# Sunil Kumar Singh v. State of U.P

- **Citation:** Criminal Appeal No. 717 of 1984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-20
- **Case number:** Criminal Appeal No. 717 of 1984
- **Bench:** Arvind Kumar Mishra-I, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-singh-v-state-of-u-p-46412
- **Pages:** 10

## Headnote

A. Criminal Law- Indian Penal Code,1860-
Section 304- Delayed FIR- After three days of
the occurrence-Version in the FIR that the
informant was told about the incident by the
victim is a version wholly unreliable and appears
to have been managed by the prosecution and
in particular by the informant and cannot be
believed to be correct version in the prevailing
facts and circumstances of the case - Testimony
of PW3 does not indicate compatibility with
natural
conduct
that
after
seeing
the
occurrence, he being Lekhpal posted in district
Varanasi at that point of time must have told
/described about the incident to anyone but he
kept silent for three days-Witness is not reliable
and he cannot be believed to be worthy of
credit-His natural conduct is inconsistent with
that of a man of ordinary prudence, not fit in
the prevailing circumstances of the case - Child
witness- Not believed to be wholly reliable
witness and she appears to have been tutored
witness because she has categorically stated in
her cross examination that whatever was seen
by her was told to her by her parents- Claim of
the defence that the air-gun was fired in the
play and it somehow incidentally hit the victim
can be acted upon as plausible explanation
about the incident.

Criminal law-Code of Criminal Procedure,
1973 -Section 154- Delay in lodging FIRThe FIR has been lodged belatedly and the
same recites a false narrative since the
deceased had already expired before the time
he allegedly told the First Informant about the
occurrence.

Evidence Law-Indian Evidence Act,1872-
Section 155- Credibility of witness- The
witness having not disclosed the information for
three days , his conduct was wholly unnatural
and devoid of any credibility.

Evidence law-Indian Evidence Act, 1872-
Section 118- Child Witness- Where the Child
Witness admitted that his evidence was based
on hearsay, the same goes to show that he is a
tutored witness and cannot be relied upon.
Learned trial court while considering merit
of the case overlooked above material
322 INDIAN LAW REPORTS ALLAHABAD SERIES
factual
aspects,
circumstances
and
testimony on record and adopted only
casual approach- Appellant given benefit of
doubt- Conviction u/s 304 Part II set aside.
( Para 36, 37, 40, 43, 44)

Criminal Appeal allowed (E-3)

## Text

3-5 All. Sunil Kumar Singh Vs. State of U.P.
321
connect the accused persons with the crime.
The findings of the trial court are found just and
proper in the facts and circumstances of the
case.

(42) Resultantly, this appeal fails and
is, hereby, dismissed. The judgment and
order passed by court below is affirmed.

(43) Appellants Kuber Singh, Naresh
Singh, Chandra Shekhar Singh & Sukhbir
Singh, are on bail. Their bail bonds are
cancelled and sureties are discharged. They
shall surrender forthwith before the court
concerned, be taken into custody and sent
to jail to serve their sentence.

(44) Certify this judgment to the court
below immediately for compliance.

(45) The compliance be submitted
through the Registrar General, High Court,
Allahabad.
----------
(2020)03-05ILR A321
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 717 of 1984
connected with
Government Appeal No. 1086 of 1984 &
Government Appeal No. 1088 of 1984

Sunil Kumar Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri D.S.P. Singh, Sri Adarsh Kumar Pandey,
Sri Rajiv Kumar Mishra

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law- Indian Penal Code,1860-
Section 304- Delayed FIR- After three days of
the occurrence-Version in the FIR that the
informant was told about the incident by the
victim is a version wholly unreliable and appears
to have been managed by the prosecution and
in particular by the informant and cannot be
believed to be correct version in the prevailing
facts and circumstances of the case - Testimony
of PW3 does not indicate compatibility with
natural
conduct
that
after
seeing
the
occurrence, he being Lekhpal posted in district
Varanasi at that point of time must have told
/described about the incident to anyone but he
kept silent for three days-Witness is not reliable
and he cannot be believed to be worthy of
credit-His natural conduct is inconsistent with
that of a man of ordinary prudence, not fit in
the prevailing circumstances of the case - Child
witness- Not believed to be wholly reliable
witness and she appears to have been tutored
witness because she has categorically stated in
her cross examination that whatever was seen
by her was told to her by her parents- Claim of
the defence that the air-gun was fired in the
play and it somehow incidentally hit the victim
can be acted upon as plausible explanation
about the incident.

