# Than Singh (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 1079
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-08
- **Case number:** Criminal Appeal No. 2004 of 1986
- **Bench:** Bala Krishna Narayana, Ghandikota Sri Devi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/than-singh-in-jail-v-state-of-u-p-45330
- **Pages:** 10

## Headnote

Criminal Law-Indian Penal Code, 1860Sections 302/34, 201 and 511 - Appeal
against conviction.

Medical Evidence and Ocular Evidence:-
The medical evidence makes the ocular
testimony improbable, it becomes a relevant
factor in the process of the evaluation of
evidence. The medical evidence does not
corroborate the ocular version. (Para-26)
Prosecution has failed to prove this case
beyond reasonable doubt. (Para-32)

Criminal Appeal allowed. (E-2)

List of cases cited: -

## Text

6 All. Than Singh Vs. State of U.P. 1079
doubt and accordingly are entitled to
acquittal.

47. In the result, the appeals are
allowed and the judgment and order dated
25.11.2005 passed by learned Additional
Sessions Judge, Lucknow in Sessions Trial
No.1189 of 2001 is hereby set aside so far
as it relates to the appellants, namely, Ram
Sahai, Darshan Pasi, Gaya Prasad and
Maharaj Deen are acquitted on benefit of
doubt of the charges levelled against them.

48. The appellants Ram Sahai,
Darshan Pasi and Maharaj Deen are in
jail. They shall be released forthwith, if
they are not wanted in any other case. The
appellant, Gaya Prasad is on bail. He need
not surrender. His bail bonds and sureties
stand discharged.

49. The Senior Registrar is directed
to ensure compliance by forwarding a
certified copy of this judgement to the
court concerned forthwith.
----------
(2020)06ILR A1079
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2019

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE GHANDIKOTA SRI DEVI, J.

Criminal Appeal No. 2004 of 1986
connected with
Criminal Appeal 2026 of 1986

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

Counsel for the Appellant:
Sri Keshav Sahai, Sri Bhavya Sahai, Sri
Kailash Prasad Pandey
Counsel for the Opposite Party:
D.G.A.

Criminal Law-Indian Penal Code, 1860Sections 302/34, 201 and 511 - Appeal
against conviction.

Medical Evidence and Ocular Evidence:-
The medical evidence makes the ocular
testimony improbable, it becomes a relevant
factor in the process of the evaluation of
evidence. The medical evidence does not
corroborate the ocular version. (Para-26)
Prosecution has failed to prove this case
beyond reasonable doubt. (Para-32)

Criminal Appeal allowed. (E-2)

List of cases cited: -

1. Ram Laxman Vs St. of Raj., (2016) 12 SCC
398

(Delivered by Hon'ble Bala Krishna
Narayana, J.)

1. Heard Sri Bhavya Sahai and Sri
Kailash Prasad Pandey, learned counsel
for the appellants and Sri Jitendra Kumar
Sisodia, learned State Law Officer for the
State.

2. These two appeals have been
filed by the appellants Than Singh and
Bhima against the 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, district-Mathura by
which the appellants have been convicted
and sentenced to imprisonment for life
under Sections-302/34 I. P. C.

3. Appellant Bhima (in Criminal
Appeal No. 2026 of 1986) died during the
pendency of the appeal, hence, Criminal
Appeal No. 2026 of 1986 was dismissed
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
as abated by this Court vide order dated
1.10.2018.

