# Suresh (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 735
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-22
- **Case number:** Criminal Appeal No. 2408 of 1983
- **Bench:** Ramesh Sinha, Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-in-jail-v-state-of-u-p-45273
- **Pages:** 25

## Headnote

Criminal Law - Indian Penal Code -
Sections 147, 302/149 and 404/149 -
Appeal against conviction.
The appeal has been preferred against the
acquittal of this accused. It may be clarified
here that if there are more than one accused
involved in a crime and if other co-accused is
acquitted on false grounds, it would not be a
circumstance in which the other accused would
also be allowed to claim parity and acquittal, if
the circumstances and the evidence on record
reveals that actually both the accused had
given effect to this occurrence. (para 59)

We must also keep in mind the rustic
background of the witness so as to ignore the
discrepancies with respect to distance stated by
him from where they state to have seen the
occurrence, as they may have little idea about
'furlong' and 'paces' etc. (para 63)

We do not find this to be ground serious
enough for animosity so that a false implication
would be made of this accused and in view of
the strong evidence having come on record
that this accused was also involved in causing
this occurrence, as is evident from the eyewitnesses', his involvement is found to be
there. (para 65)

Appeals rejected. (E-2)

## Text

_Characters 0–39,833 of 87,137. This is a partial read: ask again with offset=39833 for what follows._

1 All. Suresh Vs. State of U.P.
735
15.09.1997 of Vth Additional Sessions
Judge, Fatehpur, in ST No. 493 of 1993,
arising out of Case Crime No. 181 of
1993, Police Station Lalauli, District
Fatehpur, convicting and sentencing the
accused-appellant
Ram
Gopal
under
Sections 302, 380, 411 IPC is set aside and
the accused-appellant is acquitted from the
said charge.

44. The accused-appellant Ram
Gopal is in jail. He shall be released from
jail forthwith.

45. The office is directed to send
back the lower court record along with a
certified copy of this judgment for
information and necessary compliance.
----------
(2020)1ILR 735

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 2408 of 1983
Connected With
Criminal Appeal No. 2315 of 1983

Suresh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri J.S. Kashyap, Sri S. Chatharji, Sri
S.D.N. Singh, Sri S. Hasnain, Sri S.D.
Yadav

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

Criminal Law - Indian Penal Code -
Sections 147, 302/149 and 404/149 -
Appeal against conviction.
The appeal has been preferred against the
acquittal of this accused. It may be clarified
here that if there are more than one accused
involved in a crime and if other co-accused is
acquitted on false grounds, it would not be a
circumstance in which the other accused would
also be allowed to claim parity and acquittal, if
the circumstances and the evidence on record
reveals that actually both the accused had
given effect to this occurrence. (para 59)

We must also keep in mind the rustic
background of the witness so as to ignore the
discrepancies with respect to distance stated by
him from where they state to have seen the
occurrence, as they may have little idea about
'furlong' and 'paces' etc. (para 63)

We do not find this to be ground serious
enough for animosity so that a false implication
would be made of this accused and in view of
the strong evidence having come on record
that this accused was also involved in causing
this occurrence, as is evident from the eyewitnesses', his involvement is found to be
there. (para 65)

Appeals rejected. (E-2)

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Sri S.D.Yadav holding brief
of Sri J.S.Kashyap, learned counsel for the
appellant and Sri Jai Narain, learned AGA
for the State.

2. Criminal Appeal No. 2408 of 1983
has been preferred by accused-appellant
Suresh S/o Kallu against judgment and
order dated 12.9.1983 passed by Vth
Additional Sessions Judge, Mainpuri in
S.T. No. 551 of 1983 in which he has been
convicted under Sections 147, 302/149 and
404/149 IPC and sentenced to undergo
rigorous imprisonment for a period of one
year under Section 147 IPC; one year
under Section 404 read with Section 149
IPC; and with imprisonment for life under
736 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 302/149 IPC and all the sentences
are directed to run concurrently.

3. The other Criminal Appeal No.
2315 1983 has been preferred by accusedappellant Menhdipal S/o Bhimsen and Raj
Pal S/o Tikam Singh against the same
Session Trial, whereby both of them have
been convicted under Section 148, 404
read with Section 149 IPC and 302 read
with 149 IPC and sentenced to undergo
rigorous imprisonment for one year each
under
Section
148
IPC;
rigorous
imprisonment for one year each under
Section 404 read with Section 149 IPC;
life imprisonment each under Section
302/149 IPC and all the sentences are
directed to run concurrently.

4. Since both these appeals arise out
of the same Session Trial No. 551 of 1983,
they are being taken up together for the
sake of convenience.