Criminal law-Code of Criminal Procedure,
1973 -Section 154- Delay in lodging FIRThe FIR has been lodged belatedly and the
same recites a false narrative since the
deceased had already expired before the time
he allegedly told the First Informant about the
occurrence.

Evidence Law-Indian Evidence Act,1872-
Section 155- Credibility of witness- The
witness having not disclosed the information for
three days , his conduct was wholly unnatural
and devoid of any credibility.

Evidence law-Indian Evidence Act, 1872-
Section 118- Child Witness- Where the Child
Witness admitted that his evidence was based
on hearsay, the same goes to show that he is a
tutored witness and cannot be relied upon.
Learned trial court while considering merit
of the case overlooked above material
322 INDIAN LAW REPORTS ALLAHABAD SERIES
factual
aspects,
circumstances
and
testimony on record and adopted only
casual approach- Appellant given benefit of
doubt- Conviction u/s 304 Part II set aside.
( Para 36, 37, 40, 43, 44)

Criminal Appeal allowed (E-3)

(Delivered by Arvind Kumar Mishra, J.
&
Hon'ble Gautam Chowdhary, J.)

1. Heard Sri Rajiv Kumar Mishra, learned
counsel for the accused-appellant Sunil Kumar
Singh, Sri Nafees Ahmad and Sri Bhanu
Prakash Singh, learned A.G.A. for the State in
the present appeal and Sri Nafees Ahmad and
Sri Bhanu Prakash Singh, learned A.G.A. for
the
State-appellant
in
the
connected
Government Appeal Nos.1086 of 1984 and
1088 of 1984.

2. The instant criminal appeal has been
preferred by the accused-appellant Sunil Kumar
Singh against the judgment and order of
conviction dated 04.02.1984 passed by IIIAdditional Sessions Judge, Varanasi, in
Sessions Trial No. 133 of 1981, State Vs. Sunil
Kumar Singh and another, arising out of Case
Crime No.207 of 1980, under Section 304 PartII read with Section 34 I.P.C., Police Station
Cant, District Varanasi whereby the accusedappellant Sunila Kumar Singh has been
convicted under Section 304 Part-II read with
Section 34 I.P.C. and instead of being
sentenced, he was directed to be released on
probation for two years to maintain peace and
be of good behaviour on his furnishing a
personal bond of Rs.4,000/- along with two
sureties each in the like amount.

3. The aforesaid Government Appeal
No.1086 of 1984 (State of U.P. Vs. Sunil
Kumar Singh and another) was preferred by the
State against the same judgment and order of
acquittal dated 04.02.1984 and the aforesaid
Government Appeal No.1088 of 1984 (State of
U.P. Vs. Sunil Kumar Singh and another) has
been preferred by the State for enhancement of
the sentence.

4. It is relevant to mention that the appeal
qua accused Ram Daras stood abated on
20.05.2019.

5. Since the aforesaid appeals arise out of
one and the same judgment dated 04.02.1984
passed by III-Additional Sessions Judge,
Varanasi, therefore, the instant appeals are being
disposed of by way of a common judgment.

6. The prosecution facts as discernible
from record suggest that the written report
was lodged at Police Station Cant, District
Varanasi by the informant Omkar Nath
Dubey against the accused-appellant on
11.04.1980 at 7:10 p.m. by describing that
the informant's son Atul Kumar was injured
by shot at quarter to 5:00 p.m. on
08.04.1980 in front of the office of A.D.M.
(Project), Bhuwneshwar Colony Orderly
Bazar, Varanasi. The injury was caused by
firing with air-gun by Sunil Kumar Singh
son of Sabhajeet Singh. On being asked,
Chhotey uncle of Sunil Kumar Singh
informed that boys were playing and the
shot was fired in the play itself. Since
condition of the victim Atul Kumar was
serious, therefore, actual occurrence could
not be known. After three days of the
occurrence, Atul Kumar somehow regained
consciousness and was able to speak then it
transpired
that
Sunil
Kumar
Singh
deliberately and intentionally fired on him
(Atul Kumar). The air-gun belonged to
Ram Daras who is peon in Sarada Sahayak
Pariyojana. The injured Atul Kumar was
taken to the hospital in the evening on
08.04.1980 and got admitted in the hospital
in the serious condition at B.H.U. (E.N.T.).
3-5 All. Sunil Kumar Singh Vs. State of U.P.
323
The pellet is entangled in the neck of the
injured. Request was made for lodging the
first information report.This written report
is Ext. Ka-1.

