# State of U.P v. Sughar Singh 318 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 5 ILRA 317
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Government Appeal No. 205 of 1984
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-sughar-singh-318-indian-law-reports-allahabad-series-52102
- **Pages:** 18

## Headnote

Keshav Sahai, A.B.L.Gaur, Ashok Kumar
Singh, Keshav Sahai, P.C.Sharma, Prabhat
Chandra
Sharma,
Pratibha
Singh,
Purushottam
Dixit,
Rajeev
Sharma,
P.C.Mishra

Criminal Law-Indian Penal Code-1860Sections-34, 109, 302 & 307 - Government
Appeal against the judgment by which the
accused-respondent has been acquitted by the
trial court-contradictions in the testimonies of
P.W.-1 and P.W.-2 at various levels referred to
above makes the entire testimonies doubtful and
raises a big question mainly about the genesis of
the entire prosecution case-There were inimical
relationship between the accused persons,
therefore it is impossible to believe that the
accused Ashok @ Ranjit would associate himself
with the other accused in commission of the
alleged crime in any manner -Non production of
brother of the accused and uncle and brother of
the first informant and deceased respectively as
prosecution witnesses during the course of trial
also makes the prosecution case weak-Crime
weapon which is alleged to have been used in
commissioning of the alleged offence and has
recovered have not been sent for their chemical
examination to the concerned Forensic Science
Laboratory in order to establish that the pellets,
empty cartridge and the gun were actually used
in the commission of the alleged offence.

Appeal dismissed. (E-15)

List of Cases cited:

Ballu & anr. Vs St. of M. P. 2024 SCC OnLine SC
481

## Text

_Characters 0–39,944 of 62,116. This is a partial read: ask again with offset=39944 for what follows._

5 All. State of U.P. Vs. Sughar Singh
317
sustain any mark of injury. Absence of any
injury having been found on the body of the
deceased Lilawati makes the prosecution
version fabricated and doubtful.

45. Apart from the above, we may also
record that initially charge against the
accused Ram Naresh Gupta has been framed
by the trial court on 23.6.1981 simply under
Section 302 I.P.C. not under Section 302
read with Section 34 I.P.C., whereas on the
same day on 23.6.1981 another charge has
been framed by the trial court against the
accused-respondents Ram Naresh Gupta,
Basdeo Gupta, Ram Nath Gupta and Madan
under Section 302 I.P.C. read with Section
34 I.P.C. and Section 323 read with Section
34 I.P.C. Such alteration in the charge
framed against the accused-respondents on
the same day has not been explained by the
prosecution,
which
also
makes
the
prosecution case doubtful.

46. However, after considering the
facts and circumstances of the case and
examining the findings recorded by the trial
court in acquittal of accused-respondents
Ram Naresh Gupta, Basdeo Gupta, Ram
Nath Gupta and Madan Gupta under Section
302/34 I.P.C., we are of the view that the
trial court has examined the evidence led by
the prosecution in correct perspective and
the finding returned by it that the
prosecution has not succeeded in proving its
case beyond reasonable doubt against the
accused-respondents
can
be
legally
sustained. The prosecution has not fully
established the guilt of the accusedrespondents on the basis of evidence led at
the stage of trial by the prosecution. The
acquittal
of
the
accused-respondents,
namely, Ram Naresh Gupta, Basdeo Gupta,
Ram Nath Gupta and Madan Gupta under
Section 302/34 I.P.C. is consequently,
affirmed.

47. We are also in full agreement with
the finding returned by the trial court that the
prosecution has fully established its case
beyond the reasonable doubt against the
accused-respondents under Section 323/34
of I.P.C.

48. In view of the aforesaid facts and
the findings recorded by us herein above, we
are of the firm opinion that the finding of the
Court below with regard to accusedrespondents, namely, Ram Naresh Gupta,
Basdeo Gupta, Ram Nath Gupta and Madan
Gupta is correct and the guilt of the accusedrespondents, namely, Ram Naresh Gupta,
Basdeo Gupta, Ram Nath Gupta and Madan
Gupta under Section 323/34 I.P.C. has been
proved beyond reasonable doubt by the
prosecution, which is sustainable.

49. Consequently, in view of the
deliberations held above the Government
Appeal filed on behalf of the State stands
dismissed.

