# Surat Singh v. State of U.P. 750 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 6 ILRA 749
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-25
- **Case number:** Criminal Appeal No. 1343 of 1999
- **Bench:** Siddhartha Varma, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surat-singh-v-state-of-u-p-750-indian-law-reports-allahabad-series-50352
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34 & 307/34 - Punishment
for murder - Code of Criminal Procedure,
1973 - Section 313 - Appeal against
conviction - Rigorous imprisonment - As
per FIR - Accused had exhorted three
persons to fire on deceased, thereafter he
was died on the spot - Few bullets hit
(PW-2), incident was witnessed by him
and neighbouring shopkeepers - Chargesheet submitted - Charges framed -
Convicted - Contention by appellant that
PW-2
had
assigned
the
role
of
exhortation to accused and it was
figment of imagination of PW-2 - St.
argued that there were guns in hands of
assailants, then it would mean that gun
had to be used - Held, PW-2 had given
contrary St.ments in FIR, his testimony
was not reliable - PW-2 in crossexamination St.d that he did not know
name of father of deceased, thus FIR
was not lodged by PW-2 but was
handiwork of police who had implicated
accused with other two persons as
assailants - Deceased was assaulted in
some manner and was not killed -
Exhortation was not done as there were
two individuals who were unknown to
assailants and, therefore, it was futile
exhortation. (Para 1, 2, 10, 16, 18, 19,
20)

List of Cases cited:

## Text

6 All. Surat Singh & Ors. Vs. State of U.P.
749
had never attended any school. Further
aforesaid documents were not filed by the State
or informant before the Board when the enquiry
was being conducted by the Board as to the
juvenility of the Appellant no. 10. The State or
the informant has also not challenged the order
passed by the Board declaring the Appellant no.
10 to be a juvenile and the said order has
attained finality.

35. We have already held in case of Ram
Nayan and four others v. State of U.P. passed in
Criminal Appeal No. 4499 of 2015 decided on
12.04.2023 that there is no substantial
difference in the provisions of the Juvenile
Justice (Care and Protection of Children) Act
2005 (hereinafter referred to as "Act of 2005")
and the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2000
(hereinafter referred as "Act of 2000") except
that the Act of 2015 take cares of crime
committed by a children in the age group of 1618 years. Under Rule 12(3)(b) of 2007 Rules,
the determination of age by the Board shall be
conclusive proof of the age as regards a child or
a juvenile in conflict with law. Similarly under
Section 94(2) of Act of 2015, age recorded by
the committee or the Board to be the age of a
person so brought before it, for the purpose of
Act of 2015 would be deemed to be the true age
of that person.

36. Considering the report of the Board
we are of the opinion that categorical finding
recorded by the competent juvenile justice
Board, which is based on cogent evidence that
the appellant no. 10 was a juvenile at the time of
commission of the offence i.e. 05.12.1982.

37. In the present case, as is evident from
the record and submissions made by the learned
counsel appearing for the respective parties, the
Appellant no. 10 has already undergone about
three years imprisonment. As we have already
held that the appellant no. 10 was juvenile in
conflict with law at the time of occurrence i.e.
05.12.1981, the appellant no. 10 is entitled to
the benefit of the Act of 2015.

38. In view of the Section 18(1)(g) of
2015 Act, the most stringent action which could
have been taken against applicant/appellant no.
10, was of sending the applicant to a special
home for a period of three years. As the
appellant has undergone the sentence for more
than three years, therefore now it will be unjust
to send the applicant to Juvenile Justice Board.

39. Therefore, we allow the application
and direct that applicant/appellant no. 10 Kallo
alias Avdesh, convicted and sentence in S.T.
No. 119 of 1982 (Gulab Singh and others v.
State of U.P.) decided by IIIrd Additional
Sessions Judge, Fatehpur shall be forthwith set
at liberty provided he is not required to be
detained under any other order of competent
court.

40. In view of sub Section (1) of Section
24 of the Act of 2015, the applicant/appellant
no. 10 Kallo alias Avdhesh Shall not incur any
disqualification because of his conviction and
period of sentence undergone by him.

41. The miscellaneous application is
allowed in the above term.
----------
(2023) 6 ILRA 749
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 1343 of 1999

Surat Singh ...Appellant
Versus
State of U.P. ...Opposite Party
750 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Apul Misra, Sri Alok Ranjan Mishra, Sri
Janardan Singh, Sri P.K. Singh, Sri Ran
Vijay
Singh,
Sri
Virendra
Kumar
Shukla(AC), Sri Rajiv Nayan, Sri G.S.
Chaturvedi (Sr. Adv.), Sri V.P. Srivastava
(Sr. Adv.)

