# The State of U.P v. Ram Prakash & Ors

- **Citation:** (2023) 10 ILRA 1020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-21
- **Case number:** J. Government Appeal No. 2903 of 1986
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-v-ram-prakash-ors-49253
- **Pages:** 11

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 378 - Indian Penal Code,
1860-Sections
302/34-Challenge
toacquittal-deceased was shot dead by fire
arms-an
application
regarding
irregularities of distribution of dalia and
milk was signed by the villagers including
PW-1 against the PW-2 and his father-The
incident took place after four years-the
representation was made collectively on a
minor issue of irregularity but the Trial
court disbelieved the evidence of PW-1
and PW-2-The statement of PW-5 is
totally consistent with the evidence of
PW-1 and PW-2 and the medical evidenceThe scope of appeal against the acquittal
under section 378 CrPC is not limited to
scrutinize but High court has to appreciate
the
evidence
in
an
appeal
against
acquittal in the same manner as it would
do in an appeal against conviction-Hence,
the findings recorded by the learned Trial
court while acquitting the accused are
perverse
and
even
contrary
to
the
evidence on record-The accused are held
to be guilty of the offence committed
under section 302/34 IPC.(Para 1 to 28)

The appeal is disposed of. (E-6)
.
List of Cases Cited:

## Text

1020 INDIAN LAW REPORTS ALLAHABAD SERIES
First Appeal From Order No.23 of 2001 (Smt.
Sudesna and others Vs. Hari Singh and another)
while disbursing the amount. The said decision
has also been reiterated by High Court Gujarat
in R/Special Civil Application No.4800 of 2021
(The Oriental Insurance Co. Ltd. v. Chief
Commissioner of Income Tax (TDS) decided
on 5.4.2022.

25. Fresh Award be drawn accordingly in
the above petition by the tribunal as per the
modification made herein. The Tribunals in the
State shall follow the direction of this Court as
herein aforementioned as far as disbursement is
concerned, it should look into the condition of
the litigant and the pendency of the matter and
judgment of A.V. Padma (supra). The same is
to be applied looking to the facts of each case.

26. The Tribunal shall follow the
guidelines issued by the Apex Court in Bajaj
Allianz General Insurance Company Private
Ltd. v. Union of India and others vide order
dated 27.1.2022, as the purpose of keeping
compensation is to safeguard the interest of the
claimants. As long period has elapsed, the
amount be deposited in the Saving Account of
claimants in Nationalized Bank without F.D.R.

----------
(2023) 10 ILRA 1020
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA,
J.

Government Appeal No. 2903 of 1986

The State of U.P. ...Appellant
Versus
Ram Prakash & Ors. ...Respondents

Counsel for the Appellant:
A.G.A., Sri S.K. Yadav
Counsel for the Respondents:
Sri Digvijay Singh

A. Criminal Law-Criminal Procedure Code,
1973-Section 378 - Indian Penal Code,
1860-Sections
302/34-Challenge
toacquittal-deceased was shot dead by fire
arms-an
application
regarding
irregularities of distribution of dalia and
milk was signed by the villagers including
PW-1 against the PW-2 and his father-The
incident took place after four years-the
representation was made collectively on a
minor issue of irregularity but the Trial
court disbelieved the evidence of PW-1
and PW-2-The statement of PW-5 is
totally consistent with the evidence of
PW-1 and PW-2 and the medical evidenceThe scope of appeal against the acquittal
under section 378 CrPC is not limited to
scrutinize but High court has to appreciate
the
evidence
in
an
appeal
against
acquittal in the same manner as it would
do in an appeal against conviction-Hence,
the findings recorded by the learned Trial
court while acquitting the accused are
perverse
and
even
contrary
to
the
evidence on record-The accused are held
to be guilty of the offence committed
under section 302/34 IPC.(Para 1 to 28)

The appeal is disposed of. (E-6)
.
List of Cases Cited:

1. Manu Sharma Vs St. (NCT of Delhi) (2010) 6
SCC 1

2. Khekh Ram Vs St. of H.P. (2018) 1 SCC 202

3. Achhar Singh Vs St. of H.P. (2021) 5 SCC 543

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
 Hon'ble Ms. Nand Prabha Shukla, J.)

1. Heard Smt. Manju Thakur, learned
AGA for the appellant and Shri Digvijay
10 All. The State of U.P. Vs. Ram Prakash & Ors..
1021
Singh, learned counsel for the accusedopposite parties.

