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

- **Citation:** (2022) 3 ILRA 454
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-15
- **Case number:** Government Appeal No. 2300 of 1984
- **Bench:** Vivek Kumar Birla, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-phool-singh-ors-48205
- **Pages:** 32

## Headnote

A. Criminal Law - Unlawful Assembly -
Once it is established that the unlawful
assembly has a common object, it is not
necessary that all persons framing the
unlawful assembly must be shown to have
committed some overt act. (Para 68)

By the conduct of the accused persons in
gathering in front of the house of the accused
Phool Singh, carrying guns and country-made
pistols and being a part of the unlawful
assembly which resorted to firing, the Court
concluded that each member of the assembly
has a common object to help Phool Singh and
Giriraj Singh in settling the score by resorting to
rioting, being armed with deadly weapons, and
attempting to murder by firing at Sukh Singh
and his associates and committing murder of
Sukh Singh. (Para 68)

The
accused/respondents
cannot
be
acquitted for the mere reason of a defect
in investigation when the entire evidence
of record proves beyond reasonable doubt
that
the
accused/respondents
have
committed the offence. (Para 56)
Appeals Allowed. (E-10)

List of Cases cited:

## Text

_Characters 0–39,887 of 108,046. This is a partial read: ask again with offset=39887 for what follows._

454 INDIAN LAW REPORTS ALLAHABAD SERIES
eastern side, the house of Phool Singh is
situate. When he reached the place of
occurrence, deceased had died. Pertinently,
from the cross examinations of P.W. -1 and
P.W. -2, it is evident that both these witnesses
were not present at the place of incident at the
time of occurrence. They went to the place of
incident after the death of the deceased.
Further between the place of incident and the
place of presence of the witnesses, there lies a
pond and wall, thus the witnesses P.W. -1 and
P.W. -2, were not in a position to see the
incident as per the site map.

12. P.W. -1 has stated that after the incident
the villagers did not support him in lodging the
report, therefore, he went to call his brother
Brajpal, 14 Kms. away to village Kiratpur. His
brother was not found in the village, he thereafter
went to the factory, 5 Kms. away from Kiratpur
at Nazibabad Road. His brother came back to his
village Kiratpur and they both did not go to the
police station directly which was situate at
Kiratpur. P.W. -1 came to his village along with
his brother Brajpal, thereafter, they went to
police station and report was lodged. P.W. -1 has
admitted that he reached Kiratpur at 11 A.M. and
thereafter went to the factory which was 4-5
Kms. away. After 10-15 minutes, Brajpal came
from factory and they came back to their village.
In contradiction P.W. -2 stated that only he had
gone to call Brajpal from Kiratpur. Thus, the
statements of both the witnesses are totally
contradictory to each other. It is improbable that
report was lodged at 11:30 A.M., as the distance
of Kiratpur is 14 Kms. from the place of incident
and it is admitted that at 11 A.M., P.W.-1
reached Kiratpur. In such a situation, it is
improbable to reach the police station at 11:30
within 30 minutes, further, P.W. -1 admitted that
his brother Brajpal was not found in the village
and he went to the factory, 4 Kms. away to take
Brajpal. P.W. -2 (Suresh Chandra), brother in
law (Sala) of the deceased, is an interested
witness and witness of chance.

13. The recovery of 315 Bore rifle and four
live cartridges of 315 Bore from the
Radheyshyam is in contradiction to the bundle
presented before the trial court. One countrymade SBBL gun and four 315 Bore miss-fired
cartridges was produced by the prosecution. The
recovery alleged to have been made from the
accused is not that was placed before the court.

14. It is evident that there is serious
contradictions in the statements of P.W. -1 and
P.W. -2. They claim to be occular witness and of
having reached the site of the incident. The
prosecution failed to prove their presence at the
site. The site was not visible from the spot of
their presence as per their statement and site map.
The F.I.R. also appears to be ante time and at the
same time the recovery of fire arm and cartridges
employed in the commission of the offence is
improbable and doubtful. We are unable to
persuade ourselves in taking an opinion different
from that of the trial court.

15. The application seeking leave to appeal
is rejected.

16. The appeal, in consequence, stands
dismissed.
----------
(2022)03ILR A454
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.03.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Government Appeal No. 2300 of 1984

State of U.P. ...Appellant
Versus
Phool Singh & Ors. ...Respondents

Counsel for the Appellant:
3 All. State of U.P. Vs. Phool Singh & Ors.
455
A.G.A.

