# State of U.P v. Ramesh & Ors

- **Citation:** (2022) 3 ILRA 485
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-14
- **Case number:** Government Appeal No. 2349 of 2006
- **Bench:** Vivek Kumar Birla, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ramesh-ors-48206
- **Pages:** 7

## Headnote

A. Criminal Law - The Court did not find
infirmity in the judgment of the Trial Court on
finding that the testimony of the sole witness
P.W. 2 has been proven to be false and as the
alleged motive of the offence has also not been
found sufficient to indict the accused persons.
(Para 30)
Appeal Rejected. (E-10)

List of Cases cited:

## Text

3 All. State of U.P. Vs. Ramesh & Ors.
485
(2022)03ILR A485
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2022

BEFORE

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

Government Appeal No. 2349 of 2006

State of U.P. ...Appellant
Versus
Ramesh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:

A. Criminal Law - The Court did not find
infirmity in the judgment of the Trial Court on
finding that the testimony of the sole witness
P.W. 2 has been proven to be false and as the
alleged motive of the offence has also not been
found sufficient to indict the accused persons.
(Para 30)
Appeal Rejected. (E-10)

List of Cases cited:

1. Amitbhai Anilchandra Shah Vs C.B.I. (2013) 6
SCC 348

2. St.of M.P. Vs Ratan Singh (2020) 12 SCC 630

3. Jayamma Vs St.of Karn. (2021) 6 SCC 213
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard the learned AGA on the
application seeking leave to file appeal
under Section 378 (3) Cr.P.C.

2. By means of the instant application,
the appellant-State has sought leave to file
appeal against the judgment and order
dated 21.01.2006 passed by the learned
Sessions Judge, Baghpat in Session Trial
No. 330 of 2004 (State vs. Rmesh and
another) acquitting the respondent-accused
from the charge of offence punishable
under Sections 302/34 IPC.

3. The prosecution case, briefly
stated, is that on 26.06.2004 at 01:30 a.m.,
the informant Leela Singh son of Kale
Singh lodged a report (Exhibit A-1)
alleging that on 25.06.2004 at 08:30 p.m.,
Karan Singh came to his house and
informed that somebody had stabbed the
informant's brother Jaidayal in Naiyon Wali
Gali and he is lying there. The informant
and his family members went there and he
took his brother in a Maruti Car to
Narendra Mohan Hospital, where the
doctors examined and reported him to be
dead. After putting the dead body in
mortuary, he went to lodge the report. On
the basis of the aforesaid report, a case was
registered
against
unknown
accused
persons.

4. On 27.06.2004, the informant gave
another report (Exhibit A-2) stating that
after cremation of the dead body of his
brother, people were visiting his home and
were talking about the murder of his
brother Jaidayal, from which he came to
know that his brother had been killed by
the accused Dheeraj and Ramesh, both sons
of Durjan Singh, due to animosity of
previous election of Gram Pradhan. A short
while before his murder, the deceased
Jaidayal had stopped at the shop of Karan
Singh and thereafter he was coming home
through Naiyon Wali Gali and Radhe son
of
Chetan
had
seen
the
accusedrespondents Dheeraj and Ramesh following
the deceased in the lane. After Jaidayal got
injured, the accused Dheeraj and Ramesh
were seen running towards his shop in great
486 INDIAN LAW REPORTS ALLAHABAD SERIES
haste, by Gajendra son of Jaipal Singh and
Karmveer Singh son of Shakru Singh. At
that time only, the informant came to know
that after losing the elections the accusedrespondents had stated many times that
although they had lost the election, they
would not let Jaidayal complete the five
years' term. The informant got this
information from Ramesh son of Gopi and
Sakru son of Khushi Ram. In the second
information, the informant stated that he
could not mention these facts in the FIR as
at that time he did not know these facts.

5. On this subsequent information, a
case was registered against the accusedrespondents Ramesh and Dheeraj. After
investigation, the police submitted a charge
sheet
against
the
accused-respondents
under Section 302/34 IPC. The prosecution
examined P.W. 1 - Leela Singh - the
informant, who is the brother of the
deceased. P.W. 1 supported the allegations
levelled in the FIR as well as subsequent
information on which the case was
registered.