2. The accused-opposite party no.2,
namely, Mohan Swarup has died and the
appeal qua the accused-opposite party no.2,
Mohan Swarup was abated by order dated
30.09.2021. Thus, this Government Appeal
survives only against the accused-opposite
party no.1, Ram Prakash son of Mohan Lal,
accused-opposite party no.3, Jagdish son of
Janak Singh and accused-opposite party
no.4, Shishpal son of Tilak Singh, all
residents of Village- Budhaich, P.S.-
Sahpau, District- Mathura.

Facts:

3. Briefly stated facts of the present
case are that the deceased-Rishal Singh was
shot dead by fire arms in the night of
12/13.04.1985 at about 00:30 hours while
he was sleeping on a cot at the barn in the
Village- Budhaich. A First Information
Report being Case Crime No.58 of 1985
under Section 302/34 I.P.C., P.S.- Sahpau,
District- Mathura was lodged at 1:25 A.M.
on 13.04.1985 by the eye witness P.W.-1
(Nepal Singh) son of Geetam Singh,
Village- Budhaich, P.S.- Sahpau, District-
Mathura, who is the nephew of the
deceased-Rishal Singh. In the aforesaid
promptly lodged F.I.R., the informant P.W.-
1 (Nepal Singh) has imputed the motive
and named the accused persons, who
according to the F.I.R. version, have killed
his uncle Rishal Singh by causing fire arm
injuries. As per F.I.R. version, the accusedRam Prakash son of Mohan Lal armed with
gun, Jagdish son of Janak Singh armed
with Pauna gun, Mohan Swarup son of
Durveen Singh armed with country made
pistol and Shishpal Singh son of Tilak
Singh armed with lathi came and the
aforesaid three accused persons armed with
fire arm weapons fired at the deceasedRishal Singh from a very close distance
resulting in his death. As per F.I.R. version,
the informant eye witness P.W.-1 (Nepal
Singh) and his companion, P.W.-2 (Ram
Vilas) had seen the accused persons in the
light of a torch, which the P.W.-1 was
having with him and a lantern, which was
burning and kept beside the deceasedRishal Singh. A recovery memo was
prepared by the Investigating Officer on the
same day showing recovery of the torch
with four cells and the lamp (lantern).
Another recovery memo was prepared by
the Investigating Officer on the same day
taking samples of earth and the blood found
on the spot in two separate containers,
which were sealed at the spot. Third
recovery memo recovering two empty
cartridges of 12 bore and one empty
cartridge of 315 bore of brass were
recovered from the spot and were sealed.
Fourth recovery memo on the same day
was prepared by the Investigating Officer
for recovery of bedsheet and parts of the
cot etc, which were also sealed. Fifth
recovery
memo
of
the
cot
and
supurdginama was also prepared on the
same day. All these recovery memos bear
the signature of witnesses, who were
present including the P.W.-5 (Dhan Singh)
and informant P.W.-1 (Nepal Singh).
Autopsy on the body of the deceasedRishal Singh was conducted by Dr. Arvind
Kumar, who opined the cause of death to be
coma due to ante mortem injuries.
Following ante mortem injuries were found
by the doctor, who conducted the autopsy
on the body of the deceased:

"1. Firearm wound of entry 3.5
cm x 1 cm x bone deep on the right side
angle of the mouth and broken right upper
jaw. 5 teeth inciser to premolars broken
and missing smoke powder present on the
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
left side mouth and nose in an area of 10 x
6 cm the direction of fire is left side mouth
to right side mouth with inverted and
lacerated margins.

2. Firearm wound of entry 2 cm x
2 cm x bone deep on the right neck and lies
6.5 cm below right ear with blackening
around the wound. The margins are
inverted and lacerated the direction is right
to left and upwards.

3. Firearm wound of exit 7 cm x 4
cm x bone deep on the left side ear and
upper margins and upper part of neck and
brain matter and multiple skull bones
coming out from the wound. Margins
inverted and lacerated. connecting Injury
no.2.

4. Firearm wound of entry 1/2 cm
x 1/2 in x cavity deep on the right side neck
lower part, 8.5 on below right ear with
inverted margins and lacerated direction
downward and backwards.

5. Firearm wound of exit 1.5. cm
x 1 cm x chest cavity deep on the back of
right side upper part of chest connecting
injury no.4 margins inverter and lacerated.

6. Firearm wound of entry 10.5
cm x 4 cm x bone deep on the right axilla
with fracture of right upper part humerus
and axillary vessels lacerated margins
lacerated and inverted. One labda, one
tickli and 18 small size metallic pallets
recovered from the wound. There is
scorching
and
tattooing
around
the
wound."

