# Sunil Singh & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 1088
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Criminal Appeal No. 2938 of 2012
- **Bench:** Harsh Kumar, Umesh Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-singh-anr-in-jail-v-state-of-u-p-45749
- **Pages:** 11

## Headnote

Criminal Law-Indian Penal Code, 1860Sections 302/34 & 201- Appeal against
conviction.

Delay in lodging F.I.R.-
F.I.R. of the incident has been lodged after in
inordinate
delay
create
doubt
of
the
prosecution case. (Para-9)

Benefit of Doubt-
For the reasons mentioned in preceding paras,
considering the possibility of murder of
deceased by unidentified culprits in the
darkness of night and false implication of
appellants, in belated F.I.R. due to enmity and
suspicion it will not be safe to base conviction
of
appellants.
Where
witnesses
and
circumstances considered together raised
strongly suspicion about the occurrence and
involvement of accused. (Para-29)

Criminal Appeal allowed. (E-2)

List of cases cited: -

## Text

1088 INDIAN LAW REPORTS ALLAHABAD SERIES

7. In our considered view the
Division Bench committed a serious error
in relying upon the aforesaid judgement.
No doubt, it is an established principle of
criminal law in India that only account of
detecting some falsehood in the statement
of a witness who is otherwise consistent
and reliable, his entire testimony should
not be discarded. It is equally settled law
that if a witness is found undependable
and unreliable his evidence cannot be
split to grant benefit to some co-accused
while maintaining conviction of another
when in all respects he stands on the
same footing and deserves parity."

32. Thus, in view of the principle
enunciated by the Apex Court in the
aforesaid
case
and
after
bestowing
anxious considerations to the material on
record, we are unable to agree with the
reasons given by the trial court for
convicting the appellant Than Singh and
acquitting
co-accused
Pooran.
The
evidence of the witnesses of fact
examined by the prosecution during trial
is not of such nature which may be
splitted to grant differential treatment to
the different co-accused.

33. Since the case of the appellant
Than Singh stands on the same footing as
that of co-accused Pooran, who was
acquitted, if not on better footing,
appellant Than Singh was entitled to
acquittal, apart from merits, on parity as
well.

34. Thus, in view of the foregoing
discussion, we are of the view that neither
the recorded conviction of the appellant
Than Singh nor the life sentence awarded
to him can be sustained and is liable to be
set aside. Criminal Appeal No. 2004 of
1986 qua appellant Than Singh is hereby
allowed and he is acquitted of all the
charges.

35. The impugned judgement and
order dated 22.7.1986 passed by the
Special Judge, Mathura in S. T. No. 75 of
1986; State Versus Bhima and three
others, under Sections-302/34, 201 and
511 I. P. C., P. S.-Vrindavan, districtMathura is set aside to the extent
indicated hereinabove.

36. Appellant Than Singh is on bail.
He need not surrender. His bail bonds are
cancelled
and
sureties
discharged.
However, he shall comply with the
provisions of Section 437-A Cr. P. C.

37. There shall however, be no order
as to costs.
----------
(2020)06ILR A1088
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE

THE HON'BLE HARSH KUMAR, J.
THE HON'BLE UMESH KUMAR, J.

Criminal Appeal No. 2938 of 2012

Sunil Singh & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Shiv Nath Singh, Sri Krishna Murari
Yadav, Sri Satyam Singh, Sri Ahkilesh
Kumar, Sri B.D. Sharma, Sri Jitendra
Singh, Sri S.K. Mishra, Sri Sharda Prasad
Mishra, Sri Sunil Singh, Sri Kamal Krishna,
Sri P.K. Rai

Counsel for the Opposite Party:
A.G.A.
6 All. Sunil Singh & Anr. Vs. State of U.P. 1089
Criminal Law-Indian Penal Code, 1860Sections 302/34 & 201- Appeal against
conviction.

Delay in lodging F.I.R.-
F.I.R. of the incident has been lodged after in
inordinate
delay
create
doubt
of
the
prosecution case. (Para-9)

Benefit of Doubt-
For the reasons mentioned in preceding paras,
considering the possibility of murder of
deceased by unidentified culprits in the
darkness of night and false implication of
appellants, in belated F.I.R. due to enmity and
suspicion it will not be safe to base conviction
of
appellants.
Where
witnesses
and
circumstances considered together raised
strongly suspicion about the occurrence and
involvement of accused. (Para-29)

Criminal Appeal allowed. (E-2)

List of cases cited: -

1. Thulia Kali Vs St. of T.N. AIR (1973) SC 501

(Delivered by Hon'ble Harsh Kumar, J.)

