# State of U.P v. Shiv Narayan Singh & Anr

- **Citation:** (2022) 6 ILRA 91
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** Government Appeal No. 2239 of 2009
- **Bench:** Vivek Kumar Birla, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-shiv-narayan-singh-anr-48674
- **Pages:** 34

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code, 1860-Sections 302/34, 504 &
506-Challenge
to-Conviction-property
dispute for putting gate-deceased had
gone to house of accused to ask him to
stop work till police carried out an
enquiry-accused got enraged and started
hurling abuses-both the accused persons
had a common intention to shoot at the
deceased to kill him-Even if the accused
no. 2 did not himself fire the shot at the
deceased, he would be vicariously liable
u/s 34 IPC.(Para 1 to 65)
The appeal is allowed. (E-6)

List of Cases cited:

## Text

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6 All. State of U.P. Vs. Shiv Narayan Singh & Anr.
91

61. Hence, in the light of above
discussions and taking into consideration
the entire facts and circumstances of the
case and reappreciating the evidence
available on record in accordance with
settled law, we are of the considered view
that the prosecution has succeeded to prove
the guilt of accused persons beyond any
shadow of doubt and to the satisfaction of
the judicial conscience of the Court. So, the
impugned judgment and order of acquittal
dated 09.03.1984 passed by the trial Court,
which is against the settled norms of law
and has been sought to be assailed, call for
and deserves interference. The Government
Appeal is liable to be allowed and the
impugned judgment and order is liable to
be set-aside.

62. Accordingly, Government Appeal
is allowed and the impugned judgment and
order of acquittal dated 9.3.1984 is set
aside.

63. Since the occurrence does not
come under the perview of rarest of rare
cases, therefore, both the surviving accused
persons, namely, Ram Chandra Singh and
Omkar Singh are hereby convicted for the
offence under Sections 148, 302 read with
Section 149 and 324 read with Section 149
IPC. They are sentenced for three years'
imprisonment for commission of offence
under Section 148 IPC and for life
imprisonment for commission of offence
under Sections 302/149 IPC as well as fine
with the tune of Rs. 50,000/- each. In
default of payment of fine, they shall
undergo one year's additional simple
imprisonment. Apart to this, the accused
persons are sentenced for three years'
imprisonment
for
the
offence
under
Sections 324/149 IPC. All the sentences
shall run concurrently. Earlier period of
their detention in jail shall be counted in
period of imprisonment imposed by this
judgment and order.

64. In case the accused persons
deposit the fine, half of fine amount shall
be paid to the legal heir and representative
of deceased Buddha Singh forthwith.

65. The accused respondents, namely,
Ram Chandra Singh and Omkar Singh are
hereby directed to surrender before the
Chief
Judicial
Magistrate
concerned
forthwith, who shall take them into custody
and send them in jail for serving out the
sentence imposed upon them by the present
judgement and order. In case they fail to
surrender, as directed above, the Chief
Judicial Magistrate concerned is directed to
take coercive action against them in this
regard.

66. Let a copy of this judgment
alongwith lower court record be sent
forthwith to the Trial Court as well as Chief
Judicial Magistrate, Bareilly for necessary
compliance
and
further
action.
A
compliance report be sent to this Court.
----------
(2022)06ILR A91
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2022

BEFORE

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

Government Appeal No. 2239 of 2009
and
Criminal Revision No. 3459 of 2008

State of U.P. ...Appellant
Versus
Shiv Narayan Singh & Anr. ...Respondents

Counsel for the Appellant:
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Desh Ratan Chaudhary, A.G.A., Sri R.K.
Vaish

Counsel for the Respondents:
Sri Lalit Kumar Mishra, Sri Sanjay Kumar Rajput,
Sri V.S. Parmar, Sri Vivek Singh, Sri Anand Priya
Singh

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code, 1860-Sections 302/34, 504 &
506-Challenge
to-Conviction-property
dispute for putting gate-deceased had
gone to house of accused to ask him to
stop work till police carried out an
enquiry-accused got enraged and started
hurling abuses-both the accused persons
had a common intention to shoot at the
deceased to kill him-Even if the accused
no. 2 did not himself fire the shot at the
deceased, he would be vicariously liable
u/s 34 IPC.(Para 1 to 65)
The appeal is allowed. (E-6)

List of Cases cited:

