# The State of U.P v. Narendra Singh & Anr

- **Citation:** (2022) 7 ILRA 927
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-19
- **Case number:** Government Appeal No. 1990 of 1985
- **Bench:** Om Prakash-Vii, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-narendra-singh-anr-48676
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - if view adopted by the Trial Court is a
possible view-Trial Court has well discussed
the facts and evidence-Appeallate Court to
not superimpose its view. (E-9)

List of Cases cited:

Vadivelu Thevar Vs The St. of Madras, 1957 AIR
614

## Text

7 All. The State of U.P. Vs. Narendra Singh & Anr.
927
----------
(2022)07ILR A927
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

THE HON'BLE OM PRAKASH-VII, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Government Appeal No. 1990 of 1985

The State of U.P. ...Appellant
Versus
Narendra Singh & Anr. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri U.K. Saxena, Sri Kamal Kishor Mishra,
Sri Satish Trivedi, Sri Satya Prakash
Srivastava

Criminal Law - Criminal Procedure Code,
1973 - if view adopted by the Trial Court is a
possible view-Trial Court has well discussed
the facts and evidence-Appeallate Court to
not superimpose its view. (E-9)

List of Cases cited:

Vadivelu Thevar Vs The St. of Madras, 1957 AIR
614
(Delivered by Hon'ble Om Prakash-VII, J.)

1. This appeal against acquittal by
appellant State is directed against the
impugned judgment and order dated
22.4.1985 passed by Special Judge (E.C.
Act)/ Additional Sessions Judge, Jalaun at
Orai in S.T. No. 143 of 1980 (State Vs.
Narendra
Singh
and
another),
P.S.
Kotwali Orai, district Jalaun by which the
accused respondents have been acquitted
of the charges under Sections 302/34, 302
IPC.

2. At the very outset, it is very
relevant to mention here that during
pendency of Appeal, accused respondent
No.2 Ramesh has died. Accordingly, by the
order dated 27.11.2021, this Court passed
order directing abatement of Government
Appeal as against the accused respondent
no.2.

3. Now, we are proceeding to consider
the government appeal in respect of rest of
the accused respondent i.e. Narendra Singh.

4. Brief facts of the case, in nutshell,
are that informant and his brother Bhanu
Pratap Singh had gone to the Court on
16.7.1980 for taking certified copy of
certain judgment. At about 02.00 - 02.15
p.m. after finishing their court work they
were going towards Orai market. Near the
Orai Jhansi Bus Stand at the gate of
Kutchahri they were joined by Taqdir
Singh, Bal Ram Tewari and Ram Swarup
Singh. While going to the Orai market,
Informant Ram Lakhan Singh and his
brother Bhanu Pratap Singh accompanied
by the aforesaid three witnesses reached the
Konch Bus Stand. At about 02.25 p.m.
accused Narendra Singh, Ramesh and one
Surendra Singh Yadav saw them all.
Accused Ramesh alarmed Surendra Singh
that the enemy was coming and on seeing
this Surendra exalted the accused Narendra
to kill Bhanu Pratap Singh. Bhanu Pratap
Singh seeing these persons tried to run
away but before that he was fired at by the
accused Narendra Sigh and Ramesh with
country made pistol and a pistol. Informant
Ram Lakhan Singh and the aforesaid
witnesses challenged the accused persons
but they made their escape good under the
cover of fire by them. Then the informant
found that his brother Bhanu Pratap Singh
was dead. The aforesaid murder by the
accused persons, namely, Narendra Singh
928 INDIAN LAW REPORTS ALLAHABAD SERIES
and Ramesh was committed due to old
enmity between the accused Narendra
Singh and the informant. The accused
Ramesh and Surendra Singh were the
party-men of the accused Narendra Singh.
Informant Ram Lakhan Singh prepared
F.I.R. and lodged the same at the police
station concerned. Necessary formalities
i.e. Panchayatnama etc. were prepared and
the dead body of the deceased Bhanu
Pratap Singh was sent for post mortem.
Investigation
started
and
and
after
completion of investigation charge sheet
against Narendra Singh, Surendra Singh
and Ramesh was submitted. Accused
Surendra Singh died during trial. Trial
started
against
accused
respondents
Narendra Singh and Ramesh.

5. Accused persons appeared and
charge under Sections 302/34 and 302 IPC
was framed in the trial court against them.
Accused have denied the charges framed
against them and claimed their trial.