5. In brief, the prosecution case as
disclosed from the F.I.R. is that the
informant Phool Singh (PW-1) gave
written report (Ext. Ka-1) at P.S. Fariha,
Sub-district Jasrana, District Mainpuri on
8.8.1982 at 6:15 am with the allegations
that on 7.8.1982 at about 10:00 pm, he was
smoking Bidi sitting on a cot and his wife
Surajmookhi was making curd sitting near
his cot. The lantern was burning in
Chhappar and his daughter Kusuma
(deceased) was sleeping on the cot and in
front of his house, Mahavir Singh
(deceased) and Bhoore Singh (PW-3) were
sleeping on Chabutra. Near Mahavir Singh
on adjacent cot, Bhoomi Sri and his
mother Ganga Sri (deceased) were also
sleeping on a cot. In the Chhappar of
Mahavir Singh and Bhoore Singh also,
lantern was burning. In the meantime, at
about 10:30 pm, 10 to 12 persons armed
with guns and country made pistols, which
included Amrit Singh (A-1) armed with
gun of his father, Menhdipal (A-2) armed
with Pauna (small country made gun),
Bare Lal (A-4), who is son-in-law of
Amrit Singh, R/o P.S. Eka, armed with
Pauna, Raj Pal (A-3), who is brother-inlaw of Menhdipal R/o village Jhapara, P.S.
Jasrana, armed with gun, Suresh Yadav
(A-5) R/o Pilakhtar Fateh, Khurshid Khan
(A-7),
Nasuruddin
(A-6),
both
S/o
Gaphoor Khan, R/o Barthara and 4-5 other
men armed with country made pistols and
guns, whose names he did not know but
could recognize them if they come in front
of him, all came from the side of the house
of Amrit Singh and Menhdipal and Amrit
Singh exhorted that hear was Phool Singh,
let him be caught, at this Phool Singh
(informant) fled from there raising alarm
that
Amrit
Singh
and
his
brother
Mehndipal had made fire upon his
daughter Kusuma and Bare Lal, Raj Pal
Singh, Nasuruddin, Khurshid Khan and
Suresh made fire upon Mahavir and his
mother Ganga Sri, who after hearing the
sound of fire, tried to flee from there but
they were shot dead near their wall. On the
alarm being raised by him and his wife and
also hearing the sounds of F.I.R., many
villagers reached there raising alarm and
then, seeing that lot of villagers had come,
all the miscreants fled towards north. They
all (informant and his companions) chased
miscreants but could not be caught.
Informant, his wife Surajmukhi, Bhoore
Singh, Bhoomi Sri, Somwati and many
other villagers had identified all the
miscreants in the light of burning lantern
as well as bright light of moon. There was
animosity going on between informant and
Amrit Singh pertaining to land and giving
the evidence. There was also animosity
between Amrit Singh and Munni Lal on
the one hand and Mahavir and Bhoore
1 All. Suresh Vs. State of U.P.
737
Singh on the other pertaining to partition
and because of this animosity Amrit Singh
and others had murdered his daughter, his
Bhabhi (sister-in-law) and nephew. He
prayed that after lodging the F.I.R. the
necessary action be taken. It was further
mentioned that the miscreants had taken
away watch of Mahavir and "Pongni" of
his mother.

6. On the basis of written report (Ext.
Ka-1), case crime no. 48 of 1982 was
registered at P.S. Fariha against seven
named
accused
i.e.
Amrit
Singh,
Menhdipal, Bare Lal, Suresh Yadav,
Nasuruddin and Khurshid Khan and 4-5
unknown persons under Section 147, 148,
149, 302 and 404 IPC and chik F.I.R. (Ext.
Ka-31) is prepared and entry of this was
made in G.D. at report no. 9, time 6:15 am,
dated 8.8.1982, which is Ext. Ka-32.

7. The investigation of the case was
entrusted to S.I. Sri K.P. Singh (PW-5),
who recorded statement of informant
Phool Singh on 8.8.1982 at P.S. and after
going to the spot told S.I. Kadam Singh,
who
prepared
inquest
report,
who
accordingly prepared inquest reports of the
deceased Kusuma, Mahavir and Ganga Sri
which are Ext. Ka 5, Ka-6 and Ka-7
respectively.
The
other
necessary
documents along with inquest report of
Mahavir i.e. Challan Lash, Photo Lash,
report C.M.O. and report R.I. were also
prepared by S.I. Kadam Singh in his hand
writing which were also signed by PW-5
and which are Exts. Ka-8, Ka-9, Ka-10
and Ka-11 respectively. The relevant
documents pertaining to the dead body of
deceased Kusuma i.e. Challan Lash, Photo
Lash, report to C.M.O. report to R.I. were
also prepared by S.I. Kadam Singh in his
hand writing which were also signed by
PW-5 and they are Exts. Ka-12 to Ka-16
respectively. The necessary papers relating
to dead body of Ganga Sri i.e. Challan
Lash, Photo Lash, report C.M.O., report to
R.I. were also prepared by S.I. Kadam
Singh and were also signed by PW-5,
which are Exts. Ka-16 to Ext. Ka-19
respectively.