50. There shall be no order as to
costs.

51. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Mirzapur,
henceforth, for necessary compliance.
----------
(2024) 5 ILRA 317
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 205 of 1984

State of U.P. ...Appellant
Versus
Sughar Singh ...Respondent
318 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
A.G.A., Purushottam Dixit, Ramesh Chandra
Yadav

Counsel for the Respondents:
Keshav Sahai, A.B.L.Gaur, Ashok Kumar
Singh, Keshav Sahai, P.C.Sharma, Prabhat
Chandra
Sharma,
Pratibha
Singh,
Purushottam
Dixit,
Rajeev
Sharma,
P.C.Mishra

Criminal Law-Indian Penal Code-1860Sections-34, 109, 302 & 307 - Government
Appeal against the judgment by which the
accused-respondent has been acquitted by the
trial court-contradictions in the testimonies of
P.W.-1 and P.W.-2 at various levels referred to
above makes the entire testimonies doubtful and
raises a big question mainly about the genesis of
the entire prosecution case-There were inimical
relationship between the accused persons,
therefore it is impossible to believe that the
accused Ashok @ Ranjit would associate himself
with the other accused in commission of the
alleged crime in any manner -Non production of
brother of the accused and uncle and brother of
the first informant and deceased respectively as
prosecution witnesses during the course of trial
also makes the prosecution case weak-Crime
weapon which is alleged to have been used in
commissioning of the alleged offence and has
recovered have not been sent for their chemical
examination to the concerned Forensic Science
Laboratory in order to establish that the pellets,
empty cartridge and the gun were actually used
in the commission of the alleged offence.

Appeal dismissed. (E-15)

List of Cases cited:

Ballu & anr. Vs St. of M. P. 2024 SCC OnLine SC
481

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. We have heard Shri Jitendra Kumar
Jaiswal, learned A.G.A. for the State/
appellant, Shri Purshottam Dixit, learned
counsel for the first informant, Shri P.C.
Sharma, learned counsel for the accused-
respondent nos. 2 & 3 Nagendra and
Sahdev, Shri Rajiv Sharma, learned counsel
for the accused- respondent no. 4 Ashok as
well as perused the material available on
trial court record.

2. The instant Government Appeal is
directed against the judgment and order
dated 4th October, 1983 passed in Criminal
Sessions Trial No. 80 of 1983 (State Vs.
Sughar Singh & 3 Others), arising out of
Case Crime No. 183 of 1982, under Section
302/34, 307/34, 302, 307 & 109 of I.P.C.,
Police
Station-Kotwali,
District-Etah,
whereby the accused-respondents Sughar
Singh, Nagendra, Sahdev and Ashok @
Ranjit have been acquitted from all the
charges levelled/framed against them.

3. During the pendency of the instant
Government
Appeal,
the
accusedrespondent no.1 Sughar Singh has already
passed away and the same has already been
abated qua accused-respondent no.1 by this
Court vide order dated 7th May, 2018.

4. The accused-respondent Sughar
Singh the father of the other accused,
namely, Nagendra and Sahdev, whereas the
accused Ashok is their close friend and
residents of same village.

The prosecution case as cropped
up from the records of above Government
Appeal is that on a written report given by
the informant/P.W.-1 Satdeo Singh dated
10th March, 1982 (Exhibit-ka/7), first
information report (Exhibit-Ka/3/1) came to
be registered on 10th March, 1982 at 05:45
p.m. at Police Station-Kotwali, District-Etah
against the accused-Sughar Singh, Sahdeo
Singh, Nagendra Singh and Ashok under
Sections 302, 307 and 120-B of I.P.C. In the
5 All. State of U.P. Vs. Sughar Singh
319
written report, it has been alleged by the
informant/P.W.-1 that about 15 days back,
there was a fight between his father Gopal
Singh and accused Sahdev and Nagendra
resident of his village for taking water
because they had stopped the water, which
was flowing in his gram field. When his
father objected, they ran to attack his father
and threatened to kill him. On 10th March,
1982 at around 04:00 p.m., when fight was
going on between father of the accused
Nagendra and Sahdev Singh, namely,
Sughar Singh and their uncle, namely,
Durveen Singh near the house of Jorawar
Singh, the uncle of the first informant,
namely, Sangram Singh intervened to stop
the said fight, then, the accused Nagendra
and Sahdeo, who were along with their
father Sughar Singh, started abusing his
uncle. When the first informant objected not
to abuse his uncle, heated conversation took
place between them. Meanwhile, his father
Gopal Singh came to the spot and inquired
about the matter, then the accused
Nagendra Singh exhorted the accused
Sahdev to kill them as earlier they stopped
the water flowing into their field. On the
said exhortation, the accused Sahdev ran
and went to the house of accused Ashok,
whose house was adjacent to the house of
Jorawar and brought his licensed gun and
fired upon father of the first informant on
his eye, who was standing near the house
of Jorawar. Thereafter the accused Sahdeo
fired second shot upon the first informant
but the said shot did not hit him and his
father died on the spot. The first
informant, Jaiveer Singh resident of his
village and Yatendra Singh, Sangram
Singh and Narendra Singh resident of
Ghilauwa, Police Station Kotwali, Etah
saw the entire incident of shooting. His
father was lying dead on the spot. He came
to the Police Station to lodge the first
information report.