1. The instant appeal has been filed
against the judgment and order of
conviction and sentence dated 18.11.2010
passed by Additional Sessions Judge,
Court No.8, Fatehpur in S.T. No.192 of
2010 "State Vs. Sunil Singh and another"
under Sections 302/34 & 201 I.P.C., Case
Crime No.10 of 2010 and S.T. No.193 of
2010 "State Vs. Sunil Singh" under
Section 25 of Arms Act, Case Crime
No.11 of 2010, both P.S. Asother, District
Fatehpur, convicting two accused persons
for offences under Sections 302/34 and
201 I.P.C. and sentencing each of them
with imprisonment for life and fine of
Rs.10,000/- and in case of default in
payment
of
fine
with
simple
imprisonment for an additional period of
one year, under Sections 302/34 I.P.C.
and with rigorous imprisonment for a
period of five years and fine of Rs.2000/-
and in case of default in payment of fine
with
simple
imprisonment
for
an
additional period of three months under
Section 201 I.P.C. Apart from it, accusedappellant Sunil Singh was also convicted
and
sentenced
with
rigorous
imprisonment for a period of three years
and fine of Rs.2000/- and in case of
default in payment of fine with simple
imprisonment for an additional period of
three months for offence under Section 25
of Arms Act.

2. Feeling aggrieved, both the
convicts preferred instant appeal for
setting aside their conviction and passing
an order of their acquittal.

3. The brief facts relating to the case
are that Shiv Shankar @ Jhaller lodged
F.I.R. at P.S. Asother District Fatehpur on
22.1.2010 at 7:30 a.m. with the averments
that "his 38 years old son Santosh Kumar
Pandey, who was working as Munshi on
private buses of Qasba Asother alongwith
Bachcha Singh was falsely implicated by
Sunil Singh (accused) in the case of
murder of his sister Leelawati, in which
case he (Santosh) was acquitted and Sunil
Singh in order to take revenge for murder
of his sister was having grudge/enmity
with Santosh Kumar; that on 20.1.2010,
Sunil with his associate Deepak provided
liquor to his son in the evening the
fetched him and at about 8:00 p.m.,
(opposite Nahar Kothi, Asother in North
of road, on the chack road in front of
fields of Chhatrapal Singh) they caused
his death by shooting in his head by
pistols
and
in
order
to
make
disappearance of his dead body, dragged
and thrown it in Ganga canal; that the
incident was seen by Baba Singh, Vimal
Singh and several others; that shoes and
1090 INDIAN LAW REPORTS ALLAHABAD SERIES
scarf of his son were found in the mustard
fields of Chhatrapal Singh and his dead
body, which could not be recovered on
21.1.2010, due to excess water in canal,
has been found today (with multiple
injuries on his head) in canal opposite the
fields of Chhatrapal Singh , when water
receded".

4.

Upon
lodging
of
F.I.R.,
investigation started and after preparing
memo of recovery of empty cartridges,
the
shoes
and
scarf
of
deceased,
bloodstained and plane earth, inquest
report etc., body of deceased was sent for
post-mortem. During investigation, the
weapon of crime, country made pistol
was recovered from accused Sunil @
Lambari on 25.1.2010 of which memo
was prepared F.I.R. was lodged against
him under Section 25 of Arms Act. After
obtaining the autopsy report and reports
of Vidhi Vigyan Prayogshala, completing
the
investigation
and
obtaining
prosecution
sanction,
respective
investigating officers submitted chargesheet in Case Crime No.10 of 2010 under
Sections 302/34 & 201 I.P.C. against two
accused appellants and in Case Crime
No.11 of 2010 under Section 25 of Arms
Act
against
accused-appellant
Sunil
Singh. The cases were committed to
sessions, where charges were framed
against both the appellants under Section
302/34 & 201 I.P.C. and against Sunil
Singh also under Section 25 Arms Act to
which they denied and demanded trial.