4. During trial prosecution examined
seven witnesses and the defence examined
five witnesses. Prosecution witnesses i.e.,
P.W.-1 (Nepal Singh), P.W.-2 (Ram Vilas)
and P.W.-5 (Dhan Singh) are witnesses of
fact. The P.W.-3 (Jagat Ram) is the
constable, who registered the chik F.I.R.
and the P.W.-4 (Narendra Singh) is the
constable in whose presence the inquest
report was prepared. P.W.-6 (Suresh Pal
Singh) is the Investigating Officer and
P.W.-7 (Dr. Arvind Kumar) is the Medical
Officer, who conducted the autopsy on the
body of the deceased. All the aforesaid
witnesses and particularly the P.W.-1 and
P.W.-2 were extensively cross-examined by
the defence.

5. The defence produced five
witnesses,
namely,
D.W.-1
(Krishna
Chandra), who produced the special report
of the incident and proved it, D.W.-2
(constable Mauzi Ram), who produced the
general diary relating to the deceasedRishal Singh, who was the head constable
posted at Aligarh, D.W.-3 (Vidhya Vinod
Sharma,
LDC),
who
produced
the
application
of
Janak
Singh
dated
07.07.1981 given by Janak Singh to
Superintendent of Police, Mathura, which
was marked as Exhibit Kha-1, D.W.-4
(Shivdeen Sharma), who produced the
photocopy of the application of villagers,
which was marked as Exhibit Kha-11 and
the D.W.-5 (Dalveer Singh of Police
Station- Sahpau), who produced Register
No.4 of the year 1973 regarding a complain
dated 25.03.1973 under Section 392 I.P.C.
in which final report was submitted.
Charges were framed and after considering
the evidence on record, the learned Trial
Court acquitted all the accused persons
giving them benefit of doubt. The acquittal
was made by the learned Trial Court briefly
on
two
grounds,
firstly,
that
the
prosecution could not prove the motive
and, secondly, that the Exhibit Kha-1 and
Exhibit Kha-11 indicates that P.W.-1 and
P.W.-2 were inimical to the accused
10 All. The State of U.P. Vs. Ram Prakash & Ors..
1023
persons and, accordingly, disbelieved the
evidence of the two eye witnesses i.e.,
P.W.-1 and P.W.-2. The learned Trial Court
also observed that the P.W.-5 (Dhan Singh)
has not supported the prosecution case. On
these grounds, the learned Trial Court
acquitted all the four accused persons.
Aggrieved, the State has filed the present
government appeal.

Submissions:

6. Learned AGA submits as under:

(i) All the accused persons are
named in the F.I.R and F.I.R. was promptly
lodged.

(ii) The eye witnesses P.W.-1
(Nepal Singh) and P.W.-2 (Ram Vilas) have
proved the date, time and place of the
incident and that the accused persons have
committed murder of the deceased-Rishal
Singh. Their evidence are totally consistent
and also corroborate with the post mortem
report. There is no inconsistency between
the F.I.R., evidence of P.W.-1, P.W.-2 and
P.W.-5 and the post mortem report.

(iii) Even if the accused persons
have disputed the motive, still totally
consistent evidence of eye witnesses cannot
be discarded and based on the eye witness
account the accused persons deserve to be
convicted.

(iv) The prosecution has proved
the guilt of the accused persons beyond
reasonable
doubt
and,
therefore,
the
accused persons are liable to be convicted
under Section 302/34 I.P.C.

(v) The evidence of P.W.-5 (Dhan
Singh) is also consistent with the evidence
of P.W.-1 and P.W.-2. The finding of the
learned Trial Court that the P.W.-5 has not
supported the prosecution case is perverse.

(vi) The finding of the learned
Trial Court in paragraph no.11 of the
impugned judgement based on Exhibit
Kha-1 and Exhibit Kha-11 is also perverse
inasmuch as the Exhibit Kha-1 is an
application given by one Janak Singh
(father of the P.W.-2) to the Superintendent
of Police, Mathura on 03.07.1981 and no
evidence could be produced by the accused
persons/defence that there was any enmity
between the P.W.-2 and the accused
persons. Exhibit Kha-11 is a general
complaint made by large number of
villagers sometime in the year 1980 against
the President and the Secretary of Yuvak
Dal with regard to some irregularity in
distribution of dalia and milk powder in the
village in which P.W.-1 was also one of the
signatory. This Exhibit Kha-11 also does
not prove that there was any enmity
between the accused persons and the P.W.-1
or P.W.-2.

