# State of U.P v. Suraj Pal and others

- **Citation:** (2007) 3 ILRA 694
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-22
- **Case number:** Government Appeal No. 1874 of 2003
- **Bench:** R.C. Deepak, Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-suraj-pal-and-others-41085
- **Pages:** 7

## Headnote

the appellate Court-against acquittaloffence under Section 302 IPC-findings
recorded by Trail Court based on proper
appreciation of evidence-considering the
opinion of Doctor the injury caused by
Rifles,
Pistol
or
revolver-prosecution
story about commission of murder by
firing from cartridge gun-held-doubtfulconsidering recient view of Apex Court.
No Scope for interference made out.

Held: Para 18

Therefore, Keeping in view aforesaid
observations made by Hon'ble Apex
Court, there is no scope to make any
interference in the impugned judgment,
because as mentioned earlier also, the
findings of acquittal recorded by the
learned Trial Court which are based on
proper appreciation of the evidence, are
neither
perverse
nor
against
the
evidence.
Case law discussed:
2002 (10) SCC-461
2007 (57) ACC-959

## Text

694 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2007

BEFORE
THE HON'BLE R.C. DEEPAK, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Government Appeal No. 1874 of 2003

State of U.P.

...Appellant
Versus
Suraj Pal & others...Respondents-accused.

Counsel for the Appellant:
Sri Jagdish Tewari
Sri P.S. Pundir
A.G.A.

Counsel for the Opposite Parties:
Sri Manish Tiwari
Sri Ashwini Awasthi

Criminal Appeal-scope of interference by
the appellate Court-against acquittaloffence under Section 302 IPC-findings
recorded by Trail Court based on proper
appreciation of evidence-considering the
opinion of Doctor the injury caused by
Rifles,
Pistol
or
revolver-prosecution
story about commission of murder by
firing from cartridge gun-held-doubtfulconsidering recient view of Apex Court.
No Scope for interference made out.

Held: Para 18

Therefore, Keeping in view aforesaid
observations made by Hon'ble Apex
Court, there is no scope to make any
interference in the impugned judgment,
because as mentioned earlier also, the
findings of acquittal recorded by the
learned Trial Court which are based on
proper appreciation of the evidence, are
neither
perverse
nor
against
the
evidence.
Case law discussed:
2002 (10) SCC-461
2007 (57) ACC-959
(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. This government appeal after
seeking leave of Court has been preferred
against the judgment and order dated
11.01.2000, passed by Sri B.L. Pandey,
the then Additional Sessions Judge/ Spl.
Judge (E.C. Act) Banda, in S.T. No. 236
of 1991 and connected S.T. No. 59 of
1992, whereby the respondents-accused
Suraj Pal, Nawal Kishore, Bakshraj and
Ram Kishore have been acquitted of the
offence punishable under section 302 read
with section 34 IPC in Case Crime No.
93/91 of Police Station Baberu, District
Banda.

2. The incident resulting in the death
of Sukhram Singh, brother of the
complainant Ghanshyam Singh Chauhan
is said to have occurred on 22.04.1991 at
about 5.45 p.m. in Kasba Baberu. First
information report was lodged by the
complainant Ghanshyam Singh Chauhan
S/o Indrajeet Singh, r/o Kasba and P.S.
Baberu, District Banda. The case of the
prosecution as per FIR (Ext. Ka 13), in
brief, is that on 22.04.1991 at about 5.45
p.m., when the complainant, his mother
Sunder Devi and his uncle Lal Singh were
sitting on the door of their house and his
elder
brother
Sukhram
Singh
was
standing near the shop adjacent to the
door of the house, the accused Ram
Kishore and Nawal Kishore both sons of
Shiv Balak armed with double and single
barrel guns respectively, Suraj Pal S/o
Laxmi Narayan armed with single barrel
gun (all residents of kasba Baberu) and
Bukshraj son of unknown r/o village
Banthari, P.S. Kamasin, District Banda,
armed with single barrel gun came there
and abusing and saying that you have got
the case registered against them, began to
fire from their weapons. Sukhram Singh
3 All] State of U.P. V. Suraj Pal and others
695
sustained serious injuries, who fell down
there and died instantaneously. The
complainant and other persons managed
to enter in the house and saved
themselves. While making fire, the
accused Nawal Kishore was terrorising
and threatening the people that if anybody
will come near, he also will be killed. Due
to this incident, terror was caused in kasba
and nearby shops were closed and people
began to run towards their houses. After
committing murder of Sukhram, the
accused-respondents fled away towards
village Kachendu. Leaving the dead body
of Sukhram at the place of incident, the
complainant went to police station Baberu
and handed over written report (Ext. Ka
1), which he himself had scribed. On the
basis of this report, P.W. 7 Ram Manohar
Singh prepared chik FIR (Ext. Ka 13) and
registered a case under section 302 IPC at
Crime No. 93/91 against the respondentsaccused on 22.04.91 at 6.50 p.m. and
made entry in G.D. No.41 (Ext. Ka 14).

