# The State of U.P v. Pooran Singh & Ors

- **Citation:** (2023) 1 ILRA 85
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-20
- **Case number:** Government Appeal No. 22 of 1984
- **Bench:** Vivek Kumar Birla, Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-pooran-singh-ors-49195
- **Pages:** 12

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 378 - Indian Penal Code,
1860-Sections 302, 307 & 34-Challenge to
86 INDIAN LAW REPORTS ALLAHABAD SERIES
-acquittal-land
dispute
between
the
accused and the father of deceased-broad
day light incident-FIR was prompt-names
of three eye-witnesses were mentioned in
the FIR but they are not produced before
the trial court-explanation for their non
production is not satisfactory-no recovery
was made from the sole surviving accused
and his shot had not caused any injury to
anyone-As per postmortem report shows
that only single firearm injury, injuries
caused by the Rifle is false- two accused
who took Rifle and gun are dead-Cloth in
which the recovered gun was packed was
torn-PW-12 admitted the fact that he has
changed the cloth and resealed the
recovered gun-prosecution case is full of
contradictions and lapses on the part of
prosecution-therefore recovery of gun and
cartridges from the surviving accused is
doubtful-Hence, no interference requires.
(Para 1 to 33)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,774 of 41,336. This is a partial read: ask again with offset=39774 for what follows._

1 All. The State of U.P. Vs. Pooran Singh & Ors.
85
regarding illegal encroachment by opposite
party no.2, so, it appears that application
under Section 156 (3) Cr.P.C. was filed
with coloured version of incident. It also
transpires that after treating the application
as
complaint
learned
Magistrate
has
directed for inquiry under Section 202 (2)
Cr.P.C. by local police. The inquiry reports
are Annexure nos. 6 and 7 to the affidavit
filed in support of the criminal revision. It
also confirms that real incident is that
illegal encroachment of opposite party no.2
has been removed by the public authorities
in discharge of their official duty and no
offence has been committed.

8. Learned Magistrate has rejected the
discharge
application
observing
that
grounds on which discharge application has
been
moved
are
all
factual,
after
appearance of the accused, the complainant
will be provided an opportunity to produce
evidence and accused will have opportunity
of defence. It is also observed that the facts
alleged in the complaint are supported by
statements under Sections 200 and 202
Cr.P.C. and on its basis summoning order
has been passed.

9. From the above it appears that the
learned Magistrate proceeded on the
assumption that he has no power to
evaluate the material on record and at that
stage prayer of discharge could not be
entertained. This is in the violation of the
legal provision which requires a finding by
the Magistrate with regard to the charges
against the accused being groundless or
that there is ground for presuming that the
accused have committed the offence. The
finding
was
to
be
recorded
upon
considering the entire material on record.
The Magistrate has failed to evaluate the
allegations of the complaint and consider
the police report submitted under Section
202 Cr.P.C. The learned Magistrate has not
applied his mind to the grounds of
discharge and contention raised in this
respect. The learned Magistrate must have
considered the pleas taken in discharge
application and addressed the same by a
speaking
and
reasoned
order.
While
disposing of the discharge application the
learned Magistrate has not considered
relevant contention and rejected the same
in a cursory manner. So, a fresh order is
required to be passed on the discharge
application.

10. Accordingly, the revision is
allowed.
The
impugned
order
dated
18.04.2015 is set aside. The learned
Magistrate is directed to pass a fresh order
on the discharge application in accordance
with law, after affording opportunity of
hearing to the parties.
----------
(2023) 1 ILRA 85
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Government Appeal No. 22 of 1984

The State of U.P. ...Appellant
Versus
Pooran Singh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A., Sri Satish Trivedi

Counsel for the Opposite Parties:
Sri Prashant Vyas, Sri Santosh Kumar
Tiwari

A. Criminal Law-Criminal Procedure Code,
1973-Section 378 - Indian Penal Code,
1860-Sections 302, 307 & 34-Challenge to
86 INDIAN LAW REPORTS ALLAHABAD SERIES
-acquittal-land
dispute
between
the
accused and the father of deceased-broad
day light incident-FIR was prompt-names
of three eye-witnesses were mentioned in
the FIR but they are not produced before
the trial court-explanation for their non
production is not satisfactory-no recovery
was made from the sole surviving accused
and his shot had not caused any injury to
anyone-As per postmortem report shows
that only single firearm injury, injuries
caused by the Rifle is false- two accused
who took Rifle and gun are dead-Cloth in
which the recovered gun was packed was
torn-PW-12 admitted the fact that he has
changed the cloth and resealed the
recovered gun-prosecution case is full of
contradictions and lapses on the part of
prosecution-therefore recovery of gun and
cartridges from the surviving accused is
doubtful-Hence, no interference requires.
(Para 1 to 33)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Bannareddy & ors. Vs St. of Karn. & ors.
(2018) 5 SCC 790

2. Jayamma Vs St. of Karn. (2021) 6 SCC 213

3. Virendra Singh Vs St. of U.P. & ors. (2022) 3
ADJ 354 DB

4. Rajesh Prasad Vs St. of Bih. & anr. (2022) 3
SCC 471

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri Kailash Prakash Pathak,
learned AGA appearing for the appellant State
of U.P. as well as Sri Santosh Kumar Tiwari,
learned counsel appearing for the sole surviving
accused/respondent no.4-Man Singh.