7. Learned counsel for the accusedopposite parties submits as under:

(i) Motive assigned by the
prosecution could not be proved and, as
such, the learned Trial Court has rightly
and lawfully acquitted the accused persons.

(ii) The most natural witness of
the incident is the P.W.-5 (Dhan Singh),
who has not supported the prosecution case
and has specifically stated in his evidence
that P.W.-1 and P.W.-2 were not with the
deceased-Rishal Singh at the time of
incident.

(iii) Exhibit Kha-1 and 11 proves
that the P.W.-1 and P.W.-2 were having
enmity with the accused persons and for
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
that reason, P.W.-1 has falsely implicated
the accused persons by naming them in the
First Information Report. The evidence of
P.W.-1 and P.W.-2 is totally unreliable
inasmuch as they are interested witnesses
and P.W.-1 and P.W.-2 both are nephews of
the deceased-Rishal Singh.

8. We have carefully considered the
submissions of learned counsels for the
parties and perused the record of the
appeal. We find that in the present case the
date, time and place of the incident is
undisputed. The incident took place at
about 00:30 hours in the mid-night of
12/13.04.1985. Police station is about 1.5
kilometres from the place of incident. The
First Information Report was lodged by the
eye witness P.W.-1 (Nepal Singh), which
was registered at the police station on
13.04.1985 itself at about 1:25 hours (1:25
A.M.) i.e., within 55 minutes of the
incident. Thus, the First Information Report
was promptly lodged by the first informant
P.W.-1. The special report was sent by the
Police Station- Sahpau to the District
Magistrate on 13.04.1985, which was
proved by D.W.-1 that it was received at
the residence of the District Magistrate,
Mathura on 13.04.1985. Thus, prompt
registration of F.I.R. and sending of the
special report is well proved.

9. In the First Information Report, the
motive imputed was that the deceasedRishal Singh wanted to purchase a land
situated near to his house, which was
owned by Pokhpal and Laturi Singh both
sons of Jai Singh and had also paid some
advance amount but about three days
before the date of incident, accused
Shishpal and Mohan Swarup had purchased
the land in the name of their father by
obtaining a registered sale deed from the
aforesaid Pokhpal and Laturi Singh. Some
other dispute regarding pairvi of a case by
deceased-Rishal Singh causing enmity was
also mentioned in the First Information
Report. The first informant has clearly
mentioned in the First Information Report
that he and the P.W.-2 (Ram Vilas) were
sleeping near to his uncle deceased-Rishal
Singh and he was having a Torch and there
was a lantern burning near to the cot of his
uncle and while he and the P.W.-2 were
talking, at about 00:30 hours in the night,
the accused-Ram Prakash armed with a full
length gun, accused-Jagdish armed with
pauna gun (short gun), accused-Mohan
Swarup armed with a country made pistol
and the accused-Shishpal armed with lathi
came there. All the three accused persons
armed with fire arm weapons fired at the
deceased-Rishal Singh, who died after
receiving the gun shot injuries. Thereafter,
the P.W.-1 shouted and Kanchan Singh,
Dhan Singh, Janak Singh and Sunahari Lal
Jatav reached there. The accused persons
fled away towards Budhaich and since
there was no weapon with him (P.W.-1),
therefore, he could not have the courage to
chase them. It was also mentioned in the
F.I.R. that the P.W.-1 and the P.W.-2 both
have seen the accused persons and have
recognized them in the light of Torch and
Lantern. The injuries found on the body of
the deceased-Rishal Singh during autopsy,
as extracted above; show that injury nos.1,
2, 4 and 6 are entry wound and injury nos.
3 and 5 are exit wound. Injury no.1, as
noted in autopsy report, shows the presence
of smoke powder. Injury no.2 shows
blackening around the wound.