7. The first information report was
lodged at Police Station Cant., District
Varanasi on 11.04.1980 at Case crime
no.207 of 1980 under Section 307 I.P.C.
The check FIR is Exhibit Ka-15.

8. On the basis of entries made in the
check FIR, case was registered against the
accused persons at serial no.56 of G.D. on
the same day at 07:10 a.m. at Case Crime
No.207 of 1980 under the aforesaid Section
of I.P.C. at Police Station Cant., District
Varanasi. G.D. entry is Ext. Ka-16.

9. Record reflects that the injured
Atul Kumar was medically examined by
Dr. T.B. Rai, on 08.04.1980 at 07:05
p.m. who noted the following injury:-

1.
Lacerated
penetrating
wound 3/4 cm x 1/2 cm x depth not
proved on front of neck.

10. Injury report is Ext. Ka-5.

11. It so happened that during the
treatment, the victim Atul Kumar died
on 12.04.1980 at 6:15 p.m. in B.H.U.
Hospital Varanasi and the matter was
reported at Police Station Cant. on
13.04.1980 due to which the case was
altered under Section 302 I.P.C.

12. Record signifies that after
coming to know about death of the
deceased Atul Kumar, Ali Mohd Khan,
PW-8 rushed to the B.H.U. Hospital
where he prepared relevant papers
pertaining to the inquest of deceased
Atul Kumar after appointing inquest
witnesses. He started inquest of Atul
Kumar at 11:50 a.m. on 13.04.1980 and
completed at 3:50 p.m., the very same
day and has proved the same as Exhibit
Ka-2.

13. In the process, inquest witnesses
expressed opinion for conduction of
postmortem examination of the dead body
in order to ascertain real cause of death.
Therefore, relevant papers were prepared
by Ali Mohammand Khan, PW-8 for
sending the dead body for postmortem
examination. Apart from that, relevant
papers -say challan dead body, photonash
dead body and letter to C.M.O. etc. have
been proved as Ext. Ka-7, Ext. Ka-8, Ext.
Ka-9, respectively.

14. Record reflects that the
postmortem examination on cadaver
of the deceased was conducted at
mortuary,
Varanasi
by
Dr.
H.M.
Agarwal, PW-6 at 3:15 p.m. on
13.04.1980. The doctor found the
following ante-mortem injuries:-

1. Healing wound 0.8 cm x
0.3 cm on front of neck, 0.5 cm left of
mid-line, 8 cm above supra external
notch, direction horizontally backward
piercing through and through anterior
and posterior walls of trachea and
oesophagus.
One
pellet
(air
gun
pellet) found behind oesophagus in
front of sixth cervical vertebrae.
Frank pus in moderate amount present
in front of the vertebrae column
behind oesophagus and up to upper
media-stinum lower down.

15. Cause of death was asphyxia. The
postmortem examination report of the
deceased is Exhibit Ka-4.
324 INDIAN LAW REPORTS ALLAHABAD SERIES

16. The investigation of this case
commenced and the Investigating Officer,
PW-8 besides recording statement of
prosecution witnesses prepared site plan of
place of occurrence Ext. Ka-6. In the
meanwhile, accused-appellant Sunil Kumar
Singh was arrested by S.O. Shyam Sunder
Tiwari PW-10. The investigating was
transferred to another Investigating Officer
Shyam Sunder Tiwari PW-10, who also
took various steps in completing the
investigation and papers prepared by the
Investigating Officer PW-8 were proved as
Ext. Ka-11, Ext. Ka-12 and Ext. Ka-13. He
recorded statement of the various persons
and also recorded statement of another
accused Ram Daras. After completing the
Investigating, he filed charge sheet Ext. Ka14 against the accused-appellant.