4. The prosecution story in brief
is that on 23.11.1985 an engagement
ceremony was being held in the house
of Jaswant Singh. Keshav Dev, his
brother Ranvir alias Ranno, Raghuvir,
son of Gyan Singh and others were
going towards the house of Jaswant
Singh at about 6.00 P. M. to attend the
engagement ceremony. When they
reached near the house of Kirori, Hari
Singh armed with a gun, Bhima and
his
nephew
Rotan
armed
with
"Kattas", suddenly emerged before
them. Than Singh caught hold of
Ranno from his waist and Hari Singh
ordered all others to run away as they
were going to kill Ranno. On which,
Keshav Dev and other persons, who
were accompanying Ranno, ran into
the house of Kirori and thereafter all
the accused fired with their firearms at
Ranno
near
the
"Chabootara"
of
Kirori's house. The occurrence was
seen by the witnesses from inside the
house of Kirori in the light of torch.
The incident took place at about 7.00
P. M. Before being shot, Ranno had
managed to set himself free from the
clutches of Than Singh and had
retorted that he would see that who
kills him. Thereupon Hari Singh fired
a shot in the air and then Than Singh
again caught him from his waist and
immediately thereafter the accused
fired at him from their respective
weapons. The deceased fell down on
the spot. Hari Singh was a known
criminal and Ranno was also a spoiled
person and due to fear of Hari Singh,
Keshav Dev stayed in the village for
sometime and thereafter went to the
police outpost and lodged the written
report of the occurrence (Ext. Ka 1) at
about 9.30 P. M. The distance of the
police station from the place of
occurrence was about three kms. The
case was registered in the G. D. No.
32 in police outpost Jait and S. I. S. K.
Kulshrestha proceeded to the place of
occurrence. The special report was
prepared in the night but was not
dispatched due to non-availability of
any
means
of
transportation
or
conveyance. S. I. S. K. Kulshrestha
held the inquest on the body of the
deceased at the place of occurrence on
24.11.1985 between 7.00 to 9.00 P. M.
and
prepared
the
inquest
report.
Thereafter he got the body of the
deceased sealed and dispatched to the
police lines through constable Nahar
Singh and Hhob Singh along with the
inquest report, copy of the G. D.,
letters addressed to the C. M. O and R.
I., photo nash and challan lash and
other
related
papers
which
were
prepared by him on the spot. He also
took into the custody plain and blood
stained soil and two cartridges from
the crime scene and prepared the
recovery memos of the aforesaid
articles (Ext. Ka 16 and Ka 17). After
inspecting the two torches produced
by the witnesses Keshav Dev and
Rootan before him, he prepared 'Fard
Supurdgi' of torches. During the
course of investigation a 'Katta' was
recovered from the possession of the
accused Pooran and the same was sent
to the ballistic expert along with the
recovered empty cartridges and the
ballistic expert vide his report (Ext.
Ka 17) reported that the recovered
empty cartridges sent along with
'Tamancha' were not fired from the
'Tamancha'. Post mortem examination
of the body of the deceased Rootan
6 All. Than Singh Vs. State of U.P. 1081
was conducted on 24.11.1985 by P.
W. 5 Dr. P. K. Sharma, Medical
Officer, District Hospital, Mathura
who found following ante mortem
injuries on the body of the deceased:

1. Fire arm wound of entry 3 cm x
2 cm x cavity on the right side of neck just
above the wound end of Rt. Clavicle, adjacent
in direction towards the back wound and to
left arsegun back (bladder) no tatooing or
charring;

2. Fire arm wound 4 cm x 3 cm x
cavity deep on the back of left scapular region
having connecting with one (1) margin
inverted;

3. Tangenital fire arm wound 13
cm x 2cm x skin on the part of elbow right to
left;

4. Fire arm wound of entry 1 cm x
1 cm x cavity on the left side of middle
stratum;

5. Fire arm wound of exit 25 cm x
2 cm x cavity deep on the back left side chest
middle 3 cm away from vertebral column
connected with injury no. 4;

6. Fire arm wound of entry 1 cm x
1 cm cavity deep on the part of lower left side
chest even below upper left, margins black,
tattooing and charring;

7. Fire arm wound of exit 2.5 cm x
x cavity deep on the back of left scapular
region connecting with injury no. 6;

8. Fire arm wound of entry 1 cm x
1 cm x cavity deep outer side of right scapular
margins back tattooing direction positively
and to left;

