3) were also sitting on the culvert, who were asked to accompany them as witnesses towards Mawai. 14. It is further stated that when they reached near the grove of Adhar at about 6 p.m., four miscreants were found sitting in the grove, who were pointed out by the informer. The miscreants also saw them and immediately resorted to firing, who were 5 All. State of U.P. Vs. Hariprasad & Anr. 349 chased. The miscreants with an intention to kill continued the firing, as such they, who were three in numbers, also opened fire from their respective rifles and fired one shot each. The shot fired by the miscreants, hit constable Suresh Singh and he fell down. The miscreants were chased and two of the miscreants Halkey and Narayan present in the Court were arrested, however Lal Diwan and Har Prasad made their escape good towards village- Suklahari, who were armed with guns. From the possession of Halkey, a 12 bore DBBL gun alongwith live cartridges and from the possession of Narayan, a 12 bore country made pistol alongwith cartridges were recovered. The recovered articles were taken in possession and its fard recovery memo was drawn, which has been proved and marked as Exbt. Ka-2 and thereafter injured constable Suresh was brought at the police station on a cot and an FIR was registered on the basis of fard recovery memo on 15.8.1978. The arrested accused Halkey and Narayan were lodged in lockup. However on 30.8.1978 Constable Suresh died in Hallet Hospital, Kanpur. 15. During cross examination, he stated that on the fateful day they had set out for picketing duty at 4 p.m. and they had first reached village- Galiha and thereafter proceeded to Mawai. All the three constables were armed with rifles and none had 12 bore gun. They stayed in Galiha for about half an hour and then they were proceeding to Mawai, where the informer met them. They were in police uniform and not in plain clothes. The witnesses met on the culvert. The informer was not Asharfi and was not acquainted with Asharfi of Mawai. He further stated that prior to the day of incident, he had never visited Mawai. He further stated that he was not aware if there was parti-bandi between Asharfi and Har Prasad. It is wrong to state that information given by the informer was received at the bridge of the canal. He had disclosed to the investigating officer that when they reached near the bridge canal of Galiha, then informer met them. Where they met the informer witnesses were also sitting. The informer first saw the miscreants followed by them and when the informer pointed out towards the miscreants, then they saw the accused sitting there. 16. He has further categorically stated that the witnesses and the informer were unarmed. On exhortation, miscreants fired a shot and then ran away, however they could not see as to who amongst the miscreants fired, nor they could see if it was fired by a country made pistol or a regular gun. As soon as the miscreants fired, they were chased and in their self defence they also opened fire. The witnesses were chased for about 80-90 paces. The miscreants stopped ahead and again fired, which hit constable Suresh and then there was no firing. During this incident, no other villagers reached there and two miscreants ran away towards Suklahari and two miscreants towards Mawai. Two of the miscreants were arrested alongwith country made pistol and gun, which were taken in possession and it's fard recovery memo was prepared at the spot and weapons were sealed, however in the meanwhile constable Suresh was lying in an injured condition. Thereafter, they straightway went to the police station alongwith the recovered articles. 17. He has further stated that prior to the incident, he was not acquainted with Har Prasad and Lal Diwan of Mawai and never went to identify them, who themselves surrendered in the Court. He further denied the suggestion that there was enmity between police personal and Asharfi. The shot fired by them did not hit any of the 350 INDIAN LAW REPORTS ALLAHABAD SERIES miscreants. He did not know if there was any enmity between Asharfi on one hand and Har Prasad and Lal Diwan on the other. It is wrong to state that Asharfi had taken them for encounter of Lal Diwan. It is wrong to state that they were in plain dress and armed with 12 bore gun and had gone to kill Lal Diwan. It is wrong to state that the fire made by them, hit Lal Diwan and he in his defence fired a shot. It is also wrong to state that by showing fake recovery from Lal Diwan and Har Prasad, the instant case has been cooked up. 18. Jhagroo (P.W.-2) is another eye witness of the incident. He has stated that he was acquainted with accused persons Har Prasad, Lal Diwan, Halkey and Narayan present in the Court. About two and a half years back, Suresh was murdered at about 7 p.m. At the relevant time, he was sitting on the culvert of the canal alongwith Shri Chand (P.W.