10. The P.W.-1 in his examination-inchief has narrated the incident, which is
totally consistent with the First Information
Report. P.W.-1 in his evidence has
specifically stated that the registered sale
deed was obtained by the accused persons
10 All. The State of U.P. Vs. Ram Prakash & Ors..
1025
on 10.04.1984 and they wanted to take
possession of the land and in that matter
some quarrel took place between the
accused persons and the deceased-Rishal
Singh. He has specifically stated that while
his uncle was sleeping on the cot and he
alongwith P.W.-2 were present about 4-5
paces away from the cot. Near to the cot, a
Lantern was burning and they (P.W.-1 and
P.W.-2) were talking. The accused-Ram
Prakash has opened first fire from the head
side of the deceased-Rishal Singh and,
thereafter, the other accused persons have
also fired at the deceased-Rishal Singh by
their fire arms and both (P.W.-1 and P.W.-2)
have seen them in the light of the Lantern
and Torch. He stated that at about 1:00
A.M. in the night, he has given the First
Information Report at the police station. He
was extensively cross-examined by the
defence but nothing could be extracted by
the defence in the cross-examination of
P.W.-1 which may shake the confidence in
the testimony of the P.W.-1. His testimony
is totally consistent and also finds support
from the autopsy report. In his crossexamination,
P.W.-1
has
stated
that
accused-Ram Prakash has fired at the
deceased-Rishal Singh from a distance of
about one foot and the accused-opposite
party no.2 (Mohan Swarup) and the
accused-opposite party no.3 (Jagdish) have
fired with their fire arm weapons at the
deceased-Rishal Singh from a distance of
about 4-6 inches. This evidence stands
corroborated with the medical evidence
inasmuch as the injury no.1 contains smoke
powder, injury no.2 contains blackening
around the wound and the injury no.6
contains scorching and tattooing around the
wound. The inquest also shows the
recovery of small sized metallic pellets
from the wounds. Empty cartridges were
also recovered from the spot. Thus, the
distance of firing by the accused persons at
the deceased-Rishal Singh, as deposed by
the P.W.-1 in his evidence, corroborates
with the autopsy report. Thus, the evidence
of informant eye witness P.W.-1 is reliable,
trustworthy and cannot be disbelieved.

11. In his evidence, the eye witness
P.W.-2 has also narrated the incident as well
as seeing and recognizing the accused
persons in the light of the Torch and the
Lantern. He also proved his presence at the
date, time and place of the incident. He also
proved the motive. P.W.-2 was also very
specific in his evidence that accused-Ram
Prakash has opened first fire on the
deceased and, thereafter, the other two
accused persons have also fired. He stated
that he has seen them firing and three or
four shots were fired. The post mortem
report also discloses four fire arm injuries.
Thus,
the
evidence
of
P.W.-2
also
corroborates with the post mortem report.
In paragraph no.7 of his cross-examination,
he stated that the accused armed with gun
has fired on the deceased-Rishal Singh
from a distance of one foot and the barrel
of the gun was at a distance of one foot
from the body of the deceased. The accused
armed with short gun and country made
pistol have fired from a distance of about
one balisht. Thus, firing by the accused
persons with their fire arm weapons at the
deceased-Rishal Singh from a very close
distance has been proved by the eye
witness P.W.-2, which is corroborated with
the autopsy report. Firing from a very close
distance caused the presence of smoke
powder, blackening around the wound and
scorching and tattooing around the wound
found on the body of the deceased, as per
post mortem report. Thus, the distance from
which the fire was made by the accused
persons, as narrated by the eye witness
P.W.-2 is well corroborated with the
medical report. Although, the defence
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
extensively cross-examined the P.W.-2 but
could not extract any inconsistency in the
testimony of the P.W.-2.

12. Under the circumstances, the
evidence of P.W.-2 (Ram Vilas) being
totally consistent and well corroborated
with the medical report, is reliable and
trustworthy and, therefore, the learned Trial
Court has committed a manifest error of
law and fact to disbelieve it.

13. In his evidence, P.W.-5 has stated
that he was sleeping at his tubewell with
his brother, Kanchan and the mother and he
had heard the sound of fire at about 12:00
hours in the night of 12/13.04.1985. He
stated that the distance between the place of
incident and the place where he was
sleeping is about 80-90 paces. He stated
that the deceased-Rishal Singh had slept at
about 7 P.M. and he (P.W.-5) had slept at
about 8 P.M. In paragraph no.12 of his
evidence (in cross-examination), the P.W.-1
has stated that he came to his uncle with
P.W.-2 at about 9:00 P.M. In paragraph
no.10 (in cross-examination) the P.W.-1
stated that when he reached, then his uncle
and aunty were there and, thereafter, his
aunty returned at about 9:30 P.M. All these
facts show that the deceased-Rishal Singh,
as stated by the P.W.-5, had slept at about 7
P.M., P.W.-5 had slept at about 8 P.M. and,
therefore, P.W.-1 and P.W.-2 came at the
place of the deceased-Rishal Singh at about
9 P.M. In the light of these undisputed
facts, there is no inconsistency between the
evidence of P.W.-1, P.W.-2 and P.W.-5
inasmuch as the P.W.-5 has stated that the
deceased-Rishal Singh was sleeping alone
and he has not seen murder of the
deceased-Rishal Singh. In saying so, the
P.W.-5 is not incorrect inasmuch as he had
slept much before the P.W.-1 and P.W.-2
came to the deceased and, as such, it is
natural that he could not see the P.W.-1 and
P.W.-2 with the deceased-Rishal Singh. So
far as the evidence of P.W.-5 that he has not
seen the accused persons killing the
deceased-Rishal Singh is concerned, it is
suffice to observe that the P.W.-5 is not an
eye witness and he was sleeping at his
tubewell at 80-90 paces away from the
place of incident when the incident took
place. The P.W.-5 in his statement-in-chief
and in cross-examination has already
proved the date, time and place of incident,
which is totally consistent with the
evidence of P.W.-1 and P.W.-2 and the
medical evidence inasmuch as, as per
autopsy report, the death of the deceasedRishal Singh is found to be caused at about
00:30 hours in the night.