3. The investigation was entrusted to
S.I. Babu Singh Sachan P.W. 6, who went
to the place of occurrence along with
police and PAC personnel and made
search of the accused. Since there was
low voltage, inquest proceeding on the
dead body could not be conducted in
night and next day i.e. 23.04.1991 inquest
proceeding was conducted by S.I. Babu
Singh, during which inquest report (Ext.
Ka 3) and connected papers (Ext. Ka 5 to
Ext. Ka 8) were prepared and thereafter,
the dead body was sent in sealed
condition through constable Mahipat
Singh
(P.W.
5)
for
post
mortem
examination, which was conducted by Dr.
Sharif Alam (P.W.3). According to the
post mortem report (Ext. Ka 2), the
following ante mortem injuries were
found on the person of deceased:-
1. Fire arm wound of entrance 5 cm. x
4 cm. x chest cavity deep situated on
sternal area 6 cm. below to sternal
notch. No blackening & scorching
present in area 1 cm. around the
wound. Margins inverted & irregular.
Wound is directed inward upward
toward left axilla & continue as.
2. Fire arm wound of exit 5 cm. x 5 cm.
x chest cavity deep (communicating
with Injury No.1 margin everted)
situated on left side of upper of
lateral side of chest 2 cm. behind the
anterior axillary fold.
Direction:- Injury No. (1) direct
towards left axilla, Inward & upward
communicating with Injury No. (2).
3. Fire arm wound of enterance 1.5 cm.
x 1.5 cm. x chest cavity deep, on left
lateral side of chest in 6th intercostal
space 8 cm. lateral to left nipple
Margins inverted, directed towards
right lateral side of chest & continue
as.
4. Fire arm wound of exit 2.00 cm. x
1.5 cm. x chest cavity deep on right
lateral
side
of
chest
in
11th
intercostal space. Margins enverted.
Direction:- Fire arm wound of
enterance No.(3) direct from left to
right slight backward & downward
towards Injury NO. (4).
5. Fire arm wound of enterance 1 cm. x
1cm. On middle of anterior aspect of
left arm 7 cm. above the left elbow
joint, muscle deep passing through &
through as.
6. Fire arm wound of exit 1.5 cm. x 1.5
cm. x muscle deep through &
through communicating with injury
no. 5, situated on middle of back of
left arm 7 cm. above the elbow joint.
Direction:- Injury No. 5 firearm
wound is directed straight backward
forward Injury No. (5).
696 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
In internal examination, fractures of
body of sternum, left 2nd rib (laterally)
and right 11th rib (laterally) were found.
Pleura was ruptured. Larynx, Trachea &
Bronchi were congested. Lower lobe of
right lung as well as middle and upper
lobe
of
left
lung
were
lacerated.
Pericardium was ruptured aortic arch was
also ruptured. Semi digested rice and
pieces of dal about 400 gm. were found in
the stomach. Pasty food & gasses were
found present in small intestine whereas
faeces & faecal material was found in
large intestine. Right lobe of liver was
ruptured. Spleen and Kidneys were
congested.

According to Dr. Alam, death was
caused about one day ago due to internal
hemorrhage and shock as a result of ante
mortem fire arm injuries.

4. During investigation, S.I. Babu
Singh Sachan recorded the statement of
complainant and prepared site plan (Ext.
Ka 9) after making spot inspection. Rest
investigation was carried out by S.S.I.
Satya
Narayan
Singh,
who
after
completing the investigation, submitted
charge sheet Ext. Ka 11 against the
accused Suraj Pal, Naval Kishore and
Bakshraj.
S.I.
Hari
Shankar
Singh
conducted further investigation against
the accused Ram Kishore and submitted
charge sheet Ext. Ka 12 against him on
20.10.1991.

5. On the case being committed to
the court of session for trial, charge under
section 302 read with section 34 IPC was
framed against all the four accusedrespondents, to which they pleaded not
guilty and claimed to be tried.