2. In the present case out of four
accused respondents persons, namely, (i)
Pooran Singh, (ii) Kashmir Singh, (iii)
Jaswant Singh and (iv) Man Singh, three
accused persons being (i) Pooran Singh, (ii)
Kashmir Singh and (iii) Jaswant Singh died
and appeal in so far as the said accused
persons has already been abated. Now, the
only
accused
Man
Singh
is
alive.
Therefore, we proceed to hear the matter on
merits in respect of accused Man Singh
alone.

3. Present government appeal has
been preferred against the judgement and
order dated 07.09.1983, passed by the Vith
Additional District and Sessions Judge,
Bareilly in Session Trial No. 610 of 1982
(State vs. Pooran Singh and Others), arising
out of Case Crime No.197/1982, under
Section 302/34 and 307/34 IPC, Police
Station Baheri, District Bareilly, whereby
the accused persons have been acquitted by
the learned Trial Court.

STORY AS PER FIR

4. Prosecution story, in brief, is that
Dayal Singh- complainant, who is the
resident of village Pandra, Police StationBaheri, Bareilly has given a written report
before the Station House Officer, Police
Station Baheri, District Bareilly, stating
therein, that he had some land dispute with
the deceased- Pooran Singh and Others. A
week prior to the incident, a panchayat was
convened and that panchayat decided the
dispute regarding the land but the accused
Pooran Singh has not accepted the award of
the panchayat. Pooran Singh thereafter, had
threatened the complainant to regain the
land in dispute by whatever means. On this
very ground, Pooran Singh nursing grudge
against Dayal Singh. For this very reason
on 22.06.1982 at 8.00 am. accused Pooran
Singh armed with Rifle, Kashmir Singh
armed with D.B.B.L. gun, accused Jaswant
1 All. The State of U.P. Vs. Pooran Singh & Ors.
87
Singh and Man Singh both armed with their
S.B.B.L. guns came towards the house of
P.W.2-Dayal Singh and have hurling
abuses. On seeing the accused coming
towards them, Dayal Singh with his son
Randhir Singh (deceased) and his brotherin-law, Balbindra Singh (injured) ran
towards the house of Jugendra Singh, who
is Sadhu of P.W.2, raising alarm. Randhir
Singh and Balbindra Singh climbed up on
the roof top and Dayal Singh remained on
the ground floor. On hearing the alarm of
the aforesaid person, Jugendra Singh, Dalip
Singh and Nishan Singh arrived at the
scene of occurrence. The accused Pooran
Singh, with intention to kill Randhir Singh
(deceased), son of the complainant, fired
shot from his rifle at Randhir Singh, which
hit on his left leg causing wound. Kashmir
Singh, accused also fired from his D.B.B.L.
gun causing gun shot injuries to Balbindra
Singh. The accused- Jaswant Singh and
Man Singh have also fired from their
respective guns. On being challenged by
the witnesses, the accused escaped towards
the
Eastern
side.
Thereafter
the
complainant Dayal Singh went to the roof
where his son Randhir Singh was lying
injured
with
gun
shot
wound.
The
complainant wrapped his leg from cloth
and get him down. Dayal Singh thereafter
went to the police station with written
report Exhibit Ka.1 which was written by
Jasbir Singh on the dictation of Dayal
Singh. The complainant left Balbindra Sigh
at the house. He had submitted the written
report Exhibit Ka.1 to the police station and
on the basis of that written report, a chik
report Exhibit Ka.10 was prepared. On the
basis of that report, a case under section
307 IPC was registered against the accused
persons. The complainant took the injured
Randhir Singh in a trolley to Budia Farm.
Injured Balbindra Singh did not accompany
the complainant -Dayal Singh from the
village. At Budia Farm the injured Randhir
Singh (deceased) was put in a car
belonging to Lala Bisambhar Nath and was
thus carried to Police Station Baheri. The
report was lodged to the police station at
1.10 am. The distance of police station
from the place of occurrence is 9 miles.
Randhir Singh was initially examined by
the doctor at Baheri and thereafter the
doctor has advised that his injuries are
serious so he should be shifted to the
District Hospital, Bareilly. On the advise of
the doctor, Baheri, Randhir Singh was
brought to the District Hospital, Bareilly
for his treatment, where he died on the
same day. The post mortem of his body was
conducted on 22.06.1982 at 4.30 pm. by
Dr. Balbir Singh of the District Hospital,
Bareilly. Later on, the case under Section
307 IPC was converted into 302 IPC vide
G.D. entry Exhibit Ka.10.