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

2. Khekh Ram Vs St. of H.P.(2018) 1 SCC 202

3. St. of M.P. Vs Chhaakki Lal,(2019) 12 SCC
326

4. Achhar Singh Vs St. of H.P., (2021) 5 SCC
543

5. St. of U.P. Vs M.K. Anthony (1985) 1 SCC
505,

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

7. Bhagwan Jagannath Marked Vs St. of Mah.
(2016) 10 SCC 537

8. Vijayee Singh Vs St. of U.P. (1990) 3 SCC 190

9. Leela Ram Vs St. of Har.(1999) 9 SCC 525

10. Tehseen Poonawalla Vs U.O.I. (2018) 6
SCC 72,
11. Amar Singh Vs Balwinder Singh (2003) 2
SCC 518

12. Maddu Vs St. of Karn. (2014) 12 SCC 419

13. Manoj Kumar Sharma Vs St. of Chhattisgarh
(2016) 9 SCC 1

14. Bimla Devi Vs Rajesh Singh (2016) 15 SCC
448

15. Yogesh Singh Vs Mahabeer Singh (2017) 11
SCC 195

16. Satpal Vs St. of Har., (2018) 6 SCC 610

17. Ravi Kumar Vs St. of Punj. (2005) 9 SCC
315

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

19. Sanjeev Kumar Gupta Vs St. of U.P. (2015)
11 SCC 69

20. Kaptan Singh Vs St. of U.P. (2020) SCC
OnLine All 183

21. Nankaunoo Vs St. of U.P. (2016) 1 SC Cr. R
237

22. V.K. Mishra Vs St. of U.K. (2015) 2 SC
Cr.R

23. Joseph Stephen & ors. Vs Santhansamy &
ors. (2022) SCC OnLine SC 90

24. Geeta Devi Vs St. of U.P. (2022) SCC
OnLine SC 57

25. Guru Dutt Pathak Vs St. of U.P. (2021) 6
SCC 116

26. Ram Pal Vs St. of U.P. (2007) 15 SCC 79

27. Surendra Chauhan Vs St. of M.P. (2000) 4
SCC 110

28. Ramaswami Ayyangar Vs St. of T.N.
(1976) 3 SCC 779

29. Ramesh Singh Vs St. of A.P. (2004) 11 SCC
305
6 All. State of U.P. Vs. Shiv Narayan Singh & Anr.
93
30. Chhota Ahirwar Vs St. of M.P. (2020) 4 SCC
126

31. Angad Yadav Vs St. of U.P. (2021) SCC
OnLine All 262

32. Sandeep Vs St. of Har. (2021) SCC OnLine
SC 642

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Government Appeal No. 2239 of
2009 has been filed by the State-appellant
challenging the judgment and order dated
16.09.2008
passed
by
the
learned
Additional District and Sessions Judge,
Court No. 1, Hamirpur in Sessions Trial
No. 137 of 2005 arising out of Case Crime
No. 22 of 2005 under Sections 302/34, 504,
506 IPC, Police Station Rath, District
Hamirpur whereby both the accusedrespondents have been acquitted of all the
charges.

2. The aforesaid judgment and order
dated 16.09.2008 has been assailed by the
informant of the case Shyam Singh @
Pappu also by filing Criminal Revision No.
3459 of 2008, and by means of an order
dated 19-09-2011, the aforesaid Criminal
Revision was connected with Govt. Appeal
No. 2239 of 2009.

3. Government Appeal No. 2239 of
2009 filed by the State-appellant has been
admitted by means of an order dated
04.11.2011.

4. As both the aforesaid cases have
been filed challenging the judgment and
order dated 16.09.2008, both the cases are
being decided by a common judgment.

Prosecution Case

5. Briefly stated, the prosecution case
is that on 28.01.2005, the informant Shyam
Singh @ Pappu gave a written report at
Police Station Rath, stating that a dispute
had arisen in his village Nandana between
Shiv Kumar and his brother Shiv Narayan,
for fixing a gate on a land which belongs to
Shiv Narayan. On 28.01.2005 at about
12:00 noon Shiv Kumar asked the Shiv
Narayan that he had given an application to
the Police regarding the gate put up by the
latter and he should stop the work and
resume the same only after the Police
makes an enquiry. Upon this, Shiv Narayan
(the accused-respondent No. 1) and his son
Pradeep (the accused-respondent No. 2)
started hurling abuses. The informant and
his father, who was standing with Shiv
Kumar in front of his house, forbade them
from doing so. Pradeep shouted from
upstairs that all the persons had come for
doing a panchayat, shoot them. Upon this
Shiv Narayan fired a shot from his licensed
double barrel gun which hit the informant's
father (Jaswant) in his chest and face. In
order to save his life, the informant pulled
his father inside the house of Shiv Kumar,
but his father died immediately due to the
gun-shot injury. The accused-respondents
threatened that in case any person lodged a
report or gave evidence, he would also be
killed and both the accused persons ran
away. Shiv Narayan was carrying a double
barrel gun and Pradeep was carrying a
single barrel gun. The incident was
witnessed by Shyam Singh @ Pappu, Shiv
Pal Singh son of Badri Prasad, Surjan
Singh and the mother of Shyam Singh.
Immediately after the incident, Head
Constable Chandrabhan and a Constable
Raj Singh had reached the village and they
got engaged in search of the accusedrespondents.
94 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Upon the aforesaid written
information, a Case Crime No. 22 of 2005
under Sections 302/34, 504, 506 IPC was
registered in Police Station Rath at 12:45
p.m. on 28.01.2005.