8. PW-5 inspected the place of
incident and prepared its site plan in his
hand writing which is Ext. Ka-2. The
informant had showed him lantern which
was taken by him in his possession and
made its Fard recovery in his hand writing,
which is Ext. Ka-21. The cot upon which
the deceased Kushma was lying, bedding
(dari) of the same, was blood stained, the
same was taken in possession by him and
its Fard recovery was prepared which is
Ext Ka-22. At the place of incident, there
was blood lying. Some blood was lying
where Kusuma was lying dead. Some
blood stained and ordinary soil were
collected from there and kept in two
separate containers which were sealed
there on the spot and its recovery memo
was prepared by him which is Ext. Ka-23.
The place where Kushma was lying dead,
near that place, two blank cartridges of 12
bore was found lying which were taken in
possession and recovery memo of the
same was prepared by him in his hand
writing which is Ext. Ka-24. The place
where deceased Mahavir Singh was lying,
plain and blood stained soil were collected
from there in two separate containers and
its recovery memo was prepared by him
which is Ext. Ka-25. The place where
Ganga Sri was lying dead, the blood
stained and ordinary soil were collected by
him in two separate containers and
recovery memo of the same was prepared
by him which is Ext. Ka-26. Near the
place where Ganga Sri was lying, three
blank cartridges were found lying which
738 INDIAN LAW REPORTS ALLAHABAD SERIES
were taken in police custody and its
recovery memo was prepared, which is
Ext. Ka-27. Bhoomi Sri had a lantern, in
the light of which, miscreants are stated to
have seen by her and the said lantern was
taken by PW-5 in possession and its
recovery memo was prepared by him
which is Ext. Ka-28. Witness Bhoore
Singh (PW-2) had stated to have seen the
miscreants in the light of one lantern
which was shown by him and the same
was taken in possession and its recovery
memo was prepared by him which is Ext.
Ka-29. He also recorded statements of
witness Bhoore Singh (PW-2) and Bhoomi
Sri. All the three dead bodies were sealed
by S.I. Kadam Singh and were sent along
with necessary documents to S.N.M.
Hospital, Firozabad, through Constable
Khacher Singh, Rajveer Sharma and Biru
Singh. Thereafter, PW-5 made raid at the
house of Nasuruddin and Khurshid Khan
at Barthara but they could not be found
and, thereafter, raid was made in village
Pilakhtar Fateh at the house of accused
Suresh, he could not be found. Thereafter,
PW-5 came to the P.S. and deposited all
the case property in sealed condition. On
9.8.1982, he again made raids at the
houses of Nasuruddin and Khurshid Khan
in village Barthara but again they could
not be found nor accused Suresh could be
found at whose house in Pilakhtar Fateh,
raid was conducted. Thereafter taking
along S.I. Tej Prakash Sharma of P.S.
Aedha, raid was conducted at the house of
accused Bare Lal in village Salota but he
could not be found. Thereafter taking
along S.I. Har Prasad Sharma, from P.S.
Jasrana, a raid was conducted at the house
of Raj Pal Singh but he could not be
found. Thereafter, PW-5 came to village
Nagla Dan Sahay, recorded statements of
Somwati
and
returned
to
P.S.
On
10.8.1982, he again conducted raid at
village-
Barthara
at
the
houses
of
Nasuruddin and Khurshid Khan but they
could not be found nor Suresh could be
found in his house nor accused Bare Lal
could be found in village Salota. When
raid was made again in the house of
accused Raj Pal, he could not be found in
village- Jhapara. On 11.8.1982, 12.8.1982,
and 13.8.1982, search was made for
accused persons who could not be found.
On 13.8.1982, statements of witnesses of
inquest
report
were
recorded.
On
14.8.1982,
accused
Nasuruddin
surrendered before court. On 20.8.1982, he
recorded
statements
of
accused
Nasuruddin Singh and Raj Pal inside jail.
On 29.8.1982, he recorded statements of
Smt. Surajmukhi and Kr. Rama etc. and on
the same day he submitted charge sheet
against Menhdipal, Raj Pal, Bare Lal,
Nasuruddin
and
Suresh
and
in
abscondance against Amrit Singh and
Khurshid Khan which is Ext. Ka-30. PW-5
has also proved by way of secondary
evidence, Chik F.I.R. which is Ext. Ka-31,
which he deposed to have been written by
Head Mohrrir, Shankar Singh, in his hand
writing with which he was conversant and
also proved entry of the said case in G.D.
by the same Head Mohrrir, which is Ext.
Ka-32. PW-5 has proved the blood stained
and ordinary soil collected from the place
where Kusuma was found dead which was
material Ext. 1 and material Ext. 2; proved
blood stained and ordinary soil pertaining
to Mahavir which is material Ext. 3 and 4;
proved blood stained and ordinary soil
pertaining to Ganga Sri which is material
Ext. 5-6 . He also proved two blank
cartridges which were recovered from near
the place where dead body of Kusuma was
lying which is material Ext. 7 and 8 and
also proved three blank cartridges which
were recovered near the dead body of
Ganga Sri, which are material Exts. 9, 10
1 All. Suresh Vs. State of U.P.
739
and 11. The clothes which were separately
sealed of deceased Kushma, Mahavir and
Ganga Sri by the doctor in three separate
bundles, were also marked as material
Exts. 12, 13 and 14 respectively. Certain
pallets were extracted by the doctor during
post-mortem of the dead body of Kusuma
and Mahavir, which was sealed in separate
envelopes, which are material Exts. 15 and
16 respectively. The bedding (dari) upon
which Kusuma was lying, was also
marked as material Ext. 17.