Counsel for the Respondents:
Sri Satya Prakash, Sri Apoorv Tiwari, Sri
Lalji Sahai Srivastava, Sri Raj Kumar Yadav,
Sri Ram Lal Yadav

A. Criminal Law - Unlawful Assembly -
Once it is established that the unlawful
assembly has a common object, it is not
necessary that all persons framing the
unlawful assembly must be shown to have
committed some overt act. (Para 68)

By the conduct of the accused persons in
gathering in front of the house of the accused
Phool Singh, carrying guns and country-made
pistols and being a part of the unlawful
assembly which resorted to firing, the Court
concluded that each member of the assembly
has a common object to help Phool Singh and
Giriraj Singh in settling the score by resorting to
rioting, being armed with deadly weapons, and
attempting to murder by firing at Sukh Singh
and his associates and committing murder of
Sukh Singh. (Para 68)

The
accused/respondents
cannot
be
acquitted for the mere reason of a defect
in investigation when the entire evidence
of record proves beyond reasonable doubt
that
the
accused/respondents
have
committed the offence. (Para 56)
Appeals Allowed. (E-10)

List of Cases cited:

1. Jalil Khan & ors. Vs St. of U.P. (2016) 93 ACC
882: 2016 SCC OnLine All 84

2. Sri Bhagwan Vs St. of U.P. 2013 (12) SCC 137

3. Paniben (Smt) Vs St. of Guj. (1992) 2 SCC
474

4. Ramji Singh Vs St. of U.P. (2020) 2 SCC 425

5. Ilangovan Vs St. of T.N. (2020) 10 SCC 533

6. Guru Dutt Pathak Vs St. of U.P. (2021) 6 SCC
116
7. St. of U.P. Vs M.K. Anthony (1985) 1 SCC 505

8. St. of U.P. Vs Krishna Master (2010) 12 SCC
324

9. Manu Sharma Vs St. (NCT of Delhi) (2010) 6
SCC 1

10. Acchar Singh Vs St. of H.P. (2021) 5 SCC
543

11. St. of Karn.Vs Suvarnamma (2015) 1 SCC
323

12. Gajoo Vs St. of Uttarakhand (2012) 9 SCC
532

13. Manjit Singh Vs St. of Punjab (2019) 8 SCC
529 (Distinguished)
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Ms. Nand Prabha Shukla,
learned A.G.A. for the State and Sri
Apoorv Tiwari and Sri Raj Kumar Yadav,
Advocates, the learned Counsel for the
accused-respondent Nos. 2, 3 and 5.

2. By means of the instant appeal filed
under Section 378 of Cr.P.C., the State has
challenged the judgment and order dated
30th April 1984 passed by the Special
Judge (Additional Sessions Judge), Agra in
Sessions Trial No. 51 of 1982 under
Sections 148, 307/149, 302/149 IPC, Police
Station Fatehpur Sikri, District Agra
whereby the accused-respondent Nos. 1 to
6 have been acquitted from all the charges.

Prosecution Case

3. The prosecution case is that the
accused persons are residents of Village
Baseri Chahar and the house of the accused
Phool Singh son of Patiram (the respondent
No. 1) is situated opposite the house of
Sukh Singh, the informant of the case.
Giriraj Singh is the brother-in-law of
456 INDIAN LAW REPORTS ALLAHABAD SERIES
Fauran Singh - who is the elder brother of
Phool Singh and Giriraj Singh lives with
Phool Singh. The respondent Nos. 2 and 3
are nephews of the respondent No. 1, the
respondent No. 4 is a relative of the
respondent No. 1 and the respondent Nos. 5
and 6 are friends of the respondent No. 1.
Giriraj Singh and Phool Singh used to
indulge in indecent talks, looking at the
ladies of the informant's house. On
20.06.1981 the informant had objected to it.
Upon this Giriraj Singh and Phool Singh
abused the informant. Member Singh s/o
Devi Ram who is related to the informant
like a brother, also objected to the activities
of Giriraj Singh and Phool Singh. Upon
this, the aforesaid persons left the place and
Giriraj Singh said that at that time he was
short of man power and he will settle the
score with the informant. On the next day
i.e. on 21.06.1981, when the informant was
lying down in front of his house, Phuli,
Giriraj and Fateh Singh armed with single
barrel guns and Virendra, Sher Singh,
Malkhan and Brijendra armed with country
made pistols gathered in front of Phuli's
house.
They
charged
towards
the
informant's house. Upon hearing the
commotion, Ramshri wife of Nirpat-cousin
of the informant and Balbiri wife of
Shivram, another cousin of the informant,
came there. The accused-persons started
firing. The informant took shelter of a wall
and the pellets of gun-shots hit Balbiri and
Ramshri and also the wall behind which the
informant was taking shelter. Upon hearing
the noise, some other persons came there
and asked the accused-persons not to do so,
as it will result in loss of lives of the
people. The accused-persons started firing
on those people also, due to which pellets
hit Phool Singh s/o Jorawar Singh, Sobaran
s/o Dilip Singh, Chhiddi s/o Devjeet, Panna
s/o Manphool and Lakhan s/o Jogdar. After
this, seven accused persons ran away
towards south of Phuli's house. After
sometime, the police guard posted in the
village came there.

4. Sukh Singh arranged a Tractor with
Trolley to take the injured to the hospital
and Sukh Singh, Mohan, Subedar Kharag
Singh and other persons accompanied
them. Maharam met on the way, who told
them that Brijendra Singh s/o Hari Ram
(respondent No. 6) had been arrested and
Brijendra Singh was also made to sit in the
Tractor Trolley.