7. A Sub-Inspector reached the spot of
occurrence and prepared an inquest report
(Ex.A-5), in which he recorded that the
dead body had injury marks on the right
side of its face and there was no other
apparent injury. However, after writing the
inquest report, a line has been inserted in
between two lines, stating that the dead
body had pellet injuries on its chest in an
area of 30 c.m. x 30 c.m. The I.O. collected
the clothes worn by the deceased and the
samples of blood stained, as well as
unstained pieces of cemented floor from
inside the house of Shiv Kumar, where the
dead body of the deceased was lying. He
also recovered an empty cartridge which
was lying near the channel gate on the
upper floor of the house of the accused
Shiv Narayan. The Investigating Officer
prepared
a
site
plan,
conducted
investigation and submitted a charge sheet
in the Court, on the basis whereof the
accused - respondents were tried for
committing offences under Section 302/34,
504 and 506 I.P.C..

Prosecution Evidence

8. During the trial, the prosecution
examined the informant Shyam Singh @
Pappu as PW-1, eye-witness Shiv Kumar as
PW-2, Head Constable Chandrabhan as
PW-3, Dr. R.K. Mishra as PW-4, Head
Constable Suresh Kumar as PW-5, S.I.
Mohan Lal and PW-6 and Sub Inspector
Radhey Shayam Trivedi as PW-7.

9. PW-1 Shyam Singh (the informant)
stated that on the date of the incident at
about 12 noon, he was standing in front of
his house, which is opposite the house of
Shiv Kumar. Shiv Kumar was also standing
outside his house. The informant's father
was standing about 6 feet away from Shiv
Kumar. The house of the accused persons
Shiv Narayan and Pradeep, who are father
and son, is about 6-7 steps away from the
informant's home. Shiv Kumar is the
brother of Shiv Narayan. There is a
platform measuring about 30 ft. x 10 ft. in
front of the house of Shiv Narayan. Earlier
this platform was jointly owned by all the
persons. About 10 years ago, a portion of
the platform measuring 10 ft. x 10 ft. was
given to Shiv Narayan. On the date of the
incident Shiv Narayan was putting up a
gate by encroaching upon an area in excess
of his portion of the platform. The
informant's father Jaswant and Shiv Kumar
had restrained him from putting up the
gate. At that time, Pradeep and Shiv
Narayan were standing inside the channel
gate at the first floor of their house.
Referring to the informant's father and Shiv
Kumar, the accused-respondent no. 2
Pradeep
exhorted
to
the
accused--
respondent no. 1 Shiv Narayan that "bade
panch bante hain, goli maar do" meaning
that the aforesaid persons were acting as
panchs (arbitrators) and he should shoot
them. Upon this Shiv Narayan fired a shot
from his double barrel gun aimed at the
informants' father and the pellets hit his
chest and the face. Pradeep was also having
a single barrel gun. Upon being shot, the
informant's father fell down and he was
taken inside Shiv Kumar's house but as
soon as he was taken inside the house, he
died.

10. PW 1 further stated that
information of the incident was given to
P.S. Kotwali Rath through the mobile
telephone of Shiv Kumar. As a written
6 All. State of U.P. Vs. Shiv Narayan Singh & Anr.
95
information of an apprehended breach of
peace due to the aforesaid dispute had
already been given at the Police Station in
the morning of the same day, Head
Constable Chandra Bhan Singh (PW-3) and
Constable Raj Singh reached the place of
occurrence to carry out an enquiry on the
aforesaid information within 5 - 7 minutes
of the death of the informant's father.
Afterwards, the Police went in search of the
accused persons and the informant dictated
a report of the incident which was scribed
by Shiv Kumar.

11. In his cross-examination, PW 1
stated that Ram Sewak was his Grandfather. Maheshwari was Ram Sewak's
brother. Shiv Narayan and Shiv Kumar are
sons of Maheshwari. Pradeep is son of Shiv
Narayan. He also stated that the accused
Shiv Narayan has a pucca double storied
house opposite the residential house of the
witness, which is used as the guest house of
Shiv Narayan. There is a public passage
between the two houses, which is about 5
feet wide and thereafter he said that the
passage is 6 - 7 steps wide. He also stated
that he did not see as to whether any blood
fell at the place where his father had
received the gun-shot. He had shown to the
I.O. the place where his father was shot and
where he fell down. The I.O. had taken
samples of plain soil and blood stained soil
from that place. Prior to the incident, his
family members and the members of the
family of Shiv Kumar used to visit each
other's home but this had stopped since
about 3 - 4 months before the incident, as
the relations of his father and Shiv Narayan
had turned bad and they and their family
members were not at talking terms.