9.

After
collecting
sufficient
evidence on record, the charge sheet was
submitted against all the accused and on
1.1.1983 charge was framed against five
accused namely, Menhdipal, Raj Pal, Bare
Lal, Nasuruddin and Suresh in following
manner.

10. Against accused- Suresh and
Nasuruddin, charge was framed under
Section 147 IPC; against Menhdipal, Raj
Pal and Bare Lal along with 8-9 other
under Section 148 IPC, against all the
above named accused along with seven
others under Section 302 read with 149
IPC; against all the above named five
accused along with seven others under
Section 404/149IPC; against Menhdipal
under Section 302 IPC; against Raj Pal,
Barelal, Nasuruddin and Suresh under
Section 302 IPC, to which they pleaded
not guilty and claimed to be tried on
1.1.1983.

11. In order to prove its case, from
the side of prosecution statements of
witnesses, Phool Singh (father of the
deceased Kushma) as PW-1, Bhoore Singh
as PW-2, Dr. Vinay Kumar Yadav, who
conducted post mortem of the deceased as
PW-3, Smt. Surajmukhi, wife of the
informant as PW-4 and Investigating
Officer Sri K.P. Singh as PW-5, were
recorded.

12. Thereafter the prosecution
evidence was closed and the statements of
accused were recorded under Section 313
Cr.P.C.

13. The accused-appellants namely
Menhdipal, Raj Pal and Suresh Yadav
have stated the entire prosecution evidence
to be false and pleaded that they have been
falsely implicated due to enmity.

14. The appellant Raj Pal in
particular has stated that because of there
being land dispute between Phool Singh
(PW-1)
and
Menhdipal
(accusedappellant), he has been falsely implicated.

15. The accused- Suresh has also, in
particular, has stated that the sister of
Phool Singh (informant) was earlier
married to Mulayam Singh of his village.
Mulayam Singh had received injury in his
leg, thereafter, she (sister of Phool Singh)
started living with his Bhanja, Surendra
Pradhan having taken away jewellery with
her and when a panchayat was held in
respect of return of the jewellery to
Mulayam Singh, pursuant to that the same
was returned, since then, Surendra Singh
started having enmity with him and
because of that he has been falsely
implicated.

16. In defense, two witnesses have
also been examined namely, Mulayam
Singh S/o Kallu Singh as DW-1 and R.S.
Pal, Professor of Mathmetics, Narayan
College Shikohabad, District Mainpuri as
DW-2.

17. After considering the entire
evidence on record and having heard both
740 INDIAN LAW REPORTS ALLAHABAD SERIES
the sides, the trial court has convicted and
sentenced the appellants Menhdipal, Raj
Pal and Suresh while other accused Bare
Singh
and
Nasuruddin
have
been
acquitted.

18. The main argument made by the
learned counsel for the appellant is that
according to F.I.R., PW-1 Phool Singh had
run away from the place of incident as was
mentioned by him in the F.I.R. itself which
makes it evident that he was not an
eyewitness
of
the
occurrence
and,
therefore, his presence on the scene of
occurrence is doubtful. His testimony
ought to be dis-believed. It was further
argued that the presence of PW-1 should
be treated also doubtful on the spot
because he did not suffer any injury, not
even a scratch, despite him being on the
spot. Further it was argued that on the
same evidence the trial court has acquitted
two co-accused, while the present accusedappellants have been convicted, which is
not sustainable and in this regard he has
relied upon Surjan and others Vs. State of
U.P., 2018 Law Suit Allahabad 2016.

19. On the other hand, learned
A.G.A. has vehemently argued that there
is no infirmity in the impugned judgment
because there were three eye-witnesses of
the occurrence namely Phool Singh (PW1) and Bhoore Singh as PW-2 and PW-4
Surajmukhi, wife of the informant, who
have given eye-witness account of this
occurrence, as they had seen the accusedappellants having assaulted the deceased,
as a result of which three persons have
died in this case namely, Kusuma Devi,
Ganga Sri and Mahavir and the ocular
testimony is corroborated by the medical
report, therefore, the trial court's judgment
requires to be upheld and the appeal
deserves to be dismissed.

20. Now this Court has to examine as
to whether trial court has correctly
evaluated the evidence on record or does it
require any interference, in the light of
arguments made by the learned counsel for
the appellants.