5. The investigation of this case was
initially entrusted to PW.7-Indrajit Singh,
Sub Inspector, who has proved the Chik
Exhibit Ka.10. He further stated that as
soon as the case was registered at Police
Station he started the investigation of the
case and tried to record the statement of
deceased Randhir Singh at the police
station, who was lying in the car, but
Randhir Singh did not give his statement
because he was in grim and somber mental
condition. Immediately, he was sent to
Baheri
Hospital
for
his
medical
examination. Thereafter PW-4 recorded the
statement of Dayal Singh, who is the father
of Randhir Singh and Nishan Singh and
went to the spot where he recorded the
statement of Balbindra Singh, Jugendra
Singh and Dalip Singh. He inspected the
place of occurrence and prepared the site
plan. He has collected bloodstained soil
along with piece of broken bones and plain
soil and kept them into separate containers.
88 INDIAN LAW REPORTS ALLAHABAD SERIES
These are Exhibit 3 and Exhibit 4. A Fard
to this effect Exhibit Ka.13 was prepared.
He has collected two empty cartridges from
the Rasta and both of them were kept under
seal and a Fard Exhibit Ka.13 was prepared
by him. These cartridges were sent for
ballistic examination. Thereafter he has
recorded the statement of other witnesses.
He has also searched the accused for
recovery of arms but no arms were
recovered from them. Fard Talasi in respect
of the house of the accused Kashmir Singh,
Jasbir Singh, Pooran Singh was prepared
by the PW-7. These Fards are Exhibit
Ka.15, Ka.16 and Ka.17. On 23.06.1982,
PW-7 received the injuries report of
Balbindra
Singh
and
Randhir
Singh
(deceased). He has further received an
inquest report of the dead body of Randhir
Singh and post mortem report and copy of
the G.D. Thereafter, the case was altered to
under Section 302 IPC. PW.7 Sub Inspector
Indrajeet Singh investigated the case upto
23.06.1982 thereafter the investigation of
this case was handed over to Station House
Officer
Sri
Pal
Singh,
PW.8.
from
26.06.1982.

6. During the course of investigation
accused Kashmir Singh was arrested by the
Station
House
Officer-V.R.Goyal
and
PW.13-Constable Jia Lal. A D.B.B.L gun
and five live cartridges were recovered
from his possession and sealed on the spot.
Accused Kashmir Singh was brought to the
police station Kitcha, Nainital where G.D.
Entry No.13 was made by Constable Hari
Nandan,
PW.12.
On
21.04.1983
the
recovered gun and cartridges were brought
from police station Kitcha to police station
Baheri, District Bareilly by Constable Prem
Pal Sharma, PW.14 where entry was made
in the G.D. by Constable Ashiq Hussain,
PW.11. Constable Sharafat Ali-PW.10 took
the D.B.B.L. gun and cartridges to the
Ballistic expert Lucknow on 03.04.1983
and submitted the same on 06.04.1983.

7. After completing the investigation
of the case, Investigating Officer, Sri Pal
Singh, PW.8 submitted a charge sheet
against the accused Pooran Singh, Kashmir
Singh Jasbir Singh and Man Singh on
26.06.1982. After inquiry, they were
committed to the court of trial.

8. At the trial accused persons pleaded
not guilty and attributed their false
implication on account of enmity.

9. In support of prosecution case,
PW1-Balkar Singh, PW2-Dayal Singh (first
informant),
PW3-Balvindra
Singh
(injured),
PW4-Ram
Chandar
(Sub
Inspector), PW5-Dr. Balbir Singh, PW-6Dr. Janki Prasad Gangwar, PW-7-Indrajeet
Singh (Investigating Officer.), PW8-Shree
Pal Singh (Station House Officer) PW-9Harpal Singh (Constable), PW-10 Sharafat
Ali (Constable), PW-11-Ashiq Hussain
(Head Moharrir), PW-12 Hari Nandan
Murari
(Constable),
PW-13
Jiya Lal
(Constable), PW-14 Prem Pal (Constable)
were produced and examined before the
Court below.