5. After lodging of the same, the Head
Moharrir, namely, Laxman Singh Verma
(P.W.-6) prepared the chik first information
report (exhibit-ka/1) and made G.D. entry
on 10th March, 1982 at 05:45 p.m. The
investigation of the case was handed over to
P.W.-4 Sri Brahma Singh, the then SubInspector of Police Station Kotwali Etah, in
whose presence the case was registered at
the Police Station. He proceeded with the
investigation after registration of the case
and recorded the statements of P.W.-6
Laxman Singh Verma, first informant/P.W.-
1 Satdeo Singh and witness Sangram Singh
at the Police Station. Thereafter P.W.-4 went
to the place of occurrence along with SubInspector Prahlad Singh (P.W.-7) and Sub
Inspector
Yogendra
Singh.
P.W.-4
conducted the inquest of the dead-body of
the
deceased
Gopal
Singh.
On
the
instruction of P.W.-4, P.W.-7 Sub-Inspector
Prahlad Singh prepared the inquest report
(Ext. Ka-5), the diagrams of the dead-body
(Ext. Ka-6), the challan report Ext. Ka-7),
the letter for post-mortem examination of
the body of the deceased to Chief Medical
Officer (Ext. Ka-8), letter to Reserved
Inspector (Ext. Ka-9) and the sample of seal
(Ext. Ka-10) on the instruction and
supervision of the Investigating Officer
(P.W.-4). The dead-body of the deceased
was sealed in presence of the witnesses on
the spot and it was then sent for postmortem
examination through Constables Udaivir
Singh and Hari Ram with necessary
document.

6. Dr. A.K. Malpani (P.W.-3), the then
Acting Superintendent of District Hospital,
Etah, conducted an autopsy of the body of
the deceased Gopal Singh on 11th March,
1982 at 11:00 a.m. He opined that the cause
of death of the deceased Gopal Singh is
coma, haemorrhage and shock as result of
following ante-mortem injuries:
320 INDIAN LAW REPORTS ALLAHABAD SERIES

"1. Abrasion 1 cm. x 3/4 cm. over
the middle of right eye brow.

2. Gunshot wound of entry 1 cm x
1 cm. x brain deep over the middle of the
right upper eye lid. No blackening and no
charring seen. On dissection, right eye-ball
found
grossly
lacerated.
On
further
dissection,
the
orbital
cavity
having
commuted fracture. Muscles of eye-ball
lacerated.
On
further
dissection
the
membrane of brain and brain matter found
lacerated and clotted blood present. A big
pellet recovered from the posterior fossa on
right side. No wound of exit seen.

3. One gunshot wound of entry 1
cm. x 1 cm. over the right side of face, 3.5
Cm. lateral to outer angle of right eye. No
blackening and no charring seen. On
dissection the wound is brain deep. The
muscles membrane and, brain matter
grossly lacerated and a big pellet recovered
from the left cravical cavity, middle part of
the brain. Direction right to left and
backward. No wound of exit seen.

4. Lacerated wound 1.5 cm. x 0.5
cm. x scalp deep on the superior occipital
protuberance."

7.

P.W.-4/Investigating
Officer
inspected the place of occurrence and
prepared the site plan (Exhibit-ka/11) on the
same day i.e. 10.3.1982. He also collected
from the place of occurrence a blank
cartridge and chad (Tikli) (Exhibit-ka-4) and
also blood stained earth and plain earth
(Ext.-Ka- 5) and prepared their recovery
memos
(Ext.
Ka-12
and
Ka-13)
respectively. He also recorded the statement
of eye-witnesses like Jaivir Singh etc. on the
same day at the place of occurrence.

8. On 11.3.1982, the Investigating
Officer (P.W.-4) also inspected the place
where the scuffle took place between
deceased
Gopal
Singh
and
accused
Nagendra and Sahdev about 15 days prior to
the present occurrence. He prepared another
site-plan (Ext. Ka-14) of that place also. He
found the mends of the drain broken and
filled with fresh earth. Thereafter the
investigation was handed over to P.W.-5
Sub Inspector Yogendra Singh on 12th
March, 1982 by the then Station House
Officer. On 18th March, 1982 P.W.-5
Yogendra Singh reached the jail and
recorded the statements of the accused
Ashok @ Ranjit, who surrendered before the
court concerned and was sent to jail. On the
disclosure of accused Ashok, his relative
(Behnoi) Om Prakash gave the licensed gun
to P.W.-5 of which recovery memo
(Exhibit-Ka-15) was prepared by him.

9. After conclusions of the statutory
investigation under Chapter XII Cr.P.C.
P.W.-5 Yogendra Singh has submitted the
charge-sheet (Exhibit-Ka/16) against the
accused persons, namely, Sughar Singh,
Nagendra Singh, Sahdeo Singh and Ashok
@ Ranjit before the court concerned.

10. On submission of charge-sheet, the
concerned Magistrate took cognizance in the
matter and committed the case to the Court
of Sessions by whom the case was to be
tried. First, on 19th July, 1982, the
concerned Court framed following charges
against the accused Sahdev:

"CHARGES

I, S. K. Gupta, III Addl. Sessions
Judge, Etah hereby charge you Sahdev as
follows:-

FIRST- that you, on 10.3.1982, at
about 4.00 р. m., near the house of Zorawar
Singh, in village Ghilaua, Police Station
Kotwali, district Etah, did commit murder
by intentionally or knowingly causing the
death of Gopal Singh, and thereby
committed an offence punishable under
5 All. State of U.P. Vs. Sughar Singh
321
section 302 of the Indian Penal Code, and
within the cognizance of this Court.