21. PW-1 Phool Singh, who is
informant of the case, has stated in
examination-in-chief that 7 1⁄2 months ago
at about 10:30 pm, he was sitting on
Chabutra in front of his house and was
smoking Bidi and his wife was making
curd there only. Near him his daughter
Kusuma Devi was sleeping on a cot. The
house of Bhoore Singh is situated in front
of his house and there is hardly a gap of 10
hands between his house and the house of
Bhoore Singh. Bhoore Singh and his wife
were also sleeping outside their house on
Chabutra. The house of Bhoore Singh and
Mahavir is one and the same. Mahavir, his
mother Ganga Sri and sister Bhoomi Sri
were also sleeping in front of their house.
There was light as well which was
emitting from the lantern which was
burning in his chappar. In the meantime,
Amrit Singh, Khurshid Khan, Nasuruddin,
Bare Lal and Suresh came towards his
house, they were, in all, 10 to 12
miscreants. Amrit Singh was armed with
licensed gun of his father. Khurshid had
gun, Nasuruddin had a gun, Bare Lal had a
Pauna and Suresh had a gun. Menhdipal
had also a gun and apart from them, 4-5
miscreants were having guns of country
made pistols in their hand, whom he could
not recognize but would recognize if they
come
before
him.
After
all
these
miscreants had came there, Amrit Singh
shouted that here was Phool Singh, let him
be caught, at this PW-1 got up from the cot
and fled from there and concealed himself
by the side of wall of Kayam Singh and
witnessed the occurrence from there and
1 All. Suresh Vs. State of U.P.
741
was also shouting. Amrit Singh made fire
upon his daughter by his gun and when the
same hit his daughter Kusuma, she got up
and, thereafter, fell down. When she was
lying on the ground, Menhdipal also fired
upon her, by which she died. His wife
started crying that her daughter was killed,
thereafter, the miscreants headed towards
Mahavir, who is his nephew and they
(miscreants) also made fire upon Mahavir
and getting hit Mahavir, fell down. His
mother (Mahavir's mother) Ganga Sri was
also fired upon by the miscreants, both
Mahavir and Ganga Sri died on the spot.
On Mahavir and his mother, fire was made
by Nasuruddin, Khurshid Khan and Raj
Pal while other miscreants continued to
stand on Chabutra there only. The
villagers namely Kayam Singh, Chob
Singh, Ajab Singh, Ganga Singh, Ram
Khiladi, Chandra Bhan, Suraj Singh, Ram
Prakash and Komal came there rushing,
armed with Lathi and reached the spot. It
is further stated by him that Amrit Singh
had taken off wrist watch of Mahavir and
Menhdipal had taken off Pongni from the
nose of Mahavir's mother. Thereafter,
miscreants having seen the pressure of
much crowd of the villagers, fled towards
north. Mahavir and his mother, both died
after they fell down on the ground and,
thereafter, the miscreants had taken all
these articles from their person. Further it
is
stated
that
the
miscreants
were
harbouring animosity towards him. Amrit
Singh had made fires upon police and in
that case police had written name of PW-1
as a witness. PW-1 had got a patta
executed in in his favour from Pradhan
and in that regard Amrit singh had filed a
case against him because he did not want
the land to be given to him. The brotherin-law
of
Amrit
Singh
is
Barelal.
Menhdipal is brohter of Amrit Singh,
while Raj Pal is brother-in-law of
Menhdipal and have sitting with Suresh,
Khurshid and Nasuruddin, day in and day
out. He knew these miscreants from before
and all of them were present in court room
except Amrit Singh and Khursheed Khan.
After fleeing of miscreants, he got a report
written by Kayam Singh at his (PW-2's)
house and taking the same he went to P.S.
next day in the morning at about 8:30 a.m..
He further stated that he had not gone to
the P.S. due to fear in the night. He had
handed over the written report to Deevan
Ji at P.S. Fariha which is Ext. Ka-1.