12. PW 1 further stated in his cross
examination that his father had come out of
his house about half an hour before the
incident, i.e., he had come out of the house
at about 11:30 a.m. After having a light
meal in the house, he came out and sat in
the sun-light. He had got the report scribed
by Shiv Kumar in the village and before
scribing the report, at his instruction, Shiv
Kumar had sent telephonic information of
the incident to the Police Station. He had
gone to the Police Station on the motor
cycle of Surjan Singh and it took about 10
minutes to reach the Police Station. The
I.O. and other Police persons had gone to
the place of incident with the informant.
The informant did not go with the I.O.
inside the house of Shiv Narayan. The I.O.
had
entered
Shiv
Narayan's
house
accompanied by the constables and no
villager had entered the house with him.
The I.O. had brought an empty cartridge
from Shiv Narayan's house.

13. PW 1 was confronted with his
affidavit dated 27-05-2005 (Exhibit B-1) in
paragraph 6 whereof it was written that "the
procedure adopted by the Police in respect
of empty cartridge was a step for providing
benefit to the accused" and he stated that he
had signed it without reading and it was not
prepared under his instructions.

14. PW 1 further stated that about 10
minutes after the incident, when he was
getting the report of the incident scribed,
Chandra Bhan Singh and Raj Singh had
come from the Police Station to the place
of incident. They had come on a motor
cycle, they had a look at the place of the
incident, stayed there about 1 - 11⁄2 minute
and went in search of the accused persons.

15. He also stated that he, his father
and Shiv Kumar were standing near each
other. Shiv Narayan had fired the shot
towards them, which hit his father. Only
Shiv Narayan would have known as to
96 INDIAN LAW REPORTS ALLAHABAD SERIES
which of the three persons he wanted to
kill.

16. PW-2 Shiv Kumar stated that on
28.01.2005 at about 10:00 a.m. he had gone
from his village Nandana to Police Station
Rath to give a written application regarding
an iron gate being put up by the accused
Shiv Narayan on the platform. He came
back to his home at about 11 a.m. At about
12:00 noon he was standing outside his
house. Jaswant Singh (deceased) and his
son Shyam Singh were standing near PW-2.
The accused-respondents Shiv Narayan and
Pradeep Kumar were standing at Channel
gate at "Doosri Manzil" of their house. PW2 said to Shiv Narayan that he has given a
report in the Police Station and till the
Police made an enquiry, he should not raise
any
construction.
The
accused
Shiv
Narayan is the elder brother of PW-2 Shiv
Kumar and at that time Shiv Kumar was
carrying his licensed double barrel gun and
Pradeep was carrying an unlicensed single
barrel gun. Upon hearing about the report
given by PW 2 to the Police, Shiv Narayan
and Pradeep got enraged and started
hurling
abuses.
Jaswant
forbade
the
accused-respondents from abusing. Being
annoyed by it, the accused Pradeep said to
his father Shiv Narayan that these people
had come to do a panchayat, shoot them.
Shiv Narayan fired a shot from the gun
being carried by him and the pellets from
the gun-shot hit the chest and lips of
Jaswant. Jaswant was taken inside the
house of PW-2 with the intention to save
him but upon being taken inside, they came
to know that Jaswant had died immediately
upon being shot. The incident of Jaswant
being shot by Shiv Narayan was witnessed
by Jaswant's wife Gyan Devi, his brother
Shivpal Singh, Jaswant's nephew Surjan
Singh and some other persons. The accused
persons came out of their house through the
stairs and they walked away threatening
that in case any person lodged a report or
gave evidence, he will also be killed. PW 2
stated that he had scribed the report upon
dictation of PW-1 Shyam Singh.

17. In his cross examination, PW-2
stated that his residential house in the village
has two entrances - one towards the East and
the other towards the South. Eastern entrance
faces the disputed platform. The distance
between the platform and this entrance is
about 4-5 steps. This distance in between is in
the form of a public passage. Two days
before the incident, father of PW-2 and
Jaswant had forbidden Shiv Narayan from
putting up a gate on the platform. He stated
that in front of his house there is a double
storied "Baithaka" (Guest House) of Shiv
Narayan, which was given to Shiv Narayan
in partition. In the South of this guest house
and towards the East of Jaswant's house there
is the residential house of the accused
persons. Shiv Narayan does not have any
other residential house in the village. At the
time of the incident, PW-2 was standing 4-5
steps away from the main door of his house,
towards the North, on the platform. This is
the main entrance of the house and it faces
the East. The disputed platform is about 5-6
steps away from this platform. Jaswant was
standing 4-5 steps away from PW-2 in the
passage, below the platform. He was hit by
the gun-shot at the place where he was
standing and upon being hit, he fell down at
the same place. The Investigating Officer did
not collect any blood sample from the place
where Jaswant had fallen down, as he could
not find any blood there. He had collected
samples of blood stained flooring and plain
flooring from inside the house.