-3) and Maheshwari, when three police constables alongwith an unknown person came and asked to accompany them for apprehending the miscreants and when they reached near the grove of Adhar the police constables exhorted, then the accused persons, who were sitting in the grove opened fire from the grove. Suresh Singh was hit by the fire, then police personnels also opened fire and miscreants tried to escape by running away, who were chased by the police personnels and two miscreants were apprehended who disclosed their names to be Narayan and Halkey. Lal Diwan and Har Prasad made their escape good but were identified. From the possession of Halkey, a gun was recovered alongwith cartridges, whereas from the possession of Narayan, a country made pistol alongwith cartridges were recovered, which were sealed in a bundle and the recovery memo was prepared. 19. During cross examination, the said witness stated that village- Mawai is situate at a distance of 3 'kos' from his village and two 'kos' from village-Galiha. P.W.-3 Shri Chand had taken him for the purpose of purchasing bulls and was staying there for the last 2-3 days but did not purchase any bull, however the said factum was not disclosed to the investigating officer. While he was sitting at the culvert, the police reached there. Three police personnels alongwith one unknown person had reached there. They were acquainted with the police constables and the other unknown person was "Asharfi of Mawai". The said witness has further categorically stated that all three police constables were in plain dress and not in uniform. All the three constables were having 12 bore guns and were not having any rifle. 20. He further stated that he understands the difference between a rifle and a gun. From culvert they proceeded towards village-Mawai and when reached near grove of Adhar close to which, the well belonging to Lal Diwan is situate lying in his own chak, where he was present. As soon as they reached near the grove, Asharfi pointed out his presence and police personnel immediately opened fire on him. Lal Diwan received pellets injuries, who thereafter ran towards village-Suklahari. While he was running, the police personnels further made 2-3 fires. While running Lal Diwan in his self defence made a fire, which hit constable Suresh. Thereafter, immediately a cot was called and he was taken to the police station on the cot. 21. He further categorically stated that on the plain paper, his thumb impression was obtained. He further stated that he did not know that there was any enmity between Lal Diwan and Har Prasad on one hand and 5 All. State of U.P. Vs. Hariprasad & Anr. 351 Asharfi on the other. The said witness further categorically stated that from the side of the police, he earlier appeared as a witness in 2-3 cases and in case of State Vs. Balshan and State Vs. Param Lal, he has already deposed on behalf of the police and he cannot re-collect the other case, in which, he has been made a witness. 22. Shri Chand (P.W.-3) is the another eye witness of the incident and had stated that he was acquainted with the accused Har Prasad, Halkey, Narayan and Lal Diwan present in the Court but is not acquainted with constable Suresh, who has been done to death. About 2 1⁄2 -3 years back at about 6 p.m., constable Suresh was done to death. At the relevant time, he was sitting on the culvert of canal near village- Galiha alongwith Jhagroo and another person of village-Galiha. At about 5.30 p.m., three police constables came and informed that Halkey alongwith some miscreants, who are coming, are to be apprehended, then they proceeded towards Mawai and when reached near the grove of Adhar, all four assailants were sitting there. Seeing the assailants the police constables exhorted then the assailants opened fire. The police personnel told him that Suresh has been hit, however he had not seen the assailants opening fire, then the police personnel chased the miscreants and apprehended Halkey and Narayan, however two other assailants made their escape good. On their search being made, a gun alongwith three cartridges were recovered from the possession of Halkey, whereas a country made pistol alongwith two cartridges were recovered from the possession of Narayan. On the basis of said recoveries, fard recovery memo was prepared and signed by the witnesses and then recovered material was sealed in a bundle and brought at the police station. 23. During cross examination, the said witness stated that 2-3 days prior to the incident, he was staying in Galiha accompanied with Jhagroo (P.W.-2), who had gone to visit their relatives and there was no specific reason for their stay. At the time of incident, apart from two of them, one another person was sitting at the culvert, however till date he could not know his name. He further stated that he did not disclose to the investigating officer that the 3rd person was Maheshwari Khangar of village- Galiha. He further stated that there were three police personnel alongwith unknown person, however he cannot state if the unknown person was Asharfi of villageMawai. The said witness then pointed out towards the accused persons Har Prasad, Lal Diwan and stated that he is not acquainted with them as he had never seen them earlier and only after the incident, he had seen the accused persons in the lock up, because he was also involved in criminal case and was put in the lock up, where he had met the two assailants who disclosed their names to him. The police personnels took him towards