22.
In
cross-examination,
this
witness has stated that it is wrong to say
that 15 to 16 months ago, he had assaulted
the son of Draupa Devi namely, Kushal
Pal by sickle (hansiya) regarding which a
case was filed against him in the court of
Magistrate in Shikohabad which was a
false case. In case of 1982, in the first
week, the father of accused Nasuruddin
had deposed against him in the said case.
It is wrong to say that he had been
convicted and sentenced in that case with
imprisonment of three months and fine of
Rs. 3,000/- but stated that he was only told
to have been fined with an amount of Rs.
3,000/-. The said fine was imposed against
him about two months ago. He had not
filed
any
appeal
against
the
said
conviction. The said case was running
since prior to the present occurrence but he
had no knowledge about the said case. He
had received summons of the said case
after the occurrence of the present case. He
showed ignorance that Nasuruddin was
studying in Narayan College Shikohabad
and was student of B.A. final year. On the
date of occurrence, he was at home during
day and was not appearing in examination.
It is wrong to say that 15 to 16 months
ago, the father of Gaffoor namely, Munna
was murdered who died of T.B.. He does
742 INDIAN LAW REPORTS ALLAHABAD SERIES
not know whether Gaffoor had given any
application to police regarding murder of
Munna. He also does not know that
Devkinandan Khanna was S.H.O. at the
P.S. about 15-16 months ago. He further
stated it to be wrong that he is a history
sheeter and that he was in supervision of
police. He did not know that his name was
entered in register no. 8 at the P.S. and
also stated it to be wrong that he did not
have any agricultural land and further
stated that he was owning about 5 to 6
bighas of agricultural land in village
Barthara and three bighas of land was in
the name of his father. He further stated
that concerning Patta, a case was contested
about two to three years ago, in which he
had filed objections and in the same, his
statement was recorded but he had lost the
said case and that he had not filed any
appeal against the said judgment despite
the fact that court had set aside his patta.
Further this witness has stated that he had
written in his report that he was present at
the Chabutra outside his house but he
cannot tell as to why the same was not
written. There was no chhappar on the
Chabutra of Mahavir and Bhoore Singh,
although in front of their house there was a
chhappar and in front of his house, there
was also a Chhappar. The miscreants came
and shouted that here was Phool Singh and
right then he fled from there.

23. This witness has stated that he
had written name of Nasuruddin as one of
the assailants who had made assault upon
Mahavir and his mother and has also
stated to the Investigating Officer that he
was standing by the side of wall of Kayam
Singh but he could not tell as to why the
Investigating Officer did not record the
same in his statement. He also stated it to
be wrong that no such occurrence took
place nor had he seen any such incident
and that due to animosity he was taking name
of Nasuruddin to be an accused in this case.
Further stated that no one had made an attempt
to bring improvement in the relations between
Amrit Singh and Menhdipal. There was a
dispute with respect to partition of house of
land between Menhdipal and Mahavir and no
other enmity was there between them. Amrit
Singh was taking side of Menhdipal. He had
not seen that in this regard father of Raj Pal
had come for holding panchayat. When the
miscreants stated that here was Phool Singh,
let him be caught, then he was about 25-30
paces away from him. PW-1 was standing
towards south of the house of Kayam Singh in
the corner but the said place was about 50 to
60 paces away. Till the incident happened, he
continued to stand there only raising alarm but
no miscreants had made fire upon him because
they could not get any opportuity to make fire
nor any fire hit him. From the southern corner
of his chhappar, at a distance of about 10 paces
towards north, was a lantern. Dalan of Mahavir
was about 10 to 15 paces away from his
Chhappar. In the entire incident, hardly 10 to
15 minutes might have been consumed. He
further stated that no one had disclosed to him
the name of Raj Pal. When he had written
report at his house, at that time those witnesses
were present there, who had seen the
occurrence. Raj Pal was about 10 paces away
towards east from his Chhappar when he had
made fire upon Ganga Sri, while PW-1 was
about 5 paces away towards west from Ganga
Sri, when Ganga Sri was fired upon. From
there, all miscreants had fled towards north. It
was wrong to say that Raj Pal was not present
at the place of incident and that he was falsely
named by him because he was having enmity
with Menhdipal and Raj Pal, who was his
relative.