18. PW-2 further stated that after the
incident, he had made a phone call to the
Police Station and had informed that Shiv
6 All. State of U.P. Vs. Shiv Narayan Singh & Anr.
97
Narayan had shot Jaswant and the person
who had received the call at the Police
Station, said that Police had already left for
the place and that he would give this
information to the Station House Officer.
Thereafter he started writing the report.
When Chandra Bhan and Raj Singh came
there, he was writing the report and before
he could complete the report, they had gone
away in search of the accused persons. The
Deputy Inspector General of Police and
Superintendent of Police came to the place
of the incident at about 3:00 p.m. and at
that time the dead body was still there and
the inquest report was being prepared.

19. PW-3, Head Constable Chandra
Bhan Singh stated that on 28.01.2005 he
was posted in Police Station Rath and on
that day Shiv Kumar had given an
application to the Station House Officer in
his presence and the Inspector-in-charge
had directed him to visit the spot in village
Nandana, carry out an enquiry and submit a
report regarding the application. When he
reached the spot he found that Jaswant
Singh has been killed and the persons
present there had informed that the accused
persons had ran away towards the fields.
He also went towards the fields to search
and arrest the accused persons. He returned
to the village at about 1:30 p.m. as he could
not find the accused persons. When he
reached back the village, the then Station
House Officer, Sri Trivedi had already
reached there, along with the Police force.
Upon instructions of the Station House
Officer he had gone towards village Chilli
in search of the accused persons. When he
could not find the accused persons, he went
back to the Police Station in the evening.

20. PW-4, Dr. R. K. Misra, who had
conducted the post mortem examination of
the dead body of Jaswant Singh, stated that
the dead body had various injury marks due
to entry of pellets from gun-shot on the
front of his chest in an area of 30 cm X 30
cm. These were mainly in the central
portion of the chest. There was a lacerated
wound on the face at the lower lip. Left
lung and heart were found to be torn and
one pellet was found in the lung and two
pellets were found in the heart. About 11⁄2
litres coagulated as well as liquid blood
was present inside the chest. There was
about 150 gms. semi digested food in the
stomach. As per his opinion, the deceased
died on 28.01.2005 at about 12:00 noon
because of haemorrhage and shock due to
anti mortem injuries. From the condition of
food at the time of the inquest, it appeared
that the deceased had his meal about four
hours before his death. He said that he
could not give any opinion as to whether
the fire was shot in a direction parallel to
the earth or not. It would have taken about
20-25 minutes for the 11⁄2 litres blood found
in the chest cavity of the dead body to
bleed. Bleeding continues till the heart
beats and a person is taken to be dead only
upon the heart beat stops. In his opinion,
the deceased would have been able to
breathe for five to ten minutes after being
hit by the gun shot.

21. PW-5, Head Constable Suresh
Kumar Singh proved the chik report (Ex.3)
which had been prepared by him.

22. PW-6, Assistant Inspector Mohan
Lal stated that he had prepared the inquest
report as per the instructions of the
Inspector-in-charge P.S. Kotwali Rath and
he had arrested the accused respondent
Shiv Narayan on 02.02.2005 at about 12:15
hours and had recovered the double barrel
licensed gun along with the license and
four live cartridges from Shiv Narayan. He
stated that in the inquest report (Ex.A-5)
98 INDIAN LAW REPORTS ALLAHABAD SERIES
initially he had written that the dead body
had a blood stained injury on the right side
of the face and no other injury was visible
but immediately thereafter he suspected
that this injury could not have caused death
and then he had lifted the Kurta and vest of
the dead body and had seen the wounds on
his chest and had inserted this in the
inquest report.

23. PW-6 was recalled by the Court
and upon being recalled, he proved
recovery of the double barrel gun, three
cartridges, the blood stained and unstained
pieces of cemented floor taken from the
place inside the house of the Shiv Kumar
where the dead body was lying. He said
that he did not find any blood outside the
house of Shiv Kumar.