Counsel for the Opposite Party:
Govt. Advocate, Sri Ashutosh Pandey, Sri
Jitendra Kumar, Sri Prashant Rai, Sri
Sanjeev Kumar Rai, Sri I.K. Chturvedi (Sr.
Adv.)

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34 & 307/34 - Punishment
for murder - Code of Criminal Procedure,
1973 - Section 313 - Appeal against
conviction - Rigorous imprisonment - As
per FIR - Accused had exhorted three
persons to fire on deceased, thereafter he
was died on the spot - Few bullets hit
(PW-2), incident was witnessed by him
and neighbouring shopkeepers - Chargesheet submitted - Charges framed -
Convicted - Contention by appellant that
PW-2
had
assigned
the
role
of
exhortation to accused and it was
figment of imagination of PW-2 - St.
argued that there were guns in hands of
assailants, then it would mean that gun
had to be used - Held, PW-2 had given
contrary St.ments in FIR, his testimony
was not reliable - PW-2 in crossexamination St.d that he did not know
name of father of deceased, thus FIR
was not lodged by PW-2 but was
handiwork of police who had implicated
accused with other two persons as
assailants - Deceased was assaulted in
some manner and was not killed -
Exhortation was not done as there were
two individuals who were unknown to
assailants and, therefore, it was futile
exhortation. (Para 1, 2, 10, 16, 18, 19,
20)

List of Cases cited:

1. Jainul Haque Vs St. of Bihar reported in AIR
1974 SC 45
2. Matadin & anr. Vs St. of Mah. reported in
(1998) 7 SCC 216

3. Vadivelu Thevar Vs The St. of Madras
reported in AIR 1957 SC 614

(Delivered by Hon'ble Hon'ble Manish
Kumar Nigam, J.)

1. This appeal has been filed against a
judgment
and
order
of
the
Second
Additional District & Sessions Judge dated
29.5.1999 by which the accused was
convicted for the offence under section
302/34 and 307/34 of the Indian Penal
Code and was punished for life under
section 302/34 IPC and was to undergo for
rigourous imprisonment for a period of 7
years for the offence under section 307/34
IPC.

2. The prosecution case as per the
First Information Report lodged by one
Sohan Singh was that when Sohan Lal and
the deceased Jaswinder Singh had gone to
get puncture of the tyre of the trolly
repaired on a Gypsy No.DNC 4414 and
were getting the puncture repaired then at
about 9.30 PM, the accused Surat Singh
had exhorted three persons to fire on the
deceased Jaswinder Singh. The three
persons had fired on Jaswinder Singh with
an intention to kill him and thereafter
Jaswinder Singh died. It is also the case of
the prosecution that a few bullets also hit
the first informant. The first informant has
stated in the First Information Report that
there were electricity bulbs at the place
where the incident had occurred. He has
also stated that the incident was witnessed
by the first informant and a few of the
neighbouring
shopkeepers.
After
the
incident had occurred, a First Information
Report was lodged by Sohan Lal on
18.3.1996
at
3.00
PM.
Thereafter
investigation followed and the police
6 All. Surat Singh & Ors. Vs. State of U.P.
751
submitted its charge-sheet in the Court and
the IInd Additional District & Sessions
Judge, Bijnor on 20.8.1996 framed charges
against the appellant. When the appellant
was convicted for the offence under section
302/34 and 307/34 of the Indian Penal
Code, the instant appeal has been filed.

3. During trial, seven prosecution
witnesses namely Dr. R.S. Rana-PW-1;
Sohan Lal-PW-2; Subhash Chandra-PW-3;
Rajendra Singh-PW-4; Charan Pal SinghPW-5; Brahmpal Singh-PW-6 and Vijay
Kumar-PW-7 were examined from the side
of the prosecution. The accused Surat
Singh answered the questions under section
313 Cr.P.C. and claimed innocence. From
the side of defence, four witnesses namely
Islam Siddiqui; Barun Kumar; Naresh
Kumar and Rajendra Kumar were brought
in as DWs-1, 2, 3 and 4 respectively.