5. Thereafter at the tube-well of
Subedar
Kharag
Singh,
Sukh
Singh
dictated the script of the F.I.R. to Subedar
Kharag Singh who wrote the same in his
hand writing and the injured persons were
taken by Sukh Singh to the Police Station.
A report of the incident was lodged in
Police Station Fatehpur Sikri on 21.06.1981
at 5:20 p.m. and the police recorded the
statement of injured Phool Singh s/o
Jorawar Singh who was lying down in a
serious condition in the Tractor Trolley
alongwith the other injured persons. While
groaning with pain, Phool Singh stated that
as soon as he reached in front of the house
of
Sukh
Singh
upon
hearing
the
commotion, Fateh Singh (the respondent
No. 2) fired at him and the bullet hit him
below his left shoulder. Giriraj Singh shot
the second fire and the bullet from it hit his
left thigh and he fell down. Even after it,
gun-shots kept on being fired, from which
Sobaran, Chhiddi, Panna and Lakhan were
injured. Ramshri and Balbiri were lying
down and groaning in pain since before his
arrival. He said that his condition was very
bad and he could not speak anything more.
He had been shot by Fateh Singh and
Giriraj and he should be sent to a hospital
soon. This statement was recorded by the
Sub Inspector and immediately afterwards
3 All. State of U.P. Vs. Phool Singh & Ors.
457
he sent the injured Phool Singh in a Tractor
Trolley to Primary Health Centre, Fatehpur
Sikri for his medical examination and
treatment, from where he was referred to a
Hospital at Agra. Phool Singh s/o Jorawar
Singh died before he could reach the
hospital.

6. Giriraj Singh absconded and the
accused respondent Nos. 1 to 6 were
charged and tried for committing offences
punishable under Sections 148, 307/149,
302/149 IPC.

Prosecution Evidence

7. The prosecution examined 5
witnesses, out of which PW-1 (Sukh
Singh), PW-2 (Lakhan) and PW-3 (Sobaran
Singh) were the eye-witnesses of the
incident. The injury reports of Chhiddi,
Panna, Lakhan Singh, Balbiri, Ramshri,
Sobaran Singh and post-mortem report of
the dead body of Phool Singh were placed
on record. Injury reports of Chhiddi, Panna,
Lakhan Singh and Balbiri mention gun-shot
injuries whereas injury reports of Lakhan
Singh and Ramshri mention lacerated
wounds. The post mortem report of the
dead body of Phool Singh mentions two
gun-shot wounds.

8. PW-1 Sukh Singh has stated that
his house is situated opposite the house of
the accused-Phool Singh. Giriraj Singh and
Phool Singh used to indulge in indecent
talks and for this reason relations with
those persons became strained. One day
before the day of occurrence, his wife
Lalmani alongwith other ladies, namely
Ramshri wife of Nirpat and Basanti wife of
Meet Singh were returning after easing
themselves. Phool Singh and Giriraj started
cracking indecent jokes with the ladies.
Sukh Singh was coming behind the ladies
and he forbade those persons from talking
in such manner in presence of the ladies.
Member Singh also reached there at the
same time and he also forbade Giriraj
Singh and Phool Singh from doing such
talks. Giriraj said that at that time he was
short of man power, else he would have
taught a lesson. The following day at about
2:00-3:00 p.m. Sukh Singh was lying down
in his house. He saw Sher Singh, Phool
Singh, Fateh Singh, Giriraj, Virendra,
Malkhan and Brijendra had gathered in
front of the house of Phool Singh. Phool
Singh and Giriraj Singh had single barrel
guns and other four persons had country
made pistols. These persons charged
towards the house of PW-1 shouting to
catch hold of him. PW-1 ran away and took
shelter of a wall. Upon hearing the
commotion, his sister-in-law Ramshri and
younger brother's wife Balbiri came out of
their house and some persons from the
aforesaid seven fired two gun-shots. Some
pellets hit Ramshri and Balbiri and some
hit
wall
where
PW-1
was
hiding.
Thereafter, Phool Singh, Sobaran, Lakhan,
Panna and Chhiddi came there. The
aforesaid seven accused persons shot on
these persons also and Lakhan, Sobaran,
Chhiddi, Phool Singh s/o Jorawar and
Panna got injured. Upon hearing the noise
of gun-shots, police guard came there and
seeing the police, the accused-persons ran
away towards south. PW-1 took Tractor of
Chhiddi and arranged for transporting the
injured persons to the hospital. PW-1,
Mohan, Subedar Kharag Singh and some
other persons went in the Tractor with the
injured persons. Maharam met on the way
and he told that the accused Brijendra
Singh had been caught. Then Brijendra
Singh was also made to sit in the Tractor
Trolley. A report was got scribed by
Subedar Kharag Singh which was proved
by the PW-1 as Exhibit-1. Thereafter, PW-
458 INDIAN LAW REPORTS ALLAHABAD SERIES
1 went to the police station alongwith the
injured persons and he gave the report
there. Thereafter, the injured were sent to a
hospital. At the hospital, they were told that
the injured were in a serious condition and
they were referred to Agra. Accordingly,
the injured were taken to Agra, where the
doctor examined Phool Singh and told that
he was dead.