17. Pursuant to committal proceeding,
case was transferred from the Sessions
Court to the aforesaid trial court i.e. IIIAdditional Sessions Judge, Varanasi for
conduction of trial and its disposal.

18. Prosecution opened its case by
stating the charges brought against the
accused and it also stated the evidence by
which it proposed to prove guilt of the
accused. The trial court heard the accused
as well as prosecution on the point of
charge and was, prima-facie, satisfied with
the case for framing charges under Sections
302
read
with
Section
34
I.P.C.
Accordingly, trial court framed charge
against accused-appellant. Charge was read
over and explained to the accused-appellant
who abjured charge and opted for trial.

19. Consequently, the prosecution was
asked to adduce its testimony in respect of
charges. The prosecution produced in all 11
witnesses. A brief reference of them is ut
infra:

20. Godawari Devi PW-1 is the
mother of the deceased Atul Kumar. Sanjay
Singh
PW-2
appeared
on
the
spot
subsequent to the occurrence and is a
witness of the post incidental development.
Shyam Bihari Lal PW-3 claims himself to
be eyewitness of the occurrence and he has
testified about the incident. The child Nisa
is the star witness of this case, she was 8
years of age when her testimony was
recorded before the trial court. Omkar Nath
Dubey PW-5 is the informant. Dr. H.M.
Agarwal PW-6 has conducted post mortem
examination on the cadaver of the deceased
and has proved post mortem examination
report Ext. Ka-4. Dr. T.D. Rai PW-7 has
medically
examined
the
victim
on
08.04.1980 at 07:05 p.m. at S.S.P.G.
Hospital Varanasi and has proved medical
examination report of the victim as Ext.
Ka-5. Ali Mohammad Khan PW-8 is the
first Investigating Officer of this case.
Constable Brij Kishor Tiwari PW-9 took
the dead body in sealed condition to the
mortuary at Varanasi and has proved the
same. Shyam Sundar Tiwari PW-10 is the
subsequent Investigating Officer who after
completing the investigation has filed
charge sheet against the accused-appellant.
Balbhadra Tiwari PW-11 has proved the
concerned Check FIR and relevant entry
made regarding the same as Ext. Ka-16.

21. No further evidence was adduced
by the prosecution, therefore, evidence for
the prosecution was closed and statement
of accused was recorded under Section 313
Cr.P.C. wherein he has termed the incident
as incidental caused in play and has denied
fact that injury was intentionally inflicted
upon the deceased. In turn, defence also led
testimony of several witnesses namely
Krishna Mohan Saxena DW-1 regarding
some entries made in the relevant record
i.e. electoral papers. Hari Prasad DW-2 was
3-5 All. Sunil Kumar Singh Vs. State of U.P.
325
posted in Udai Pratap Degree College and
has proved the record regarding date of
birth of the accused-appellant. Dinesh
Chandra Srivastava is DW-3 and Ramkesh
Rai is DW-4.

22. The trial court after hearing both
the sides on merit and appraising facts and
evaluating the evidence, returned the
aforesaid finding of conviction and passed
the aforesaid sentence thus instead of
passing
sentence
upon
the
accusedappellant Sunil Kumar Singh gave him
benefit of probation for two years to
maintain peace and be of good behaviour
on his furnishing a personal bond of
Rs.4,000/- along with two sureties each in
the like amount.

23. Consequently, the aforesaid
three
appeals-
the
first
against
conviction and sentence by the accusedappellant, the second against the order
of acquittal qua aforesaid accusedappellant and the third for enhancement
of the sentence by the Government.

24. Sri R.K. Mishra, learned
counsel for the accused-appellant has
submitted that the entire prosecution
story is concocted and highly motivated
in the sense that nothing happened on
the spot and no one saw the occurrence.
It so happened that the deceased Atul
Kumar and the accused-appellant Sunil
Kumar Singh were playing together and
some air-gun was used in the play
which in fact caused harm to the
deceased. This harm cannot be imputed
to a single person that he had any
animus to commit crime. Both the
accused-appellant and the deceased
were of the some tender age. What
happened prior to the occurrence has
not been accounted by any eye-account
testimony.