6. Trial proceeded and on behalf of
prosecution, eight witnesses i.e. PW-1 Ram
Lakhan Singh (informant), PW-2 Bal Ram
Tiwari, PW-3 Constable Mani Ram, PW-4
Constable Ram Kishore, PW-5 Constable
Ram Gopal, PW-6 Dr. G.C. Mishra, who
conducted the post mortem on the dead
body of deceased, PW-7 Sub-Inspector
D.N. Chaturvedi, PW-8 Sub-Inspector
Yagya Datt Rai, PW-9 Constable Har
Narain Singh were examined.

7. After closure of prosecution
evidence, statement of accused persons
under Section 313 Cr.P.C. was recorded in
which they denied the allegations and
stated
that
they
have
been
falsely
implicated due to enmity. Deceased was a
notorious Gunda and a known criminal
having his criminal history. He was leader
of the dacoits engaged in road hold-up and
therefore he was killed by the then Kotwal
Devraj Singh through his men. They
produced one head constable named Sobran
Singh in their defence as DW-1. This
witness brought the road gang register to
show that the deceased Bhanu Pratap Singh
was registered as leader of road gang
engaged in dacoity by road hold-up in the
police record.

8. Having heard the learned counsel
for the parties and going through the
record, the trial court found that the
prosecution has not fully succeeded in
bringing home the charges against the
accused respondents beyond reasonable
doubt
and
acquitted
the
accused
respondents.

9. Aggrieved with the said judgment
and order dated 22.4.1985, the State
Government has preferred the present
appeal.

10. Vide order dated 5.5.1987 the
leave to appeal application was allowed
and the appeal was admitted.

11. Heard Shri Raj Kamal Srivastava,
learned AGA appearing for the State as
well as Shri Satish Trivedi, learned Senior
Counsel assisted by Shri Kamal Kishore
Mishra, learned counsel for the accused
respondent.

12.

Castigating
the
impugned
judgment and order, learned learned AGA
has
submitted
that
prosecution
has
established the guilt of the accused
respondents beyond reasonable doubt. It
was
further
submitted
that
findings
recorded by the trial court in the impugned
judgment and order are perverse and
illegal. It was a day hours incident. There
7 All. The State of U.P. Vs. Narendra Singh & Anr.
929
are eye account witnesses. Presence of PW1 and PW-2 at the place of occurrence at
the time of incident is natural and probable.
Finding of the trial court placing the PW-2
Balram Tiwari in the category of 'unreliable
witness' is against the facts and evidence.
Referring to entire evidence adduced by the
prosecution it was further submitted that
deceased and witnesses disclosed in the
F.I.R. were returning together from the
District Court and as and when they
reached near the place of occurrence,
accused persons opened fire upon the
deceased. This fact has been proved by the
prosecution
beyond
reasonable
doubt.
Medical evidence fully supports the oral
version. F.I.R. was lodged promptly. It was
also submitted that PW-2 Balram Tiwari is
a reliable witness and his statement finds
support with the statement of PW-1 and
medical evidence. There was no reason to
falsely implicate the accused respondents in
this case. Charges framed against the
accused respondents are proved. It was
lastly submitted that the findings recorded
by trial court in the impugned judgment
and order are not based on correct
appreciation of facts and evidence and
suffer
from
infirmity
and
illegality
warranting interference by this Court. In
support of his submissions, learned AGA
placed reliance on a decision of Apex Court
in Vadivelu Thevar Vs. The State of
Madras, 1957 AIR 614.

13. In reply, learned Senior Counsel
appearing for the accused respondent has
submitted that the accused had not
committed the present offence. Referring to
the findings recorded by the trial court in
the impugned judgment and order it was
further submitted that PW-2 Balram Tiwari
in his cross examination done by the
accused Narendra has admitted that he
received information about the incident in
the District Court premises and thereafter
this witness and PW-1 both went to the
place of occurrence. To substantiate this
argument,
learned
Senior
Counsel
appearing for the accused respondent
referred to the statement of PW-1 and
further submitted that this witness has also
stated in the beginning part of examinationin-chief that he was returning from the
District Court alongwith Takdir Singh,
Balram Tiwari and Ram Swarup Singh. No
other person was alongwith them. It was
further submitted that F.I.R. was lodged
after due consultation. Witnesses disclosed
in the F.I.R. were planted after calling them
from their houses. They were said to be
present at the place of occurrence after the
incident and Investigating Officer was also
present there but their statements under
Section 161 CrPC were not recorded
immediately. Prosecution has also not
produced the FSL report. Thus, place of
occurrence is also not established in this
case. Referring to cross-examination of
PW-1 it was also submitted that witnesses
disclosed in the F.I.R. were the witness in a
number of cases initiated on behalf of
informant. They are pocket witness of the
police. In fact they were not present on the
spot nor they had seen the incident. It was
also submitted that it was blind murder
case. Deceased was hardened criminal. A
number of criminal cases were pending
against him and due to this reason he was
done to death by some unknown person. It
was next contended that at this time age of
accused respondent Narendra Singh is
about 80 years. He was aged about 45 years
at the time of recording of statement under
Section 313 CrPC. Prosecution was not
able to prove its case beyond reasonable
doubt against the accused respondent.
There
is
no
infirmity,
illegality
or
perversity in the impugned judgment and
order warranting interference by this Court.
930 INDIAN LAW REPORTS ALLAHABAD SERIES
Findings of trial court in the impugned
judgment and order are based on correct
appreciation of facts, evidence and law.
View adopted by the trial court is also a
possible view.