9. In his cross-examination, PW-1
stated that there is a distance of about 4550 steps between his house and the house
of the accused Phool Singh. The accused
persons had fired 7-8 shots. Two fires were
directed towards him. After the accused
persons had left, he had seen the pellets in
and around the wall and had shown it to the
Sub-Inspector. Some pieces of plaster of
the wall had fallen down. He did not know
as to whether the Sub-Inspector collected
the pellets and the pieces of plaster or not.
The tube-well where the FIR was scribed,
is about 2-3 Furlongs away from the
village. The report had not been written till
Maharam stopped them. 3-4 minutes after
running away of the accused, they had gone
to the Baithak of Bhima Numbardar. It took
15-20 minutes to arrange the tractor. From
the Baithak of Bhima Numbardar, they
reached his tube-well in 5-6 minutes. About
1⁄2 hour was spent at the tube-well in
writing the FIR. He does not know how to
write and, therefore, he dictated the FIR to
Subedar Kharag Singh. No draft of the FIR
was prepared. No one had a prior
experience of writing such an FIR. It is
wrong that the FIR-Exhibit-1 was signed
on the next day or that it was got written by
some other person. The police station is
about 8 Miles away from the tube-well. As
there were injured persons in the tractor, it
was driven slowly and it took about 1 1⁄4 - 1
1⁄2 hours to reach the police station from the
tube-well. He denied the defence story that
they had rioted at the temple and that
Subedar
Kharag
Singh
had
fired
indiscriminately in the Panchayat due to
which the persons got injured.

10. PW-2 Lakhan s/o Jogdar is also
one of the injured persons. He stated that he
knows all the accused persons, who are
residents of his village. On the date of
occurrence at about 3:00 p.m., he was at his
home. He heard gun-shots from the side of
house of the accused Phool Singh. Upon
hearing the gun-shots, he went there and
Saurabh and Panna followed him. They
reached the chowk in front of the House of
the accused Phool Singh. The house of
Sukh Singh is opposite the house of Phool
Singh. Giriraj Singh and Phool Singh had
single barrel guns and other accused
persons had country made pistols. He saw
Balbiri, Ramshri and Phool Singh s/o
Jorawar had fallen down there. Giriraj fired
at PW-2 Lakhan and the pellets hit his
hand. Giriraj fired the second shot which
hit Sobaran. Shera shot a fire which hit
Panna. Upon seeing Subedar Kharag Singh
and the Police Guard, the accused and
Giriraj ran away. They took the injured to
the Baithak (sitting area) of Bhima
Numbardar. There the injured were put in a
tractor and taken to Fatehpur Sikri. On the
way, Maharam stopped the Tractor and told
that Brijendra Singh had been caught with
the help of police. The Police personnel
made Brijendra Singh to sit in the Tractor.
Subedar Kharag Singh scribed the report at
the tube-well and PW-2 and other persons
went to the Police Station. The medical
examination of PW-2 and other persons
was done in Agra hospital. Phool Singh s/o
Jorawar Singh had died on the way.

11. In his cross-examination PW-2
stated that there are two houses and an
open plot between his house and the house
3 All. State of U.P. Vs. Phool Singh & Ors.
459
of Phool Singh. He had heard two gunshots at his home and 2-3 while on the way.
There was a distance of 1-1 - 2-2 steps
between the persons who were firing. They
were at a distance of about 15-20 steps
from the house of Sukh Singh. The accused
Brijendra had been caught before they
could reach the tube-well. He too denied
the defence story that any Panchayat was
held at the temple and a quarrel took place
in the Panchayat and he also denied and
that Subedar Kharag Singh had fired
indiscriminately in the Panchayat due to
which the persons got injured.

12. PW-3 Sobaran is also an injured
witness and he stated that he was present at
his house on the day of occurrence at about
3:00 p.m. He heard gun-shots. Upon
hearing the gun-shots, he reached the
chowk in front of the house of Phool Singh
and Phool Singh s/o Jorawar, Ramshri and
Balbiri were lying down injured there.
Phool Singh, Fateh Singh and Giriraj were
carrying guns and Sher Singh, Malkhan,
Brijendra and Virendra were carrying
country made pistols. Lakhan had reached
there before PW-3 and Sobaran and Panna
reached after him. Giriraj shot at Lakhan
and thereafter he shot at PW-2 Sobaran
Singh. Sher Singh fired at Panna with a
country made pistol. All three were hit by
pellets and upon being injured, they sat
near larawani. Upon seeing Subedar
Kharag Singh, the Police personnel and
some other persons of the village, the
accused-persons
ran
away.
Thereafter
Phool Singh was lifted and taken to the
Baithak of Bhima Numbardar. The injured
ladies were sent to the house of Sukh
Singh. Thereafter, they went to the police
station in a Tractor Trolley. Police Guard
and Subedar Kharag Singh etc. had caught
Brijendra. They stopped the tractor at the
tube-well and Brijendra was made to sit on
the Tractor Trolley. Thereafter Subedar
Kharag Singh scribed the Report there.
They went with the report to the Police
Station. Subedar Kharag Singh and Police
personnel returned to the village. His
injuries were examined by the doctor at
Agra. Phool Singh had died on the way.