24. PW-7 Sub Inspector Radhey
Shyam Tiwari said that on 28.01.2005 he
was posted as the Inspector-in-charge of
Police Station Rath and he had inspected
the place of occurrence and had prepared
the site plan (Ex. A-9). He stated that the
inquest report (Ex.A-5) and other forms for
carrying out the post mortem examination
(Ex. A-6 and A-7) were prepared by Head
Constable
Mohan
Lal
under
his
instructions. During his cross examination,
he stated that before the incident, Shiv
Kumar had given a complaint letter (Ex.1)
regarding
the
dispute
between
Shiv
Narayan and Shiv Kumar in relation to the
gate. A phone call was received in the
Police Station giving information about
Jaswant's death. The phone call was
received by Head Constable Suresh Kumar
and immediately after receiving the call, he
had given its information to PW-7.

25. He said that the entrance of Shiv
Kumar's house faces the East. This door is
in front of the Channel gate which is at
"Doosri Manzil".

Defence Evidence:-

26. In his statement recorded under
Section 313 Cr.P.C., the accused respondent
No.1 - Shiv Narayan denied the prosecution
case and stated that PW-1 Shyam Singh and
Shiv Kumar had given false evidence in
order to grab his property. He stated that on
the day following the date of the incident,
the Investigating Officer had come to his
house and had taken away hisgun, which
was out of order, and the empty cartridges
kept in a cupboard and he had also taken
away accused respondent no.1. Similar
statements were given by the accusedrespondent no.2 Pradeep Kumar in his
statement recorded under Section 313
Cr.P.C.

27. The defence produced a copy of
an affidavit of PW-1 (Paper No. 11 B)
marked as Exhibit B-1, in which PW-1 had
stated that he knew that the accused Shiv
Narayan
had
already
made
some
negotiations with the local Police prior to
his arrest and the procedure adopted by the
Police regarding the empty cartridges was a
step in aid of the accused-respondents,
which has benefitted them. Exhibit B-2 was
the General Diary and Exhibit B-3
produced by the defence was a copy of the
application dated 28-01-2005 given by Shiv
Kumar to the Police regarding the gate
forcibly affixed by the accused-respondent
no. 1 Shiv Kumar on the platform in front
of his House.

28. Although both the accused
persons had stated that they would lead
evidence in their defence, none of them
appeared as a witness to defend themselves
6 All. State of U.P. Vs. Shiv Narayan Singh & Anr.
99
and no other person was produced as
defence witness.

Findings Of The Trial Court: -

29. The learned court below held that
it is stated in the inquest report (Ex. A-5)
that there were pellet injuries in the chest in
an area of about 30 cm X 30 cm and
although
this
has
been
inserted
afterpreparation of the inquest report, there
are no initials on it. In his statement, PW-6
stated that after writing in the inquest report
that there was an injury on the side of the
face below the lip and there was no other
apparent injury, he suspected that this
injury could not have caused death and then
he lifted the Kurta and vest of the dead
body and saw the injuries on his chest and
thereafter he inserted this fact in the report.

30. The learned Trial Court further held
that in reply to a question put by the Court,
PW-6 stated that there were no marks of
entry of the pellets on the Kurta and the
vest worn by the deceased and had he been
wearing the same Kurta and vest before his
death, entry marks of pellets ought to have
been there on his cloths. From this
statement of PW-6 it is clear that the
prosecution story is not trustworthy.

31. The learned court below held that
PW-1 had stated that the Investigating
Officer had collected samples of blood
stained soil as well as plain soil from the
place of the incident whereas PW 2 and
PW-6 has stated that the samples were
taken from the place where the dead body
was lying and this indicates that the
incident did not occur in the manner in
which it has been described.

32. The learned court below further
held that in the written report there is no
mention of the place from where Shiv
Narayan had fired the shot whereas PW-1
and PW-2 have stated that the shot was
fired from inside the Channel Gate on the
upper
floor.
However,
from
the
contradiction between the statement of PW1 and his affidavit dated 27.05.2005, it
becomes doubtful that he had witnessed the
incident.

33. The learned court below further
held that the Doctor, who had conducted
the Post Mortem examination of the
deceased, did not mention the direction of
entry of the pellets in the body and due to
this omission, the prosecution story that the
shot was fired from the upper floor is not
fortified.

34. For the aforesaid reasons, the
learned court below came to a conclusion
that the prosecution has failed to prove that
the incident took place in the manner stated
by the prosecution and the accused persons
are entitled to be given benefit of doubt.
Accordingly, the learned court below
passed an order acquitting the accused
persons of all the charges.

Submissions of the State-Appellant

35. We have heard submissions of
Shri Ratan Singh, the learned A.G.A.,
appearing for the State-Appellant, Sri R.K.
Vaish, Advocate, the learned counsel for
the
informant-Revisionist
in
Criminal
Revision No. 3459 of 2008.