4. The PW-1 was a doctor who had
examined the injured Sohan Lal (PW-2)
and had proven the injury report. PW-2 was
Sohan Lal who claims himself to be an eyewitness. He has stated in his deposition that
he recognized and knew Surat Singh who
was present in the Court. He had stated that
the deceased Jaswinder Singh was the
younger brother of the accused. He has also
stated that both the deceased and the
accused were living in the houses opposite
to each other. He has further stated that
there were some internal disputes between
the two brothers. Jaswinder had some threat
to his life and, therefore, he had employed
Sohan Lal as his gunman. He has stated
that when there was a puncture in the tyre
of a trolley then Jaswinder and PW-2 had
gone to Najibabad and were getting their
tyre repaired at the shop of a Muslim
shopkeeper. There was light from the
electricity bulbs at the time at around 9.30
PM. In his further deposition, he had stated
that while the tyre was being got repaired
in the relevant shop, the deceased and he
himself were standing in front of the shop
which a little away from the puncture shop
and was locked. He has stated in his
deposition that from the side of Najibabad
i.e. from the south of the shop, the accusedappellant Surat Singh and three others
came towards the deceased and Sohan Lal
and there the accused exhorted his three
men who had accompanied him and said
"Maaro Saale Ko Yahi Jaswinder Hai".
The three persons who accompanied the
accused fired on Jaswinder and the bullets
hit Jaswinder and also the PW-2. Jaswinder
died on the spot and the accused persons
ran away to the side of Kotdwar which was
north of the shop. A lot of blood collected
at the place of incident. From the various
individuals who had collected around the
place of incident, the PW-2 requested one
person to write the report for him and he
dictated the report to that person. After
having written down the report, the person
who had written the report read out the
report to PW-2 and thereafter he had put
his thumb impression. Thereafter it has
been stated that PW-2 took the report to the
police station and from there he was taken
to the hospital by the police and the
medical examination of PW-2 was done.
He has also deposed that in the First
Information Report he had stated that
Jaswinder and he himself were standing
outside the shop where the puncture was
being repaired. He has also stated that when
the assailants had come from the southern side
of the shop i.e. from the side of Najibabad, the
deceased and PW-2 were standing northwards
towards Kotdwar. He has stated that from the
police station, he was taken to the hospital on a
rickshaw. After the medical examination, the
police had taken the PW-2 to the place of
incident. He has further stated in his deposition
that the affidavit (Paper No.14/2-Kha) which
752 INDIAN LAW REPORTS ALLAHABAD SERIES
is alleged to have been filed by him on
4.11.1996, was not in fact filed by him. He has
stated that certain persons from the side of the
accused had forcibly got him photographed for
the affidavit. The fact that he was forcibly
photographed, had also been reported orally
by him to the Station House Officer,
Govindgarh, Punjab. He has stated that he had
asked the police people that he had to get the
report lodged and they had on his dictation
written the report. He has stated that it took 10
to 15 minutes to get the report lodged and after
the report was lodged, he also signed on the
report. He has stated that because of his
injuries, blood was oozing out. However, it
was stated that there was no blood on the
report. He has stated that when he was
photographed,
he
was
sitting
in
an
Ambassador Car. He had not specifically got
himself photographed. He has stated that he
had recognized the accused Surat Singh as he
was living opposite the house of the deceased.
He has further stated that he did not know the
name of the father of the deceased and the
accused. Still further he has stated that he did
not know that how the name of the father of
the accused was there in the First Information
Report.

5. PW-3 is Constable Subhash Chand.
He was given the responsibility to take the
dead body to Bijnor and to get the postmortem done. He has stated that he had
taken the dead body from the place of
incident on a tempo and reached Bijnor at
9.30 AM. He has stated that it was wrong
that he had started from Najibabad at 10.00
AM next day and reached Bijnor at 1.30
PM. He, however has stated that he had not
got the facts registered in the GD that the
tempo had broaken down.

6. PW-4 Rajendra Singh is the SubInspector and has stated that he had filed
the Panchayatnama.

7. PW-5 is the Station House Officer
Charan Pal Singh who was posted at
Najibabad. He has stated that he had
arrested the accused on 20.3.1996.