SECONDLY- that you, on the
aforesaid date, time and place, did an act, to
wit, fired at Satya Dev Singh with a gun,
with such intention or knowledge and under
such circumstances that if by that act you
had caused the death of said Satya Dev
Singh, you would have been guilty of
murder, and thereby committed an offence
punishable under section 307 of the Indian
Penal Code, and within the cognizance of
this Court.

And I hereby direct that you be
tried on the said charge by this court."

11. On the same day i.e. 19th July,
1983, following charges were framed
against the accused Sughar Singh, Nagendra
and Ashok:

"CHARGE
I, S.K. Gupta, III Addl. Sessions Judge, Etah
hereby charge you (1) Sughar Singh, (2)
Nagendra and (3) Ashok as follows:

FIRST- that, on 10.3.1982, at
about 4.00 p.m., near the house of Jorawer
Singh, in village Ghilaua, Police Station
Kotwali, district Etah, shaped and common
intention with co-accused Sahdeo to commit
murder of Gopal Singh in furtherance of
such common intention, co-accused Sahdev
did commit murder by intentionally or
knowingly causing the death of Gopal Singh,
and you thereby committed an offence
punishable under section 302 read with
section 34 of the Indian Penal Code, and
within the cognizance of this Court.

SECONDLY;
that,
on
the
aforesaid
date,
time
and
place,
in
furtherance of common intention of all coaccused, Sahdev did an act, to wit, fired at
Satya Dev Singh with a gun, with such
intention or knowledge and under such
circumstances that if by that act he had
caused the death of said Satya Dev Singh, he
would have been guilty of murder, and you
thereby committed an offence punishable
under section 307 read with section 34 of the
Indian Penal Code, and within the
cognizance of this court.

Alternatively I also charge you as
follows:

FIRST- that you, on the aforesaid
date,
time
and
place,
abetted
the
commission of the offence of murder of
Gopal Singh by co-accused Sahdev, which
was committed in consequence of your
abetment, and thereby committed an offence
punishable under section 109 & 302 of the
Indian Penal Code, and within the
cognizance of this Court.

SECONDLY that you, on the
aforesaid date, time and place, abetted the
commission of the offence of attempt to
murder Satya Dev Singh by co-accused
Sahdev,
which
was
committed
in
consequence of your abetment and thereby
committed an offence punishable under
section 109 & 307 of the Indian Penal Code,
and within the cognizance of this Court.

And I hereby direct that you be
tried on the said charge by this court."

12. The charges were read out and
explained in Hindi to the accused, who
pleaded not guilty and claim to be tried.

13. The trial started and the
prosecution has examined six witnesses,
who are as follows:-

1

Satdeo (complainant) (son of
the
deceased
Gopal
Singh)/eye witness as per the
prosecution
P.W.-1

2
Jaiveer Singh (resident of
village Chhilauwa, Police
StationKotwali)/independent
eye
witness as per the prosecution
P.W.-2

3
Dr.
A.K.
Maalpani,
Superintendent
District
Hospital,
Etah,
who
conducted the autopsy of the
person of the deceased
P.W.-3
322 INDIAN LAW REPORTS ALLAHABAD SERIES
4
Sub-Inspector Braham Singh,
who initially conducted the
investigation i.e. the first
Investigating Officer
P.W.-4

5
Sub-Inspector
Yogendra
Singh, who conducted the
investigation after P.W.-4 and
submitted the charge-sheet
P.W.-5

6
Laxman Singh Verma, Head
Moharrir, who prepared the
chik first information report
P.W.-6

7
Sub-Inspector Prahlad Singh,
who prepared the inquest
report of the deceased, photo
lash, letter to R.I. etc. on the
direction of P.W.-4
P.W.-7

8
Constable Udai Veer Singh,
who took the sealed dead
body of the deceased to the
mortuary
P.W.-8

14. The defence has also produced
following witnesses in support of its case:

1
Girraj Prasad, the then
Judicial Assistant Collector,
Etah
D.W.-1

2

Constable Balak Ram who
has proved the G.D. No.9
dated 11th March, 1982 of
Police Lines, Etah which
shows that the papers for
post-mortem
examination
were submitted to the R.I.
D.W.-2

15. The prosecution in order to
establish the charges levelled against the
accused-appellant has relied upon following
documentary evidence, which were duly
proved
and
consequently
marked
as
Exhibits:

1
Written report dated
10th March, 1982

Ex.Ka.-1

2
First
Information
Report
dated
10th
March, 1982
Ex.Ka.-3 &
Ex.Kha-1

3
Recovery
memo
of
empty cartridge & Tikli
dated 10th March, 1982
Ex. Ka.-12

4
Recovery
memo
of
blood stained and plain
earth dated 10th March,
1982
Ex. Ka/13
5
Inquest report
Ex.Ka.-5
6
Diagram of the dead
body of the deceased
Ex.Ka.-6