6. P.W.2 - Gajendra was produced as
an ocular witness who stated that in the
evening of 25-06-2004 he was returning
home from Devi Mandir and Karmveer was
accompanying him. When P.W.2 and
Karmveer were passing through Naiyon
Wali Gali at about 08:30 p.m., they saw
that the respondent no.2 - Dheeraj had
caught hold of the deceased Jaidayal and
the respondent no.1 - Ramesh was stabbing
him. At the same time, Mukesh and Leelu
also came there carrying a torch and they
challenged the accused persons, whereupon
the accused persons left Jaidayal and
walked away from the side of the P.W.2.
Jaidayal's wife Rajwati had defeated
Dheeraj's wife-Babli in election of Gram
Pradhan due to which Dheeraj was annoyed
with Jaidayal and he used to say that he
will not let him complete the five years'
term.

7. P.W. 3 is the Sub-Inspector who
had prepared the inquest report in the
hospital's
mortuary.
P.W.4
is
the
Constable-Clerk who has registered the
report. P.W.5 is the doctor who had
conducted post-mortem examination on the
deceased's dead body, who stated that the
deceased died of stab wounds. P.W.6 is the
Investigating Officer.

8. In defence, the accused persons
produced three witnesses. D.W.1 - Karan
Singh is the person who is said to have
given information on 26-06-2004 at 8:30
p.m. that the deceased had been stabbed.
He has stated that his shop is situated 100
to 125 yards away from the place of
occurrence. The deceased came to his shop
at about 09:45 p.m. and he stayed there for
about 15 minutes. Thereafter he went away
taking bidi, match box and lemon and after
about five minutes since he left, D.W. 1 got
information
that
Jaidayal
had
been
attacked. He went to the spot and till then
Jaidayal was alive. He did not see Gajendra
and Lilu there. He had gone to Jaidayal's
house to give information of his being
injured and had called the deceased's
brother Leela Singh, Deepchand, Jaidayal's
son Sanju and Gajendra son of Jaipal, who
is also from the same family. He had
helped in Jaidayal being put in the car.

9. D.W.2 - Satish Kumar said that no
such incident had occurred till 09.30 p.m.
and he received information of the incident
at about 09:45 p.m. but he did not hear the
names of the accused persons as the
assassins of Jaidayal. D.W. 3 - Dheer Singh
is the Pujari of Durga Mandir. He said that
he recognises each and every person who
3 All. State of U.P. Vs. Ramesh & Ors.
487
visits the temple and Gajendra and
Karmveer did not come to temple in the
evening on the date of the incident. D.W. 4
- Karmveer, regarding whom P.W.2 had
stated that he was returning from Devi
Mandir in the evening of 25.06.2004 along
with Karmveer; stated that there are total
four temples in the village, out of which
three are of Lord Shiva and one is of the
Goddess. Dheer Singh is the Pujari of
temple of the Goddess. He stated that the
deceased was killed at about 10:15 p.m. He
did not see the incident and did not hear
from anybody that the deceased had been
killed by the accused persons.

10. After taking into consideration the
statement of all the witnesses, the learned
court below came to a conclusion that the
prosecution has failed to establish the
charges against the accused persons beyond
reasonable doubt and acquitted the accused
persons by giving them benefit of doubt.

11. The appellant-State has filed the
instant application seeking leave to file
appeal under Section 378 (3) Cr.P.C. on the
grounds that there is sufficient evidence to
prove the complicity of the accused persons
in commission of the crime but the learned
Trial Court has acquitted them without
appreciating the material evidence on
record. There is no contradictions in the
statements of the witnesses and if there are
any minor contradictions, the same have
occurred only because of lapse of time and
loss of memory. The accused persons had a
strong motive which was due to the dispute
arising out of election of Gram Pradhan.
Even if there was a discrepancy in the time
of incident, it would not vitiate the
prosecution case.

12. We have gone through the
statement of the witnesses in detail and
scrutinised the findings of the learned
court below in light of the grounds of
challenge raised by the learned AGA.