8. PW-6 Brahmpal Singh is a
Constable who was the bodyguard of the
accused. He has stated that he and
Constable Gangadas were posted in March
1996 for guarding Surat Singh and he has
stated that three or four persons used to
always come to Surat Singh. They were
Pukhraj, Mahipal @ Pappu and Sunil and
whenever they came, the accused used to
talk to them while the guards were away.
He has stated that on 18.3.1996 he was on
duty in the Guest House of the Zila
Parishad of Najibabad and on that date
Pukhraj, Mahipal and Sunil had come to
meet Surat Singh. The accused had talked
to them at a certain distance from his
guards and thereafter had instructed the
guards that as he had his own gun, there
was no requirement of the PW-6 and other
guards. He had also stated that he was
absolutely safe and did not require any
gunner.

9. PW-7 is the doctor who had
conducted the post-mortem on the body of
the deceased.

10. Learned counsel for the appellant
has submitted that the PW-2-Sohan Lal was
the sole witness on the basis of whose
statement, the conviction order had been
passed. He has submitted that the PW-2
had assigned the role of exhortation to the
accused/appellant. Learned counsel for the
appellant states that the exhortation was a
figment of imagination of the PW-2 and the
role of exhortation as had been alleged by
PW-2 was absolutely unnecessasry. PW-2
has stated that the accused exhorted three
persons to fire and upon firing by the three
6 All. Surat Singh & Ors. Vs. State of U.P.
753
persons, Surat Singh had died. Learned
counsel for the appellant states that if three
persons had to fire, they would have fired
on
the
deceased
even
without
any
exhortation by the accused. He submits that
definitely the three persons were knowing
the deceased person. This, learned counsel
for the appellant states, becomes apparent
because when the exhortation was "Maaro
Saale Ko Yahi Jaswinder Hai" and if the
three persons who were firing did not know
the deceased Surat Singh, then they could
have fired on PW-2 Sohan Singh as well if
they had not known who Jaswinder was.
He, therefore, submits that the story of
exhortation
has
no
legs
to
stand.
Furthermore, learned counsel for the
appellant states that exhortation is a weak
piece of evidence. When there is rivalry
between two persons then it is quite often
very easy to implicate the person with
whom the other person has a rivalry by
giving him the role of exhortation. Learned
counsel submits that when the deceased
had died and the assailants had run away,
then implicating an innocent person as a
person who had exhorted was very easy.
Learned
counsel
for
the
appellant,
therefore, states that unless the evidence in
respect of exhortation is absolutely clear,
cogent and reliable, conviction cannot be
recorded against the person who had
allegedly
only
exhorted
the
actual
assailants. In this regard, learned counsel
for the appellant has relied upon the
decision of the Supreme Court in Jainul
Haque vs. State of Bihar reported in AIR
1974 SC 45.

11. Learned counsel for the appellant
further states that even the exhortation, if is
believed to be there, then it becomes very
difficult to implicate a person for the
offence of murder under section 302 IPC.
He states that when the words "Maaro
Saale Ko Yahi Jaswinder Hai" were used,
then it could be presumed that he never
meant that the deceased had to be actually
killed. In this regard, learned counsel for
the appellant relied upon the decision of the
Supreme Court in Matadin & Anr. vs.
State of Maharashtra reported in (1998) 7
SCC 216.

12. Learned counsel for the appellant
thereafter stated that the conviction on the
basis of the testimony of a single witness
should be done with lot of circumspection.
He submits that witnesses could be divided
into three categories :-

1. wholly reliable;

2. wholly unreliable; and

3. neither wholly reliable nor
wholly unreliable.