7
Chalan of the dead body
of the deceased
Ex.Ka.-7

8
Letter to the Chief
Medical
Officer
for
post-mortem
examination
Ex.Ka.-8

9
Letter to the R.I.
Ex.Ka.-9

10
Sample of seal
Ex.Ka.-10

11
Post-mortem
examination report of
the deceased dated 11th
March, 1982
Ex.Ka-2

12
Site plan with index
dated 10th March, 1982
Ex.Ka-11
13
Site plan with index
dated 11th March, 1982
Ex.Ka-14

16. The defence has also produced
following documentary evidence in support
of its case:

1
Charge-sheet dated 27th
February, 1977 submitted
in Crime No.22, under
Sections 147, 148, 149
and 307 I.P.C.
Ex.Kha-3
2
Copy of the F.I.R. dated
14th November, 1978 as
Crime No. 1068 under
Sections 147, 148 and 307
I.P.C.
Ex.Kha-4
3
Copy of the application
filed by the Additional
Public
Prosecutor
for
summoning the accused
Sughar Singh as witness
Ex.Kha-5

4
Copy of the order passed
by the Magistrate dated
28thAugust,
1982
summoning the witnesses
including Sughar Singh
Ex.Kha-6

5
Copy of the Khatauni of
Consolidation Settlement
in order to show that the
Gopal Singh (deceased
herein)
and
witnesses
Sangram Singh, Jagdish
Singh, Ranvir Singh and
Ramesh Chndra were cotenants.
Ex.Kha-7

6
Two copies of Khewats
1347 Fasli and 1901 Fasli
filed to prove that the
witnesses and deceased
Exts.Kha-8
and 9
5 All. State of U.P. Vs. Sughar Singh
323
Gopal Singh belonged to
the same family

17.

After
completion
of
the
prosecution evidence, statement of the
accused was recorded under Section 313
Cr.P.C. The accused persons, while giving
their statements in the Court, denied all the
allegations made by the prosecution and also
traversed their complicity in the alleged
crime. They alleged that they have been
falsely implicated on account of harbouring
grudges as there were enmity between the
complainant
and
the
witnesses.
For
establishing the same, the defence have two
oral as well as seven documentary evidences
referred to above.

18 . On the basis of above evidence oral
as well as documentary adduced during the
course of trial, the trial court, while referring
various infirmities in the prosecution
evidence led during the course of trial has
opined that the prosecution has not
succeeded in bringing home any of the
charges framed against the accused persons
beyond all reasonable doubts and they
deserves to be acquitted. Accordingly, the
trial court while passing the impugned
judgment, has hold that the accused Sughar
Singh, Sahdev, Nagendra and Ashok @
Ranjit are not guilty of any of the charges
levelled against them and they are hereby
acquitted.

19. Being aggrieved with the
impugned judgment and order of acquittal of
the accused persons, namely, Sughar Singh,
Sahdev, Nagendra and Ashok @ Ranjit, the
State of U.P. has preferred the present
Government Appeal.

20. Assailing the impugned judgment
and order of acquittal of the accusedrespondents, namely, Sughar Singh, Sahdev
Singh, Nagendra Singh and Ashok @
Ranjit, the learned A.G.A. for the State in
the
instant
Government
Appeal
has
advanced following submissions:

i) . As per prosecution case as
unfolded in the first information report,
specific role of exhortation has been
assigned to the accused Nagendra Singh and
role of causing fire arm injuries to the
deceased Gopal Singh has been attributed to
the accused Sahdev Singh on the exhortation
of Nagendra Singh. The said prosecution
version has also been supported by the
prosecution witnesses, namely, P.W.-1,
Satyadeo and P.W.-2, Jaiveer Singh in their
respective testimonies.

ii).
P.W.-1
and
2
are
the
eyewitnesses,
who
have
proved
the
prosecution case beyond reasonable doubt
but trial Court erred in passing the impugned
judgment and order of the acquittal.

iii). Injuries on the person of
deceased- Gopal Singh have been caused by
fire arm which is fully corroborated by
medical
evidence
i.e.
post
mortem
examination report of the deceased. Dr.
A.K. Malpani P.W.-3/Autopsy Surgeon has
found four gun shot injuries on the person of
deceased- Gopal Singh, which also support
the prosecution case.

iv). Motive alleged in the F.I.R.
has also been proved by P.W.-1 and P.W.-2
in their respective testimonies, who are
alleged to be the eye-witnesses of the
incident.

(v). There are no inconsistencies
or contradictions in the testimonies of the
prosecution witnesses.

(vi). Since the incident took place
at 04:00 p.m. i.e. broad day light and the
members of prosecution as well as defence
were of the same village, the accused could
be identified very well by the prosecution
witnesses and there was no occasion to
324 INDIAN LAW REPORTS ALLAHABAD SERIES
doubt the identification of the accused
persons by prosecution witnesses.