14. We have considered the rival
submissions made by the learned counsel
for the parties and have gone through the
entire record and evidence carefully.

15. Before proceeding to discuss the
submissions raised by the learned counsel
for the parties, we may mention the
findings of the trial court on material points
in the impugned judgement and order,
which are as under:

(i). PW-1 and PW-2 are not the
eye account witnesses. They were present
at the time of incident in the District Court
premises and had received information
about the incident there.

(ii). Prosecution was not able to
prove the place of incident.

(iii). It was a blind murder case.

(iv). PW-1 being the real brother
of the deceased is interested witness.

(v). PW-2 is pocket witness of the
police and he appeared as witness in
several cases initiated on behalf of
prosecution.

16. After outlining the findings
recorded by the trial court in the impugned
judgement and order on material points, we
are proceeding to deal with the submissions
advanced by the learned counsel for the
parties.

17. In this matter, as is evident from
the
record,
incident
took
place
on
16.7.1980 at about 2.45 p.m.. F.I.R. was
lodged by PW-1, brother of the deceased,
on the basis of written report - Ext. Ka-1 on
16.7.1980 itself at 3.30 p.m.. Distance
between place of occurrence and police
station concerned was about one and half
furlong. Specific role for causing injuries to
the deceased is assigned to present accused
respondent and co-accused Ramesh (since
dead). PW-1 in his examination-in- chief
has stated that he was returning from the
Court alongwith Takdir Singh, Balram
Tiwari and Ram Swarup Singh. No other
person was alongwith them. A lengthy
cross-examination was done from this
witness wherein he has admitted that
number of criminal cases were pending
against the deceased started by the police
and private person. Though PW-2 has
supported
the
prosecution
case
in
examination-in- chief and in his crossexamination completed in the year 1982 yet
no cross-examination was done on the part
of accused respondent Ramesh (since dead)
at that time. He was recalled on the
application moved by the co-accused in the
year 1985 for cross-examination and he has
specifically stated that at the time of
incident he was present in the District
Court premises alongwith PW-1 and had
received information about the present
incident in the Court premises itself and
thereafter they went to the place of
occurrence. Looking to the statement of
PW-2 made in the cross-examination done
by accused Ramesh (since dead) the trial
court has observed that PW-2 is not a
reliable witness. He has not been declared
hostile by the prosecution. Statement made
by this witness in the cross-examination
done by co-accused Ramesh (since dead)
placed him in the category of 'fully
unreliable witness'. Trial court was also of
the view that examination-in-chief of PW-1
itself makes it clear that this witness was
also not present at the place of occurrence
at the time of incident. On the basis of
aforesaid facts, the findings of the trial
7 All. The State of U.P. Vs. Narendra Singh & Anr.
931
court recorded in the impugned order are to
be analyzed.

18. It is settled principles of law that
in the appeal against acquittal the Appellate
Court should interfere with the judgment
and order of acquittal passed by the Trial
Court if it arrives at a finding that the trial
Court's decision was perverse or otherwise
unsustainable. It is also settled that if the
view adopted by the trial court is a possible
view and trial court has well discussed the
entire facts and evidence in the impugned
judgment and order, the Appellate Court
should not interfere with the said findings.
The Appellate Court will not superimpose
its view over the view adopted by the Trial
Court in the impugned judgment and order.