5. In joint trial of two cases,
prosecution produced as many as nine
witnesses viz. Shiv Shanker @ Jhaller,
the first informant and father of deceased
as P.W.-1, Baba Singh and Vimal Singh,
the eye witnesses as P.W.-2 & P.W.-3,
Constable
Kamal
Singh
and
Head
Moharrir Balram formal witnesses to
prove chick F.I.R. of two crime cases as
P.W.-4
&
P.W.-5,
Rajiv
Verma,
Investigating Officer of Case Crime
No.10 of 2010, under Sections 302/34 &
201 I.P.C. as P.W.-6, Geetam Singh, S.I.
to prove recovery of country made pistol
from Sunil as P.W.-7, Balister Singh
Investigating Officer of Case Crime
No.11 of 2010, under Section 25 of Arms
Act as P.W.-8 and Dr. Shiv Shankar, the
autopsy surgeon as P.W.-9.

6. Above witnesses of fact as well as
formal witnesses proved the prosecution
case and documentary evidence as well as
prosecution sanction etc. on record, which
were marked as Ex.A1 to Ex.A21.

7. After completion of prosecution
evidence, statements of accused Sunil
Singh and Deepak Kewat were recorded
under Section 313 Cr.P.C. and despite
affording opportunity, any of them did
not produce any oral or documentary
evidence in defence.

8. Heard Shri Shiv Nath Singh,
Senior
Advocate,
assisted
by
Shri
Akhilesh Kumar learned counsel for
appellant no.1 Sri Sunil Singh, Shri
Kamal Krishna, Senior Advocate, assisted
by Shri Pradeep Kumar Rai learned
counsel for appellant no.2 Deepak Kewat,
Shri Rajesh Kumar Mishra brief holder &
Shri Mool Chand Singh, learned A.G.A.
for State and perused the record.

9. Learned counsel for appellants
contended that appellants have been
falsely implicated for murder of Santosh;
that admittedly first informant is not eye
witness of the incident; that admittedly
Baba and Vimal P.W.-2 and P.W.-3, were
friends of deceased, who have been
6 All. Sunil Singh & Anr. Vs. State of U.P. 1091
falsely planted as eye witnesses of the
incident; that this is a case of blind
murder under darkness of night and since
the assailants could not be seen or
identified, the appellants have been
falsely implicated on account of old
enmity; that deceased Santosh was an
accused in the case of murder of Smt.
Leelawati, (sister of appellant Sunil
Singh) and had been acquitted of the
charges of murder under Section 302
I.P.C. by giving him benefit of doubt; that
on account of undeserved victory in
murder case of Leelawati, deceased
Santosh and his father, first informant
were having grudge against appellant
Sunil Singh; that deceased Santosh was
working as a Munshi (िुंशी) over private
buses of Qasba Asother for which he used
to do daily up and down from Naraini to
Asother and since he used to recover
excessive charges from various bus
operators and other persons, so was on
inimical terms with several persons and
appears to have been eliminated by any of
them in darkness of night; that since the
unknown assailants could not be seen or
identified, the father of deceased on
account of suspicion and old enmity, has
falsely
implicated
appellants
with
absolutely false and concocted story; that
admittedly there was no source of light on
the place of occurrence except alleged
moon light; that neither appellants fetched
deceased nor provided him liquor or eggs
nor
caused
his
death
nor
made
disappearance of his dead body by
throwing it in Ganga Canal or otherwise;
that appellants had no motive to cause
death of deceased; that since the relations
between deceased and appellants were not
only strained (on account of litigation
with regard to murder case of appellant's
sister Leelawati), rather were inimical
against each other, the question of
fetching of deceased (a matured man) by
appellants or going of deceased with them
is highly improbable; that P.W.-2 and
P.W.-3, having admitted friendship with
deceased, were partisan witnesses and
their
interested
testimony
without
corroboration
by
any
evidence
of
independent witness, was not reliable;
that it is admitted to P.W.-2 and P.W.-3
that they had puccca latrines in their
houses, which belies their false story of
going to attend call of nature in fields in
chilly cold night of 20.01.2010 at about
8:00 p.m.; that the prosecution witnesses
have alleged to have seen incident and
identified culprits in moon light which is
absolutely wrong and incorrect and is
highly improbable; that on 20.01.2010 it
was Basant Panchami night (as has also
been discussed by trial Court) and
15.01.2010 was no moon day i.e.,
अिािस्या; that after अिािस्या the 1st day
moon of Parwa is invisible, of Dooj is
visible only for a short moment (like EidKa-Chand) and so on, duration of
visibility of moon increases gradually;
that upto 5th day of new moon, when
moon gets increased upto 1/3rd in size
there remains very dim moon light which
may not be sufficient to identify the
culprits from a distance of 20-25 metres
or 30-40 metres as respectively stated by
P.W.-2 and P.W.-3 or from a distance of
45 steps (nearly 34 meters) as shown in
site plan, Ext. A-6, particularly due to
heavy and dense fog all over the open
area near canal in chilly cold night; that
had P.W.-2 or P.W.-3 seen alleged
incident of murder of Santosh by
appellants, in natural course they would
have immediately informed the father of
deceased but their conduct in not doing so
is quite unnatural and falsifies their
contention of being eye witnesses of the
incident as well as of identifying the real
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
culprits from a long distance; that there
are
material
contradictions
in
the
statements of P.W.-2 and P.W.-3, as at
one place they state of having informed
the father of deceased by phone call on
next morning, contrary to which in same
breath at other place they state that next
morning when his father arrived, they
narrated him the entire story; that as per
F.I.R. incident was seen by Baba Singh,
Vimal Singh & several others but
prosecution
failed
to
produce
any
independent witness; that prosecution
failed
to
corroborate
the
interested
testimony of P.W.-2 and P.W.-3 by
producing any independent witness; that
the learned trial Court acted wrongly in
relying
on
the
untruthful
and
uncorroborated testimony of partisan
witnesses P.W.-2 and P.W.-3; that F.I.R.
of the incident has been lodged after
inordinate delay of around three days; that
in fact the F.I.R. is anti timed and
prosecution
case
is
liable
to
be
disbelieved.