(vii). Though there were recovery
of gun i.e. crime weapon and pellets were
also recovered from the body of the
deceased but that were not sent to the
Forensic Science Laboratory concerned for
their ballistic reports. It is no doubt true that
there are no ballistic reports with regard to
pellets and the recovered gun but there is
ocular evidence to prove the prosecution
case. P.W.-1 and P.W.-2 are the eyewitness
account,
who
have
supported
the
prosecution story. Non production of F.S.L.
report is not fatal to the prosecution case.
Since P.W.-2 is an independent eye witness,
therefore, his evidence is more creditworthy.

21. On the basis of above submissions,
learned A.G.A. submits that the prosecution
has fully established its case beyond
reasonable doubt against the accusedrespondents by oral as well as documentary
evidence but the trial court has not examined
the same and passed the impugned judgment
of acquittal of accused-respondents, namely,
Sughar Singh, Sahdev, Nagendra Singh and
Ashok @ Ranjit and therefore, the same is
per-se illegal and is liable to be quashed. The
learned A.G.A. and learned counsel for the
first informant further submit that in support
of the above argument, learned counsel for
the accused-respondent has failed to
produce any documentary as well as oral
evidence before this Court as well as trial
court. There exist direct evidence against the
accused-respondents.
As
such,
the
Government Appeal filed by the State is
liable to be allowed by reversing the
impugned judgment of the trial court and
convicting and sentencing the accusedrespondents for the offence under Section
302 I.P.C. The learned A.G.A. also submits
that since the Government Appeal qua the
accused-respondent
Sughar
Singh
has
already been dismissed as abated, nothing is
required to be said in his case.

22. Supporting the impugned judgment
and order passed by the trial court acquitting
the
accused-respondents,
the
learned
counsel for the accused-respondents submits
as under:

(a) Motive as alleged in the F.I.R.
has not been established and proved by the
prosecution evidence adduced during the
course of trial.

(b).
P.W.1/first
informant-
Satyadeo has admitted in his cross-
examination that prior to this incident, one
cross case under Section 307 I.P.C. was
lodged between the accused- Ashok and
accused Nagendra. Although, it is alleged
that after some time both the accused
compromised and the cases instituted
against each other culminated into their
acquittal. Even though both the accused
entered into compromise, but there were no
cordial relations between the Ashok and the
accused Nagendra nor they were friend. As
such, in these circumstances, it is impossible
to believe that the accused-Ashok exhorted,
associated or helped the accused Sahdeo and
Nagendra in commissioning of murdering of
the deceased Gopal Singh in any manner.

c). P.W.-1 has also stated in para34 of his cross-examination that accused-
Ashok was not present on the spot. Similarly
P.W.-2, Jaiveer Singh also stated that
accused- Ashok was not present on the place
of occurrence. He then also stated that he has
not heard that Ashok asked the accused
Sahdev to bring his gun kept in his sitting
place (Baithaka) and kill the deceased Gopal
Singh from it, whereas, P.W.-4 investigating
officer,
Sri
Brahm
Singh
stated
in
paragraph-29 that P.W.-2 Jaiveer stated in
his statement that " Ashok asked Sahdeo to
5 All. State of U.P. Vs. Sughar Singh
325
bring his gun which was kept in sitting place
(Baithaka) and kill him (Gopal Singh).

d). As per F.I.R., accused- Ashok
was also in the company of the accused
persons, Sughar Singh, Sahdeo Singh and
Nagendra Singh at the time of occurrence
but P.W.-1 and P.W.-2 have denied the
presence of Ashok on the place of
occurrence at the time of incident. From the
above contradiction in the prosecution
evidence, it is apparent that the genesis of
crime is wholly untrustworthy as the same
creates a major dent in the prosecution story.

e). There is also no F.S.L. report
with regard to recovered cartridges and tikli.
In these circumstances prosecution has not
been able to established its case beyond
reasonable doubt, hence, judgment of
acquittal passed by Trial Judge is well
reasoned and sound.

On the cumulative strength of the
aforesaid submissions, learned counsel for
the accused-respondents submits that as this
is a case of weak type of evidence, the
impugned judgment and order of acquittal of
any of the charges framed against the
accused-respondent does not suffer from
any illegality and infirmity so as to warrant
any interference by this Court. As such the
present Government Appeal filed by the
State is liable to be dismissed.

23. We have examined the respective
contentions urged by the learned counsel for
the parties and have perused the records of
the present appeal including the trial court
records.

24. The only question requires to be
addressed and determined in this appeal
is whether the conclusion of guilt arrived
at by the learned trial court and the
sentence
awarded
is
legal
and
sustainable in law or it suffers from
infirmity and perversity.

25. Before entering into the merits of
the case set up by the learned counsel for the
accused-appellant
in
criminal
appeal,
learned counsel for the accused-respondent
in government appeal and the learned
A.G.A. as also the learned counsel for the
first informant in both the appeals qua
impugned judgment and order of conviction
passed by the trial court, it is desirable for us
to briefly refer to the statements of the
prosecution witnesses as well as the defence
witnesses.