9. One metallic bullet of about 1
cm middle left next on the skin near
vertebram and connected with injury no. 8;

10. Fire arm wound of entry 1 cm x
1 cm x muscle deep on the part of left angle
margins back no tattooing or charring;

11. Two firearm wound of entry 1
cm x 1 cm x muscle deep each 2 cm apart on
the part of middle left arm left part no
tattooing or charring ;

12. Two firearm wound of exit 3
cm x 2 cm x 2.5 cm corresponding with injury
no. 11."

5. Since the offence mentioned in
the charge-sheet was triable exclusively
by the Court of Sessions, the accused
were committed for trial to the Sessions
Court by the C. J. M., Mathura where S.
T. No. 75 of 1986; State Versus Bhima
and three others was registered and was
made over for trial from there to the Court
of Special Judge, Mathura, who charged
all the accused under Sections-302/34 I.
P. C. and Pooran was charged separately
under Sections-201 and 511 I. P. C. It is
noteworthy that the accused Hari Singh is
absconding and he has not been arrested
till date.

6. The prosecution in order to prove
its case examined P. W. 1 Keshav Deo,
who is the informant and real brother of
the deceased, as an eyewitness of the
occurrence. He stated before the trial
court that he was going to attend the
engagement ceremony of Jasbant's son
along with the deceased and some other
persons and when he reached near the
house of Kirori, the accused armed with
deadly weapons accosted them suddenly.
He in his evidence has further narrated
the manner in which the deceased was
killed by the accused as spelt out in the F.
I. R. He proved the written report of the
occurrence (Ext. Ka 1). He further
deposed that he identified the accused in
the light of the torch and the same was
produced before the Investigating Officer
and inspected by him. He proved the
memo of torch (Ext. Ka 2). P. W. 2
Raghuvir another eyewitness of the
incident who was a resident of the same
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
village
and
who
was
allegedly
accompanying Keshav Deo and the
deceased Ranno at the time of the
incident while they were going to the
house of Jaswant Singh, in his evidence
tendered
before
the
trial
Court
corroborated the statement of P. W. 1 in
all material details. P. W. 3 Jaswant Singh
is the third eyewitness of the incident who
deposed that he had gone to invite Keshav
and
others
to
participate
in
the
engagement ceremony which was taking
place in his house and when he along with
the deceased and his family members was
returning to his house, the incident took
place. He also corroborated the evidence
of P. W. 1 Keshav Deo in all material
particulars.
Apart
from
the
three
eyewitnesses,
the
prosecution
also
examined four formal witnesses. P. W. 5
Dr. P. K. Sharma, who had conducted the
post
mortem
examination
of
the
deceased's body and proved the post
mortem report (Ext. Ka 14) of the
deceased.
He
also
deposed
that
panchayatnama, nakshanash and other
connected papers (Ext. Ka 5 to Ext. Ka
13) were received by him along with the
dead body. P. W. 6 S. I. S. K.
Kulshrestha, the first investigating officer
of the case, in his evidence tendered
before the trial court, narrated the various
steps taken by him during the course of
investigation. He proved the site plan of
the occurrence (Ext. Ka 15), recovery
memo of the blood stained earth and
empty cartridges collected by him from
the place of incident as (Exts.Ka 16 and
Ka 17). He also stated that he had
recovered a 'katta' from the possession of
Pooran on 27.11.1985 and prepared it's
recovery memo which was proved by him
as (Ext. Ka 18). P. W. 7 S. I. Veerpal
Singh proved the inquest report (Ext. Ka
19) by deposing that it was in his
handwriting. P. W. 8, the second
investigating officer of the case, who had
filed the charge-sheet against the accused
and proved the same. After recording the
prosecution evidence, the accused were
examined under Section 313 Cr. P. C.
They pleaded not guilty and alleged false
implication on account of enmity. They
also stated that since admittedly deceased
Ranno was a shady character, he was
killed by some other person and the
accused were falsely roped in.