10. PW-1-Balkar Singh has stated that
Randhir Singh was killed in our village
about 9 months back. He stated that a
panchayat was held in his village wherein
many people were present. He was also
present there. That panchayat was held to
settle the land dispute between Pooran
Singh and Dayal Singh. Pooran Singh is the
accused in the present case and Dayal
Singh is the father of the deceased Randhir
Singh. He further stated that Pooran Singh
wanted to take the land in the village abadi
and the panchayat decided in his favour.
Some land of Pooran Singh was outside the
1 All. The State of U.P. Vs. Pooran Singh & Ors.
89
village in lieu of the said land, he got the
land in abadi near his land. At that point of
time, both the parties had agreed with the
decision of the panchayat, later they fought
because the decision of the panchayat was
not accepted by Pooran Singh. In his crossexamination he stated that he was not a
panch in this panchayat. This panchayat is
common, therefore, he was also present
there. At other place he stated that the
people who were coming there told him
that a panchayat was held in the village,
therefore, he also went there. There were
total 15-16 people in that panchayat. He did
not see the land of Pooran Singh, in lieu of
which, he got the land in abadi by the
panchayat, he also did not know as to how
much land was given to him. He was not
given any land by the accused persons.
Alongwith him Gurbaksh Singh also got
the land automatically. An agreement to sell
was also done. Pooran Singh s/o Ishwar
Singh was one of the witness in that
agreement to sell. The said Pooran Singh
s/o Ishwar Singh was the brother-in-law of
the accused Pooran Singh. It is wrong to
say that in order to get this land, he had to
negotiate with the accused persons as
Hakim Singh got more land and he got less.
It is also wrong to say that he was not
present in this Panchayat and because of
this he was given false testimony. He had
purchased a Tractor and accused- Pooran
Singh was the guarantor. One of the
installment was due on him, which he has
to pay and it is wrong to say that Pooran
Singh was asking him for this installment,
therefore, he give false testimony.

11. PW-2-Dayal Singh (father of the
deceased)-informant has stated on oath that
he know the accused Pooran Singh,
Kashmir Singh, Jaswant Singh and Man
Singh. We had a land dispute with Pooran
Singh. Some of his land was in the village
and some of the land was outside the
village. A week before the death of Randhir
Singh, a panchayat was held to settle their
land dispute. Two Biswa of land, which we
had more in the village, the Panchayat
decided to give it to Pooran Singh by
reducing his land which was outside the
village. Pooran Singh was given about two
and a half biswas less land in the village
and he was given more than two and a half
biswas of land outside the village. He then
stated that Pooran Singh was given two
biswa land more in the villages and he was
given two biswa less land outside the
village. Pooran Singh did not accept the
decision of Panchayat. He further stated
that Kashmir Singh and Jaswant Singh are
brothers of accused Pooran Singh and Man
Singh is the son of Pooran Singh. They all
are present in the court. After the decision
of the panchayat, Pooran Singh started
saying and we will take more land. He
further stated that on 22.06.1982 at 8.00 am
all four accused persons, namely, Jaswant
Singh, Kashmir Singh, Man Singh and
Pooran Singh armed with weapons came
towards his house hurling abuses. Pooran
Singh armed with Rifle, accused Kashmir
Singh armed with D.B.B.L. gun, accused
Jaswant Singh and Man Singh both armed
with their S.B.B.L. guns. On seeing the
accused coming towards them, he, after
raising alarm, ran towards the house of
Jugendra Singh. At that point of time
alongwith
him
Randhir
Singh
and
Balbindra Singh were also there. Randhir
Singh (deceased) is his son. Balbindra
Singh is his brother-in-law. On hearing the
alarm of the aforesaid person, Jugendra
Singh, Dalip Singh and Nishan Singh
arrived at the scene of occurrence. Randhir
Singh and Balbindra Singh climbed up on
the roof of Jagendra Singh. Dayal Singh,
outside the house of Jagendra Singh, where
there is a place to make bread, he stood
90 INDIAN LAW REPORTS ALLAHABAD SERIES
leaning against the wall. Accused Pooran
Singh fired from his rifle at Randhir Singh
(deceased). Kashmir Singh, accused also
fired from his D.B.B.L. gun at Balbindra
Singh. The accused- Jaswant Singh and
Man Singh have also fired from their
respective guns. Accused Pooran Singh
fired many times. On being challenged by
Jugendra Singh, Nishan Singh and Dalip
Singh, the accused escaped. Thereafter
complainant- Dayal Singh went on the roof
his son Randhir Singh lying injured with
gun shot injury. The complainant wrapped
his leg wound with cloth and get him down.
He thereafter went to the police station with
written report Exhibit Ka-1 which was
written by Jasbir Singh on the dictation of
Dayal Singh. The complainant had left
Balbindra Singh at home. Thereafter
complainant took the injured Randhir Singh
in a car and went to Police Station Baheri.
The complainant submitted the written
report to the police station on the basis of
that written report a chik report Exhibit Ka10
was
prepared.
Thereafter,
Police
Inspector advised him to take Randhir
Singh to Baheri Hospital in a car and sent a
Constable alongwith him, after reaching the
hospital the doctor put a vaccine and
advised him that his injuries are serious so
he should be shifted to District Hospital,
Bareilly. On the advised of the doctor,
Randhir was brought to the District
Hospital Bareilly for his treatment, where
he died on the same day. PW.2 in his cross
examination has stated that the dispute was
only that the two biswa land, situated
outside the village, which was less, Pooran
Singh wanted to take it in abadi.