6. The prosecution in order to prove
its case has examined seven witnesses in
all. P.W. 1 Ghanshyam is the complainant
and eye witness also. He has proved
written report (Ext. Ka 1) in his statement
recorded on 12.10.1992. P.W. 2 Lal Singh
is also said to be the eye witness. P.W. 3
Dr. Sarif Alam had conducted autopsy on
the dead body of deceased Sukhram Singh
on 23.04.1991 at 4.05 p.m. P.W. 4 S.I.
Nand Kishore had gone to the place of
incident along with S.I. Babu Singh
Sachan and other police personnel on
getting information regarding murder of
Sukhram. P.W. 5 Mahipat Singh is the
dead body carrier. P.W. 6 S.I. Babu Singh
Sachan is the first investigating officer.
He has proved inquest report Ext. Ka 3
and other documents Ext. Ka 4 to 12,
which have been mentioned above. P.W.
7 constable Ram Manohar Singh is the
scribe of chik FIR Ext. Ka 13, which has
been proved by him along with copy of
GD No. 41 (Ext. Ka 14).

7. In their statements recorded under
section
313
Cr.P.C.,
the
accusedrespondents
have
denied
their
participation in the alleged incident and
they have stated that due to enmity, they
have been falsely implicated in this case.

8. The respondents-accused have not
examined any witness in defence, but they
have filed some documentary evidence to
show the enmity between the parties.

9. The learned Trial Court after
taking entire evidence into consideration,
acquitted the accused-respondents vide
impugned judgment, which has been
challenged in this appeal by the state of
U.P.
3 All] State of U.P. V. Suraj Pal and others
697
10. We have heard Sri P.S. Pundhir
learned AGA for the state-appellant, Sri
A.K. Awasthi learned counsel for the
respondents-accused and perused entire
evidence including impugned judgment
carefully.

11.

Assailing
the
impugned
judgment, it was vehemently contended
by learned AGA that on the basis of the
testimony
of
the
eye
witnesses
Ghanshyam and Lal Singh, which is
corroborated by medical evidence, it is
fully proved that murder of Sukhram
Singh was committed by the accusedrespondents on the alleged date, time and
place, but the learned Trial Court did not
properly appreciate the evidence and on
the basis of surmises and conjectures,
acquitted
the
accused-respondents
recording
unjustified,
perverse
and
unreasonable findings and hence after
setting aside the impugned judgment, the
accused-respondents should be convicted
of the offence with which they have been
charged.

12. On the other hand, it was
submitted by the learned counsel for the
accused-respondents that there is no scope
to make any interference in the impugned
judgment by this Court, because findings
of acquittal recorded by the learned Trial
Court are neither perverse nor against the
evidence. It was further submitted that
murder of Sukhram Singh was committed
by some unknown persons in some other
manner and at some other time and place
and on getting information, the police
carried his dead body to police station
Baberu, where it was kept in the night and
next day due to previous enmity between
the parties false FIR was lodged against
the accused-respondents showing it to be
lodged on 22.04.91. Next submission
made by learned counsel for the accusedrespondents was that medical evidence is
not supporting oral evidence in this case.

13. Having giving our thoughtful
consideration to the rival contentions of
the learned counsel for the parties, we are
of the considered opinion that prosecution
has failed to bring home the guilt to the
accused-respondents and interference by
this Court in the impugned judgment is
not warranted.