26. The first informant Satyadeo Singh
son of the deceased Gopal Singh has been
examined as P.W..-1. He stated in his
examination-in-chief that the deceased
Gopal Singh was his father, whereas the
accused persons, namely, Sughar Singh,
Nagendra, Sahdev, Ashok @ Ranjit were
residents of his village. Accused Sahdev
Singh and Nagendra Singh were the son of
accused Sughar Singh. The present murder
incident took place on Holi (festival of
colours) one year and five months back.
About 15 days before the incident, accused
Nagendra and Sahdev had cut off the drain
water flowing in his gram field due to which
his crops got damaged. Because of the same,
there was an altercation between his father
Gopal Singh and accused Nagendra and
Sahdev and the aforesaid accused threatened
his father to face evil consequences.

27. This witness further stated that it
was around 4 o'clock in the evening, there
was an altercation, which was going on
between the accused Sughar Singh and his
brother Durbin Singh regarding some land
and the accused Nagendra and Sahadev
were also involved in it. During the same
fight, this witness and his uncle Sangram
Singh also reached there. When his uncle
Sangram Singh tried to intervene, accused
Nagendra and Sahdev started abusing his
326 INDIAN LAW REPORTS ALLAHABAD SERIES
uncle. Further when this witness objected
not to abuse him, they also abused him, on
which he also started abusing them, as he
became very angry with him. At the same
time, father of this witness came there from
the east of Prem Shankar's house and was
standing between the vacant land of Prem
Shankar's house and Zoravar's house, he
asked as to why they were fighting. When
the said altercation was going on between
the first informant/this witness and the
accused, then the witnesses Jaiveer Singh,
Yatendra Singh, Narendra Singh were also
present on the spot. Seeing the father of
P.W.-1, the accused Nagendra exhorted the
accused Sahdeo to kill him as he was one of
the enemy, who had stopped their water on
other day. On the said exhortation, the
accused Sahdev ran and brought Ashok's
licensed gun and fired at his father, which
hit his father directly on his eyes and face.
When his father fell down, the accused
Sahdev fired another shot at P.W.-1, which
narrowly missed him because he sat down.
The witness raised an alarm and seeing the
crowd gathering, the accused ran away
towards the south-west of the well. The
deceased died on the spot due to bullet
injury. He himself (P.W.-1) had written a
report regarding the incident and took it to
the police station for registration of the case.

28. In the cross-examination, this
witness stated that there was a cross case
under Section 307 of I.P.C. between the
accused Ashok and accused Nagendra. This
witness further stated that there was gram
crops in his 8 bighas of land and some of
which lost. 15 days before the incident, the
accused had cut off the chak nali water
flowing in his field due to which huge
damage was caused.

29. This witness further stated that
accused Nagendra was cashier in the District
Cooperative Bank, Nidhauli and he lived
there. He used to visit the village once or
twice in a week. He had been informed by
his father about the fight between his father
and the accused Nagendra and Sahdeo due
to flow of water but his father has not
disclosed the date and time of such fight.

30. This witness further stated that at
the time of the incident, Durbin Singh, with
whom quarrel was taking place initially, left
the place of occurrence and heated
conversations were exchanged between
them. It took about 10 minutes in exchange
of hot conversations between them and
firing of gun shot upon his father i.e.
deceased. He further stated that at the time
of incident, he was going towards chaupal
and he stopped there after seeing the fight
between Durbeen Singh and the accused.
When he reached the place of occurrence,
his uncle Sangram Singh also accompanied
him.

31. This witness again stated that he
did not witness accused Ashok at the spot.
He did not give any statement to the
Investigating Officer that Ashok asked
accused Sahdeo to bring his gun from his
sitting place and kill him, consequent to
which the accused Sahdev immediately ran
away. However, he cannot explain as to how
the Investigating Officer has recorded his
such statement.

32. This witness further stated that the
Sahdev brought the gun from the accused
Ashok's sitting place of which he had no
idea when Sahdev ran to get the gun and
fired it in the presence of so many people.
When he was running to get the gun, 15-20
people were gathered at the spot.

33. P.W.-2 Jaiveer Singh, who is
alleged to be an independent eye witness
5 All. State of U.P. Vs. Sughar Singh
327
stated that at around 4 o'clock in the evening,
he was standing near the well situated southwest of house of one Zorawar. Many
witnesses like Yatendra Singh, Sangram
Singh, Narendra Singh etc. were also
standing there. At the relevant time, there
was an altercation between Durveen Singh
and the accused Sughar Singh, Nagendra
Singh and Sahdev Singh on some issue.
Meanwhile Sangram Singh intervened, then
the accused Nagendra abused him, on which
the
first
informant/P.W.-1
Satyadev
objected not to abuse his uncle i.e. Sangram
Singh due to which heated conversations
were exchanged between them. Meanwhile,
father of first informant, namely, Gopal
Singh came from the east side of Prem
Shankar's house and asked as to why they
were fighting on which the accused
Nagendra exhorted the accused Sahdev to
kill him as he was his enemy. On such
exhortation, the accused Sahdev ran and
brought the gun of accused Ashok from his
sitting place and standing near the Bachan
Singh's platform, fired a shot upon the
deceased Gopal Singh due to which he
sustained fire arm injuries and fell down.
Face of the deceased was hit by fire.
Whereafter the accused Sahadev fired upon
the first informant/P.W.-1 Satyadev but it
did not hit him as he moved a little away.
When the crowd gathered, the accused left
the spot towards the west side. Gopal Singh
died on the spot.