25. Nisha Devi PW-4 is the only eyeaccount witness who has also not detailed
in her examination in chief as to what
transpired prior to the occurrence. The
prosecution story is silent on the genesis of
the incident created on the spot. Both the
children - say accused-appellant Sunil
Kumar Singh and the deceased Atul Kumar
were playing and their playful activity
somehow brought incidental hit by air-gun
to the deceased Atul Kumar.

26. Now it so happened that after
air-gun hit on the neck of the deceased
Atul Kumar, his parents were infuriated
and with a view to take revenge lodged
false first information report regarding
the firing and imputed to the accusedappellant Sunil Kumar Singh by tutoring
Nisha Devi PW-4 on the point that the
incident occurred in such and such
manner. Assuming it to be that any
incident as alleged in the first information
report took place then version of Nisha
Devi PW-4 ipso-facto becomes dubious,
vague and tutored as this witness is
wholly unreliable, for the reason that as
per her testimony, she has described
particular manner of the incident that the
gun was pointed on the neck of the
deceased Atul Kumar, at that particular
moment when the incident took place,
some conversation between the accusedappellant Sunil Kumar Singh and the
deceased Atul Kumar took place that
conversation is of particular nature and it
has come in her testimony that she told
about the incident to her parents after the
occurrence took place. But this part of
conversation is absolutely silent in the
first information report.
326 INDIAN LAW REPORTS ALLAHABAD SERIES

27. However, a twist has been given
to the entire situation by claiming that the
informant was intimated by the injured
himself that the accused-appellant Sunil
Kumar Singh fired upon him with air-gun
which aspect of the case is self-explanatory
of fact that there is no iota of evidence or
circumstance which may indicate the point
that the deceased Atul Kumar ever regained
his consciousness and was in fit mental
condition to spell / utter any single word.

28. The doctor witness has also not
been examined by the prosecution on this
point who can testify fact that the deceased
Atul Kumar was in fit mental condition to
spell / utter word then the point as to how
and under what circumstance the informant
was intimated by the deceased Atul Kumar
himself is an episode self-created by none
other than the informant himself and has
been wrongly relied by the trial court.
Charges against appellant have not been
proved beyond reasonable doubt.

29. Contention by the learned A.G.A.,
in brief, is that conviction recorded under
Section 304 Part-II is itself indicative of
fact that charge though was framed under
Section 302 I.P.C. but conviction was
recorded under Section 304 Part-II I.P.C.
which deviation by the trial court under
facts and circumstances of the case is not
justified, for the reason that eye-account
testimony of Nisha Devi PW-4 is direct,
accurate
in
consonance
with
the
prosecution version described in the first
information report. Her testimony is
innocuous and unimpeachable on the point
of the occurrence. The intention to cause
harm
when
considered
vis-a-vis
the
attendant facts and circumstances of the
case would end in commission of offence
of death and it actually occurred in this
case. An innocent boy lost his life because
of the indolent behaviour of the accusedappellant Sunil Kumar Singh and this case
should not be viewed with leniency and no
mercy can be shown to the accusedappellant Sunil Kumar Singh on the ground
that the accused-appellant Sunil Kumar
Singh was at that particular time of this
incident a boy of tender age of 12 years.
The prosecution witnesses have proved all
the relevant facts which are required to be
proved by it.

30. In this case, as per allegations the
intention to commit the crime was
apparent, however, the conviction, if
converted, from Section 302 I.P.C. to one
under Section 304 I.P.C. then it ought to
have been confined to Part-I of Section 304
I.P.C. and the animus which was playing in
the mind of the accused-appellant was very
much apparent by the criminal act done by
him. The trial court wrongly convicted the
accused-appellant under Part-II of Section
304 I.P.C. instead it should have convicted
the accused-appellant under Part -I of
Section 304 I.P.C.