10. Learned counsel for appellants
further
contended
that
recovery
of
country made pistol from appellant Sunil
Singh has been falsely planted; that
nothing
has
been
recovered
from
appellant Deepak Kewat; that motive to
cause death has been assigned to only
Sunil Singh and appellant Deepak Kewat
had no motive to cause death of Santosh;
that it is wrong to say that appellant
Deepak Kewat was an associate of
appellant Sunil Singh; that there is no link
evidence on record to show that empty
cartridges allegedly recovered from spot
and fire arm allegedly recovered from
appellant Sunil Singh on 25.1.2010, were
neither kept intact in sealed cover, before
sending them to forensic lab nor were
sent without any delay, to rule out any
possibility of tampering; that delay in
lodging of F.I.R. quite often results in
embellishment, which is creature of an
afterthought; that on account of delay in
lodging of F.I.R., it gets bereft of the
advantage of spontaneity and danger
creeps in of the introduction of coloured
version,
exaggerated
account
or
concocted story as a result of deliberation
and consultation; that prosecution has
failed to explain inordinate delay in
lodging of F.I.R. and in view of law laid
down by Apex Court in the case of
"Thulia Kali Vs. State of Tamilnadu
AIR 1973 SC 501", the prosecution case
is liable to be disbelieved; that learned
trial Court acted wrongly and illegally in
misreading the evidence on record as well
as relying on the contradictory, false,
interested and uncorroborated testimony
of P.W.-2 and P.W.-3, who falsely
claimed themselves to be eye witnesses of
incident; that before the occurrence of
murder, the deceased was allegedly
provided
with
egg
and
liquor
by
appellants, but post mortem report of
deceased does not corroborate or suggest
about finding of any liquor upon his
internal examination; that post mortem of
the body of deceased was conducted on
22.1.2010 at about 3:00 p.m. and the
autopsy surgeon P.W.-9 has stated that
death of 38 years old person had taken
place about 2 days back.

11. He further contended that there
was no blackening, tattooing or scorching
over the gun shot wounds, which belies
the prosecution story of firing on
deceased by appellants from close range;
that as per prosecution case, the body of
deceased was thrown in canal from where
it was recovered after a period of around
2 days, but there were no sign of
decomposition of body, which also
6 All. Sunil Singh & Anr. Vs. State of U.P. 1093
creates suspicion over the time and
manner of occurrence in question; that as
per medical jurisprudence, the dead body,
if remains under water for a period of
over one day, the decomposition of body
is bound to start; that prosecution has
failed to prove the charges against
appellants beyond reasonable doubts, by
any reliable, cogent and independent
evidence; that the appellants have been
wrongly convicted and sentenced; that the
possibility
of
Santosh having been
murdered by some one else in darkness of
chilly cold and foggy night, (who could
not be seen and identified) may not be
ruled out; that suspicion howsoever
strong it may be, may not take place of
proof; that appellants have been falsely
implicated due to enmity and suspicion;
that in view of material contradictions in
prosecution evidence the appellants are
entitled for benefit of doubt; that the
appeal is liable to be allowed and setting
aside impugned order of conviction and
sentence, appellants are entitled to an
order of acquittal.