7. The accused examined Lal Singh,
Kishan Chandra, Nawal Singh and Hari
Singh, Head Wireless Operator as D. Ws.
1 to 4.

8. D. W. 1 Lal Singh stated before the
trial court that his father Jaswant Singh had
neither gone to invite Keshav Deo nor the
accused had indulged in any brawl.

9. D. W. 2 Kishan Chandra stated that
the copy of the F. I. R. was received on
24.11.1985 in the office of the District
Magistrate.

10. D. W. 3 Nawal Singh has stated
that no recovery memo was prepared
before him and that the I. O. neither
inspected the torches of Rootan and
Keshav Deo in his presence nor he had
given the torches to the custody of the
witnesses nor prepared 'fard supurdgi'. In
the police station he was made to sign
some papers. He also deposed that neither
any blood stained earth nor empty
cartridges were recovered in his presence
nor any recovery memo was prepared in
his presence, Darogaji had obtained his
signatures on three blank papers.

11. D. W. 4 Hari Singh, Head
Wireless
Operator,
Police
Office,
6 All. Than Singh Vs. State of U.P. 1083
Mathura produced the original wireless
set message register, which he stated, had
been brought by him. He produced the
carbon copy of the original message
which was received from the police
outpost Jait. He deposed during trial that
it was in his handwriting and bore his
signatures. He further deposed that the
aforesaid message was received by him at
about 00.25 hrs. Apart from the aforesaid
message, he had not received any other
message. The message did not contain
any details of weapons, witnesses, and
place of incident.

12. The Special Judge, Mathura
after
considering
the
submissions
advanced before him by learned counsel
for the parties and scrutinizing the
evidence
on
record
convicted
the
accused-appellants
Than
Singh
and
Bheema and awarded aforesaid sentences
to them while the accused Pooran and
Rootan were acquitted.

13. Sri Bhavya Sahai, learned
counsel appearing on behalf of the
appellants submitted that the F. I. R. in
this case is ante timed. The genesis of the
occurrence has not been established by
the prosecution. The medical evidence
does not corroborate the ocular version.
There are material contradictions in the
evidence of eyewitnesses.

14. There is no evidence of any
source of light at the place of occurrence,
as the recovery of torch, in the light of
which, the eyewitnesses of the occurrence
claimed to have identified the accused, is
doubtful. There is no evidence that Than
Singh was previously known to the
witnesses and hence, how could he be
identified by the informant and the
witnesses. The false implication of Than
Singh is apparent on the face of record.
The trial court strangely acquitted the
accused Pooran and Rootan on the basis
of the same set of evidence, on which, it
had convicted the appellant Than Singh.

15.

The
prosecution
also
deliberately did not examine Kirori as an
eyewitness during the trial in front of
whose house, the incident taken place and
it was from his house that the witnesses
claimed to have seen the occurrence.
Although his evidence on the points of
assault and presence of the informant and
other witnesses at the place of occurrence
would have been the most reliable and
material to establish the guilt of the
accused.
Even his
statement
under
Section 161 Cr. P. C. was recorded on
24.11.1985.
Neither
the
recorded
conviction of the appellant Than Singh
nor the sentence awarded to him can be
sustained and are liable to be set aside.

16. Per contra, learned A. G. A. has
submitted that it is fully proved from the
evidence of three eyewitnesses examined
by the prosecution during trial that
Rootan was shot dead by the appellant
Than Singh along with other co-accused
at about 7.00 P M. on 23.11.1985 in front
of the house of Kirori, F. I. R. in this case
is not ante timed. There is no material
contradiction
between
the
medical
evidence and the ocular version. All the
accused were identified by the witnesses
in the light of the torches which were
produced before the I. O. of the case on
24.11.1985, inspected by him and found
in working order and their 'fard supurdgi'
was prepared. The Court below has given
cogent reasons for acquitting co-accused
Pooran and appellant Than Singh whose
case stands entirely on a different footing,
is not entitled to claim acquittal on the
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of parity. This appeal lacks merit
and is liable to be dismissed.