13. Learned counsel for the appellant
states that if the sole witness is "wholly
reliable", the Court would not have any
difficulty in basing its judgment on the
wholly reliable witness. If the witness is of
the
second
category
i.e.
"wholly
unreliable", then also there was no
difficulty for the Court to come to a
conclusion. It is only in the third category
that the Courts have to be circumspect and
have to look for the corroboration in
material particulars by reliable testimony;
direct or circumstantial. In the instant case,
learned counsel for the appellant has stated
that in the First Information Report, the
name of the father of the accused had been
given whereas in the cross-examination,
PW-2 at page 39 of the Paper-Book, has
stated that he did not know the name of the
father of the accused. He goes to the extent
of saying that he did not know as to how
the name of the father of the accused was
754 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned in the FIR. Furthermore, learned
counsel for the appellant has stated that the
PW-2 had given, on 4.11.1996, an affidavit
which was placed by the defence on record
as evidence that the PW-2 was wrongly
implicating the accused persons. However,
from the record, PW-2 had shown that on
2.12.1996 he had given a statement that he
was withdrawing the earlier affidavit dated
4.11.1996. Thereafter learned counsel for
the appellant states that with regard to the
coercion in getting himself photographed,
the PW-2 has stated that he had reported
that matter orally to the Police in Punjab.
Further learned counsel for the appellant
states that in the FIR, he had stated that the
deceased and the PW-2 were standing at
the shop where the puncture was being
repaired but subsequently in the crossexamination he had stated that they were
standing in front of another shop, the
shutter of which was down and was locked.
Learned counsel for the appellant stated
that this he probably was saying because
there were, in the site plan, bullet marks on
the shutter of the closed shop. Learned
counsel, therefore, states that if the
statement made in the FIR was different
from the statement made in the crossexamination then the witness become
unreliable.
Learned
counsel
for
the
appellant has further stated that if the PW-2
was bleeding profusely, then the complaint
which he had filed should have some blood
marks. Further learned counsel for the
appellant states that if the FIR is seen then
it would become clear that it was scribed
by one Anil Goyal whereas in the crossexamination, PW-2 had stated that he had
got the report written by some police
official. Learned counsel has also stated
that the injury report shows that at the time
when the injured PW-2 was getting his
injuries
examined
then
only
Head
Constable Virendra Kumar and Constable
Yashvir Singh were present. From where
Anil Goyal had appeared and written the
FIR was not clear. He also submits that
Anil Goyal never appeared in the witness
box and no effort was made by the
prosecution to search him out and to make
him appear in the witness box. Learned
counsel for the appellant, relying upon a
judgment of the Supreme Court in
Vadivelu Thevar vs. The State of Madras
reported in AIR 1957 SC 614, therefore,
states that when the witness was neither
wholly reliable nor wholly unreliable, then
it was very unsafe to rely upon that witness
and convict the accused. He submits that it
was all the more unsafe where witness was
the sole witness.

14. Learned counsel for the appellant
thereafter has submitted that it could not be
ruled out that the police had itself written
the FIR and had implicated the accused for
reasons best known to it. Learned counsel
submits that when the PW-2 himself was
stating that if the police had written the FIR
to his dictation then how the name of Anil
Goyal appeared was not clear. Still further,
relying upon the testimony of PW-3,
learned counsel for the appellant submits
that the dead body was to be taken along
with all the documents to Bijnor for postmortem at 10.00 pm. The distance between
Bijnor and Najibabad was only around 60
kilometers but the body reached Bijnor at
9.30 AM next day. This shows that the
police had taken time to implicate the
accused and had lodged an ante timed FIR.
Learned counsel for the appellant further
states that the police had tried to implicate
Sunil Kumar and Mahipal @ Pappu as
assailants but they failed to get them
convicted as Sohan Lal and Sarvjeet Singh
who had tried to identify them in the
identification parade, failed to identify the
two persons Sunil Kumar and Mahipal as
6 All. Surat Singh & Ors. Vs. State of U.P.
755
assailants. He, therefore, submits that the
police
was
trying
to
implicate
one
individual after the other for no reason
whatsoever. In the instant case, learned
counsel for the appellants, therefore,
submits that the whole case becomes
absolutely doubtful.

15. It has been further argued by
learned counsel for the appellant that the
co-accused Pukhraj to whom the role of
actual firing was assigned, has been
acquitted in Sessions Trial No.546 of 1997.

16. Sri J.K. Upadhyay, learned AGA,
however, submits that exhortation "Maaro
Saale Ko Yahi Jaswinder Hai" would have
different meanings, if the assailants had
only dandas in their hands. In the instant
case, he states that, there were guns in the
hands of the assailants then the exhortation
"Maaro Saale Ko Yahi Jaswinder Hai"
would definitely mean that the gun had to
be used. He further submits that PW-2 was
an injured witness and the testimony of an
injured cannot be lightly done away with.
He, therefore, submits that even if the
accused was not directly involved in the
offence of murder, he should be punished
under
section
34
IPC
for
being
accompanied with assailants.

17. Sri I.K. Chaturvedi, learned
Senior Counsel assisted by Sri Saurabh
Chaturvedi, learned counsel appearing for
the informant also adopted the arguments
of the learned AGA. He submits that it
mattered little that whether the name of the
father was known to the PW-2. He further
submits that PW-2 was a reliable witness as
he was an injured witness and there was no
harm if the accused was punished for
exhortation. He also submits that no
adverse inference could be drawn if the
PW-2 had submitted an affidavit on
4.11.1996 and thereafter had withdrawn the
same on 2.12.1996. He submits that there
was sufficient light for the PW-2 to see as
to who was present and who was not
present and, therefore, it could not be said
that he was a doubtful witness or he was
giving
witness
for
some
extraneous
reasons.