34. In his cross-examination, this
witness stated that accused Nagendra
exhorted to shoot. At the relevant time, none
of the accused were having any weapon. The
accused Ashok was not present at the spot.
He did not overheard the accused Ashok
saying the accused Sahdev to bring the gun
from his sitting place and kill them.
Regarding the aforesaid fact, he did not give
any statement to the Investigating Officer.

35. This witness further stated that he
saw the accused Sahadev running to bring
the gun but it did not occur to him that he
would bring the gun and fire it. The sitting
place of the accused Ashok was visible from
where they stood but the same was not
visible from where the deceased Gopal
Singh was standing. Till the first shot was
fired by the accused Sahdeo, he could not
see that the accused Sahdev had brought the
gun because his attention was towards the
accused Nagendra and others abusing each
other. This witness further stated that his
attention was drawn towards that when the
first fire was made. The second cartridge
was fired by accused Sahdev in front of him.
The first cartridge turned out to be empty
which fell on the spot and then Sahadev
loaded the second cartridge in front of him.
By the time he shouted as to what he was
doing, the accused Sahdev fired another
shot.

36. This witness denied the fact that the
incident took place in the dark night in
which the deceased Gopal Singh was killed
and no one was present at the time of the
incident. He also denied that he has not seen
any incident and was deposing falsely
because of his relationship.

37. P.W.-3 Dr. A.K. Malpani,
Superintendent District Hospital Etah,
District Etah, in his examination-in-chief
stated that he found as many as four ante
mortem injuries on the body of the deceased.
He took out two big pellets from the body of
the deceased and after getting the said
pellets sealed, the same were handed over to
the Police Constable. While conducting an
autopsy on the corpse of the deceased, he
opined that the cause of death of the
deceased was shock and excessive bleeding
due to ante-mortem injuries. These injuries
in ordinary course of nature were usually
328 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient to cause death. He further opined
that there could be a difference of 6 hours in
the duration of injuries on either side. In his
opinion, injury no. 4 could be caused due to
fall over some hard object. He then opined
that the injuries were possible only when the
killer and the deceased were standing at
almost the same level.

38. P.W.-4 Sub-Inspector Brahm
Singh initially conducted the investigation,
who in his examination-in-chief stated that
the investigation of the case was first handed
over to him. Whereafter he recorded the
statements
of
first
informant/P.W.-1,
witness Sangram Singh. He further stated
that on 11th March, 1982, he inspected the
field and a fight was alleged to have taken
place between the deceased Gopal Singh
and the accused about 15 days prior to the
incident. After examining the evidence of
first informant Satyadev, he prepared the
site plan which has been proved by him in
the Court. On such inspection, he found the
bund (Medh) of the chak nali was broken at
two places, which seemed to be clogged
with fresh soil. He next stated that on 12th
March,
1982,
the
investigation
was
entrusted to Sub Inspector Yogendra Singh
as per the order of the then Station House
Officer.

In his cross-examination, this
witness
further
stated
that
the
first
informant/P.W.-1 Satyadev had given his
statement under Section 161 Cr.P.C. that the
accused Ashok exhorted the accused Sahdeo
to bring his gun from his sitting place
(Baithaka)
and
kill
them.
On
such
exhortation,
the
accused
Sahadev
immediately ran away.

39. Further this witness stated that he
also recorded the statement of witness
Durveen Singh in which he stated that the
accused Ashok exhorted the accused Sahdeo
to bring the gun, which was kept in his
sitting place (Baithaka) and kill them.

40. P.W.-5 Sub-Inspector Yogendra
Singh stated in his examination-in-chief that
he took over the investigation of the case
from P.W.-4 Sub-Inspector Brahma Singh
on 12th March, 1982. On 18th March, 1982
he went to the district court and recorded the
statement of accused Ashok, where he
surrendered and on his asking, his brotherin-law (Behnoi), namely, Om Prakash
deposited his gun in the Police Sttaion where
its recovery memo has been prepared by this
witness.

41. This witness further stated that he
did not send the gun of the accused Ashok to
the ballistic expert for its matching because
a long time had elapsed since the incident
and the gun was still in the possession of the
accused. This witness further stated that he
wanted to take the accused Ashok on police
remand only for recovery of his gun because
he was informed that firing was done by the
gun of the accused Ashok.

42. P.W.-6 Laxman Singh Verma,
Head Muharrir, Police Station-Patiani, Etah
has been produced by the prosecution.