13. In his cross-examination, PW-3
stated that he had told the Sub-Inspector
that he saw Phooli, Fatte and Giriraj Singh
carrying guns and Shera, Malkhan and
Virendra carrying country made pistols. He
categorically denied that he had told the
Sub-Inspector that the fact that the accused
Phool Singh, Giriraj, Fateh Singh Virendra,
Shera, Malkhan and Brijendra had ran
away, had been told to him by Sukh Singh.
Brijendra had been caught before they
reached the tube-well of Sukh Singh. He
had not told the Sub-Inspector that
Brijendra was caught beyond the tube-well
of Sukh Singh. The ladies were also made
to sit in the tractor at the Baithak of Bhima
Numbardar. The report was scribed at the
tube well of Sukh Singh. He categorically
denied the story of a quarrel at the temple
and he denied that the persons were injured
due to the indiscriminate firing done by
Subedar Kharag Singh.

14. PW-4 Subedar Kharag Singh said
that he had heard 2-3 gun-shots and then he
heard 4-5 gun-shots. Carrying his gun, he
went to Sukh Singh's house. Balbiri,
Ramshri, Chhiddi and Phool Singh were
lying injured there. He saw the accused and
other persons running away, who were
being chased by the police and Maharam
etc. He met Sukh Singh there, who told the
entire incident to PW-4. Both the injured
ladies were taken into the home and Phool
Singh and Chhiddi were taken to Baithak of
Bhima Numbardar. Lakhan, Panna and
Sobaran also reached there. They had
460 INDIAN LAW REPORTS ALLAHABAD SERIES
suffered gun-shot injuries. Sukh Singh
arranged a Tractor. He started towards the
police station alongwith the injured persons
and PW-4. When they reached near Sukh
Singh's tube-well, Maharam bawled and
informed that the accused Brijendra had
been caught by him and the police. Then
Brijendra was also made to sit in the
tractor. Sukh Singh asked PW-4 to write
his report and he wrote whatever the former
told him. It was signed by Sukh Singh.
PW-4 proved the report as Exhibit A-1.

15. In his cross-examination, PW-4
stated that he was in a hurry to take the
injured persons and he did not see empty
cartridge shells or pellet marks in the Wall
of Sukh Singh's verandah. When the SubInspector inspected the spot, he had called
PW-4. There were pellet marks in the wall,
but no pellets were there. Pieces of plaster
were not lying there. Near the places of
holes of pellet marks, sand from the plaster
was lying there. He had denied having told
the Investigating Officer that he had went
with the tractor trolley up to Jaingara and
he could not tell as to how the Investigating
Officer mentioned it. He denied that any
Panchayat was held at the temple on the
date of incident and that Sukh Singh and
others had created an uproar in it. He
denied having fired at the crowd due to
which the persons suffered injuries.

16. PW-5 Vidya Sagar Tiwari was
posted as Constable Clerk on the date of the
incident. He proved the Report lodged in the
police station, which was written and signed
by him. He stated that initially the case was
registered under Sections 147/148/307 I.P.C.
and after receiving the information of death
of Phool Singh it was converted into Section
302. He had registered this fact in the General
Diary on 22-06-1981 at Report No. 30. The
original G.D. is in his handwriting and its
copy is on record and is marked as Exhibit A11. The investigation of the case was
conducted by Sub Inspector Bharat Ram who
died on 13.03.1984, i.e., about a year before
recording of the statement of PW-5. The
statement of the deceased Phool Singh is
recorded in the Case Diary in the hand
writing of S.I. Bharat Ram, which was
proved by PW-5 and was marked as Exhibit
A-15.

Defence Evidence

17. In their statements recorded under
Section 313, Cr.P.C., all the accused persons
denied the charges and stated that they had
been falsely implicated due to party-bandi in
the village.

18. The accused-Respondent No. 4
Sher Singh stated that there was no vision in
his right eye and for the past 4-5 years, the
vision of left eye was also poor.