17. We have heard learned counsel
for the parties and perused the entire
record.

18. As regards, the first submission
made by learned counsel for the appellant
that the F. I. R. in this case is ante timed.
Our attention has been invited to the fact
that the special report of the case and the
F. I. R. were sent to the concerned
authorities after a considerable delay and
there is no mention of the crime number
on the various memos prepared at the
time of the inquest proceedings including
the inquest report. There is also evidence
of D. W. 4 Hari Singh on the record who
disclosed that the radiogram was received
as late as at 12.45 A. M. and time of
lodging of the F. I. R. and the arms used
by the appellant were not mentioned. In
the panchayatnama also the names of the
accused and the roles assigned to them
individually are not mentioned therein.

19. Per contra, learned A. G. A. has
submitted that the radiogram which was
received at 12.25 A. M. clearly refers to
the names of the accused who were armed
with firearms and had committed the
murder of Ranno. The radiogram further
shows that the S. I. had proceeded to the
spot. Radiogram is only a brief message
conveyed through wireless only with the
object to apprise the authorities and
nothing more is expected and needed in it.
The radiogram clearly shows that the F. I.
R. had already come into existence and
investigation had been set in motion.

20. With regard to the non-mention
of the case crime on the inquest report, it
has been submitted by learned A. G. A.
that on the top of the inquest report
"silsila no. 119 under Section 302 I. P. C.,
police out post, Jait" has been mentioned
and a copy of the F. I. R. was attached
with it.

21. Upon perusing the inquest report
(Ext. Ka 5), we find that a copy of the F.
I. R. was attached to the inquest report
and on the inquest report "silsila no. 119,
under Section 302 I.P.C." was mentioned
and panch witnesses had opined with
regard to cause of death that "bandook
evam katton ki goli se mara". However in
the copy of the site plan which was
prepared on the same day and at the same
time, the same Ext. Ka 15 case crime no.
380 was strangely mentioned along with
"silsila no. 119".

22. In our opinion, the failure of the
Investigating Officer to mention the crime
number on the inquest report and the
other memos prepared at the time of the
inquest was merely an irregularity or at
the most an instance of carelessness on
his part and the same may not in itself be
indicative of the fact that the F. I. R. was
ante timed but what has to be seen is that
where in a case it appears that the
investigation is perfunctory and serious
irregularities have been committed by the
investigating officer and it is not proved
that the special report was promptly
dispatched to the concerned authorities,
cumulative effect of such omissions or
irregularities on the credibility of the
prosecution story can always be examined
by the Court. Although P. W. 4 who had
registered the case, prepared and proved
the chik F. I. R. and the G. D. entry (Exts.
Ka 3 and 4) in his examination-in-chief
had deposed that the special report was
dispatched to the concerned authorities
through a constable on 24.11.1985 itself,
6 All. Than Singh Vs. State of U.P. 1085
however, he failed to disclose either the
name of the constable through whom the
special report was dispatched or the name
of the constable who had brought back
the special report. Record shows that the
special report was signed by the C. J. M.
and the relevant
G. D. entry of
24.11.1985 by which the special report is
alleged to have been dispatched, was
neither exhibited nor proved during trial
although it would have been the best
piece of evidence to prove that the special
report
was
sent
to
the
concerned
authorities on 24.11.1985 and in that case
the delay in signing of the special report
by the C. J. M. would not have in any
manner adversely affected the prosecution
case.