14. Murder of deceased Sukhram is
said
to
have
been
committed
on
22.04.1991 at about 5.45 p.m. This time
of murder is falsified by the post mortem
report (Ext. Ka 2). According to this
report, about 400 gm. Semi digested rice
and pieces of dal were found in the
stomach of the deceased at the time of
post mortem examination. Dr. Sharif
Alam, who conducted post mortem
examination on dead body, has stated that
the death of deceased might have been
caused within two hours after taking
meal. This opinion of Dr. Alam is based
on availability of semi digested rice and
dal in the stomach of deceased. P.W. 1
Ghanshyam has stated in his statement
that on the day of occurrence, he and the
deceased Sukhram had taken their meal
before noon and thereafter, Sukhram had
slept. It is also stated by this witness that
prior to the incident neither Sukhram nor
he or his mother and Lal Singh had taken
tea. From this statement of P.W.1
Ghanshyam, this fact is born out that after
taking lunch before noon on the day of
occurrence, the deceased had not eaten
any food till his death. If this statement of
Ghanshyam is believed, then murder of
Sukhram
Singh
might
have
been
committed much earlier from the time of
incident mentioned in the FIR, because
698 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the food of any nature is almost
completely digested within about six
hours from taking meal. If the deceased
had not eaten any food after taking his
lunch before noon on the day of
occurrence, then his stomach must have
been found empty at about 5.45 p.m., but
as mentioned above, semi digested rice
and pieces of dal about 400 gm. were
found in his stomach at the time of post
mortem examination. It is not disputed
that it is a case of instantaneous death. As
such the time of incident as mentioned in
the FIR and told by the witnesses
Ghanshyam and Lal Singh becomes
doubtful. The finding recorded by the
learned Trial Court on this point is most
reasonable. On the basis of aforesaid
discussion, murder of Sukhram Singh
appears to have been committed two or
three hours after his taking dinner, in
which rice and dal was taken. Therefore,
the story of the prosecution regarding
murder of deceased at about 5.45 p.m. is
extremely doubtful.

15. It was submitted by learned
counsel for the accused-respondents that
on getting information about the murder
of Sukhram Singh, the police of P.S.
Baberu had carried his dead body to the
police station, because by that time the
name of assailants were not known and
next day i.e. 23.04.1991 after lodging
FIR, inquest proceeding was conducted at
P.S. Baberu and from there the dead body
was sent to mortuary Banda for post
mortem examination and hence on this
ground also, the story of the prosecution
becomes doubtful. This submission also
has got force. Although the witness Babu
Singh Sachan (P.W.6) has stated that
inquest proceeding on the dead body was
conducted on 23.04.1991 in the morning
at the place of incident, but this statement
is
falsified
by
the
complainant
Ghanshyam (P.W.1), who has stated that
dead body of his brother Sukhram Singh
was carried by the police at about 7-8
p.m. to the police station and they also
had gone with the dead body to P.S.
Baberu, but he had come back before mid
night and on the next day in the morning,
he again went to the police station, where
his statement was recorded and at about
12.00 O'clock, he departed from police
station to Banda with the dead body.
There is no reason to disbelieve this
statement of P.W.1 Ghanshyam and on
the basis of his testimony, this fact is fully
established beyond doubt that on getting
information about the murder of Sukhram
Singh, the police had carried his dead
body to police station Baberu, where it
was kept in the night and after holding
inquest proceeding next day, the dead
body was sent from police station direct
to mortuary Banda at about 12.00 noon.
On the basis of the statement of P.W.1
Ghanshyam, the place of holding inquest
proceeding
on
the
dead
body
as
mentioned in the inquest report Ext. Ka 3
becomes false.

16. According to the witness
Ghanshyam, the accused are said to have
fired 25 shots, but even a single pellet or
bullet or any incriminating article was not
found on the place of occurrence, which
makes the place of incident doubtful.

17. According to prosecution case,
the accused Ram Kishore is said to be
armed with double barrel cartridge gun,
whereas other accused are said to be
armed with single barrel cartridge guns.
Dr. Sharif Alam, who had conducted post
mortem examination has opined that
keeping in view the size of ante mortem
injuries no. 3 and 5, it can be said with
3 All] State of U.P. V. Suraj Pal and others
699
certainty that there is more possibility of
causing injuries no. 3 and 5 by means of
rifle, pistol or revolver. It is specifically
stated by Dr. Alam that cartridges, which
were used in causing ante mortem injuries
no. 3 and 5, might not have contained
pellets. On the basis of this statement of
Dr. Alam, the story of prosecution about
commission of murder by firing from
cartridge guns becomes doubtful.

18. On the basis of aforesaid
discussion, we come to the conclusion
that the prosecution has not succeeded to
prove its case beyond reasonable doubt.
Hence, this Court will not be justified to
make interference in the impugned
judgment. The Hon'ble Apex Court in the
case of Bhim Singh vs. State of Haryana
2002 (10) SCC 461 has held that:-

"Before concluding, we would like to
point out that this Court in a number of
cases has held that an Appellate Court
entertaining an appeal from the judgment
of acquittal by the Trial Court though
entitled to reappreciate the evidence and
come to an independent conclusion, it
should not do so as a matter of routine. In
other words, if from the same set of
evidence two views are possible and if the
Trial Court has taken one view on the said
evidence, unless the Appellate Court
comes to the conclusion that the view
taken by the Trial Court is either perverse
or such that no reasonable person could
come to that conclusion or that such a
finding of the Trial Court is not based on
any material on record, it should not
merely because another conclusion is
possible reverse the finding of the Trial
Court."
In the case of Kallu @ Masih and
others vs. State of Madhya Pradesh
2007 (57) ACC 959 it is held by Hon'ble
Apex Court that:-