31. Lastly added that the case of the
prosecution has been consistently proved
and investigation of this case has been done
properly and fairly. Testimony of the
prosecution witnesses of fact is clinching,
sans embellishment and improvement and
under circumstances, is natural and inspires
confidence. Nisha Devi PW-4 is the star
witness who has described every relevant
details of the incident and participation of
the accused-appellant in the incident.

32. After hearing learned counsel for
the
parties
and
considering
rival
submissions of the respective parties, core
consideration that arise in these appeals are
two pronged - one relates to fact whether
the prosecution was not able to prove its
3-5 All. Sunil Kumar Singh Vs. State of U.P.
327
charges against appellant Sunil Kumar
Singh in the aforesaid Criminal Appeal
(717 of 1984) and second relates to fact
whether finding of acquittal is based on
conjectures and surmises rather than
grounded on material on record and third
relates to enhancement of the sentence in
the aforesaid Government Appeals?

33. The very genesis of the crime, as
we gather from reading of the first
information report, describes the incident to
have taken place on 08.04.1980 at 4:45
p.m. and description is to the magnitude
that with intention to kill, shot was fired
with air-gun upon the victim Atul Kumar
by the accused-appellant Sunil Kumar
Singh. The shot hit on the neck of the
victim.

34. The condition of the victim was
serious, therefore, details of the incident
could not be known and after three days of
the incident when the victim was able to
speak then it transpired that the accusedappellant Sunil Kumar Singh deliberately
shot him with air-gun and the air-gun was
owned by peon Ram Daras posted in the
office at Sarada Sahayak Pariyojana. The
victim was taken to the hospital in the
injured condition where he was admitted in
serious condition. The pellet was entangled
in his neck. If this version of the incident is
taken to be correct then we have star
witness of this incident namely Nisha Devi
PW-4.

35. As regards the occurrence, we
have best testimony in the form of PW-4
and PW-3. We scanned the entire testimony
of Shyam Bihari Lal PW-3 who happened
to be Lekhpal posted in district Varanasi.
The place of the occurrence is adjacent to
the office of Tehsil. He has described about
the incident in his examination in chief that
at the relevant point of time, he saw the
occurrence when accused-appellant Sunil
Kumar Singh was possessing air-gun and
was standing at some pace from the victim
this air-gun was given by Ram Daras to the
accused-appellant Sunil Kumar Singh.

36. As soon as the victim Atul Kumar
arrived on the spot, the accused-appellant
Sunil Kumar Singh pointed air-gun on his
neck and put the trigger on. This is
particular piece of testimony regarding the
incident. The natural conduct of this
witness is to be considered for evaluating
veracity of his testimony. In the cross
examination, it is admitted to this witness
that for over three days, he did not make
any statement to any authority about the
incident
then
what
to
say
to
the
Investigating Officer that after three days,
he gave statement to Daroga Ji.

37. Here we come across contrary
statement given / made to Daroga Ji and
testimony given in the cross examination
before the trial court. His testimony does
not indicate compatibility with natural
conduct that after seeing the occurrence, he
being Lekhpal posted in district Varanasi at
that point of time must have told /described
about the incident to anyone but he kept
silent for three days. May be, he is a
procured
witness,
managed
by
the
prosecution in order to articulate things in
its favour. Therefore, this witness is not
reliable and he cannot be believed to be
worthy of credit. He is vacillating on
material point and his natural conduct is
inconsistent with that of a man of ordinary
prudence,
not
fit
in
the
prevailing
circumstances of the case.

38. Now we have testimony of the
only star witness Nisha Devi PW-4, sister
of the deceased Atul Kumar. After careful
328 INDIAN LAW REPORTS ALLAHABAD SERIES
perusal of her testimony, we can take note
of the description of the incident as testified
in her examination in chief wherein she has
categorically stated that the deceased Atul
Kumar was her brother and the accusedappellant Sunil Kumar Singh fired upon
him. The gun was pointed on the neck, with
point blank range, and shot was fired at that
relevant point of time when the gun was
put on the neck of the deceased by the
accused-appellant Sunil Kumar Singh, the
deceased Atul Kumar asked him not to do
so whereupon the accused-appellant Sunil
Kumar Singh insisted that he will do this.
After sustaining shot, the deceased Atul
Kumar fell down to the eastern side of the
electric pole on the spot.