14. In this evidence, P.W.-7 (Dr.
Arvind Kumar), Medical Officer of District
Hospital, who conducted the autopsy has
proved the autopsy report and the injuries
mentioned therein. He also proved that left
side frontal parital and temporal bone of the
deceased
was
fractured.
Membranes
lacerated. Brain lacerated. 8 small metallic
pallets recovered from brain matter. Base of
the skull anterior middle cranial fossae
fractured, Thorax- Right side 3rd and 4th
ribs fractured posteriorly. Right plura
lacerated. Plural cavity contains one pint of
blood. Right upper below of the lung
lacerated. In the heart, left chamber half
full right full and right side neck bones and
vessels lacerated. Stomach empty and
N.A.D.
Small
intestine
N.A.D.
and
contained digested food material. Faecal
matter present. GB half full. Blader NAD
empty, he opined that death is caused due
to coma due to ante mortem injuries and
the deceased could have died in the night of
12/13.04.1985 at about 12:30 A.M. and the
injuries were sufficient in the original
course to cause death of the deceased-
10 All. The State of U.P. Vs. Ram Prakash & Ors..
1027
Rishal Singh. He also stated that if there is
blackening and charring around the wound,
then in his opinion, the injury must have
been caused from a distance within three
feet and if there is tattooing around the
wound, then the injuries must have been
caused from a distance of only 5-6 inches.
This evidence about the distance of firing
stands well corroborated with the evidence
of eye witnesses P.W-1 and P.W.-2.

15. The P.W.-3 (constable Jagat Ram)
has proved the chik F.I.R. P.W.-4 (constable
Narendra Singh) has proved the inquest
report. P.W.-7 (Dr. Arvind Kumar) has
proved the post mortem report. P.W.-6
(Investigating Officer) has proved the site
plan and recovery memos etc. The defence
extensively cross-examined the P.W.-6
(Investigating Officer) but could not extract
or demonstrate any inconsistency in his
evidence so as to doubt the involvement of
the
accused-opposite
parties
in
the
commission of offence in question.

16. The accused persons were also
examined under Section 313 Cr.P.C. We
have also discussed about the evidences of
D.W.-1, D.W.-2, D.W.-3, D.W.-4 and D.W.-
5, which by any stretch of imagination
supports the case of the defence.

17. So far as the motive part is
concerned, the prosecution has clearly
established the motive. That apart, the eye
witness account is totally consistent and is
corroborated with the medical evidence
and, therefore, the eye witnesses are
reliable and trustworthy.

18. The finding of the learned Trial
Court doubting the motive on the basis of
Exhibit Kha-1 and Exhibit Kha-11, is
perverse inasmuch as the Exhibit Kha-1 is
an application dated 03.07.1981 submitted
by one Janak Singh (father of the accusedJagdish) addressed to the Superintendent of
Police, Mathura wherein he complained
against the P.W.-2 and his father. The
incident involved in the present case is of
12/13.04.1985 i.e., after about four years of
the aforesaid application-Exhibit Kha-1. No
evidence could be led by the defence to
indicate that any grievance continued
against the P.W.-2 even after long gap of
time. The other documents relied by the
learned Trial Court is Exhibit Kha-11. It is
a joint application signed by large number
of villagers making complaint against the
President and the Secretary of Yuvak Dal
with regard to some irregularity in
distribution of dalia and milk powder in the
village. Eventually, amongst large number
of
signatories
of
said
representation/application (Exhibit Kha11), the P.W.-1 (Nepal Singh) is also a
signatory. This representation was made
collectively by the villagers sometime in
the month of August, 1980. No evidence
could be led by the defence that how this
could have caused enmity specific to the
P.W.-1 when the representation was made
collectively by the villagers on a minor
issue of irregularity in distribution of dalia
and milk powder to villagers. Under the
circumstances, we find that the findings
recorded by the learned Trial Court in this
regard to disbelieve the evidence of P.W.-1
and P.W.-2 and give weight to the Exhibit
Kha-1 and Exhibit Kha-11, is perverse.