24. Further this witness has stated
that out of the miscreants only two were
wearing Dhata (cloth covering the face).
1 All. Suresh Vs. State of U.P.
743
Bare Lal was wearing Dhata and his face
was not visible but he could be identified
from his voice, hence, his name was
written. Amrit Singh had shouted that here
was Phool Singh, let him be caught,
nothing else was stated by the miscreants
except that they were abusing. He had not
written in report nor had stated so to the
I.O. that Bare Lal, was identified by him
by his voice. At about 6:00-6:30 am, he
had written the written report at his house.
Barthara was about 3 to 4 furlong away
towards west from his village and
Keshpura was 3-4 mile from his village
towards south. Nagla Fateh was about one
mile away from his village in the east.
Nagla Sunav was one mile and one furlong
away towards north from his village and
Machariya would have been three furlong
away towards east. The Chaukidar lives in
Barthra, Nagla Fateh and Sunav. The said
Chaukidar
did
not
come
after
the
occurrence. The Chaukidar of his (PW-1's)
village had come at about 5:00 pm, who
was sent to the P.S. to apprise that the
occurrence had taken place at the house of
PW-1 and that PW-1 was coming. It was
wrong to say that the police personal had
arrived at 6:00 a.m., in fact they had come
after PW-1 had reached P.S. at about at
about 8:00-8:30 a.m.. Further this witness
has stated that he had accompanied the
dead body from his village which were
taken to P.S. and remained present there
for about one hour. The dead bodies
reached Firozabad after sun set, which
were taken there in bullock cart. Further he
has stated that I.O. had recorded his
statement the same day when he had
lodged the report which was recorded at
about 7:00 am at the P.S. and statement of
Chob Singh was also taken down at the
P.S. but the statement of Chaukidar was
not recorded at the P.S. Further he has
stated that no person belonging to the
house of Bhoore had accompanied the
PW-1 to P.S. Only, Chob Singh had
accompanied him to the P.S. He had no
knowledge that Bare Lal had stood surety
for Amrit Singh. It is also wrong to say
that there was no light at the place of
incident and some unknown persons had
given effect to this occurrence but due to
animosity he had lodged name of Bare Lal
and he also stated it to be wrong that the
report was got lodged in consultation with
the Investigating Officer subsequently. He
also stated it to be wrong that his report was sent
to the P.S. by the I.O. and, thereafter, its copy
was sent with the dead bodies. This witnss has
further stated that Amrit Singh, Menhdipal and
Hakim Singh are real brothers and their father
Bhimsen is still alive. The son of Hakim Singh,
namely, Mahavir was murdered and Ganga Sri
was wife of Hakim Singh. Further, he has stated
that there is difference in Pauna and Gun in
respect of their size as Pauna is a little smaller in
size when compared to gun. He had stated to the
Investigating Officer that Menhdipal was
having Pauna in his hand. There is no difference
in Bandook and Pauna except that of size as
Pauna is also treated to be gun. It was wrong to
say that because of animosity with Amrit Singh,
name of Menhdipal was wrongly written and it
was wrong to say that he had not seen
Menhdipal at the place of occurrence. He
further stated that he did not have any animosity
with Suresh. His sister (PW-1's) Maya Devi was
married to Pradhan of Pilakhtar, namely
Surendra Singh. Suresh also belongs to
Pilakhtar. He does not know that there was
animosity between Suresh and Surendra Singh
since long. After the occurrence till the next
morning, Surendra Pradhan had not come to his
house and he further stated that it was wrong to
say that he has falsely implicated Suresh at the
instance of Surendra Pradhan.

25. It is evident from the testimony
of this witness that he had animosity with
744 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused, the details of litigations have
already been mentioned by this witness in
the above quoted statements. Therefore, it
could not be said that there was no motive
of giving effect to this occurrence by the
accused side because enmity is a double
edged weapon which is established law
and that because of enmity there could be
false implication, as well as incident can
actually be caused. In the case in hand, this
witness has clearly stated that he was
sitting outside his house on Chabutra when
the accused came in his house, armed with
weapons, which are mentioned above and
accused Amrit Singh had exhorted others
that here was Phool Singh, who should be
caught and it was then that he had got up
from the cot and ran from there and
concealed himself behind the wall of
Kayam Singh and from there he witnessed
the incident, in which Amrit Singh had
made fire upon his daughter Kusuma and
when she fell down, Menhdipal again
made fire upon him by which she died.
Thereafter, miscreants headed towards
Mahavir (his nephew) and made fire upon
him and also fire was made by the
miscreants upon Ganga Sri, who was
mother of Mahavir, by which Mahavir and
Ganga Sri died on the spot. He also has
clearly stated that Mahavir and his mother
were fired upon by Nasuruddin, Khurshid
Khan and Raj Pal, while other miscreants
remained standing on Chabutra. It has also
come in evidence that accused Amrit
Singh had taken off writst watch of
Mahavir and accused Menhdipal had taken
off the golden Pongni of mother of
Mahavir after they had fallen down and
had died. It has also come on record in
evidence that the distance between the
place where incident happened from the
house of Kayam Singh, where he was
standing towards south of the house, at a
distance of 50 to 60 paces and witnessed
the occurrence, it could not be said that the
place of incident was not visible to him as
there was moon light as well as light of
lanterns.

26. The arguments of learned counsel
for the appellants that he could not have
seen the occurrence from such a distance
i.e. 50 to 60 paces, does not appear to be a
tenable one and it may also be mentioned
here that the investigating officer has not
shown the house of Kayam Singh in site
plan (Ext. Ka-20), which ought to have
been shown, nor any distance of the said
house from the place of incident has been
shown which may be treated to be lacunae
left by the Investigating Officer in
conducting the investigation but its benefit
may not be allowed to go to the accused as
per settled law.