12. Per contra, Shri Rajesh Kumar
Mishra, brief holder & Shri Mool Chand
Singh learned A.G.A. for State supporting
the impugned judgment and order of
conviction contended that no inordinate
delay has been caused in lodging of F.I.R;
that P.W.-1 has stated that on getting
knowledge of incident, he reported the
matter at police station orally, but his
report was not lodged by police until
recovery of body; that clothes and shoes
of deceased as well as empty cartridges
have been recovered from near the place
of occurrence; that weapon of crime, the
country made pistol has also been
recovered from appellant Sunil and it is
wrong to say that recovery was falsely
planted; that clothes of deceased were
sent to Vidhi Vigyan Prayogshala over
which human blood was found; that the
fire arm recovered from appellant Sunil
was also sent to forensic lab, of which
report is on record which suggests its use
in commission of crime in question; that
it is wrong to say that link evidence is
missing or there is any possibility of
tampering with empty cartridges or the
fire arm recovered from appellant Sunil;
that prosecution case is fully proved from
consistent statements of eye witnesses
P.W.-2 and P.W.-3; that it is wrong to say
that the case is based on circumstantial
evidence and assailants could not be seen
or identified in darkness of night or P.W.-
2 and P.W.-3 have been falsely planted as
eye witnesses of occurrence; that learned
trial Court has correctly analyzed the
prosecution evidence on record in detail
and has come to correct conclusion; that
there
was
no
reason
for
falsely
implicating appellants and sparing real
culprits; that appeal has been filed with
absolutely false and baseless allegations
and is liable to be dismissed.

13. Upon hearing parties counsel
and perusal of record we find that first
informant do not claim himself to be eye
witness of occurrence, F.I.R. states that
occurrence was seen by P.W.-2, P.W.-3
and several others, however, there is no
whisper in F.I.R. about providing of any
information to first informant by P.W.-2,
P.W.-3
or
any
other
eyewitness.
According to prosecution, on 20.1.2010,
appellants had taken deceased from
Asother, provided him eggs and liquor
and after fetching him to Nahar Kothi
Asother, in front of fields of Chhatrapal,
both of them shot him in head at about
8:00 p.m. resulting in his death. Deceased
is not alleged to have been fetched by
appellants from his home rather was
1094 INDIAN LAW REPORTS ALLAHABAD SERIES
allegedly fetched from Asother. There is
no evidence of any witness regarding
alleged fetching, as to who would have
seen the deceased being fetched by
appellants or any of them. Prosecution
witnesses Baba Singh P.W.-2 and Vimal
Singh P.W.-3 are not witnesses of
fetching of deceased by appellants or of
providing him eggs and liquor by them
and have not made any whisper in this
respect. First informant Shiv Shankar, the
father of deceased has neither made any
whisper in F.I.R. nor in his statement on
oath as P.W.-1, about the source of
information about fetching of deceased by
appellants and of providing him eggs and
liquor by them, nor has produced any
witness
about
alleged
fetching
of
deceased by appellants or of providing
him of eggs and liquor by them. It shows
that the allegations about fetching of
deceased
by
appellants
are
totally
imaginary part of prosecution story in
F.I.R. which may not be relied in absence
of any iota of evidence, even of eggs or
liquor vendor.

14. As per prosecution case, Smt.
Leelawati, the sister of appellant Sunil
Singh
was
murdered,
for
which
Bachcha Singh (husband of Leelawati)
and deceased Santosh were tried
together
and
were
acquitted
on
account of which appellant Sunil @
Lambri was keeping enmity against
deceased, which is quite natural and
acceptable. Deceased Santosh was not
an immature minor boy rather was a
38 years old matured and prudent
person and on account of enmity
following his prosecution for murder
of sister of appellant Sunil, there can
be no possibility of his going with his
enemy Sunil appellant under any
imagination or circumstances.

15. Prosecution witnesses Baba
Singh P.W.-2 and Vimal Singh P.W.-3,
the alleged eye witnesses of the incident
have stated that in the night of 20.1.2010
at about 8:00 p.m., both of them were
going to attend the call of nature towards
Nahar Kothi Asother and seen appellants
Sunil and Deepak taking Santosh to the
Chak-road of field of Chhatrapal where
they started beating him and upon raising
alarm, by him shot him in head with their
pistols and dragged his body to canal.
Both the witnesses on hearing alarm, have
stated to have not reached for rescue of
their friend (deceased) rather stated that
when accused dragged body of deceased
they fled away. P.W.-2 and P.W.-3 have
alleged to seen the occurrence at the time
of going to attend call of nature and there
is no whisper that if at all they defalcated
or not under open sky, for which they had
come out in chilly cold night. Absence of
any specific statement of defalcation
before or after occurrence also makes
their presence doubtful.