Scope Of Interference In Appeal
Against Acquittal

19. In Manu Sharma v. State (NCT
of Delhi), (2010) 6 SCC 1, the Hon'ble
Supreme Court formulated the following
principles to be kept in mind by the
appellate Court while dealing with appeals
against acquittal: -
1028 INDIAN LAW REPORTS ALLAHABAD SERIES

"27. The following principles
have to be kept in mind by the appellate
court
while
dealing
with
appeals,
particularly against an order of acquittal:

(i) There is no limitation on the
part of the appellate court to review the
evidence upon which the order of acquittal
is founded.

(ii) The appellate court in an
appeal against acquittal can review the
entire evidence and come to its own
conclusions.

(iii) The appellate court can also
review the trial court's conclusion with
respect to both facts and law.

(iv) While dealing with the appeal
preferred by the State, it is the duty of the
appellate court to marshal the entire
evidence on record and by giving cogent
and adequate reasons set aside the
judgment of acquittal.

(v) An order of acquittal is to be
interfered with only when there are
"compelling and substantial reasons" for
doing so. If the order is "clearly
unreasonable", it is a compelling reason for
interference.

(vi) While sitting in judgment
over an acquittal the appellate court is first
required to seek an answer to the question
whether findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities, it can reappraise the evidence
to arrive at its own conclusion.

(vii) When the trial court has
ignored the evidence or misread the
material evidence or has ignored material
documents like dying declaration/report of
ballistic experts, etc. the appellate court is
competent to reverse the decision of the
trial court depending on the materials
placed."

20. In Khekh Ram v. State of H.P.,
(2018) 1 SCC 202 the Hon'ble Supreme
Court held that: -

"25. The elaboration of the facts
in the decisions cited at the Bar has been to
underline the factual setting in which
reversal of the orders of acquittal had been
interfered with by this Court. Though it is
no longer res integra that an order of
acquittal, if appealed against, ought not to
be lightly interfered with, it is trite as well
that the appellate court is fully empowered
to review, reappreciate and reconsider the
evidence on record and to reach its own
conclusions both on questions of fact and
on law. As a corollary, the appellate court
would be within its jurisdiction and
authority to dislodge an acquittal on sound,
cogent and persuasive reasons based on the
recorded facts and the law applicable. If
only when the view taken by the trial court
in ordering acquittal is an equally plausible
and reasonable one that the appellate court
would not readily substitute the same by
another view available to it, on its
independent appraisal of the materials on
record. This legally acknowledged restraint
on the power of the appellate court would
get attracted only if the two views are
equally plausible and reasonable and not
otherwise. If the view taken by the trial
court is a possible but not a reasonable one
10 All. The State of U.P. Vs. Ram Prakash & Ors..
1029
when tested on the evidence on record and
the legal principles applied, unquestionably
it can and ought to be displaced by a
plausible and reasonable view by the
appellate court in furtherance of the
ultimate cause of justice. Though no
innocent ought to be punished, it is equally
imperative that a guilty ought not to be let
off casually lest justice is a casualty."

21. In Achhar Singh v. State of H.P.,
(2021) 5 SCC 543, the Hon'ble Supreme
Court explained the scope of powers of the
High Court in appeals against acquittal in
the following manner: -

"16. It is thus a well-crystalized
principle that if two views are possible, the
High Court ought not to interfere with the
trial court's judgment. However, such a
precautionary
principle
cannot
be
overstretched to portray that the "contours
of appeal" against acquittal under Section
378 Cr.P.C. are limited to seeing whether
or not the trial court's view was impossible.
It is equally well settled that there is no bar
on the High Court's power to re-appreciate
evidence in an appeal against acquittal.
This Court has held in a catena of
decisions (including Chandrappa v. State of
Karnataka, State of A.P. v. M. Madhusudhan
Rao and Raveen Kumar v. State of H.P.) that the
Cr.P.C. does not differentiate in the power,
scope, jurisdiction or limitation between
appeals against judgments of conviction or
acquittal and that the appellate court is free to
consider on both fact and law, despite the selfrestraint that has been ingrained into practice
while dealing with orders of acquittal where
there is a double presumption of innocence of
the accused."