23. Thus, upon consideration of the
cumulative effect of the failure of the
investigating officer to hold the inquest
immediately after the incident on 23.11.1985
and to mention crime numbers on the inquest
report and the other memos prepared by him
during the inquest, on which, merely "silsila
number"
was
mentioned
without
any
explanation why if the case had been
registered, crime number was not mentioned
although on the site plan of the place of
occurrence (Ext. Ka 15), which was also
alleged to have been prepared on the same
day, crime number was mentioned and the
failure of the prosecution to prove by leading
any cogent evidence that the special report
was dispatched on 24.11.1985, we hold that
the F. I. R. in this case is ante timed. If the F. I.
R. had come into existence before holding of
the inquest, in that case there was not reason
for the I. O. to mention "silsila number" on the
inquest report.

24. It has also been argued by
learned counsel for the appellant that
there is absolute contradiction between
the
medical
evidence
and
ocular
testimony which is irreconcilable. In this
regard it may be noted that the
prosecution case is that four persons Hari
Singh (armed with a gun), his brother
Bhola, nephews Rootan and Than Singh
(appellant) armed with country made
pistols had shot at the deceased from their
respective firearms with the intention of
causing his death. Recovery memo (Ext.
Ka 17) which was prepared by the
investigating
officer
on
24.11.1985
indicates that he had collected two white
coloured empty cartridges of 12 bore on
which something was written in English
and three red colour empty cartridges
from the place of incident which were
fired by the accused at the deceased
Ranno. Ext. Ka 7 was proved during trial
by P. W. 6 S. I. Surendra Kumar, the I. O.
of the case. The recovery of five empty
cartridges from the place of occurrence
indicates that at the most five shots were
fired by the accused at the deceased.
However, the post mortem report of the
deceased narrates an entirely different
story. As we have already noted that in
the post mortem report of the deceased
which was proved by P. W. 5 Dr. P. K.
Sharma who had conducted autopsy on
the dead body of the deceased indicates as
many as eight firearm wounds of entry,
which indicates that more than five
rounds of shots at the time of the incident
must have been fired. None of the
witnesses have deposed that any of the
accused had fired at the deceased twice,
hence no explanation is coming forth
from the side of the prosecution with
regard to the presence of more than five
ante mortem gun shot wounds of entry on
the
body
of
the
deceased.
This
inconsistency in the oral evidence and
medical evidence, in our opinion, is
sufficient to discard the prosecution case
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
and hold that none of the witnesses had
seen the occurrence.

25. This brings us to the next ground
of challenge by learned counsel for the
appellant to the impugned judgement and
order. It has been argued that it was pitch
dark at the time of the incident and
although the three witnesses of fact have
deposed that they had seen the occurrence
in the light of the torches which were
being carried by P. W. 1 informant
Keshav Deo and Rootan but none of the
torches
were
exhibited
during
trial
although the I. O. of the case P. W. 6
Surendra Kumar deposed that he had
inspected both the torches which were of
"Jeep make" and found the same to be in
working condition and after inspecting
the same, he had given the torches in the
custody of P. W. 1 and prepared ''fard
supurdgi" but since the torches were not
exhibited during the trial the prosecution's
claim that the witnesses had identified the
accused in the light of the torches,
appears to be extremely doubtful. The
prosecution has failed to come up with
any explanation for non-production of the
two torches in the light whereof, the
witnesses had identified the accused but
in view of the fact that the witnesses
claimed that all the accused were known
to them previously and as alleged by the
prosecution a close encounter had taken
place before the main incident between
the accused and the witnesses when the
accused after catching hold of the
deceased Ranno had ordered all the
witnesses to clear as they were going to
kill Ranno and in the process, the
witnesses must have had an opportunity
to have a look at the accused from a very
close proximity and hence even if it is
held that the prosecution has failed to
prove the instances of any source of light
at the place of the incident, even then, in
our opinion, the witnesses could have
easily recognized the accused when they
had met the accused in front of the house
of Kirori, even if, there was no light as
they were previously known to them.

26. But since we have already held
that the F. I. R. in this case is ante timed
and the medical evidence does not
corroborate the ocular version, we cannot
help but hold that the three so-called eyewitnesses produced by the prosecution
during the trial were planted to suit the
prosecution case and they were tutored to
depose inculpatory facts against the
appellant and the question whether they
could have recognized the accused or not
is not at all of any relevance and is merely
academic.