12. PW-3-Balbindra Singh has stated
on oath that about 9 months ago at 8.00 am
in the morning he was standing outside his
house. Dayal Singh and Randhir Singh
(deceased) were also there. They saw that
all four accused persons, namely, Jaswant
Singh, Kashmir Singh, Man Singh and
Pooran Singh armed with weapons came
towards his house hurling abuses and
saying that don't leave them, kill them.
Pooran Singh armed with Rifle, accused
Kashmir Singh armed with D.B.B.L. gun,
accused Jaswant Singh and Man Singh both
armed with their S.B.B.L. guns. On seeing
them, they after raising alarm ran towards
the house of Jugendra Singh. On hearing
the alarm Jugendra Singh and Nishan Singh
arrived at the scene of occurrence. He and
Randhir Singh climbed up on the roof of
Jugendra Singh. Dayal Singh remained
down. Accused Pooran Singh fired from his
rifle at Randhir Singh (deceased), which hit
his leg. After receiving gun shot injury,
Randhir Singh fell down. Thereafter,
Kashmir Singh, accused also fired from his
D.B.B.L. gun at him, he also fell on the
ground. The accused- Jaswant Singh and
Man Singh have also fired from their
respective guns. Accused Pooran Singh
fired many times. Thereafter Jugendra
Singh, Nishan Singh, Dayal Singh and
Dalip Singh went on the roof where his son
Randhir Singh lying injured with gun shot
injury. They wrapped his leg wound with
cloth and get him down. Thereafter a report
was written by Jasbir Singh and then they
took Randhir Singh in a tractor trolly.
Randhir Singh thereafter died. His injuries
also got medically examined. He further
stated that on the same day, police inspector
came in his village. Before the police
inspector he stated that his injuries were
minor in nature that's why he was not ready
to go with Randhir Singh. Randhir Singh
received serious injuries.

13.

PW-4-Sub
Inspector
Ram
Chandar, who is the formal witness has
stated on oath that on 22.06.1982 he was
posted as Sub Inspector in Police Station -
1 All. The State of U.P. Vs. Pooran Singh & Ors.
91
Baheri. A memo Exhibit-A came from the
Hospital at around 11.30 am., in which it is
informed that Randhir Singh s/o Dayal
Singh died in the hospital. He reached the
hospital at about 14.30 hours and inspected
the dead body of Randhir. The dead body
was sealed and the possession of necessary
documents were handed over to constables
Harpal
Singh
and
Shankar
Prasad.
Panchayatnama was prepared.

14. PW-5-Dr. Balbir Singh, District
Hospital, Bareilly, who has conducted the
post mortem of the dead body, has stated that
he was posted as Medical Officer in the
District Hospital, Bareilly on 23.06.1982. He
has conducted post-mortem of the dead body
of the deceased Randhir Singh at 4.30 pm.
On 23.06.1982 the dead body was presented
before him by Constable Har Pal and
Constable Shankar Prashad. At that time the
dead body was under seal. The age of the
deceased was about 16 years and died about a
day before. On 22.06.1982 the deceased was
brought in the District Hospital, Bareilly at
about 1.20 pm. He further stated that rigour
mortis was present in the upper and lower
part of the body. As per his examination,
following ante mortem injuries were present
on the body of the deceased:-

(i). Gun shot wound of entry 7cm x
6cm through & through with inverted and
lacerated margin on the back of the left leg,
2cm below the left knee joint, in the middle.
No blackening and tattooing present. Both
bones fractured in multiple pieces. Large
Vessel lacerated.

(ii). Gun shot wound of exit 12cm
x 11cm through & through, connecting injury
no.1 on the front of the left leg in middle 1
cm. Below the knee joint margin averted.

15. PW-6 Dr. Janki Pradad Gangwar,
who was also posted as Superintendent of
Combined Hospital, Baheri on 22.06.1982.
He has examined the deceased Randhir
Singh at 10:43 pm. In the night. The
deceased was brought before him by
Constable Suraj Pal Singh. The following
injuries were found on the body of Randhir
Singh:-

(a). Gun shot wound of entrance
9cm x 6.5 cm through & through to the past
side on left leg, 2 cm below left knee joint
margins are lacerated, and inverted. No
tattooing, no scratching, no injury under
lying tissues.

(b). Gun shot wound of exit 15
cm x 13.5 cm. connecting to the would of
entrance (through and through) 2 cm below
the left knee joint on the out side of left leg,
margins were averted and lacerated, no
tattooing no scartching, no injury (under)
soft lying soft tissue and bones are broken
and lacerated.

(c). Lacerated wound 1.5 cm x
.25 cm x skin deep 2 cm below the injury
no.1. Injury no.1 is a grievous caused by
gun shot from a fire arm. As a result, of exit
of shots no.2 is caused by blunt object and
is simple. Duration of all injures is fresh.