19. The accused-Respondent No. 5
Malkhan Singh stated that prior to the
indecent, on 15th June he and two persons
had found a handkerchief on the road. One
of them picked it up and handed it over to
the wife of Badan Singh Nai. The lady
demanded Rs.300/- which, she said, were
kept in the handkerchief. Since none of
them had any money, they went away. On
21st June, a Panchayat was held at Thakur
Devalay to discuss the matter. He had also
gone to the Panchayat. The Panchs asked
him about the money. He and his
companions denied. Sukh Singh etc. were
also present and Subedar Kharag Singh had
his licensed gun. A quarrel tool place there.
Sukh Singh etc. pelted stones. He also ran.
Subedar
Kharag
Singh
resorted
to
indiscriminate firing. Respondent No. 5 ran
away and he did not see as to who suffered
injuries.
3 All. State of U.P. Vs. Phool Singh & Ors.
461

20. Accused-Respondent No. 6
Brijendra Singh (now dead) said that he is a
medical practitioner having his clinic in
village Jaingara, which is about 2 Km.
away from his village. At the time of the
quarrel he was at his clinic. When these
persons were bringing the injured in
tractor-trolley, they saw him, caught him
and dragged him to the trolley.

21. It is significant to mention that
upon being asked as to whether they will
give an explanation, except for the accusedrespondent no. 5 Malkhan Singh, all other
accused persons answered in the negative.
Although he had stated that he will not give
any explanation, the Accused-Respondent
No. 1 Phool Singh appeared as DW-1 and
although
accused-respondent
no.
5
Malkhan Singh had stated that he would
give an explanation, he did not appear as a
witness.

22. The accused-respondent No. 1
Phool Singh (DW-1) stated that the
Accused-Respondent No. 5 Malkhan Singh
is also called as Bhagat Ji. A dispute had
occurred between Bhagat Ji and the wife of
Madan Nai regarding a handkerchief and
some money. He asked me to settle the
dispute. I asked these people to gather ten
persons of the village and hold a Panchayat
at the temple and settle the dispute. On this
suggestion of DW-1, a Panchayat was held
at the temple of Thakur Ji. DW-1, Sukh
Singh, Padam Singh, Pooran Pradhan and
Kedar were nominated as Panch. Panchayat
started at about 02:00 p.m. Shera had come
to
attend
the
Panchayat
alongwith
Malkhan. 40-50 persons of the village had
gathered in the Panchayat. A short while
after start of the Panchayat, a quarrel
occurred and brick batting started. Subedar
Singh fired a shot from his gun and a
stampede started. Villagers suffered pellet
injuries due to the gun-shot fired by
Subedar Kharag Singh.

23. In his cross-examination, DW-1
stated that the handkerchief was lost and
found by Malkhan about 2-1 days before
the Panchayat. No one got injured in brick
batting.

Findings of the Trial Court

24. After discussion of the entire
evidence, the learned trial court gave the
judgment and order dated 30-04-1984
acquitting all the accused persons of all the
charges on the following grounds: -

(I) The prosecution has produced
PW-1, PW-2 and PW-3 as eye-witnesses
but PW-3 was confronted with his
statement recorded under Section 161
Cr.P.C., in which he had stated that Sukh
Singh had told him about running of Phool
Singh; this indicates that PW-3 did not see
the incident.

(II) All the witnesses had enmity
with the accused persons since prior to the
incident and it was also established that
only those witnesses of fact were produced
who are closely related to each other.

(III) The Investigating Officer did
not recover any pellets either from the wall
where Sukh Singh had taken shelter or
from any place near the wall and no empty
shells of cartridges were recovered from
the spot. No blood was found from any
place in the chowk although several injured
persons fell on the ground after receiving
injuries in the chowk, which makes the
place of incident doubtful. Therefore, the
statements of the eye-witnesses have not
been corroborated regarding the place of
incident by material circumstances.
462 INDIAN LAW REPORTS ALLAHABAD SERIES

(IV) The fact that the arrest of the
accused Brijendra has been mentioned in
the FIR indicates that it was prepared
subsequently.

(V)
The
statement
of
the
deceased Phool Singh made to the
Investigating Officer has been relied upon
as
his
dying
declaration
but
the
Investigating Officer did not take the
precaution of recording his statement in the
presence of two respectable witnesses as
required in the Police Regulations and,
therefore, much evidentiary value cannot
be placed upon this dying declaration.

(VI) The deceased Phool Singh
mentioned that only Fateh Singh and Girraj
fired at him. He also stated that Sobaran,
Chhiddi, Panna, Lakhan, Ramshri and
Balbiri also suffered injuries in the firing
but he did not name any other person who
resorted to firing and, therefore, if this
dying declaration is accepted as true, then
only two persons resorted to firing.
Therefore, the prosecution story is belied
by the dying declaration and makes the
prosecution case of firing by the seven
accused extremely doubtful.

(VII)
Although
the
defence
theory regarding Panchayat and firing is
highly improbable and unnatural, it makes
no difference and it is a cardinal principle
of law that the prosecution must prove its
case beyond doubt and cannot take
advantage of the weakness of defence.

25. The State has filed the present
appeal under Section 378 Cr.P.C., which
has been admitted by means of an order
dated 07-01-1987.