27. The last ground on which
learned
counsel
for
the
appellant
appearing for Than Singh has challenged
his conviction is that all the four accused
in this case stood on the same footings.
The role of firing at the deceased was
assigned to all the four accused Hari
Singh, Bheema, Rootan and Than Singh
by all the so-called eye-witnesses of the
incident. They deposed in unison that
while accused Hari was armed with a gun,
the other accused Bhola, Rootan and
Than Singh were armed with country
made pistols and all the four accused had
fired at the deceased. The medical
evidence on record indicates that as many
as eight wounds of entry were found on
the body of the deceased. During the
course of investigation a country made
pistol was recovered on the pointing out
of the accused Pooran which was
allegedly used by him in shooting Rootan.
The recovered country made pistol was
sent to the ballistic expert and according
6 All. Than Singh Vs. State of U.P. 1087
to his report dated 8.4.1986, the empty
cartridges recovered from the place of
occurrence were not fired from that
country made pistol. The learned trial
Judge on the basis of the report of the
ballistic expert acquitted the co-accused
Pooran holding that Pooran should not be
convicted as the country made pistol
recovered from his possession was not
one, which was used in committing the
murder of Rootan, while the appellant
Than Singh from whom, no recovery of
any country made pistol was made, was
convicted along with the co-accused
Bhima and sentence for life imprisonment
was illegally awarded by the trial Judge
although there is no evidence on record
on the basis of which the roles of the four
accused could be distinguished.

28. It has been argued by learned A.
G. A. that the incident had taken place
into two parts. Firstly, the appellant Than
Singh had allegedly caught hold of the
deceased Ranno from his waist and then
accused Hari Singh had asked others to
run away as they were going to kill Ranno
on
which
the
informant
and
his
companions took shelter inside the house
of Kirori. The second part of the
occurrence started when Ranno managed
to escape from the clutches of appellant
Than Singh and attacked them shouting "
Tum mujhe kya maroge, abhi dekhta
hoon", on which, Hari Singh fired a shot
in the air and appellant Than Singh again
caught hold of Ranno. Due to fear,
informant
and
other
persons
accompanying him had taken shelter
inside the house of Kirori and after
closing the door from inside, they had
seen the occurrence and identified the
accused in the torch light. Since in
addition to firing at the deceased,
appellant Than Singh has also been
attributed the role of catching hold of the
deceased hence his case stands on a
different footing than that of the coaccused Pooran who was acquitted.

29. We do not find any merit in the
aforesaid argument of learned A. G. A.
because all the four witnesses of fact have
consistently assigned the role of firing at
the deceased to each of the accused and
the role of appellant Than Singh, cannot
be distinguished from that of Pooran
merely because he was also ascribed the
role of catching hold of the deceased.
Moreover, the aforesaid consideration had
not weighed with the learned trial Judge
while acquitting co-accused Pooran and
convicting the appellant Than Singh, as is
evident from the perusal of the impugned
judgement and order.

30. The trial court by acquitting the
co-accused Pooran obviously did not find
the testimony of the eyewitnesses qua
Pooran reliable, although their evidence
could not be split to grant benefit to some
co-accused while convicting others who
stood on the same footing.

31. Faced with an identical
situation, the Apex Court in the case of
Ram Laxman Versus State of Rajasthan
reported in (2016) 12 SCC 398 in paras 6
and 7 of its judgement held as hereunder:

6. Strangely, the High Court
disbelieved Ganesh qua the other coaccused and granted them acquittal but
accepted his testimony in respect of the
appellants by explaining that the maxim
"falsus in uno, falsus in omnibus" stands
disapproved since long as per the
judgement of this Court in Ugar Ahir
Versus State of Bihar.
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.
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(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.