36. The learned A.G.A. has taken us
through the statements of the prosecution
witnesses and he has submitted that PW 1
had categorically and unequivocally stated
that at the exhortation of the accused-
respondent no. 2, the accused respondent
no. 1 had fired a gun-shot from his double
100 INDIAN LAW REPORTS ALLAHABAD SERIES
barrel gun at his father, the pellets from the
gun-shot hit his father and his father died
immediately. His statement was fully
corroborated by the statement of PW-2 - the
other eye-witness of the incident and that of
PW-4 - the doctor who had conducted the
post
mortem
examination.
He
has
submitted that the learned Court below has
not examined the statements of the
prosecution witnesses properly and it's
finding that the prosecution has failed to
establish
the
guilt
of
the
accusedrespondents beyond reasonable doubt, is
perverse. He has submitted that the
judgment of the learned Court below
acquitting the accused - respondents is
liable to be set aside and reversed and the
accused-respondents are liable to be
convicted and sentenced.

Submissions
on
behalf
of
the
Accused-Respondents

37. While trying to defend the
judgment and order of acquittal passed by
the learned Court below, Sri Anand Priy
Singh, the learned Counsel for accusedrespondents has submitted that there are
several discrepancies in the prosecution
case which make the same doubtful. His
first submission is that in the inquest report
(Ex. A-5) a line has been inserted stating
that there were pellet injuries in the chest in
an area of about 30 cm X 30 cm and
although this line has been inserted
afterpreparation of the inquest report, no
person
has
put
his
signatures
to
authenticate it. He next submitted that the
clothes worn by the deceased at the time of
the incident had been produced before the
Court below and the same had been marked
as Exhibit A-2. Had the deceased been
wearing the same Kurta and vest at the time
of the incident, there would have been
marks of the entry of pellets on the Kurta
and the vest, but there were no such marks
and this makes the incident doubtful.

38. The learned Counsel for the
accused-respondents next submitted that
PW-1 had stated that the Investigating
Officer had collected samples of blood
stained soil as well as unstained soil from
the place of the incident whereas PW 2 and
PW-6 has stated that the samples were
taken from the place where the dead body
was lying and this indicates that the
incident did not occur in the manner in
which it has been described.

39. Sri. Anand Priy Singh, the learned
Counsel for the accused-respondents, has
laid much emphasis on the discrepancy in
the words used by the witnesses - PW-1,
PW-2 and PW-7 in describing the place
from where the gun-shot was fired. PW-1
has stated that the accused persons were
standing on the first floor of their house,
where there is a channel gate. However,
PW-2 has stated that the accused persons
were standing near the channel gate on
"doosree manzil" (the second floor) of their
house. Similarly, PW-7 S.I. Radhe Shyam
Trivedi has also stated that the channel gate
is on "doosree manzil" (the second floor).
He has submitted that this discrepancy in
description of the place, from which the
gun-shot was allegedly fired, makes the
presence of PW-1 and PW-2 at the time and
place of the incident doubtful.

40. The learned Counsel for the
accused - respondents has also submitted
that PW-2 had stated in his cross
examination the dispute regarding the gate
had been settled way back in the year 1992
and the accused - respondent no. 1 Shiv
Narayan had been given his share in the
platform. This indicates that there remained
no dispute between the parties regarding
6 All. State of U.P. Vs. Shiv Narayan Singh & Anr.
101
the platform and, therefore, there was no
motive for the accused - respondents to kill
the deceased.

Scope Of Interference In Appeal
Against Acquittal

41. In Manu Sharma v. State (NCT
of Delhi), (2010) 6 SCC 1, the Hon'ble
Supreme Court formulated the following
principles to be kept in mind by the
appellate Court while dealing with appeals
against acquittal: -

"27.The following principles have to
be kept in mind by the appellate court while
dealing with appeals, particularly against
an order of acquittal:

(i) There is no limitation on the part of
the appellate court to review the evidence
upon which the order of acquittal is
founded.

(ii) The appellate court in an appeal
against acquittal can review the entire
evidence and come to its own conclusions.

(iii) The appellate court can also
review the trial court's conclusion with
respect to both facts and law.

(iv) While dealing with the appeal
preferred by the State, it is the duty of the
appellate court to marshal the entire
evidence on record and by giving cogent
and adequate reasons set aside the
judgment of acquittal.

(v) An order of acquittal is to be
interfered with only when there are
"compelling and substantial reasons" for
doing
so.
If
the
order
is
"clearly
unreasonable", it is a compelling reason for
interference.

(vi) While sitting in judgment over an
acquittal the appellate court is first
required to seek an answer to the question
whether findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities, it can reappraise the evidence
to arrive at its own conclusion.