16.
PW.7-Indrajeet
Singh,
Sub
Inspector, has stated that the present case
was registered in his presence at the police
station Baheri. He has further stated that as
soon as the case was registered at Police
Station he started the investigation of the
case and tried to record the statement of
deceased Randhir Singh at the police
station, who was lying in the car, but
Randhir Singh did not give his statement
because his condition was not good.
Immediately, he was sent to Baheri
Hospital for his medical examination.
Thereafter PW-7 recorded the statement of
Dayal Singh, who is the father of Randhir
Singh, and Nishan Singh and went to the
92 INDIAN LAW REPORTS ALLAHABAD SERIES
spot where he recorded the statements of
Balbindra Singh, Jugendra Singh and Dalip
Singh. He inspected the place of occurrence
and prepared the site plan. He has collected
bloodstained soil along with piece of
broken bones and plain soil and kept them
into separate containers. These are Exhibit
3 and Exhibit 4. A Fard to this effect
Exhibit Ka.13 was prepared. He has
collected two empty cartridges from the
Rasta and both of them were kept under
seal and a Fard Exhibit Ka.13 was prepared
by him. These cartridges were sent for
ballistic examination. Thereafter, he has
recorded the statements of other witnesses.
He has also searched the accused for
recovery of arms but no arms were
recovered from them. Fard Talasi in respect
of the house of the accused Kashmir Singh,
Jasbir Singh, Pooran Singh was prepared
by the PW-7. These Fards are Exhibit
Ka.15, Ka.16 and Ka.17. On 23.06.1982,
PW-7 received the injuries report of
Balbindra
Singh
and
Randhir
Singh
(deceased). He has further received an
inquest report of the dead body of Randhir
Singh and post mortem report and copy of
the G.D. in which case was amended. This
amended report was prepared by Charan
Singh. It is Exhibit Ka.18. Thereafter, the
investigation of this case was taken by Sri
S.R.
Shukla,
Station
House
Officer,
Incharge of the Police Station Baheri. On
26.06.1982 the accused Jaswant Singh,
Pooran
Singh
and
Man
Singh
has
surrendered themselves in the court of
Judicial Magistrate, Baheri.

17. PW-8-Shripal Singh, Station House
Officer, has stated that he was posted as
Inspector Incharge at the police station Baheri
on 07.07.1982. The investigation of this case
was taken by him on 07.07.1982 from S.I. Sri
S.R. Shukla. He has recorded the additional
statements of Dayal Singh, Guru Charan
Singh Barja Singh, Ishwar Singh and Balkar
Singh. He has submitted the chargesheet
Exhibit Ka.19 against the accused persons
after completing the investigation.

18. PW.9-Constable Har Pal Singh has
stated on oath that he received the dead body
of Randhir Singh under seal alongwith
necessary documents.

19. PW-10-Constable Sharafat Ali, has
stated that he took one sealed bundle in
which gun and cartridges were kept and he
has submitted them to the Malkhana Police
Station, Baheri.

20. PW-11- Head Mohrir, Ashiq
Hussain has stated that one gun was received
at the police station from Constable Prem Pal.
This gun alongwith the bundle of cartridges
were sent for chemical examination at
Lucknow.

21. PW.12-Constable Hari Nandan
Murari has stated that he was posted as Head
Moharrir at the police station Kitcha on
23.06.1982 at about 2.55 pm Station House
Officer, Sri V.R. Goyal, Sub Inspector
Jagdish Pal and Constable no.345 Ragunath
Singh and others brought the accused
Kashmir Singh to the police station alongwith
one gun and 5 live cartridges. Gun and
cartridges were deposited in the Malkhana of
police station-Baheri. They were kept under
seal. These are Exhibit 9 to 14, entry to this
effect was made in the G.D. no.23, copy
thereof is Exhibit Ka.26. He has further stated
that he had re-sealed the aforesaid articles and
thereafter handed over to the Constable
Prempal. The entry to this effect was made in
the G.D. No.24,copy thereof is Exhibit Ka.27

22. P.W.13- Jiya Lal has stated that he
was posted as Constable at police station
Kitcha in the month of June, 1982. He has
1 All. The State of U.P. Vs. Pooran Singh & Ors.
93
stated that he alongwith Station House
Officer, Sri V.R. Goyal and other police
personnel were busy in patrolling and they
were informed by the reliable informer that
accused Kashmir Singh is coming from the
side of Kitcha and is going towards the
police station-Baheri. On getting this
information, police party had taken position
and arrested him and made a search. One
D.B.B.L. gun, Exhibit Ka.9 and 5 live
cartridges, Exhibit Ka.10, were recovered
from the possession of accused Kashmir
Singh. They were sealed on the spot and a
fard in respect of these recoveries were
prepared Sri V.R. Goyal. The recovered
articles and accused Kashmir Singh were
brought to the police station Kitcha.