26. During the pendency of the
appeal, the respondent Nos. 1, 4 and 6 have
died and the appeal stands abated as against
them. The respondent Nos. 2, 3 and 5 are
represented by Sri Apoorv Tiwari and Sri
Raj Kumar Yadav, Advocates, who have
advanced their submissions in opposition of
the appeal.

Submissions of the AppellantState

27. Ms. Nand Prabha Shukla, learned
A.G.A. has taken us through the statements
of witnesses in order to establish that the
findings of the learned Court below are
perverse and the judgment under challenge
is unsustainable. She has submitted that the
Investigating Officer has recorded the
statement of injured Phool Singh under
Section 161 Cr.P.C., who died thereafter
while
being
taken
to
the
hospital.
Therefore, his statement has to be treated as
his dying declaration and the provisions of
Police Regulations would not apply to it
and non-compliance with the aforesaid
provisions would not vitiate its evidentiary
value.

28. In Jalil Khan and others versus
State of U.P. (2016) 93 ACC 882 = 2016
SCC OnLine All 84, a coordinate Bench of
this Court has dealt with the effect of noncompliance
with
the
provisions
of
Regulation 115 of the Police Regulations in
a Statement which was recorded under
Section 161 Cr.P.C. and the relevant
portions of the aforesaid judgment are
being reproduced below: -,

"38. Next ground of challenge,
that dying declaration has been wrongly
believed by the learned trial Judge has two
points that it has been recorded in
contravention of para 115 of the U. P.
Police
Regulations and
presence
of
independent persons was not procured by
3 All. State of U.P. Vs. Phool Singh & Ors.
463
the investigating officers before recording
the dying declaration.

39. On behalf of the Staterespondent, these arguments have been
replied that when statement of the deceased
Abdul Samad was recorded by the
investigating officer, it was recorded under
Section
161
Cr.P.C.
in
absence
of
contemplation of the death of the injured.
The learned trial Judge has believed
the dying
declaration.
The dying
declaration was
recorded
by
first
investigating officer Sri. R.P. Chaudhary
though he has not been examined by the
prosecution and the second investigating
officer Ramesh Chandra Dubey, P.W.-8
has proved the dying declaration Exhibit
Ka-12. Non-examination of Sri. R.P.
Chaudhary has been explained by this
witness, according to him, R.P. Chaudhary
has died. Death of R.P. Chaudhary has not
been disputed by the defence before the
learned trial Judge.

40. On behalf of the defence, this
witness has been cross examined regarding
the dying declaration on the point that why
he did not record the statement of the
doctor about the fitness of mental condition
of Abdul Samad at the time of recording of
his statement on 29.2.1986.

41. We are of the opinion though
while
making
declaration,
injured
apprehended his death but there is nothing
on record that the investigating h
but
there is nothing on record that the
investigating officer was informed by the
doctor
or
any
other
person
about
impending death of the injured. According
to the prosecution witnesses the deceased
was conscious and he became unconscious
only half an hour before he reached the
District Hospital, Sultanpur. During cross
examination, Musa Qasim, P.W.-1 was
asked whether he had informed the
investigating officer that his father was in
serious condition to which he replied that
he was not asked by the investigating
officer in this regard. He only informed the
investigating officer, he had seen the
occurrence and identified the miscreants.

42. In view of above, there
appears
substance
in
the
argument
advanced on behalf of the State-respondent
that
the
investigating
officer
merely
recorded statement of injured Abdul Samad
under Section 161 Cr.P.C. and it was not
made in contemplation of the death of the
injured. Keeping in view this fact, we do
not think the two points submitted before us
in reference to admissibility of dying
declaration Exhibit
Ka-12,
survive
no
more."

29. In the present case also, the
statement of Phool Singh was recorded by
the Investigating Officer under Section 161
Cr.P.C. and it was not signed by him. At
the time of making the statement Phool
Singh had suffered two gun-shot injuries,
he was lying in a Tractor Trolley for being
taken to the hospital for his treatment. His
condition was serious and he was groaning
in pain while making the statement and he
even said that he could not speak anything
more. Soon thereafter, he died before he
could reach the hospital. However, there is
nothing on record which establishes that
while recording the statement of Phool
Singh, the Investigating Officer was acting
with an understanding that the former was
about to die and that the later was recording
his dying declaration. The provisions of
Regulation 115 of the Police Regulations
would not apply to a statement recorded
under Section 161 Cr.P.C. However, as the
person died soon after recording of his
464 INDIAN LAW REPORTS ALLAHABAD SERIES
statement under Section 161 Cr.P.C., the
statement can be relied upon as his dying
declaration even without compliance of the
requirements of Regulation 115.