(vii) When the trial court has ignored
the evidence or misread the material
evidence
or
has
ignored
material
documents like dying declaration/report of
ballistic experts, etc. the appellate court is
competent to reverse the decision of the
trial court depending on the materials
placed."

2. In Khekh Ram v. State of H.P.,
(2018) 1 SCC 202 the Hon'ble Supreme
Court held that: -

"25. The elaboration of the facts in the
decisions cited at the Bar has been to
underline the factual setting in which
reversal of the orders of acquittal had been
interfered with by this Court. Though it is
no longer res integra that an order of
acquittal, if appealed against, ought not to
be lightly interfered with, it is trite as well
that the appellate court is fully empowered
to review, reappreciate and reconsider the
evidence on record and to reach its own
conclusions both on questions of fact and
on law. As a corollary, the appellate court
would be within its jurisdiction and
authority to dislodge an acquittal on sound,
cogent and persuasive reasons based on the
recorded facts and the law applicable. If
only when the view taken by the trial court
in ordering acquittal is an equally plausible
and reasonable one that the appellate court
would not readily substitute the same by
another view available to it, on its
independent appraisal of the materials on
102 INDIAN LAW REPORTS ALLAHABAD SERIES
record. This legally acknowledged restraint
on the power of the appellate court would
get attracted only if the two views are
equally plausible and reasonable and not
otherwise. If the view taken by the trial
court is a possible but not a reasonable
one when tested on the evidence on record
and
the
legal
principles
applied,
unquestionably it can and ought to be
displaced by a plausible and reasonable
view by the appellate court in furtherance
of the ultimate cause of justice. Though
no innocent ought to be punished, it is
equally imperative that a guilty ought not
to be let off casually lest justice is a
casualty."

(Emphasis supplied)

3. State of M.P. v. Chhaakki Lal,
(2019) 12 SCC 326, the Hon'ble Supreme
Court held that: -

"36. We are conscious that in an
appeal against acquittal, the appellate
court would not ordinarily interfere with
the order of acquittal. But where the
approach of the High Court suffers from
serious
infirmity,
this
Court
can
reappreciate the evidence and reasonings
upon which the order of acquittal is based.
A miscarriage of justice which may arise
from the acquittal of the guilty is no less
than from the conviction of the innocent.
Upon reappreciation of the evidence and
the reasonings of the trial court and the
High Court, in our considered view, the
judgment of the High Court suffers from
serious infirmity. The High Court erred in
doubting the version of PW 1, the sole
eyewitness whose evidence is corroborated
by the medical evidence and the evidence of
the ballistic expert. The High Court did not
appreciate the evidence of PW 1 in proper
perspective and erred in disbelieving her
version on the contradictions which are not
material. The High Court erred in rejecting
the credible evidence of Kesar Bai (PW 1),
which in our considered view resulted in
serious miscarriage of justice, where four
persons were murdered."

(Emphasis supplied)

4. In Achhar Singh v. State of H.P.,
(2021) 5 SCC 543, the Hon'ble Supreme
Court explained the scope of powers of the
High Court in appeals against acquittal in
the following manner: -

"16. It is thus a well-crystalized
principle that if two views are possible, the
High Court ought not to interfere with the
trial court's judgment. However, such a
precautionary
principle
cannot
be
overstretched to portray that the "contours
of appeal" against acquittal under Section
378 Cr.P.C. are limited to seeing whether
or not the trial court's view was impossible.
It is equally well settled that there is no bar
on the High Court's power to re-appreciate
evidence in an appeal against acquittal.
This Court has held in a catena of
decisions (including Chandrappa v. State of
Karnataka,
State
of
A.P.
v.
M.
Madhusudhan Rao and Raveen Kumar v.
State of H.P.) that the Cr.P.C. does not
differentiate
in
the
power,
scope,
jurisdiction or limitation between appeals
against
judgments
of
conviction
or
acquittal and that the appellate court is free
to consider on both fact and law, despite
the self-restraint that has been ingrained
into practice while dealing with orders of
acquittal
where
there
is
a
double
presumption of innocence of the accused."

5. The Hon'ble Supreme Court further
held that "homicidal deaths cannot be left
to judicium dei. The court in its quest to
reach the truth ought to make earnest
efforts to extract gold out of the heap of
6 All. State of U.P. Vs. Shiv Narayan Singh & Anr.
103
black sand. The solemn duty is to dig out
the authenticity. It is only when the court,
despite its best efforts, fails to reach a firm
conclusion that the benefit of doubt is
extended."

6. The principles which emerge from
the aforesaid decisions are that the scope of
appeal against acquittal under Section 378
Cr.P.C is not limited to scrutinize whether
or not the trial court's view is a possible
view.