39. Upon perusal of the first
information report, it is revealed that the
incident occurred around 5:00 p.m. on
08.04.1980. This description emerging in
examination in chief of this witness (Nisha
Devi PW-4) is to be cautiously scrutinized
in view of fact that PW-4 is a child witness
and at the time of the occurrence, she was
about 6 years of age.

40. But before proceeding further, we
would like to reflect on the point as we
have scanned testimony of the doctor
witness who medically examined the
deceased and also perused relevant part of
the testimony of the Investigating Officer
Ali Mohammad Khan PW-8 who went to
the B.H.U. Hospital in emergency ward
after the investigation was taken over by
him on 12.04.1980 then he found the victim
Atul Kumar in unconscious state which
indicates that the victim was not able to
speak at that point of time when the
Investigating Officer PW-8 arrived at
B.H.U. Hospital Varanasi in the emergency
ward on 12.04.1980 and his testimony is
admitted on the point that the death
occurred on 12.04.1980 in the evening
around 6:15 p.m. itself. This being so an
independent circumstance, the version in
the first information report that the
informant was told about the incident by
the victim Atul Kumar is a version wholly
unreliable and appears to have been
managed by the prosecution and in
particular by the informant and cannot be
believed to be correct version in the
prevailing facts and circumstances of the
case.

41. Upon careful scrutiny of the entire
testimony - say examination in chief and
cross examination of the star witness Nisha
Devi PW-4, we gather fact that after the
occurrence, she told each particular of the
occurrence to her parents and Omkar Nath
Dubey - informant who is none other than
the father of Nisha Devi PW-4.

42. Now the moot point is concerning
fact that after the incident took place, each
particular of the incident was described and
the first information report was lodged on
11.04.1980 much after the occurrence took
place on 08.04.1980, how and why was
reference to the magnitude that the injured
was in fit condition to speak and he told
about the incident to the informant then the
informant came to know that offence was
deliberately committed by none other than
the accused-appellant Sunil Kumar Singh.
This particular aspect is unimpeachable
under existing circumstance of this case
and requires explanation by the prosecution
and the prosecution has tried to manage
things to a degree to bring the case beyond
reasonable doubt which it failed on account
of certain infirmities creating serious dent
in the prosecution story.

43. That way, no doubt the
prosecution witness PW-4 is not believed to
3-5 All. Sunil Kumar Singh Vs. State of U.P.
329
be wholly reliable witness and she appears
to have been tutored witness because she
has categorically stated in her cross
examination that whatever was seen by her
was told by her to her parents. During
treatment
of
the
the
deceased,
the
conversation took place between PW-4 and
her parents as emerging in her cross
examination on page nos.34 and 35 of the
paper-book
then
how
and
why
improvement by PW-5 on point of talk with
Atul Kumar that he had conversation with
him (the deceased). The prosecution could
not come out specifically about any such
testimony or circumstance explicit or
implicit reflecting on the point that the
deceased regained consciousness and was
in fit physical condition to speak. Under
these circumstances as a measure of
caution, PW-4 who is a child witness
cannot be wholly relied by us and doubt is
created about the very manner and style of
the incident in which the offence is claimed
to have been committed by the accused.

44. The claim of the defence that the
air-gun was fired in the play and it
somehow incidentally hit the victim can be
acted upon as plausible explanation about
the incident. Under these circumstances, we
can hold that the case was not proved
within the four corners of Section 304
I.P.C. and the trial court did not consider
this
vital
unimpeachable
point
/
circumstance of the case which is selfrevealing instead the prosecution on the
point of actual occurrence is all the times
improving and vacillating and the statement
of the prosecution witnesses on the vital
point as such are contrary to the Section
161 Cr.P.C. which contrast has been
elaborately pointed out by the defence in
cross examination of the prosecution
witnesses. The prosecution witnesses PW-3
and
PW-4
have
been
specifically
challenged by the defence, which has been
denied but specific challenge to the
witnesses cannot be overlooked by us in
view of several infirmities appearing in the
testimony and we hold in the final count
that the charge has not been proved beyond
reasonable doubt and the accused-appellant
is entitled to benefit of doubt - acquittal.