30. The learned A.G.A. has placed
reliance on a decisions of the Hon'ble
Supreme Court in the case of Sri Bhagwan
Vs. State of U.P., 2013 (12) SCC 137. The
relevant portion of the said judgment is
extracted herein below:-

"21. As far as the implication of
162 (2) of Cr.P.C. is concerned, as a
proposition of law, unlike the excepted
circumstances under which 161 statement
could be relied upon, as rightly contended
by
learned
senior
counsel
for
the
respondent, once the said statement though
recorded under Section 161 Cr.P.C.
assumes the character of dying declaration
falling within the four corners of Section
32(1) of Evidence Act, then whatever
credence that would apply to a declaration
governed by Section 32 (1) should
automatically deemed to apply in all force
to such a statement though was once
recorded under Section 161 Cr.P.C. The
above statement of law would result in a
position
that
a
purported
recorded
statement under Section 161 of a victim
having regard to the subsequent event of
the death of the person making the
statement who was a victim would enable
the prosecuting authority to rely upon the
said statement having regard to the nature
and content of the said statement as one of
dying declaration as deeming it and falling
under Section 32(1) of Evidence Act and
thereby commend all the credence that
would be applicable to a dying declaration
recorded and claimed as such."

31. The requirements of a valid dying
declaration have been formulated by the
Hon'ble Supreme Court in Paniben (Smt)
v. State of Gujarat, (1992) 2 SCC 474 in
the following words: -

"18. Though a dying declaration
is entitled to great weight, it is worthwhile
to note that the accused has no power of
cross-examination.
Such
a
power
is
essential for eliciting the truth as an
obligation of oath could be. This is the
reason the Court also insists that the dying
declaration should be of such a nature as
to inspire full confidence of the Court in its
correctness. The Court has to be on guard
that the statement of deceased was not as a
result of either tutoring, prompting or a
product of imagination. The Court must be
further satisfied that the deceased was in a
fit state of mind after a clear opportunity to
observe and identify the assailants. Once
the Court is satisfied that the declaration
was true and voluntary, undoubtedly, it can
base its conviction without any further
corroboration. It cannot be laid down as an
absolute rule of law that the dying
declaration cannot form the sole basis of
conviction unless it is corroborated. The
rule requiring corroboration is merely a
rule of prudence. This Court has laid down
in
several
judgments
the
principles
governing dying declaration, which could
be summed up as under:

(i) There is neither rule of law
nor of prudence that dying declaration
cannot
be
acted
upon
without
corroboration. (Munnu Raja v. State of
M.P.)

(ii) If the Court is satisfied that
the dying declaration is true and voluntary
it can base conviction on it, without
corroboration. (State of U.P. v. Ram
Sagar Yadav; Ramawati Devi v. State of
Bihar).
3 All. State of U.P. Vs. Phool Singh & Ors.
465

(iii) This Court has to scrutinise
the dying declaration carefully and must
ensure that the declaration is not the result
of tutoring, prompting or imagination. The
deceased had opportunity to observe and
identify the assailants and was in a fit state
to make the declaration. (K. Ramachandra
Reddy v. Public Prosecutor).

(iv) Where dying declaration is
suspicious it should not be acted upon
without corroborative evidence. (Rasheed
Beg v. State of M.P.)

(v) Where the deceased was
unconscious and could never make any
dying declaration the evidence with regard
to it is to be rejected. (Kake Singh v. State
of M.P.)

(vi) A dying declaration which
suffers from infirmity cannot form the basis
of conviction. (Ram Manorath v. State of
U.P.)

(vii) Merely because a dying
declaration does not contain the details as
to the occurrence, it is not to be rejected.
(State of Maharashtra v. Krishnamurti
Laxmipati Naidu)

(viii) Equally, merely because it
is a brief statement, it is not be discarded.
On the contrary, the shortness of the
statement itself guarantees truth. Surajdeo
Oza v. State of Bihar)

(ix) Normally the court in order
to satisfy whether deceased was in a fit
mental condition to make the dying
declaration look up to the medical opinion.
But where the eye witness has said that the
deceased was in a fit and conscious state to
make this dying declaration, the medical
opinion cannot prevail. (Nanahau Ram v.
State of M.P.)

(x) Where the prosecution version
differs from the version as given in the
dying declaration, the said declaration
cannot be acted upon. (State of U.P. v.
Madan Mohan)".

32. Examining the dying declaration
of Phool Singh alongwith the other
evidence available on record, we find that
the declaration was recorded by the
Investigating Officer S.I. Bharat Ram soon
after the incident, when Phool Singh was
lying in the Tractor-trolley alongwith the
other injured persons for being taken to a
hospital. Initially it was recorded in the
form of a statement under Section 161
Cr.P.C. but due to death of Phool Singh
soon thereafter, it assumed the character of
his dying declaration. S.I. Bharat Ram, who
had recorded the statement, expired before
he could be examined as a witness in the
trial and the aforesaid statement of Phool
Singh
was
proved
by
PW-5
Head
Constable Vidya Sagar Tiwari, who was
posted as a Constable Clerk in Police
Station Fatehpur Sikri on the date of
incident, i.e. 21-06-1981. Phool Singh has
unequivocally stated that upon hearing the
commotion, as soon as he reached in front
of the house of Sukh Singh, Fateh Singh
(the respondent No.