16. Above witnesses P.W.-2 and
P.W.-3 have admitted of having pucca
latrines at their houses. In the month of
peak winters, January on chilly cold night
of occurrence in question around 8:00
p.m. on 20.1.2010, it is highly improbable
that two persons having pucca latrines in
their houses, would ever go outside to
defalcate during chilly cold night. P.W.-2
has stated that in the month of January in
chilly cold days sun used to set around
5:30 p.m. and place of occurrence is near
Canal. In his statement on oath at page 40
of paper book he has stated to have seen
the occurrence in moon light from a
distance of 20-25 metres, while at page 43
of paper book P.W.-3 Vimal Singh has
stated to have seen the accused persons
from a distance of 35-40 metres, which is
6 All. Sunil Singh & Anr. Vs. State of U.P. 1095
in material contradiction with each other.
Both P.W.-2 and P.W.-3 have admitted in
their cross examination that deceased
Santosh was their fast friend.

17. Though 10 years back villagers
were habitual of defalcating under open
sky, but only for want of facility of pucca
latrines at their houses. It is highly
improbable that persons having facility of
pucca latrine in their houses, would ever
go out for defalcating, around 8.00 p.m.
in chilly cold night of 20.01.2010. P.W.-2
has also stated that some times he uses the
pucca latrine of his house. The interested
and sold testimony of P.W.-2 and P.W.-3
about there going out for defalcating in
chilly cold night of 20.1.2010, may not be
believed in absence of any corroborative
evidence.

18. Before proceeding further we
find it expedient in the interest of justice
to discuss following universal truths
which relate to nature and cosmos, such
as (i) sun rises in the East and sets in the
West (ii) Moon gradually increases from
no moon (अिािस्या) to new moon and so
on goes upto full moon (पूतणगिा), then
gradually decreases back to no moon
(अिािस्या). The cycle from no moon to
full moon takes 15 days to complete and
after full moon to no moon in next 15
days. The completion of cycle from no
moon (अिािस्या) to full moon (पूतणगिा)
and again from full moon (पूतणगिा) to no
moon (अिािस्या) takes a total period of
30 days, which constitutes one month as
per Hindi calendar.

19. After no moon (अिािस्या) as the
size of moon increases day by day, the
moon light and its brightness also
increases gradually and on night of full
moon (पूतणगिा), the bright full moon light
''Chandni' may be seen all over. Similarly
as the size of moon decreases day by day
from full moon (पूतणगिा) to no moon
(अिािस्या) the moon light ''Chandni' and
its brightness also decreases gradually
and comes to zero on no moon (अिािस्या)
night. Between the 15 days period from 7-
8th day from no moon (अिािस्या) when
moon gets increased upto half and
onwards upto 7 - 8th day from full moon
(पूतणगिा) when the moon gets decreased
upto half there remains enough moon
light all over (though not for as long and
bright as on full moon (पूतणगिा) night)
during period of rest 15 days from 7th -
8th day from पूतणगिा upto 7th - 8th day
from अिािस्या, there remains very dim
moon light, that too for shorter periods
and rest of the nights happen to be dark
nights or Andheri Raat.

20. It is also universal truth that
during 15 days period from No Moon
(अिािस्या) to Full moon (पूतणगिा), moon
remains in sky since before sun set and
can be seen just after sun set and the time
of moon set, gradually gets later in night.
On the contrary during the 15 days period
from full moon (पूतणगिा) to no moon
(अिािस्या), the size of moon not only
decreases but it also rises gradually late in
night and may be seen during early day
hours even after sun rise. It may be better
noticed from the fact that after 2 days
from no moon (अिािस्या), the increasing
moon of "Dooj Ka Chaand/Eid Ka
Chaand" is seen like a thin line for a
very short moment just after sun set,
while to the contrary, just after 4 days
from full moon (पूतणगिा) the decreasing
moon
of
4th
day
2/3rd
in
size
"Karvachauth Ka Chaand" can not be
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
seen before 8:30 to 9:00 p.m. or around it
and it lasts up-till morning. It is also
pertinent to mention that brightness of
moonlight also increases and decreases
gradually with the size of moon.