19. In this case, as is evident from the
record, PW-2 was cross-examined on two
occasions, firstly, in the year 1982 and
secondly, in the year 1985. In the year 1985
when he was cross-examined on behalf of
co-accused Ramesh (since dead) he did not
support the prosecution case but he was not
declared hostile. If the statement of this
witness made in the examination-in-chief
and cross-examination both are taken
together it is evident that PW-2 cannot be
placed in the category of 'fully reliable
witness'. He can also not be placed in the
category of 'fully unreliable witness'. If
such is the position, he can be placed in the
category of neither wholly reliable witness
nor wholly unreliable witness and in that
situation Court has to be circumspect and
has to look for corroboration in material
particulars by reliable testimony. The trial
court has taken into consideration the
statement of PW-1 and has compared the
same with the statement of PW-2 and was
of the view that PW-1 was also not present
at the time of occurrence at the place of
incident. He himself has admitted in the
examination-in-chief that when they were
returning from the Court towards the
market, deceased was not accompanying
them. If the statement of PW-1 in the
examination-in-chief
in
this
case
is
compared with the cross-examination of
PW-2 made in the year 1985 it can safely
be held that view taken by the trial court in
the
impugned
judgment
and
order
regarding presence of PW-1 and PW-2 at
the place of occurrence at the time of
incident is not illegal and perverse. PW-2
has not been declared hostile. Thus, the
trial
court
has
rightly
taken
into
consideration the part of cross-examination
done in the year 1985 on the part of
accused Ramesh (since dead). Had he (PW2) been declared hostile on the basis of
cross-examination done in the year 1985,
its impact could be otherwise. The trial
court has rightly taken into consideration
the cross-examination part of PW-2 done in
the year 1985, as he cannot be placed in the
category of 'fully reliable witness' and his
statement in the cross-examination are selfcontradictory. Presence of this witness
alongwith PW-1 and other witnesses
disclosed in the F.I.R. at the time of
incident was not found believable , which
is based on correct appreciation of facts and
evidence. The trial court while recording
the aforesaid facts has discussed the entire
evidence
in
detail
and
has
rightly
concluded that PW-1 and PW-2 were not
present at the place of occurrence at the
time of incident. They were planted later on
by the police after due consultation.

20. Prosecution has examined only
two fact witnesses i.e. PW-1 and PW-2,
however, some other witnesses were
disclosed in the F.I.R. but they were not
examined. There remains only formal
witnesses. Presence of PW-1 and PW-2 at
the time of incident is not believable, as
932 INDIAN LAW REPORTS ALLAHABAD SERIES
discussed here-in-above. Thus, it can safely
be held that prosecution was not able to prove
its case beyond reasonable doubt. It is
pertinent to mention here that prosecution has
also not produced the FSL report to establish
the place of occurrence. If the findings of the
trial court recorded in the impugned
judgment
and order
are
analyzed
in
consonance with the facts and evidence
adduced by the parties in the present matter in
light of submissions advanced by the learned
counsel for the parties, we are of the view
that the view taken by the trial court in the
impugned judgment and order is a possible
view.

21. Considering the entire aspects of the
matter, we are of the view that impugned
judgment and order passed by the trial court
is well thought and well discussed and trial
court has rightly held that prosecution has not
succeeded to prove guilt of accused
respondent beyond reasonable doubt. The
accused respondent is found not guilty for the
offence punishable under Sections 302/34,
302 IPC. As such, impugned judgment and
order passed by trial court is liable to be
upheld and government appeal having no
force is liable to be dismissed.

22. Accordingly, present Government
Appeal is dismissed and the impugned
judgment and order passed by the trial court
is affirmed.
----------
(2022)07ILR A932
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 45 of 2022
Air Plaza Retail Holding Pvt. Ltd., Chennai
 ...Revisionist
Versus
Nitin Malhotra & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Sushil Shukla, Sri Ishir Sripat, Sri Rahul
Sripat (Senior Adv.)

Counsel for the Opposite Parties:
Sri
Navin
Sinha,
Sri
Ashish
Kumar
Srivastava

A. Civil Law -Civil Procedure Code, 1908 -
Order IX Rule 13 r/w Section 17 -
Provincial Small Cause Courts Act, 1887 --
- while filing application under Order IX Rule 13
CPC, 1908, it is mandatory to comply Section 17
of Act, 1887 first and failure of that, no
application can be entertained under Order IX
Rule 13 CPC, 1908

Held: Revision dismissed. (E-12)

List of Cases relied upon:-

Subodh Kumar Vs Shamim Ahmad passed in
Civil Appeal Nos. 802-803 of 2021 (arising out of
SLP (C) Nos. 18118-18119 of 2019 decided on
03.03.2021.
(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Rahul Sripat, learned
senior counsel assisted by Sri Sushil Shukla
along with Sri Ishir Sripat, learned counsel
for the revisionist-defendant and Sri Navin
Sinha, learned senior counsel assisted by
Sri Ashish Kumar Srivastava, learned
counsel for the respondents-plaintiffs.

2. Present revision has been filed
challenging the order dated 28.02.2022
passed by Additional District Judge, Court
No. 10, Varanasi in Misc. Case No. 389 of
2021 (Air Plaza Holding Pvt. Ltd. Vs. Nitin
Malhotra And Another).