23. PW.14 Prem Pal Sharma has filed
his affidavit which is on record.

24. In support of defence case, DW1Ishwar Singh and DW2-Jagga Singh were
produced and examined.

25. DW-1-Ishwar Singh has stated that
a panchayat had taken place in the village
Pandra, two months ago from the date of the
murder of the deceased Randhir Singh. This
panchayat was held in connection with the
land of Jangali village. He was the panch in
that panchayat. Gurucharan Singh, Amar
Singh and Baja Singh were also present in
that panchayat. In that panchayat, Pooran
Singh was one party and Dayal Singh was
another party. There was no fighting on the
point of any land situated in the village. The
panchayat decided accordingly. The terms
and conditions of panchayat were reduced
into writing. He also made his thumb
impression over the paper. He has proved
Exhibit Kha.1

26. DW-2-Jagga Singh has stated that
about one year ago the guest of Jugendra
Singh gathered on the roof of the house of
Jugendra Singh and they took their meal
and thereafter they made some fire from
their guns. This witness had stated that his
buffalo was hit by one fire and Balbindra
Singh and Randhir Singh were also injured
from those fires. According to this witness
the fire injuries were caused by those
persons who gather at the house of
Jugendra Singh.

27. The judgement of acquittal has
been passed on the ground that there was
no motive for the accused persons, namely,
Pooran Singh, Kashmir Singh, Jaswant
Singh and Man Singh to commit the
murder of Randhir Singh. The testimony of
PW-2-Dayal Singh and PW-3-Balvindra
Singh
does
not
inspire
confidence
inasmuch as their presence on the spot
appeared doubtful and their testimony was
in conflict with the medical evidence. The
scribe of the first information report,
namely, Jasvir Singh and other eye
witnesses of the incident, namely Jugendra
Singh, Dalip Singh and Nishan Singh were
not examined at the trial. The D.B.B.L. gun
recovered from the possession of accused
Kashmir Singh on 23.06.1982 was sent
from police station-Kitcha Nainital to
police station-Baheri, District Bareilly as
late as on 24.01.1983 and from the police
station Baheri to the Ballistic Expert as late
as on 03.04.1983.

28.

Challenging
the
impugned
judgment, Sri Kailash Prakash Pathak,
learned AGA submits that there was cogent
evidence to convict the accused persons
herein. He submits that it is broad day light
incident and in this incident one young boy
lost his life and one young boy recevied
gun shot injuries. The first information
report was prompt. He further stated that
presence of the witnesses are not doubtful,
94 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-2-Dayal Singh and PW-3-Balvindra
Singh
consistent
by
supported
the
prosecution case and their testimony finds
material corporation from the prompt first
information
report
and
the
medical
evidence. He further submits that the court
below has erred in holding that there was
no motive for the accused persons to
commit the murder of Randhir Singh as the
motive is clear that there was a land dispute
between the accused and the father of
deaceased. He further submits that PW-3Balvindra Singh received injuries during
course of the incident and his presence
could not be doubted. The learned Sessions
judge also erred in holding that the
evidence of eye witnesses Dayal Singh and
Balvindra Singh was in conflict with the
medical evidence and the incident took
place in some other manner. Learned AGA
further stated that learned Sessions Judge
erred in not relying on the evidence of the
recovery of D.B.B.L. gun from the
possession of Kashmir Singh, accused, the
gun having been used in the commission of
the incident, there was no contradiction
regarding weapons in hand of the accused,
place of occurrence and manner of assault,
and there is no motive for false implication
therefore, the judgment of acquittal passed
by the Trial Court is perverse in nature and
is liable to be reversed.

29. Sri Santosh Kumar Tiwari,
learned counsel appearing for the sole
surviving accused respondent-Man Singh
submits that there was no recovery of any
weapon from Man Singh and there was no
allegation that his fire caused any injury or
damage to the anyone, hence involvement
of Man Singh was not proved beyond
reasonable doubt. He further submits that
there was no motive for the accused
persons, namely, Pooran Singh, Kashmir
Singh, Jaswant Singh and Man Singh to
commit the murder of Randhir Singh. He
further submitted that the statement under
Section 161 Cr.P.C. of PW-1 Balkar Singh
was recorded after a long gap, therefore, his
testimony was not reliable. He further
submits that the testimony of PW-2-Dayal
Singh and PW-3-Balvindra Singh does not
inspire confidence inasmuch as their
presence on the spot appeared doubtful and
their testimony was in conflict with the
medical evidence. He further submits that
the scribe of the first information report,
namely, Jasvir Singh and other eye
witnesses of the incident, namely Jugendra
Singh, Dalip Singh and Nishan Singh were
not examined at the trial. He further
submitted that the oral and medical
evidence
are
contradictory.
He
next
submitted that D.B.B.L. gun recovered
from the possession of accused Kashmir
Singh on 23.06.1982 was sent from police
station- Kitcha Nainital to police stationBaheri, District Bareilly as late as on
24.01.1983 and from the police station
Baheri to the Ballistic Expert as late as on
03.04.1983, therefore, recovery of gun and
cartridges from Kashmir Singh is doubtful.

30.

We
have
considered
the
submissions of the learned counsel for the
parties and have perused the record.