"While deciding an appeal against
acquittal, the power of the Appellate
Court is no less than the power exercised
while hearing appeals against conviction.
In both types of appeals, the power exists
to review the entire evidence. However,
one significant difference is that an order
of acquittal will not be interfered with, by
an Appellate Court, where the judgment
of the Trial Court is based on evidence
and the view taken is reasonable and
plausible. It will not reverse the decision
of the Trial Court merely because a
different view is possible. The Appellate
Court will also bear in mind that there is a
presumption of innocence in favour of the
accused and the accused is entitled to get
the benefit of any doubt. Further if it
decides to interfere, it should assign
reasons for differing with the decision of
the Trial Court.

Therefore, Keeping in view aforesaid
observations made by Hon'ble Apex
Court, there is no scope to make any
interference in the impugned judgment,
because as mentioned earlier also, the
findings of acquittal recorded by the
learned Trial Court which are based on
proper appreciation of the evidence, are
neither perverse nor against the evidence.

19. In the result, this government
appeal
lacks
merit
and
is
hereby
dismissed. The respondents-accused are
on bail. Their personal bonds and surety
bonds of the sureties are cancelled and the
sureties are discharged.

The Office is directed to return Trial
Court record expeditiously along with a
700 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
copy of this judgment. Govt. Appeal
Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2007

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 2174 of 1997

Sunil Kumar Srivastava and another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Sharad Kumar Srivastava

Counsel for the Respondents:
Sri C.K. Parekh

U.P. Nagar Mahapalika Sewa Niymawali
1962 readwith U.P. Nagar Mahapalika
Service (Designations Scale
of Pay,
Qualifications,
Conveyance
Allowance
and Method of Recruitment) Order 1963Section-106
(2),
109-Termination
of
Apprentice
vaccinator-appointment
made without following the procedurebeing nor or relative of ex-employee of
Mahapalika-by
the
authority
not
competent to appoint-continuation in
service on the strength of interim order
passed
by
Court-termination-heldproper.

Held: Para 24

It
is
apparent
that
the
power
of
appointment at the relevant time vested
in
the
State
Government
and
the
petitioners
could
not
have
been
appointed
by
the
Nagar
Swasthaya
Adhikari under Section 107 (5) of the
Adhiniyam since the post of Vaccinator
was carrying initial salary of Rs. 315/- in
1984
and
Rs.325/-
in
1988.
Their
appointment was therefore not only in
contravention of the Adhiniyam but also
of the G.O. dated 30.12.1981. The
selection/appointment of the petitioners
was also not in conformity with the
statutory powers under the U.P. Nagar
Mahapalika Sewa Niyamawali, 1962 read
with
Clause
5
of
the
U.P.
Nagar
Mahapalika Service (Designations, Scales
of
Pay,
Qualifications,
Conveyance
Allowances and Method of Recruitment)
Order, 1963, Section 106 (2) and Section
109 of the Adhiniyam. Options had been
sought from the old employees of the
Nagar Nigam for absorption in the new
cadre of the scheme but the petitioners
did
not
join
under
the
scheme
formulated by the State Government.
The Nagar Nigam did not have any
power to create the post and in the
circumstances the petitioners had no
legal right to be appointed on a post
which did not exist.
Case law discussed:
1994 (2) ACJ-781 (DB)
1996 (2) AWC-927 (DB)
1995 (2) LBESR-752 (DB)
1996 (1) LBESR-677
2006 (4) SCC-1
2007 (1) SCC-577

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri Sharad Kumar
Srivastava for the petitioners and Sri C.
K. Parekh for the respondents.

2. By means of this writ petition the
petitioners have prayed for a writ of
certiorari
quashing
the
order
dated
6.1.1997 passed by the Up Nagar
Adhikari,
Nagar
Nigam,
Varanasi,
respondent no. 4 besides a writ of
mandamus commanding the respondents
to allow them to work upon their
respective posts and to pay their salary
regularly month to month.

3. The facts of the case, in brief, are
that petitioner no. 1 was appointed as Paid
Apprentice Vaccinator on 18.12.1984 for