27. We find that in site plan Ext. Ka20 by 'O' is shown the place from where
the informant is stated to have seen the
occurrence concealing himself there. By
'D' is shown the place where the informant
was smoking on a cot when the accused
came and were seen, thereafter, he fled
from there. By 'C' is shown the place
where informant's wife was making curd
and from this place only she had seen
accused Amrit Singh and Menhdipal to
have fired upon his daughter. By 'D' is
shown the place where deceased Kusuma
was sleeping on a cot and from where the
blood stained bedding was taken by the
Investigating Officer. By 'E' is shown the
place where there was a Khatola (small
cot) on which, Rama daughter of Phool
Singh was sleeping. By 'F' is shown the
place where dead body of Kusuma was
lying and from there blood stained and
ordinary soil were collected by the I.O. By
'X' 'X' is shown the place, where two blank
cartridges of 12 bore were found which
1 All. Suresh Vs. State of U.P.
745
were said to have been fired upon the
deceased, were taken in possession by the
I.O. By 'G' is shown the place, where
Bhoomi Sri was sleeping on cot and from
here she had seen the accused committing
murder. By 'H' is shown the place, where
Mahavir was sleeping and after hearing
noise, ran from there and collided with a
wall towards south by which he fell, where
his dead body was lying. By + (plus) is
shown the place, where marks of pallets on
the wall were found, which was about
three feet high, where brain matter was
found at some places and from the said
place, blood stained and ordinary soil were
taken by I.O. in possession and the marks
of pallets were shown by dots. By 'I' is
shown the place, where deceased Ganga
Sri was sleeping on a cot and from this
very cot it was stated that after hearing
sounds of fire, she tried to run away and
collided with wall and fell down and her
dead body was lying there, which was
shown by 'B' and from this place blood
stained soil and ordinary soil were
collected and on the wall also there were
marks of pallets found shown by dots and
to the left side of the dead body, three
blank cartridges were found lying, which
were taken in possession by the I.O. By 'J'
is shown the cot where Bhoore was
sleeping. By 'K' is shown the place, upon
which Somwati was sleeping and from this
place she had seen Kushma, Mahavir and
Ganga Sri being assaulted by the bullets.
By 'L' is shown the place where lantern
was hung. By 'M' is shown the place where
lantern was hung. By 'R' is shown the
place, from where witness Bhoore had
seen his mother and brother being
assaulted by the accused. By 'arrow' is
shown the direction from where villagers
came after hearing sounds of fire and had
chased the accused. Though, the distances
are not shown in the site plan but it
appears that the entire incident happened
in an area which was totally visible from
place shown by 'O' from where PW-1 is
stated to have seen the occurrence and
other eye-witness namely Surajmukhi is
stated to have seen the occurrence by letter
shown by 'C', therefore, we find that
presence of PW-1 appears proved on the
place of incident when this occurrence
happened.

28. PW-2, Bhoore Singh, who is also
an eye-witness, has stated in examinationin-chief that deceased Mahavir Singh was
his real brother and deceased Ganga Sri
was his mother and deceased Kusuma
Devi was his cousin sister, all of whom
had been murdered about seven and half
months ago at about 10:30 pm, when he
was lying on a cot on Chabutra in front of
his house and his wife and children were
also sleeping near him. His mother and
Mahavir were lying there only and all of
them were sleeping. He heard sounds of
fire and some noise. When he opened his
eyes, he saw that there were some men. He
saw Kusuma getting hit by fire arm in the
moon light. In front of 'Chabutra', a lantern
was burning in Chhappar. He had seen
Amrit Singh, Menhdipal, Nasuruddin,
brother of Nasuruddin- Kishnoo, Bare Lal,
Raj Pal and Suresh, in all, 10 to 11
miscreants, out of them Menhdipal with
Pauna, Amrit Singh with his father's
licensed
guns,
Raj
Pal
with
gun,
Khursheed Khan with gun, Nasuruddin
with gun, Kishnoo with gun, Suresh with
gun and Bare Lal with Pauna, were armed
and after coming there, the miscreants
murdered his mother as well as Mahavir.
Nasuruddin, Kishun Lal and Raj Pal had
made fire upon his mother and upon his
sister Kusuma, Menhdipal had made fire.
Name of father of Kushma is Phool Singh.
In Phool Singh's chhappar, a lantern was
746 INDIAN LAW REPORTS ALLAHABAD SERIES
burning, who is his uncle. At the time of
this occurrence, Chob singh, Naththu,
Ganga Singh, Kayam Singh, Suraj Singh,
Chandra Bhan, Komal Singh and Ram
Prakash came on the spot and after having
seen these villagers, under pressure, the
miscreants fled towards north. After death
of Mahavir and his mother, the miscreants
had taken off Mahavir's wrist watch and
Pongni of his mother and fled. Bhoomi Sri
is his sister, who was sleeping near her
mother. Near Phool Singh, his daughter
Kusuma was there and his wife was
making curd. Out of the miscreants, five
were present in court, while Amrit singh
and Kishun Lal were absconding.

29.
In
cross-examination,
this
witness has stated that towards south of
the house of Mahavir, was house of
Kayam Singh and not towards south-east.
The house of Kayam Sigh would be five to
ten paces away from the house of Mahavir
and to the East of house of Kayam Singh,
is house of Komal Singh. Towards west
adjoining to house of Phool Singh is the
house of Kayam Singh and from the
southern wall of the house of Kayam
Singh, the house of Phool Singh is fully
visible. At the time of incident, PW-2 was
sleeping beneath the Chhappar in his
Dalan, where there was a little high wall.
He did not raise any alarm, as he was
concealing himself there. No miscreant
had made any fire upon him.