13. In the FIR of the incident lodged
by the informant (P.W.1) on 26-06-2004
(Exhibit A-1), the allegations are against
unknown
persons.
In
the
second
information lodged on 27.06.2004 (Exhibit
A-2), the informant has alleged that from
the people visiting his home
after
cremation of his brother, he came to know
that his brother had been killed by the
accused-respondents
and
he
had
mentioned Gajendra and Karmveer as
having seen the accused persons running
away from the place of occurrence in a
great haste. The learned court below has
recorded that after lodging the FIR on
25.06.2004, no subsequent intimation of
the same incident could have been
registered. No proceedings could have
been initiated on the basis of the
subsequent report lodged on 27.06.2004
and the second report is not admissible in
evidence.

14. In Amitbhai Anilchandra Shah
v. CBI, (2013) 6 SCC 348, the Hon'ble
Supreme Court formulated the following
principles regarding Second FIR: -

"58.2. The various provisions of
the Code of Criminal Procedure clearly
show that an officer-in-charge of a police
station has to commence investigation as
provided in Section 156 or 157 of the Code
on the basis of entry of the first information
report, on coming to know of the
commission of cognizable offence. On
completion of investigation and on the
basis of the evidence collected, the
investigating officer has to form an opinion
under Section 169 or 170 of the Code and
forward his report to the Magistrate
488 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned under Section 173(2) of the
Code.

58.3. Even after filing of such a
report, if he comes into possession of
further information or material, there is no
need to register a fresh FIR, he is
empowered to make further investigation
normally with the leave of the court and
where during further investigation, he
collects
further
evidence,
oral
or
documentary, he is obliged to forward the
same with one or more further reports
which is evident from sub-section (8) of
Section 173 of the Code. Under the scheme
of the provisions of Sections 154, 155, 156,
157, 162, 169, 170 and 173 of the Code,
only the earliest or the first information in
regard to the commission of a cognizable
offence satisfies the requirements of
Section 154 of the Code. Thus, there can be
no second FIR and, consequently, there can
be no fresh investigation on receipt of
every subsequent information in respect of
the same cognizable offence or the same
occurrence or incident giving rise to one or
more cognizable offences.

58.4. Further, on receipt of
information about a cognizable offence or
an incident giving rise to a cognizable
offence or offences and on entering FIR in
the station house diary, the officer in
charge of the police station has to
investigate not merely the cognizable
offence reported in the FIR but also other
connected offences found to have been
committed in the course of the same
transaction or the same occurrence and file
one or more reports as provided in Section
173 of the Code. Sub-section (8) of Section
173 of the Code empowers the police to
make further investigation, obtain further
evidence (both oral and documentary) and
forward
a
further
report(s)
to
the
Magistrate. A case of fresh investigation
based on the second or successive FIRs not
being a counter-case, filed in connection
with the same or connected cognizable
offence alleged to have been committed in
the course of the same transaction and in
respect of which pursuant to the first FIR
either investigation is underway or final
report under Section 173(2) has been
forwarded to the Magistrate, is liable to be
interfered with by the High Court by
exercise of power under Section 482 of the
Code or under Articles 226/227 of the
Constitution.

58.5. The first information report
is a report which gives first information
with regard to any offence. There cannot be
second FIR in respect of the same
offence/event
because
whenever
any
further information is received by the
investigating agency, it is always in
furtherance of the first FIR."

15. In State of M.P. v. Ratan Singh,
(2020) 12 SCC 630, the Hon'ble Supreme
Court emphasized the above principles and
further held that: -

"8. As emphasised by this Court
in Amitbhai Anilchandra Shah v. CBI, only
the earliest or the first information in regard
to the commission of a cognizable offence
satisfies the requirements of Section 154,
and consequently there cannot be a second
FIR. Rather it is absurd or ridiculous to call
such information as second FIR. In
Subramaniam v. State of T.N., this Court
observed that if an FIR is filed after
recording the statement of the witnesses,
such
second
information
would
be
inadmissible in evidence. Moreover, in
Nallabothu Ramulu v. State of A.P., the
Court was of the view that the nontreatment of statements of injured witnesses
3 All. State of U.P. Vs. Ramesh & Ors.
489
as the first information cast doubt on the
prosecution version.

9. Thus, not only was there a
delay in filing of the FIR (which remained
unexplained) which was taken as the basis
of the investigation in this case, but also
there was a wilful suppression of the actual
first information received by the police.
These factors together cast grave doubts on
the credibility of the prosecution version,
and lead us to the conclusion that there has
been an attempt to build up a different case
for the prosecution and bring in as many
persons as accused as possible."