22. The principles as enunciated above
and the guidelines which emerge from the
aforesaid decisions are that the scope of appeal
against acquittal under Section 378 Cr.P.C is not
limited to scrutinize whether or not the trial
court's view is a possible view. The High Court
has to appreciate the evidence in an appeal
against acquittal in the same manner as it would
do in an appeal against conviction. However,
while adjudicating an appeal against acquittal,
the High Court has to keep into consideration
that the accused having been acquitted in trial,
there is a double presumption of innocence of
the accused.

23. Applying the aforesaid principles on
scope of interference in appeal against aquittal
by the appellate court and for the reasons
aforestated, we are of the considered view that
on appreciation of the evidences the findings
recorded by the learned Trial Court while
acquitting the accused are perverse and even
contrary to the evidences on record. The
impugned
judgement
and
order
dated
22.07.1986 in Session Trial No.244 of 1985
(State vs. Ram Prakash and Others) relating to
Case Crime No.58 of 1985 under Section
302/34 I.P.C., P.S.- Sahpaul, District- Mathura
passed by the 3rd Additional Sessions Judge,
Mathura cannot be sustained and is hereby set
aside. The accused opposite parties are held to
be guilty of the offence committed by them
under Section 302/34 I.P.C. Consequently, they
are liable for punishment under Section 302/34
I.P.C.

24 . Accordingly, this government
appeal is allowed and accused/opposite
parties are held to be guilty of commission
of offence under Section 302/34 I.P.C.

On quantum of sentence

25. Heard learned counsels for the
parties on quantum of sentence.

26. Learned counsels for the parties
jointly submit that only life imprisonment
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
may be awarded to the accused-opposite
parties. We also find that there is no such
circumstances, which may be said to be the
rarest of the rare circumstances so as to
inflict death penalty under Section 302/34
I.P.C. against the accused-opposite parties.
Therefore, we agree with the request made
by learned counsels for the parties and,
accordingly, sentence the accused-opposite
parties
with
life
imprisonment.
The
accused-opposite party nos.1, 3 and 4 shall
surrender before the Court concerned
forthwith and they shall be sent to jail to
serve out the sentence awarded by us.

27. The C.J.M. concerned is directed
to take the accused-opposite party nos.1, 3
and 4 into custody and send them to jail to
serve out the sentence. The accusedopposite party no.2 has already died and
appeal qua the accused-opposite party no.2
has already been abated, as mentioned
above.

28. A copy of this judgement be sent
to the trial court for compliance and office
shall return the trial court record forthwith.

----------
(2023) 10 ILRA 1030
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.10.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Matters Under Article 227 No. 5218 of 2023

Ayaz Ahmad & Ors. ...Petitioners
Versus
Civil Judge (Jn. Dv.), Sultanpur & Ors.
 ...Respondents

Counsel for the Petitioners:
Pradeep Kumar Shukla
Counsel for the Respondents:
C.S.C., Mohan Singh

(A) The Constitution of India, 1950 -
Article 227 - Supervisory jurisdiction - The
Code of Civil Procedure, 1908 - Section 82
- Execution of decree, Order-39, Rule-3 -
Before granting injunction ,Court to direct
notice to opposite party , Section 148-A -
Right to lodge a caveat, The U.P.
Zamindari Abolition and Land Reforms
Act,1950 - Section 123 , The U.P. Revenue
Code-2006 - Section 67-A(i) - Certain
house sites to be settled with existing
owner thereof - even if the caveator does
not show his right in regard to issue in
question and wants to be heard before
any order is passed on the application, he
has a right to be heard before passing any
order, if the caveat has been lodged by
him. (Para - 9)

Petitioners were directed to remove an alleged
encroachment - filed suit for permanent
injunction - application for interim injunction -
trial court passed order without considering
provisions of Order-39, Rule-3 C.P.C. - due to
urgency no requirement of issuance of notice to
opposite parties - Order passed by Civil court -
under challenge - direction - not to demolish
housing abode - not to dislodge peaceful
occupation of petitioners over land - to decide
interim injunction application on merits -
observation of trial court - caveat filed - without
hearing caveator/ defendants not appropriate to
pass an ex-parte order - issued notice to
caveator/ defendant - neither counsels for
defendants were present nor caveator - when
case was taken up.(Para - 2,3,7)

HELD:- No illegality or error in the impugned
order in issuing notice to the caveator, if he was
not served.
Order dated 20.09.2023 has
been properly passed and there is no illegality
or error. Petition misconceived and lacks merit
in challenging the order.
(Para - 10,12 )

Petition dismissed. (E-7)

(Delivered by Hon'ble Rajnish Kumar, J.)