31. Before proceeding further, it
would be appropriate to take note of law on
the appeal against acquittal.

32. In the case of Bannareddy and
others vs. State of Karnataka and others,
(2018) 5 SCC 790, in paragraph 10, the
Hon'ble Apex Court has considered the
power and jurisdiction of the High Court
while interfering in an appeal against
acquittal and in paragraph 26 it has been
held that "the High Court should not have
reappreciated the evidence in its entirety,
1 All. The State of U.P. Vs. Pooran Singh & Ors.
95
especially when there existed no grave
infirmity in the findings of the trial Court.
There exists no justification behind setting
aside the order of acquittal passed by the
trial Court, especially when the prosecution
case suffers from several contradictions
and infirmities"

33. In Jayamma vs. State of
Karnataka, 2021 (6) SCC 213, the Hon'ble
Supreme Court has been pleased to explain
the limitations of exercise of power of
scrutiny by the High Court in an appeal
against an order of acquittal passed by a
Trial Court.

34. In a recent judgement of this
Court in Virendra Singh vs. State of UP
and others, 2022 (3) ADJ 354 DB, the law
on the issue involved has been considered.

35. Similar view has been reiterated
by Hon'ble Apex Court in Rajesh Prasad
vs. State of Bihar and another, (2022) 3
SCC 471.

36. We have considered the rival
arguments and the evidence in detail.

37. From perusal of record, we find
that the names of three eye-witnesses were
mentioned in the first information report
but they are not produced before the trial
court though they are closely related and
explanation for their non production is not
satisfactory. There was only one entry and
exit wound and recovery of weapon was
from
Kasmira
Singh,
although
was
disbelieved by the trial court, and the
empty cartridge as per balletic report was
fired from the gun recovered from Kasmira
Singh only hence, the involvement of the
sole surviving accused Man Singh is not
proved beyond shadow of doubt. As
already noticed that there was no recovery
of firearm from Man Singh. There was no
allegation that his fire caused any injury to
anyone or even caused damage to any
property. We find that PW-1-Balkar Singh
has narrated the motive behind the crime
and had stated that in the panchayat where
the land dispute between Pooran Singh and
Dayal Singh was settled he was also
present although he was not called for such
panchayat. PW-2-Dayal Singh, father of the
deceased, who is the informant has narrated
the motive and manner of crime. He had
taken Randhir Singh to the hospital in a car
and Balbindra Singh was present in the
house. PW-3-Balbindra Singh has also
narrated the manner of incident. Both the
witnesses have stated that Man Singh was
carrying SBBL Gun and had also fired,
from his gun, however, as already recorded,
no recovery was made from the sole
surviving accused Man Singh and his shot
had not caused any injury to anyone. PW-4
is the formal witness. PW.5 Dr. Balbir
Singh had conducted the post mortem and
had certified that there was only one gun
shot entry wound of 7cm x 6cm and one
gun shot exit wound of 12cm x 11 cm.
P.W.6, Dr. Janki Prasad Gangwar had also
certified that there was one gun shot entry
wound and one gun shot exit wound and
one lacerated wound 1.5 cm x .25 cm x
skin deep 2 cm. This clearly reflect that
there was only one gun shot entry wound
and one gun shot exit wound meaning
thereby there was only single firearm injury
caused to the deceased whereas as per the
prosecution case, accused Pooran Singh
armed with Rifle, accused Kashmir Singh
armed with D.B.B.L. gun, accused Jaswant
Singh and Man Singh both armed with their
S.B.B.L. guns. The post mortem report
clearly reflect that the injuries was caused
by a .12 bore gun and not by the Rifle.
Therefore, the prosecution story that the
injuries caused by the Rifle is false has
96 INDIAN LAW REPORTS ALLAHABAD SERIES
rightly been held by the trial court. It is also
noticeable that as per prosecution case
DBBL gun was recovered from the
possession of accused Kashmir Singh on
23.06.1982.
The
recovered
gun
and
cartridges were brought from police station
Kitcha to police station Baheri, District
Bareilly by Constable Prem Pal Sharma as
late on 24.01.1983 and there was no
explanation for such lapse. Thereafter the
same was sent from the police Station
Baheri to ballistic expert, Lucknow as late
on 03.04.1983. This is a clear lacuna on the
part of the Investigating Agency though by
itself may not be a ground of acquittal,
however, coupled with the fact that PW-12
in his examination in chief has admitted that
the cloth in which the recovered gun was
packed was torn therefore, he has changed
the same and resealed the aforesaid articles
and thereafter handed over to the Constable
Prem Pal. This creates doubt in the
prosecution story connecting the weapon
recovered with the crime. Therefore, the
prosecution case is full of contradictions and
lapses on part of the prosecution. There has
also been lapse on the part of investigating
agency in preparation of site plan as well as
explanation offered for non production of
the eye witnesses mentioned in the first
information report. The explanation that eye
witness Nishan Singh had left the place
immediately after the incident and had gone
to Punjab and his whereabouts are not
known is not convincing at all. PW-2-Dayal
Singh and Nishan Singh are closely related
and are first degree relation, therefore, the
explanation for their non production is not
satisfactory.