16. Immediately after registration of
the FIR on the information given by the
informant Leela Singh on 26-06-2004, the
investigation of the case commenced.
There is no provision for lodging a second
FIR and all statements or information given
to the police regarding the incident, in
respect of which an FIR has already been
registered, are to be treated as statements
given to the police in the course of
investigation.

17. Section 162 Cr.P.C. provides as
follows: -

"162. Statements to police not
to be signed: Use of statements in
evidence.-- (1) No statement made by any
person to a police officer in the course of
an investigation under this Chapter, shall, if
reduced to writing, be signed by the person
making it; nor shall any such statement or
any record thereof, whether in a police
diary or otherwise, or any part of such
statement or record, be used for any
purpose, save as hereinafter provided, at
any inquiry or trial in respect of any
offence under investigation at the time
when such statement was made."

18. Thus there is a prohibition against
any statement made by any person to a
police officer in the course of an
investigation being signed by such person
and being used for any purpose at any
inquiry or trial in respect of any offence
under investigation at the time when such
statement was made. Therefore, the learned
Court below has rightly held that the
second information given by the informant
to the police on 27-06-2004 (Exhibit A - 2)
is inadmissible in evidence and no
proceedings could be initiated on the basis
of this report.

19. Now we proceed to take up the
first ground of learned AGA that all the eye
witnesses had proved incident and the
learned court below has not appreciated
with
their
statements
in
the
right
prospective.

20. P.W.2 - Gajendra is the sole
witness who is said to be an eye witness of
the said incident. P.W. 1 - Leela Singh has
stated that Gajendra is related to him. Had
he witnessed the incident, he must have
given information of it to Leela Singh who
reached
the
spot
of
the
incident
immediately after the incident. However,
P.W. 1 has stated that he came to know
about involvement of the accused persons
on 27.06.2004. The conduct of P.W.2 -
Gajendra in not giving information of the
incident to PW-1 for two days is not at all
natural and this makes the correctness of
his statement doubtful and unbelievable.

21. P.W.2 - Gajendra has stated that
he and Karmveer had witnessed the
incident in the light of a torch and at the
same time Mukesh and Lilu also came from
southern side carrying a torch and when
they challenged the accused persons in
torch light, the accused persons left the
490 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased and walked away from the side of
P.W.2. He said that he had recognized the
accused persons and raised an alarm taking
their names, that they have killed Jaidayal
and several persons had come hearing his
call. Admittedly, the informant P.W. 1 had
also
reached
the
place
of
incident
immediately. If the claim of P.W. 2 was
true, P.W. 1 would have come to know that
his brother had been killed by the accused
persons and in such a situation, the names
of the accused persons as well as the
alleged ocular witness, P.W.2 - Gajendra
and Karmveer must be there in the FIR -
Exhibit -A1. However, the fact that
Exhibit-A1 was registered against unknown
persons, indicates that P.W.2 had not
witnessed the incident.

22. P.W.2 - Gajendra has stated that he
witnessed the incident along with Karmveer
but Karmveer has appeared as D.W. 4 and
he has clearly stated that he did not see
Jaidayal being killed. He has also said that in
the evening of the incident, he did not visit
the temple of the goddess with Gajendra.
This also proves that P.W.2 - Gajendra was
not present at the time and place of
occurrence and his statement is false.

23. Therefore, the ground taken by the
learned AGA that the eye witness account of
the incident had been ignored by the learned
court below, is without any force. The
learned Session Judge has examined the
statement of the witnesses in detail and has
recorded a finding that P.W.2 - Gajendra is
not an eye witness of the incident and we find
that the aforesaid finding is based on a proper
appreciation of the evidence available on
record and is not at all perverse.