18. Having heard Sri G.S. Chaturvedi,
learned Senior Counsel and Sri V.P.
Srivastava, learned Senior Counsel assisted
by Ms. Saumya Chaturvedi, Sri Ran Vijay
Singh and Sri Rajiv Nayan, learned counsel
for the appellant; Sri I.K. Chaturvedi,
learned Senior Counsel assisted by Sri
Jitendra Kumar, learned counsel for the
informant and Sri J.K. Upadhyay, learned
AGA for the State, we are of the view that
the appeal deserves to be allowed. From the
arguments made by learned counsel for the
appellant, it is clear that exhortation was
not required. The Court is of the view that
if the assailants were not knowing the
deceased and his bodyguard then it would
have been in the fitness of things that the
person who made the exhortation should
have also in addition to just taking the
name of the deceased should have said as
to how Jaswinder had to be identified. The
Court is also of the view that if there were
two individuals who were not known to the
assailants and the person who was making
exhortation intended only one person to
get killed then he would not make the
exhortation but he would indicate to the
assailants by any sign etc. as to which of
the two individuals had to be killed. The
Court, therefore, finds that exhortation
which as it was a weak evidence, as has
been held by the Supreme Court in Jainul
Haque vs. State of Bihar reported in AIR
1974 SC 45 was not such an evidence
which could be used to convict the
accused.
756 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The Court is also of the view that
when Sohan Lal had given statements to
the contrary in the First Information Report
then his testimony was not very reliable. In
the FIR had had stated that the deceased
and the PW-2 were standing at the puncture
repairing
shop
while
in
the
crossexamination only to explain the site-map
which states that there were bullet marks on
the closed shutter, he states that he and
Jaswinder were standing at a place where
the shutter was closed. We are, therefore,
of the view that he was definitely not a very
reliable witness. Furthermore, the Court is
also of the view that when the PW-2 in the
cross-examination states that he did not
know the name of the father of the
deceased then the FIR was definitely not
lodged by the PW-2 but was the handiwork
of the police who had, for some reason or
the other, implicated the accused in the
case and was also trying to implicate Sunil
Kumar and Mahipal @ Pappu as assailants.
Such a person, therefore, who is not wholly
reliable, his testimony cannot be used for
the conviction of an accused without any
corroborating
evidence.
Some
more
corroboration in the material particulars by
some
reliable
testimony;
direct
or
circumstantial ought to have been there. In
the absence of the corroborating evidence,
we find that it was absolutely unsafe to
convict the accused.

20. We also find that the police was not
above board. Firstly, as has been stated
above, the name of the father as was included
in the FIR was the result of the handiwork of
the police and secondly we find that the deadbody which was sent at 9.30 PM from
Najibabad, reached Bijnor next day at around
10.00 AM and there is absolutely no
explanation for this delay. The fact about
breaking down of the tempo was nowhere
recorded in the GD. We also find that the
story of exhortation wherein the PW-2 says
that the accused had uttered "Maaro Saale
Ko Yahi Jaswinder Hai" could not be used
to convict the accused. One cannot conclude
as to why he had taken the name of only
Jaswinder when there were two individuals
there. It could have also meant that the
deceased was to be only assaulted in some
manner and was not to be killed and also; we
are definitely of the view that the exhortation
was not possibly done as there were two
individuals who were unknown to the
assailants and, therefore, it was an absolutely
a futile exhortation. We further find that
when the assailant Pukhraj himself had been
acquitted, no purpose would be served in
punishing the person who allegedly exhorted
the main accused-assailant Pukhraj in
Sessions Trial No.546 of 1997.

21. Under such circumstances, we set
aside the judgment and order dated 29.5.1999
passed by the IInd Additional Sessions Judge,
Bijnor in Sessions Trial No.193 of 1996
(State vs. Surat Singh). The appellant be
released forthwith if he was not required in
any other criminal case.

22. The appeal is, accordingly,
allowed.
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(2023) 6 ILRA 756
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VINOD DIWARKAR, J.

Criminal Appeal No. 3832 of 2014

Angad Rai @ Jhullan Rai @ Fhulak & Anr.
 ...Appellants
Versus
State of U.P. ...Opposite Party