21. It is also pertinent that about 10
years back peak winter season used to be
longer from now and on account of
various climate changes due to global
warming etc. in recent years, 8 months of
the year are dominated by summer season
(including
rainy
season
which
has
shrinked to 2 months) and less than 4
months of the year pertains to winter
season. The months of winter season are
known as November, December, January
and February according to English
Calendar out of which a period of almost
2 1⁄2 months, full of November, first 3/4th
of December and later 3/4th of February,
are usually period of very light and
pleasant winters and rest period of 1 1⁄2
months from last week of December till
end of first week of February (Hindi
Calendar months of Paush and Magh )
usually happens to be period of peak
winters or chilly cold days with cold
waves. During chilly cold days usually
either (i) there remains dense fog with
cold waves all over Northern India
including State of Uttar Pradesh since
evening upto 8.00 - 9.00 a.m. (until sun
shines bright) and fog adversely affects
visibility particularly over open areas
fields and areas near hills, canal, river and
other water bodies, or (ii) weather
becomes cloudy which decreases fog but
clouds put a curtain over sky and dim
moon
light,
further
decreases
and
adversely affects visibility. During chilly
cold nights, persons of villages usually
cover their heads and ears to protect
themselves from cold and even if the
culprits were not to hide their identity the
possibility of covering of heads and ears,
by them may not be ruled out.

22. On fateful chilly cold night of
occurrence in question at 8.00 p.m. on
20th January, 2010, it was Basant
Panchami night which falls on 5th day
from no moon (अिािस्या), when moon
gets increased upto 1/3rd in size with very
dim moon light for a short period. In such
times usually either dense fog engulfs
open areas fields etc, particularly near
water bodies viz., rivers or canals etc.,
since evening after sun set and stays
throughout nights upto late in morning or
clouds cover the sky putting curtain over
moon. The place of occurrence in
question is open field near canal and so at
the time of occurrence around 8:00 p.m.
there would have been low visibility of
heavy fog in dim moon light 5 of day old
moon in its 1/3rd size (even if not
affected by clouds). In such conditions
distant persons or objects can not be seen
clearly and identified correctly. The trial
court has discussed in its judgment at
page 115 of paper book, the arguments
about Basant Panchami night, on day of
occurrence which has not been disputed
by State and has been reiterated by
learned counsel for appellants with the
support of photo copy of Panchang,
(provided during arguments and taken on
record). In its discussions, trial Court
discussing position of moon in statements
of P.W.-2 and P.W.-3, has failed to
consider that 5 day old moon in its 1/3rd
size may not produce bright moon light.

23. Prosecution witnesses Baba
Singh P.W.-2 claims to have seen
occurrence and identified culprits from a
distance of 20 - 25 meters (which comes
around 65 - 82 feet) while Vimal Singh
P.W.-3 from 35 - 40 meters (which comes
6 All. Sunil Singh & Anr. Vs. State of U.P. 1097
around 114 - 131 feet) respectively,
which are in contradiction with each
other, while I.O. has mentioned above
distance between the culprits and two
witnesses in site plan Ext. A-6, to be 45
steps which comes around 34 meters or
110 feet.

24. Inspite of strong probability
either of heavy fog around the place of
occurrence or of clouds in sky covering
moon further decreasing its dim light,
upon consideration of entire evidence, on
record since we find no positive evidence
with regard to fog or clouds on night of
occurrence and even no suggestion of fog
or clouds to prosecution witnesses, we
find it appropriate to presume as if there
was no fog or clouds, and it would have
been clear weather with unobstructed dim
moon light of 5 days old 1/3rd moon.

25. Even in clear weather without
any fog or clouds, it is highly improbable
rather just impossible for P.W.-2 and
P.W.-3 to see culprits clearly and identify
them correctly from such a long distance
of around 30 metres or 100 feet in dim
moon light of 1/3rd moon on chilly cold
night when culprits would have been
covering of their heads and ears to for
protect
themselves
from
cold.
Undisputedly, there was no other source
of light and in dim moon light of 5 days
old 1/3rd moon even in clear weather, a
person may not be clearly seen and
correctly identified beyond a distance of
10 to 15 meters which distance may be
restricted to 5 to 10 meters in case of fog
or clouds. As mentioned earlier P.W.-2
claims to have seen culprits from a
distance of 20 - 25 metres or 65 - 82 feet,
and P.W.-3 claims to have seen them
from at a distance of 35 - 40 metres or
114 - 131 feet. It is also pertinent to
mention that 36 years old P.W.-3 Vimal
Singh has stated at page 47 of paper book
that "eSa dHkh dHkkj p'ek xkM+h pykrs le;
yxkrk gwW] jkr esa fy[kk i<+h esa p'ek ugha
yxkrk" which indicates that his distant
vision was weak which further reduces
the possibility of his correctly identifying
the culprits from a distance of 35 - 40
meters or 115 to 130 feet even in clear
weather. The prosecution witnesses P.W.-
2 and P.W.-3 though claims to be having
torches, but do not claim to have thrown
torch lights on culprits or identified them
in torch light.