24. Regarding the second ground of
seeking leave to file appeal i.e. the accused
persons had a strong motive to commit the
crime, suffice it to say that firstly the
existence of motive alone is not sufficient to
convict any accused persons of an offence in
absence of sufficient material being available
to establish their guilt. Secondly, wife of the
deceased-Jaidayal was elected as Pradhan
defeating Babli wife of the accusedrespondent no.2, Dheeraj but neither any
challenge to her election was made by filing
any case nor did any dispute or altercation
follow it. Moreover, the murder of Jaidayal
would not terminate the tenure of his wife as
the Gram Pradhan. The wife of the deceased
had already completed four years out of the
five years' term as Gram Pradhan and the
remaining period of merely one year of the
term of the deceased's wife cannot form
sufficient ground of murder of Jaidayal due to
defeat of Babli-wife of Dheeraj four years
ago.

25. Keeping in view the aforesaid fact,
we find that the finding of the learned court
below that alleged motive of commission of
the offence by the accused persons is not
sufficient to indict them on the offence
suffers from no infirmity.

26. Regarding the last ground pressed
by the learned AGA that the discrepancy in
the time of incident did not weaken the
prosecution case, the learned court below
has recorded that the FIR Exhibit-A1
initially did not contain any time of the
incident and it mentions the date of incident
as 25-06-2004 and time "Adam Tehrir",
which
means
absent
in
the
report.
Subsequently, it has been scored off and
08:30 p.m. has been mentioned with a
different ink. This indicates that till lodging
of the FIR, the informant did not know the
time of the occurrence.

27. P.W. 3, Sub-Inspector Geeta
Singh who had prepared the inquest report -
3 All. State of U.P. Vs. Asha Ram
491
Exhibit - A 3, has stated that the date and time
of the incident was mentioned in the inquest
report as 10:15 p.m. as per opinions of the
Panch and the time of death has been
mentioned as 10:45 p.m. This fact is
corroborated from the fact that Narendra
Mohan Hospital is situated about 20 to 25
Kms. away from the place of the incident. The
informant took his injured brother to Narendra
Mohan Hospital in a Maruti Car. During night
hours it was possible to reach Narendra
Mohan Hospital from the place of the incident
within 25-30 minutes. The time of admission
of the deceased in Narendra Mohan Hospital is
10:45 p.m., which indicates that the incident
did not occur at 08.:30 p.m., but it occurred at
around 10:00 p.m. P.W. 1 - Karan Singh also
stated that the deceased had come to his house
at about 09.45 p.m. and he stayed there for
about 15 minutes and thereafter went away.

28. Keeping in view the aforesaid facts
the learned court below recorded a finding that
the incident did not occur at 08.30 p.m. but it
occurred at about 10:00 p.m. and the time of
incident has been mentioned in the FIR at
08.30
p.m.
by
making
interpolations
subsequently on the basis of legal advice,
which obviously would have an adverse
impact on the prosecution case.

29. In Jayamma v. State of Karnataka,
(2021) 6 SCC 213, the Hon'ble Supreme Court
has been pleased to reiterated the well settled
law that the power of scrutiny exercisable by
the High Court under Section 378 CrPC
should not be routinely invoked where the
view formed by the trial court was a "possible
view". The judgment of the trial court cannot
be set aside merely because the High Court
finds its own view more probable, save where
the judgment of the trial court suffers from
perversity or the conclusions drawn by it were
impossible if there was a correct reading and
analysis of the evidence on record. To say it
differently, unless the High Court finds that
there is complete misreading of the material
evidence which has led to miscarriage of
justice, the view taken by the trial court which
can also possibly be a correct view, need not
be interfered with. This self-restraint doctrine,
of course, does not denude the High Court of
its powers to reappreciate the evidence,
including in an appeal against acquittal and
arrive at a different firm finding of fact.

30. As the testimony of the sole eye
witness P.W.2 has been proved to be false and
as the alleged motive of the offence has also
not been found sufficient to indict the accused
persons, we find that the judgment and order
passed by the learned Session Judge acquitting
the respondent-accused persons does not
suffer from any infirmity and the findings
forming basis of the aforesaid judgment are in
any case, not perverse. The grounds for
seeking leave to file appeal against the
aforesaid judgment and order are without
force.

31. The application seeking leave to file
an appeal is rejected.

32. Since the application granting for
leave to appeal is rejected, consequently the
appeal also stands dismissed.
----------
(2022)03ILR A491
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.02.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Government Appeal No. 1000120 of 2007

State of U.P. ...Appellant
Versus
Asha Ram ...Respondent