45.
 Learned
trial
court
while
considering merit of the case somehow
overlooked above material factual aspects,
circumstances and testimony on the whole
on record and adopted only casual
approach. Thus, the trial court erroneously
recorded finding of conviction against the
accused-appellant under Section 304 Part-II
I.P.C. which finding in the absence of
consistent and clinching testimony on point
of occurrence becomes unsustainable and
in the result liable to be set aside by us.

46. Therefore, the judgment and order of
conviction dated 04.02.1984 passed by IIIAdditional Sessions Judge, Varanasi, in
Sessions Trial No. 133 of 1981, State Vs. Sunil
Kumar Singh and another, arising out of Case
Crime No.207 of 1980, under Section 304 PartII read with Section 34 I.P.C., Police Station
Cant, District Varanasi, is hereby set aside.
Accused-appellant Sunil Kumar Singh is
acquitted of the charge. Accordingly, the instant
criminal appeal is allowed.

47. In this case, the accused-appellant is
on bail. He need not surrender before the court
concerned. His bail bonds are cancelled and
sureties are discharged. However, he shall
furnish surety bonds in compliance with
Section 437A Cr.P.C.

48. Accordingly, Government Appeal
No.1086 of 1984 and Government Appeal
No.1088 of 1984 being devoid of merit are
dismissed.
330 INDIAN LAW REPORTS ALLAHABAD SERIES

49. Let a copy of this order be
certified to the trial court for its intimation
and necessary follow-up action.
----------
(2020)03-05ILR A330
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.04.2020

BEFORE
THE HON'BLE ANIL KUMAR, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 720 of 1982

State of U.P.(State Appeal) ...Appellant
Versus
Smt. Chhoti & Anr. ...Respondents

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:
Nagendra Mohan, Som Narain Saxena,
Wasim Ahmad

A. One of the essential condition for taking
into consideration of such confession
against another co-accused is that both
the accused must have been jointly tried
before the Trial Court and if the accused
has not been tried jointly before the Trial
Court, the extra judicial confession made
by him cannot read against another coaccused
and
such
confession
is
inadmissible in evidence- Accused will be
presumed as innocent unless and until the
prosecution has succeeded to prove its
case beyond reasonable doubt and the
presumption of innocence of accused is
further strengthened if he is acquitted by
the Trial Court- In an appeal against
acquittal, if two views are possible, one is
in favour of accused-person and judgment
of Trial Court is not illegal or manifestly
perverse, the appellate Court should not
disturb the order of acquittal.

B. Evidence Law-Indian Evidence Act,
1872-
Section
30-
Extra
judicial
confession- Admissibility- Extra judicial
confession made by co-accused is a weak
type of evidence -The requirement of law for
making the said evidence admissible is that both
the accused must have been jointly tried before
the Trial Court and in absence of such joint trail
for any reason, the extra judicial confession
made by one accused cannot be read against
another co-accused.

C.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 378 (1)- Appeal
against
acquittal-
Presumption
of
innocence in favour of the accused- Where
the accused is acquitted by the trial court, there
is a double presumption of innocence in his
favour and the view in favour of the accused will
be ordinarily accepted unless there is a patent
illegality or manifest error apparent from the
judgement of the trial court.
(Para 30,31,36,37,39)

Government Appeal rejected (E-3)

List of case cited:

1. Achey Lal Singh Vs. Emperor, AIR 1947 Patna
90 DB

2. Surajpal Singh & or.s Vs. State, AIR 1952 SC
52

3. St. of M.P Vs. Mukesh & ors., (2007) 2 SCC
680

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant criminal appeal has
been filed against the judgment and order
dated 01.01.1982, passed by 3rd Additional
District and Sessions Judge, Sitapur in
Sessions Trial No.382/1979 (State vs. Smt.
Chhoti and others), arising out of Case
Crime No.60/1977, under Sections-302
read with 34 and 201 I.P.C., Police Station
(P.S.)-Kamlapur, District-Sitapur, whereby
the
respondents-accused
(hereinafter
referred to as respondents)- Smt. Chhoti
and Ram Swarup have been acquitted by