26. Prosecution witnesses P.W.-2 and
P.W.-3 have stated that upon beaten by
appellants when Santosh raised alarm,
accused shot him in head and dragging his
body thrown it in Canal and they fled away.
Their conduct in neither reaching for rescue
on alarm of their best friend Santosh deceased
nor attempting to chase culprits nor promptly
informing the father of deceased also raises
strong suspicion over their presence near the
spot and of their being eye witnesses of the
occurrence. Though admittedly all the three
were having phone facility, Baba Singh P.W.-
2 at page 38 of paper book claims to have
informed father of Santosh deceased by phone
early in next morning, in contradiction to
which at page 36, he has stated that when
father of Santosh came Asother on next
morning they informed him about the incident
(face to face). Since they are friends of
deceased, their testimony is required to be
considered with caution and upon considering
with caution, no reliance can be placed on
their
testimony
in
absence
of
any
corroborative
evidence
of
independent
witness.

27. We are of considered view that
the prosecution case is based on sold
contradictory
testimony
of
partisan
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses Baba Singh P.W.-2 and Vimal
Singh P.W.-3 (friends of deceased) which
is not found reliable in absence of
corroboration
by
some
independent
evidence. As per F.I.R. averments made
in F.I.R. occurrence was seen by several
others apart from Baba Singh and Vimal
Singh but no one has been produced for
corroboration of P.W.-2 and P.W.-3. It is
also noteworthy that there is no evidence
of fetching of deceased by appellants and
even the eggs or liquor vendors were not
produced, who were best witnesses of
deceased being in company of appellants.

28. The recovery of clothes and
shoes of deceased and finding of human
blood on his scarf as per report of forensic
lab, also does not give any support to
prosecution
case
with
regard
to
involvement of appellants in commission
of murder of Santosh. The recovery of
fire arm from appellant Sunil Singh after
four days of incident, from an open place
is highly doubtful and may not be relied
in absence of any independent witness of
recovery.

29. In view of the discussions made
above, we have come to the conclusion
that prosecution has failed to prove the
charges levelled against accused persons
under Section 302/34, 201 I.P.C. or
Section 25 Arms Act by any reliable,
cogent and independent evidence to the
hilt beyond reasonable doubts. For the
reasons mentioned in preceding paras,
considering the possibility of murder of
deceased by unidentified culprits in the
darkness of night and false implication of
appellants, in belated F.I.R. due to enmity
and suspicion it will not be safe to base
conviction
of
appellants
on
self
contradictory,
interested,
and
uncorroborated testimony of P.W.-2 Baba
Singh and P.W.-3 Vimal Singh and
accused appellants are entitled to the
benefit of doubt. The learned trial Court
has
acted
wrongly,
illegally
and
incorrectly in not considering above
mentioned
material
aspects
and
in
believing untruthful, unreliable, interested
contradictory
and
uncorroborated
testimony of P.W.-2 and P.W.-3. in
holding
the
appellants
guilty.
The
impugned
judgment
and
order
of
conviction of appellants and sentence is
liable to be set aside and appeal is liable
to be allowed.

30. The appeal is allowed and
impugned
judgment
and
order
of
conviction and sentence is set aside. The
accused
appellants
Sunil
Singh
@
Lambari and Deepak are acquitted of the
charges under Section 302/34, 201 I.P.C.
and accused appellant Sunil Singh @
Lambari is also acquitted of the charges
under Section 25 Arms Act. The accused
appellants are on bail, they need not
surrender unless wanted in some other
case and subject to furnishing of personal
bond and two sureties of like amount to
the satisfaction of trial Court, by each of
them, in view of provisions of Section
437 A Cr.P.C., to appear before higher
Court as and when such Court issue
notices in respect of any appeal or
petition filed against the judgment.
----------

(2020)06ILR A1098
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 3461 of 2018