south of the culvert. He further stated that he did not disclose to the investigating officer that at the relevant time Har Prasad and Lal Diwan of village-Mawai, who were armed with guns ran towards village-Suklahari and he cannot state as to how the investigating officer recorded his such statement. It is further stated that when they were sitting on the culvert the sun had not set and from there they reached the grove within half an hour. 24. He further stated that police personnels were not armed with guns but with rifles and that he understands the difference between a rifle and a gun. On the exhortation made by the police personnels miscreants fired a shot then police personnels fired. The first fire made by miscreants did not hit anyone. On the firing 352 INDIAN LAW REPORTS ALLAHABAD SERIES made by police personnels, the miscreants did not run away but they also fired. The miscreants in the second round, made four fires but police did not made any fire. The police personnel fired upon the assailants only when they were sitting in the grove, however when the miscreants started running away, then the police personnel did not make any fire. He further stated that he had stated to the investigating officer that "when the miscreants proceeded towards the east, then they narrowly escaped by the firing and tried to chase them, the police personnels then in their self defence fired one shot each from their rifles, which is correct. The statement given today in Court that "while running police personnels did not open fire has inadvertently been stated by him. At the place of incident in all four fires were made. Three were made by police personnels and four by the miscreants. He was not accompanying Suresh who was 1012 paces ahead of him. When firing was made in the grove then Suresh was not hit. He is not aware if any miscreants was hit by fire. When miscreants fired to run away, then Suresh chased them for about a furlong towards village Sukhlahari. Miscreants were at a distance of about 2 furlongs when the fire hit Suresh. The police was chasing the assistants while they were running away, then Suresh was hit by a fire. Two miscreants were running towards Mawai, whereas two other were running towards Suklahari. On Suresh being hit then a cot was called from Mawai and he was taken to the hospital. 25. It is further stated that when fire was made from the grove, then it was dark. As soon as the cot reached there, Suresh was immediately taken to the police station and he accompanied them at the police station. A paper was scribed at the police station which was signed by him. He further stated that prior to this incident, he has not been a police witness in any case, however he is an accused in a case under Section 307 IPC and also involved in two other cases. He further denied the suggestion that he had not seen the incident and under the pressure of the police, he is falsely deposing. 26. Netrapal Singh (P.W.-4) at the relevant time was posted as S.I. Swaroop Nagar, Kanpur and on 30.8.1978 had received a memo from the office of Deputy Chief Medical Officer, Kanpur informing about the death of constable Suresh Singh, which was registered vide G.D. Report No. 9 at 8.55 a.m. and proved and marked as Exbt. Ka-3. On getting the said information, he reached the Hallet Hospital and conducted the inquest on the person of the deceased and prepared the inquest report, which has been proved and marked as Exbt. Ka-4. Alongwith inquest report, he also prepared other relevant documents like photo-nash, challan-nash, chitthi R.I., chitthi C.M.O., which has been proved and marked as Exbt. Ka-5 to Ka-7 and thereafter sealed the dead body in a cloth and prepared sample seal and despatched the dead body for post-mortem examination. 27. During cross examination, he has categorically pointed out that at the time of inquest, the deceased was not wearing any clothes and his corpse was covered with a bed sheet, however he did not make any investigation as to where his clothes had gone, which the deceased was wearing at the time of incident. 28. Shyam Swarup (P.W.-5) is the medical officer, who conducted an autopsy on the person of the deceased on 30.8.1978 at Ursala Hospital, Kanpur and had noted the injuries, which has already been described above and need not to be repeated. 5 All. State of U.P. Vs. Hariprasad & Anr. 353 29. During cross examination, he stated that from the dead body, it appears that the victim was operated upon in some hospital, where he was admitted. As mentioned in the death memo alongwith the dead body, there is no injury report available on the file. 30. Narayan Das Dwivedi (P.W.-6) was the Head Moharrir at the relevant time in police station- Rath and on the basis of fard recovery memo, which has been proved and marked as Exbt. Ka-2, he had drawn the chik FIR, which has been marked as Exbt. Ka-9. Corresponding G.D. Entry No. 22 at 9:10 p.m., which has been marked as Exbt. Ka-10, has also been drawn and the FIR was registered under Section 307 IPC and 25 Arms Act. He has further stated that accused Halkey and Narayan were put in the lock up and recovered articles were kept in the malkhana and injured constable Suresh Singh was sent for medical examination. On 1.9.1978, an information was received about the death of constable Suresh Singh and, as such, case was converted form Section 307 IPC to section 302 IPC vide G.D. Report No. 29, which has been proved and marked as Exbt. Ka-11. 31. During cross examination, he stated that constable Suresh was brought at the police station alongwith constable Ali Hasan and constable Krishna Swarup. Accused Halkey and Narayan were also brought with them. After receiving injuries, Suresh Singh first reached at the police station and then was sent to the hospital. While preparing the G.D., clothes worn by constable Suresh Singh were not noted though his injuries were noted. It is wrong to state that his clothes were hidden. It is wrong to state that Halkey and Narayan were brought in the police station and put in the lock up and false case was registered against them. 32. Gaya Prasad (P.W.-7) is the investigating officer and at the relevant time was posted as S.I. Second at P.S. Rath and in his presence said case was registered, who was entrusted with the investigation of the said case. After recording the statement of Head Moharrir Narayan Das Dwivedi, he proceeded to the place of incident and after making spot inspection prepared the site plan at the pointing out of the constable Ali Hasan, which has been proved and marked as Exbt. Ka-12. During inspection of the site plan, he recovered seven cartridges said to be fired by the miscreants, which were taken in possession and its recovery memo was prepared, however blood stained earth was not taken in possession. Since due to heavy rains, no blood was found, which was wiped out. After concluding the investigation, P.W.-7 submitted the charge sheet on 8.10.1978. 33. During cross examination, he has stated that the said case was registered in his presence at the police station and at the time of incident, constables Ali Hasan and Krishna Swarup were present at the police station, however at the relevant time, he had not recorded their statements on account of constable Suresh being hit by fire arm. He also did not record the statement of victim Suresh as he was hit by firearm. The statement of other two police constable was also recorded on next day at Galiha. He further stated that S.O. V.K. Sinha, who had gone to the hospital alongwith constable Suresh and had taken the clothes, which he was wearing at the time of incident and drawn the fard recovery memo relating to constable Suresh however, the same is not mentioned in the case diary not the same is available in the Court file. Even what 354 INDIAN LAW REPORTS ALLAHABAD SERIES clothes were taken in possession has not been recorded. He had also not seen the said clothes and even in the case diary, it has not been mentioned as to whether the clothes were police uniform or plain clothes. 34. He has categorically stated that he is not aware of the fact whether constable Suresh at the time of incident, was wearing plain clothes or was in police uniform as such the said clothes are deliberately being hidden. He further stated that about one year prior to the incident, he was posted at police station - Rath and several times visited village- Mawai. He was also aware of the fact that they were daggers drawn enmity and parti-bandi between Lal Diwan and Har Prasad on one hand and Asharfi on the other. He has further stated that P.W.-3- Shri Chand has stated to him that Maheshwari Khangar of village-Galiha was also present at the place of incident, extract of which, he has filed as Exbt. Kha-1. He has also filed the statement of P.W.-2 Shri Chand marked as Exbt.Kha-2. 35. Shyam Lal Dixit (C.W.-1) is the Head Moharrir posted at police station- Rath at the relevant time. He stated that he has brought Malkhana Register of the year 77 to 79. Two bundles of articles collected during the course of investigation is not available. Information in respect of which, was also given to the higher authority by making a note in the register. During crossexamination he further stated that it is wrong to state that the articles collected during the course of investigation, has deliberately been got misplaced as that would have adversely affected the case. The articles of other cases has also been misplaced. 36. Ram Sajivan Singh (C.W.-2) is the S.I. and at the relevant time, he was posted at police station- Rath and got the proclamation under Sections 82 and 83 Cr.P.C. against the co-accused Narayan, however since the said accused was absconding for the last 2-3 years and his whereabouts could not be known, as such the process issued against him was returned back to the Court. There is no chance of accused Narayan being arrested. 37. S.K. Shukla (C.W.-3) is the S.I. of Police Station- Rath, who is in his testimony, stated that on 20.3.1983, he was posted at Police Station- Rath and had received attachment/ warrant orders of accused Halkey and tried to serve it but since he had no moveable property, as such warrants/attachment proceedings could not be executed. He further stated that accused Halkey is absconding and there is no chance of his arrest in near future, as such the said two persons could not be tried. 38. After concluding the aforesaid evidence, the statement of the accused respondents were recorded under Section 313 Cr.P.C. by putting all the incriminating circumstances to them. In his statement recorded under Section 313 Cr.P.C., accused-respondent Lal Diwan stated that on 15.8.1978 at about 6 a.m., he was present at his chak, where a well is situate and at the relevant time he was getting his work done. Asharfi, Rameshwar, Loknath alongwith three unknown persons were with them. All were armed with weapons. After seeing they challenged him, as such he tried to run away. While running they fired a shot upon him, which hit him on his back, then another fire was made, which did not hit him. While running he turned and saw that the fire made by Asharfi hit him on his forehead and deltoid. In his defence he also fired a shot and then ran away. Number of fires were made on him, however they did not hit him. All the accused persons were having 12 bore 5 All. State of U.P. Vs. Hariprasad & Anr. 355 guns. Unknown persons were in plain dress. Kishore, Chandra Bhan and Raghunath were present at the place of incident. Subsequently, he came to know that his fire hit constable Suresh, who was in plain dress. After recording of his statement under Section 313 Cr.P.C. the accused-respondent entered into his defence and produced D.W.- 1 Balak Ram Pandey and D.W.-2 Narottam Kumar as defence witnesses. 39. Balak Ram Pandey (D.W.-1) in his statement has stated that in the year 1978, he was posted at the Collectorate as Sawal Navees. On 19.8.1978, he had typed an application on behalf of Lal Diwan son of Gulam on his dictation, which is signed by him. The said application was read out to the Lal Diwan and thereafter his signature was obtained and given to him, which has been proved and marked as Exbt. Kha-1. 40. During cross examination, the said witness stated that he does not maintain any register for the application and further denied the suggestion that the said application has been typed subsequently by him by making it anti-dated i.e. 19.8.1978. 41. Narottam Kumar (D.W.-2) was the compounder in District Jail Hamirpur at the relevant time. He stated that the injury register dated 19.8.1978 has been brought by him. On the said date, Lal Diwan son of Gulam was medically examined by doctor S.N. Dixit at District Jail Hamirpur and in the said register, injuries of Lal Diwan has been noted by him in the hand writing of Dr. Dixit, a copy of which is being filed and marked as Exbit. Kha-9. 42. During cross examination, he stated that the duration of injuries cannot be pointed out by him nor could he state as to by which weapon the said injuries has been caused. Injured is not before him nor he is acquainted with him. Dr. S.M. Dixit is alive and posted at Baranabki. The accused subsequently appeared before the Court. 43. After recording the said evidence, the trial court acquitted the accusedrespondents by holding that in the said incident, cross report has also been lodged by the accused-respondent Lal Diwan, which has been marked as Exbit. Kha-1, however the investigating officer did not make any investigation on the said application. He has also recorded the finding that the prosecution has not given any explanation of the injuries received by accused-respondent Lal Diwan. It has been further noted that the empty cartridges fired by the police were not produced before the Court nor the police uniform said to be worn by the deceased at the time of incident has been produced before the Court nor there is any mention of the same in the relevant G.D. Even at the time of conducting the inquest, no clothes were found on the person of the deceased and it has been stated by the investigating officer (P.W.-7) that he does not know if at the time of incident, constable Suresh Singh was in police uniform or in plain dress. 44. The trial court has further stated that P.W.-2 and P.W.-3 has admitted the fact that they are the pocket witnesses of the police. They deposed their evidence in several cases and as such, in the absence of any independent testimony, the testimony of P.W.-2 and P.W.-3, who are pocket witnesses of the police, cannot be relied upon. The trial Court has further placed reliance upon the testimony of P.W.-2, wherein in his cross examination, he has categorically stated that all the three police personnels were in plain clothes and were not having rifles but were armed with 12 356 INDIAN LAW REPORTS ALLAHABAD SERIES bore guns. The said witness has further stated that when they reached near the grove of Adhar and Asharfi pointed out to the police that the person sitting near the well, is Lal Diwan, the police personnels opened fire causing pellets injuries to Lal Diwan, who ran away towards the village, then police personnels fired 2-3 shots more upon him. Lal Diwan in his defence also fired a shot, which hit Suresh Singh. 45. It is further pointed out in the testimony of Shri Chand (P.W.-3), wherein he has stated that he was not earlier acquainted with accused Har Prasad and Lal Diwan and had seen them only in the lock up after the incident and then for the first time their names were disclosed to him. When he was also detained in the lock up in another criminal case.